U.S. v. Santana, 97-3450

• Decision Date: 24 July 1998
• Docket Number: No. 97-3450,97-3450
• Citation: 150 F.3d 860
• Parties: UNITED STATES of America, Appellee, v. Flavio Diaz SANTANA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 860

150 F.3d 860

UNITED STATES of America, Appellee, v. Flavio Diaz SANTANA, Appellant.

No. 97-3450.

United States Court of Appeals Eighth Circuit.

Submitted March 10, 1998.

Decided July 24, 1998.

James Lackner, Minneapolis, MN, argued (David L. Lillehaug, United States Attorney and Brian McMahon, Minneapolis, MN, on the brief), for appellee.

Eric Carlisle Nelson, Minneapolis, MN, argued, for appellant.

Before WOLLMAN and LOKEN, Circuit Judges, and BATAILLON, ¹ District Judge.

WOLLMAN, Circuit Judge.

Flavio Diaz Santana appeals from the judgment entered by the district court ² on his convictions for conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 and for aiding and abetting the possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). We affirm.

I.

In October of 1996, Bill Wyffels, a law enforcement officer with the Eden Prairie Police Department and a member of the Southwest Hennepin Drug Task Force, received information from a confidential informant that a man named Gerardo Arellano was selling cocaine in Shakopee, Minnesota. After independently corroborating certain aspects of the informant's report, Officer Wyffels and other members of the drug task force began surveillance of Arellano's residence. On October 22, the informant, acting under the direction of the officers, set up a controlled buy in which he was to purchase one ounce of cocaine from Arellano. Following the successful completion of this purchase, the officers obtained a search warrant for Arellano's apartment. The officers did not immediately execute the warrant, however and instead instructed the informant to set up another buy, this time for fifteen ounces of cocaine. The informant contacted Arellano by telephone on October 30. Arellano told the informant that he needed to contact his supplier in order to find out if he could obtain the drugs. Arellano called back a short time later, telling the informant that his supplier was delivering the cocaine from Minneapolis and that they could meet in about twenty minutes.

The officers set up surveillance around Arellano's apartment. After a short while, they observed an automobile approach and come to a stop. The driver, later identified as Diaz, and a passenger, Timeteo Ruiz, exited the vehicle and accompanied Arellano, who had been waiting outside, into Arellano's apartment. Arellano and the informant then met as scheduled at a local bar before returning to the apartment. Once inside the apartment, Arellano showed the informant a large plastic sack containing numerous plastic bags filled with cocaine. After inspecting the drugs, the informant left the apartment, explaining that he needed to retrieve the money from his vehicle.

The officers then executed the search warrant, discovering during the search a plastic sack, near which Diaz was standing, containing fifteen individual packages, each of which contained one ounce of cocaine. The officers also discovered 16 grams of cocaine in the pocket of a shirt hanging in Arellano's closet and 35.2 grams of cocaine in the trunk of Arellano's car. The search also resulted in the discovery of $3,449 in cash. Of this total, Diaz carried $2,059, Ruiz carried $360, and the remainder was found in the shirt in Arellano's closet. In addition, the officers discovered Arellano's phone number in Diaz's wallet. Lastly, fingerprint analysis of the seized cocaine packages revealed a solitary fingerprint belonging to Diaz.

A grand jury returned a three-count indictment against Arellano, Diaz, and Ruiz. Counts I and III charged each defendant with conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 and with aiding and abetting the possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Count II was returned against Arellano only, and charged him with distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). After the indictment was returned, Ruiz apparently fled the area, and his whereabouts are unknown. Arellano agreed to plead guilty and cooperate with the government. Diaz rejected a similar plea bargain, choosing instead to proceed to trial.

Arellano testified that Diaz had been supplying him with cocaine for approximately three months, beginning in August of 1996. A typical delivery consisted of approximately two ounces of cocaine. Initially, Arellano received about two deliveries per week. The frequency of the deliveries steadily increased as Arellano began to develop a customer base. By October of 1996, Arellano was receiving two-ounce deliveries on a daily basis. Arellano also testified that on the day of his arrest he had contacted Diaz about obtaining fifteen grams of cocaine and that Diaz had subsequently delivered the cocaine found in the apartment.

Diaz testified on his own behalf, denying Arellano's allegations. He testified that he had driven Ruiz to Shakopee as a favor and had no knowledge about the nature of Ruiz's dealings with Arellano. He claimed not to have known that Ruiz and Arellano were involved in a cocaine transaction until shortly before the police arrived, at which time he decided to investigate the contents of the plastic sack. He claimed that he then picked up one of the individual bags, thereby explaining the presence of his fingerprint.

The jury returned a verdict finding Diaz guilty of both charged counts. The district court sentenced him to 78 months' imprisonment, the lowest possible sentence in the applicable range. Diaz now appeals.

II.

Diaz first contends that his trial was marked by numerous defects, including prosecutorial misconduct and erroneously admitted expert testimony.

We begin with Diaz's allegations of prosecutorial misconduct. He contends that statements made and testimony elicited by the government constituted improper bolstering of or vouching for Arellano's credibility. Improper vouching may occur when the government: (1) refers to facts outside the record or implies that the veracity of a witness is supported by outside facts that are unavailable to the jury; (2) implies a guarantee of truthfulness; or (3) expresses a personal opinion about the credibility of a witness. See United States v. Beasley, 102 F.3d 1440, 1449 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1856, 137 L.Ed.2d 1058 (1997).

Diaz points to two instances of improper vouching. First, the government asked Arellano to explain the terms of his plea agreement, to which Arellano simply replied, "Just to tell the truth." Second, the government stated in its closing argument that "the government doesn't want anyone convicted on anything less than the truth." Diaz argues that these instances reflect an attempt on behalf of the government to act as a guarantor of truthfulness. We disagree. Our decisions establish that "[e]vidence of the existence, the terms, and the witness's understanding of a plea or witness immunity agreement is not vouching." Id. 102 F.3d at 1450; see also United States v. Magee, 19 F.3d 417, 421 (8th Cir.1994). With respect to the government's closing remarks, the prosecutor did not express a personal opinion regarding Arellano's credibility, did not make any guarantees of truthfulness, and did not imply that she knew something that the jury did not. See Beasley, 102 F.3d at 1449. We therefore conclude that there was no impermissible vouching in this case.

We have considered Diaz's other allegation of prosecutorial misconduct and conclude that it is without merit.

Diaz next contends that the district court abused its discretion in admitting the testimony of Captain Eldon Fontana of the Hennepin County Police Department. Diaz complains that Fontana was improperly allowed to testify regarding the frequency with which fingerprints are recovered from plastic bags. We review a district court's decision to admit expert testimony for a clear abuse of discretion. See United States v. Chard, 115 F.3d 631, 635 (8th Cir.1997).

Rule 702 of the Federal Rules of Evidence provides that an expert witness may be qualified "by knowledge, skill, experience, training, or education...." Here, Fontana had twenty-six years of experience in law enforcement, including extensive experience in drug-related investigations. The crime lab that performed the fingerprint testing in this case was under his command. Fontana's experience and knowledge qualified him to testify regarding how common it was for the crime lab to recover adequate fingerprints from plastic bags. His testimony was relevant and helpful to the jury in that it concerned matters beyond the general knowledge of average individuals. See United States v. Shedlock, 62 F.3d 214, 219 (8th Cir.1995). Thus, the district court did not abuse its discretion in admitting his testimony.

III.

Diaz...