U.S. v. Yanez Sosa

• Decision Date: 04 January 2008
• Docket Number: No. 06-20401.,06-20401.
• Citation: 513 F.3d 194
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Feliciano YANEZ SOSA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

513 F.3d 194

UNITED STATES of America, Plaintiff-Appellee, v. Feliciano YANEZ SOSA, Defendant-Appellant.

No. 06-20401.

United States Court of Appeals, Fifth Circuit.

January 4, 2008.

John Richard Berry, James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Margaret Christina Ling, Asst. Fed. Pub. Def., Philip G. Gallagher, Houston, TX, for Yanez Sosa.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, GARZA and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The defendant-appellant Feliciano Yanez Sosa appeals his judgment of conviction and sentence for possession of one or more firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Sosa raises two issues on appeal. First, Sosa argues that the district court abused its discretion in admitting as lay opinion testimony the opinions of various law enforcement officers on matters related to firearms possession and drug trafficking. Second, Sosa argues that the district court abused its discretion in refusing his requested jury instruction on the definition of the "in furtherance" element of the crime of possessing a firearm in furtherance of a drug trafficking offense. For the following reasons, we AFFIRM.

I

The events leading to Sosa's eventual arrest began with law enforcement officers from the Houston Police Department's narcotics team conducting surveillance on a red Mercury Cougar based on a tip that the vehicle was transporting illegal drugs. The Cougar was registered to Sosa. The officers observed the driver of the Cougar conduct what appeared to be two drug deals at two separate locations in the Houston area. After that, the officers followed the Cougar to an apartment complex where they watched the driver enter and leave an apartment and then drive off again. Most of the officers continued to follow the Cougar; one officer remained behind to watch the apartment.

The officers stopped the Cougar for a traffic violation and then arrested the driver, Porfirio Gaillardo, when they discovered that he did not have a driver's license. A search of the vehicle revealed approximately sixty grams of cocaine and $1,149 in currency. One of the officers testified, based on his past experience purchasing drugs undercover, that the street value of the cocaine was about $100 per gram, such that the total value of the cocaine found in the car was about $6,000,

During the traffic stop, the officer who remained behind at the apartment complex called the rest of the narcotics team to inform them that a white Lincoln Navigator had arrived at the complex and that two occupants, a man (later identified as Sosa) and a woman, entered the apartment where, the driver of the Cougar had been seen earlier.

The officers returned to the apartment. At the door, the officers spoke with one of the occupants of the apartment, Israel Zuazo. Through the doorway, the officers saw Sosa and another male sitting on the sofa in the living room. Zuazo signed a written consent for the officers to search the apartment. Interviewing Zuazo, the officers learned that Zuazo slept on the couch in the living room and that Sosa occupied the west bedroom of the apartment.

After obtaining Sosa's consent, the officers searched the apartment and found approximately 95.3 grams of powder cocaine and 2.3 grams of crack cocaine behind the drywall in the linen closet of the west bedroom, packaged in "small tiny baggies," which one officer testified was indicative of packaging for individual sales. The estimated street value of the drugs found in the west bedroom was $10,000. The officers also found a loaded.357 caliber revolver in the night stand by the bed in the west bedroom and an unloaded pistol-grip shotgun in the clothes closet. The officers discovered additional cocaine in the east bedroom and in the Navigator. The officers found cans of acetone and lactose as well, chemicals which several officers testified—over objection—are used in manufacturing cocaine. Also, the officers found scales and some notebooks containing amounts of money and recipes for "cutting" or "stretching" cocaine. One officer described the notebooks as "ledgers," used for tracking the financial details of drug transactions. A search of Sosa revealed about $1,400 cash.

Sosa was subsequently charged in a four-count indictment with unlawful possession of a firearm by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2) (count one); possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (count two); possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (count three); and possession of one or more firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (count four). Sosa's case was tried to a jury. He stipulated at trial to all of the elements necessary to convict him on the first three counts. After a two-day trial, the jury found Sosa guilty of counts one, two, and three. However, on the parties' consent, the district court declared a mistrial as to count four after the jury informed the court that they were deadlocked eleven-to-one on that count and unable to reach a verdict.

