United States v. Flirt

Case: 22-40107 Document: 00516799726 Page: 1 Date Filed: 06/26/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 26, 2023
No. 22-40107
Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Ronald Flirt,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:21-CR-235-1
______________________________
Before Higginbotham, Smith, and Engelhardt, Circuit Judges.
Per Curiam:*
A jury found Ronald Flirt guilty of conspiracy and possession with
intent to distribute 30 grams of methamphetamine. He challenges opinion
testimony and the sufficiency of the evidence. We AFFIRM.
I.
Law enforcement officers in Corpus Christi were monitoring a
suspected drug trafficking organization at a house when they observed Ashley
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Yardley enter the building and leave within a few minutes, departing in a
vehicle driven by Ronald Flirt and stopped the vehicle as it drove away. The
officers found ten small bags of methamphetamine—one in Flirt’s pocket,
eight in a headphone case in Flirt’s pocket, and one that Flirt dropped in the
vehicle in front of an officer.
Prosecutors charged Flirt with one count of conspiracy to possess with
intent to distribute methamphetamine and one count of possession with
intent to distribute methamphetamine.1 Flirt’s intent to distribute the drugs
was the only issue at trial, as he does not contest that he possessed
approximately 30 grams of methamphetamine. The jury found Flirt guilty on
both counts, and the district court sentenced him to 92 months’
imprisonment. Flirt timely appealed.
II.
“When a defendant moves for acquittal in the district court,
challenging the sufficiency of the evidence, this Court reviews the district
court’s denial de novo.”2 “The jury’s verdict will be affirmed unless no
rational jury, viewing the evidence in the light most favorable to the
prosecution, could have found the essential elements of the offense to be
satisfied beyond a reasonable doubt.”3 The jury may make factually based
inferences, but “a conviction cannot rest on an unwarranted inference, the
determination of which is a matter of law.” 4 “While we consider evidence
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1
21 U.S.C. §§ 841(a)(1), and 841(b)(1)(B); 18 U.S.C. § 2(a).
2
United States v. Ganji, 880 F.3d 760, 767 (5th Cir. 2018) (citing United States v.
Danhach, 815 F.3d 228, 235 (5th Cir. 2016)).
3
United States v. Roetcisoender, 792 F.3d 547, 550 (5th Cir. 2015) (quoting United
States v. Beacham, 774 F.3d 267, 272 (5th Cir. 2014)).
4
United States v. Fitzharris, 633 F.2d 416, 422 (5th Cir. 1980).
2
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that countervails the jury’s verdict, all reasonable inferences are made in
favor of the jury’s verdict.”5
Appellate review of the admission of law enforcement officers’
testimony is conducted under an abuse of discretion standard, subject to
harmless error analysis.6 Similarly, the exclusion of expert witness testimony
is reviewed for an abuse of discretion and will not be disturbed unless it is
“manifestly erroneous.”7
III.
On appeal, Flirt argues: (1) the district court erred by allowing the
officers to testify to his intent; (2) the district court erred by excluding his
expert witness’s comparison of Flirt’s usage to other drug users; and (3) the
evidence is insufficient to sustain his conviction for intent to distribute. We
discuss each in turn.
A.
We have affirmed the use of a law enforcement agent’s testimony
regarding the quantity of narcotics vis-à-vis intent to distribute. In United
States v. Cain, for example, we affirmed the inclusion of testimony from a
DEA agent who testified that “[t]he form and amount” of the narcotic at
issue was “some evidence of an intent to distribute.”8 In United States v.
Thomas, we found the trial court did not abuse its discretion when a police
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5
United States v. Bowen, 818 F.3d 179, 186 (5th Cir. 2016) (citing Roetcisoender, 792
F.3d at 550).
6
United States v. Speer, 30 F.3d 605, 609–10 (5th Cir. 1994); United States v.
Williams, 957 F.2d 1238, 1240–41 (5th Cir. 1992).
7
United States v. Kuhrt, 788 F.3d 403, 418 (5th Cir. 2015) (quoting United States v.
Wen Chyu Liu, 716 F.3d 159, 167 (5th Cir. 2013)).
8
440 F.3d 672, 675 (5th Cir. 2006).
3
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detective testified “about the concordance between distribution quantities
and the amount of” drugs the defendant possessed.9
Here, DEA Agent Benavides, a law enforcement veteran with nearly
three decades of experience, testified that the baggies contained a
distributable amount of methamphetamine and, in his experience, the
wrapping of ten individual baggies indicated the drugs were prepared for
distribution, as users regularly buy one bag at a time. Officer Haywood
testified similarly, as did Special Agent Charrier. Allowing such testimony
falls within the bounds of our precedent.10
Flirt’s argument that the agents’ testimony inappropriately speaks to
a drug profile misses the mark. Here, the law enforcement officers’ testimony
concerned both their specific experiences with narcotics investigations as
well as the direct evidence at issue—namely the quantity and the baggies—
rather than “showing how a defendant fit a list of characteristics making up
the ‘profile’ of a drug courier.”11 True, there exists a “fine but critical line”
between profiling evidence and an officer’s specific, learned experience, but
exist it does,12 and the testimony at issue did not cross it.
B.
Flirt’s expert witness, Jose Ramirez, a licensed clinical dependency
counselor with nearly two decades of experience treating thousands of
individuals with methamphetamine addiction, was barred from comparing
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9
294 F. App’x 124, 134 (5th Cir. 2008) (unpublished).
10
See Cain, 440 F.3d at 675; Thomas, 294 F. App’x at 134.
11
United States v. Buchanan, 70 F.3d 818, 833 n.19 (5th Cir. 1995), as amended (Feb.
22, 1996) (citing Williams, 957 F.2d at 1241).
12
United States v. Sosa, 897 F.3d 615, 619 (5th Cir. 2018) (quoting United States v.
Gonzalez-Rodriguez, 621 F.3d 354, 364 (5th Cir. 2010)).
4
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Flirt’s usage with other specific addicts he has treated in the past. Flirt
contends this exclusion was improper. It was not.
The Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc.13 guides our review. “‘Under Daubert, Rule 702 charges
trial courts to act as gate-keepers, making a preliminary assessment of
whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology properly
can be applied to the facts in issue.’”14 The last prong, reliability, is at the
heart of this issue. As the Supreme Court reiterated, Daubert “imposes a
special obligation upon a trial judge to ensure that any and all scientific
testimony . . . is not only relevant, but reliable.”15
Ramirez himself conceded that his conclusions were based exclusively
on self-reporting and trust rather than independent verification via urinalysis
or other toxicological data. Absent an objective verification methodology, the
court restricted Ramirez’s testimony from drawing upon “statistics and
data” while permitting “a follow-up question or two concerning his
experience.” And Flirt’s counsel elicited Ramirez’s opinion of Flirt’s
defense based on “[his] experience and what [he has] heard from other
clients.” We find no manifest error in these guardrails.
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13
509 U.S. 579 (1993).
14
Kuhrt, 788 F.3d at 419 (quoting United States v. Tucker, 345 F.3d 320, 327 (5th
Cir. 2003)).
15
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (emphasis added). And,
of course, this applies “to all species of expert testimony, whether based on scientific,
technical, or other specialized knowledge,” Tucker, 345 F.3d at 327 (internal quotation
marks omitted), as Rule 702’s text “makes no relevant distinction between ‘scientific’
knowledge and ‘technical’ or ‘other specialized’ knowledge.” Kumho Tire Co., 526 U.S. at
147.
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C.
Finally, Flirt challenges the sufficiency of the evidence, arguing that
no rational juror could find the essential elements of intent to distribute
beyond a reasonable doubt. We disagree.
Intent to distribute may be inferred from the drug’s quantity, purity,
and value.16 To be sure, “a quantity that is consistent with personal use does
not raise such an inference in the absence of other evidence,”17 but that is not
the case here. “This court has overturned convictions of possession with
intent to distribute 2.89 grams and 7.998 grams of crack cocaine,”18 and the
Supreme Court held similarly vis-à-vis 14.68 grams of cocaine.19 By contrast,
we held that 19.67 grams of crack alone could give rise to an inference of an
intent to distribute, particularly where a DEA agent testified that that
quantity indicated such an intent.20 Here, there was nearly 30 grams, or
double the threshold at which we have found that inference wanting. And the
drugs were contained in many distinct smaller baggies, which we have held
contributed to an intent to distribute.21 While the district court saw this as a
close call, it is a judgement we need not fault to conclude that the evidence is
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16
See United States v. Valdiosera-Godinez, 932 F.2d 1093, 1096 (5th Cir. 1991).
17
United States v. Hunt, 129 F.3d 739, 742 (5th Cir. 1997) (citing United States v.
Skipper, 74 F.3d 608, 611 (5th Cir. 1996)); see also United States v. Onick, 889 F.2d 1425,
1431 (5th Cir. 1989).
18
United States v. Kates, 174 F.3d 580, 582 (5th Cir. 1999) (footnotes omitted).
19
See Turner v. United States, 396 U.S. 398, 422–23 (1970).
20
See Kates, 174 F.3d at 583 (holding that “together with DEA Agent Lamberson’s
confirmation that the 19.67 grams of crack was almost surely intended for distribution, the
amount possessed by Kates created at least a jury question regarding intent to distribute”
such that “[t]he jury had sufficient evidence to conclude that Kates was guilty as
charged”).
21
See United States v. Compton, 704 F.2d 739, 742 (5th Cir. 1983).
6
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not so lacking that no rational juror could conclude that the Government
made its case.
*****
AFFIRMED.
7