The case was retried about a month later. Prior to the second trial, reacting to testimony elicited by the Government in the first trial, Sosa filed a motion in limine asking the district court to exclude expert testimony for which the Government had failed to provide disclosures under Rule 16 of the Federal Rules of Criminal Procedure regarding: (1) how a narcotic is manufactured or the inner workings of a narcotics distribution network; (2) the nature, uses, construction or modification of the firearms at Sosa's residence; and (3) the reasons a person found with narcotics may also possess firearms. The district court denied the motion.

During trial, over Sosa's objections, the Government elicited testimony on each of these matters. First, Officer Veliz, a ten-year veteran of the Houston Police Department's Narcotics Division, testified about the use in drug manufacturing of acetone, a chemical found in Sosa's apartment. Officer Veliz stated:

In narcotics trafficking, those substances are used when a person would purchase a bulk amount of powder cocaine. However much that amount would be, they would be stretched and these would be the chemicals that would be used to stretch out the amount of the cocaine in order to make more money.

Officer Veliz also testified that he had seen firearms located near drugs in prior investigations on "many" occasions and that, based on his experience, it was common to find firearms in close proximity to drugs because "[w]eapons are used to defend whatever it is that you feel is valuable to you. You're going to have weapons to defend yourself from other people with the drugs that are in there, in order to defend your product."

Next to testify was Agent Saltarelli, a Special Agent of the Bureau of Immigration and Customs Enforcement ("ICE") and member since 2000 of the joint-task force Targeted Narcotics Enforcement Team. Agent Saltarelli testified that in his personal experience it was common to find both guns and drugs together in the same place, noting that lilt's kind of a dangerous business." He also stated that he was not surprised to find the drugs and guns in such close proximity.

Third, Officer Reeves testified. Officer Reeves was a twenty-year veteran of the Houston Police Department with four years of experience as a narcotics officer. He described the shotgun found in Sosa's closet:

It is a pistol grip, which is often modified. Normally it would come with a long stock. The pistol grip is for close quarters, where you can hold the gun to your side. You're not going to be bringing it up to your shoulder as if in a hunting stance, and you're not concerned about taking a long shot. You're doing a short shot. So, if you're pointing in the general area, you're going to hit.

Officer Reeves testified that the pistol grip on the shotgun made it easier to conceal because the shotgun was shorter. He also stated that he had seen firearms in close proximity to drugs "[mlany, many times." When asked why, he testified: "One just coincides with the other. Either there is violence involved and there is fear of being robbed or occasionally drug dealers rob other drug dealers. Where you find drugs, you're going to find weapons."

Officer Reeves also testified about the role of chemicals found in Sosa's apartment, specifically lactose and acetone, in drug manufacturing. He explained:

Well, you have your cocaine and when you purchase it, it's at a purity where you can take lactose or there is other products that you can get at stores like lactose, and you take the acetone, you mix the initial cocaine with the lactose and the acetone, you, make it into a mud or paste in a pot or bowl, and then after you are done with that, you place it into a mold, whatever you want to shape it into. It's just like when you are filling up your car, you spill gasoline on the ground, the acetone does the same thing, it will eventually just evaporate. And as the acetone evaporates out of the cocaine and the paste that you have made, it will again form into a chalky kind of hard substance if you can press it also, and some will press it back into the brick form. And as they break it off and they make sales, it looks chunkier and it makes the product look like it's more pure because it looks chunkier and not just so powdery.

With respect to acetone, Officer Reeves explained:

Just like I said, it's used to break down the cocaine. It's often found in women's fingernail cleaner. If you ever had your wife sit and clean her fingernails, the strong pungent odor when she's using the cotton balls to clean the nails, the polish off of her nails, that's what acetone is....