United States v. Sanders

Decision Date02 February 2012
Docket NumberNo. 10–13667.,10–13667.
Citation668 F.3d 1298,23 Fla. L. Weekly Fed. C 733
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Walter SANDERS, Jr., Defendant–Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

OPINION TEXT STARTS HERE

Lisa Wilson Tarvin, Rodney D. Bullard, George Jeffrey Viscomi, Asst. U.S. Attys., Lawrence R. Sommerfeld, Bret R. Williams, Sally Yates, Atlanta, GA, for PlaintiffAppellee.

Michael A. Caplan (Court–Appointed), Bondurant, Mixon & Elmore, LLP, Atlanta, GA, for DefendantAppellant.

Appeal from the United States District Court for the Northern District of Georgia.

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

Following a jury trial, Walter Sanders, Jr., appeals his convictions for conspiring to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841 and 846, and for aiding and abetting possession with intent to distribute five kilograms or more of cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841. After review of the record and oral argument, we affirm.

I. PROCEDURAL BACKGROUND
A. Sanders's Arrest

In June 2006, Immigration and Customs Enforcement (“ICE”), a division of the U.S. Department of Homeland Security, began investigating Gracie Priscilla Medina for distributing cocaine on behalf of two drug cartels. Through a confidential informant, ICE learned that a commercial tractor-trailer carrying a concealed load of cocaine was bound for one of Medina's distribution centers in Fayetteville, Georgia.

On May 7, 2007, ICE alerted the Georgia State Patrol (“GSP”) to look out for the tractor-trailer. An officer with the GSP stopped the tractor-trailer, which was driven by Defendant Sanders, for various traffic and equipment violations. The video camera in the GSP vehicle recorded what happened during the traffic stop, which led to Sanders's arrest. After obtaining Sanders's consent, GSP officers searched both the tractor and the trailer. They discovered 153 kilograms of cocaine hidden in a pallet of cabbages, which were rotting because the refrigeration unit in the trailer was inoperable. Sanders was arrested on state charges.

B. Sanders's Indictment on Federal Charges

In 2008, a federal grand jury indicted Sanders on the present drug charges. Specifically, the superseding indictment charges that (1) Sanders, Medina, and two others—Daniel Marillo, Jr., and Salvador Marillo—conspired to possess with intent to distribute five kilograms or more of cocaine and (2) Sanders and Salvador Marillo aided and abetted others to possess with intent to distribute five kilograms or more of cocaine.1

Daniel and Salvador Marillo pled guilty to the drug conspiracy charged in the indictment. Medina pled guilty to a conspiracy charged in a separate indictment. All three cooperated with the government. Sanders proceeded to trial.

C. Motions to Suppress and Other Pretrial Matters

Before Sanders's trial, the government submitted both a “Sentencing Information Establishing Prior Conviction for the Purpose of Increased Punishment” and a notice that the government intended to introduce Sanders's 1988 conviction for selling marijuana. Sanders moved in limine to exclude evidence of his 22–year–old marijuana conviction as too remote and dissimilar from the present offense. Sanders also moved to suppress (1) his statements during the traffic stop and (2) the cocaine seized from his tractor-trailer. 2

At a suppression hearing on the eve of trial, the district court heard testimony from Sanders and the GSP officer who stopped the tractor-trailer. The government played an hour-long video of the traffic stop shot from the GSP vehicle. The district court found that the video clearly showed that Sanders consented to the search of both the tractor and the trailer. The district court denied the motion to suppress (1) the cocaine seized during the traffic stop and (2) his statements during the traffic stop. As to his prior marijuana conviction, the district court denied Sanders's motion in limine without prejudice to renewal during trial.

II. TRIAL EVIDENCE

At trial, several law-enforcement witnesses testified about both what occurred at the traffic stop and the background of the government's investigation. Sanders's co-conspirators testified about both the load of cocaine charged in the indictment and a previous load of 7,700 pounds of marijuana that Sanders transported from Texas to North Carolina.

A. Federal Investigation of Medina

The government's first witness was Agent Andre Kenneybrew, a special agent with ICE. Agent Kenneybrew testified that in 2006 he began investigating drug activity by Gracie Priscilla Medina. Through confidential informants, Agent Kenneybrew learned that Medina worked for a drug-trafficking organization run by Dimas Gonzalez (the “Gonzalez organization”) and that Medina was responsible for collecting money and acquiring warehouses in the Atlanta area. Medina was instructed to lease the warehouses and “make it appear as if it was a legitimate business. The organization would then send drugs concealed in legitimate loads of merchandise from Mexico to Atlanta.”

When a tractor-trailer was arriving in the Atlanta area, Medina was responsible for coordinating the delivery. Medina kept a separate cellular phone only for calls from the drivers of the delivery trucks. She was “instructed to answer the phone professionally with the business name and give the driver instructions on how to get to the warehouse and set up a time for delivery.” Although electronic surveillance and wiretaps were used in the Medina investigation, Agent Kenneybrew was never able to intercept conversations between Medina and the truck drivers. Medina used a separate phone to talk to the truck drivers and the agents were unable to intercept the phone numbers.

Medina dated a man named Roberto Garcia, who belonged to a separate drug-trafficking organization run by Daniel Marillo, Jr., and Salvador Marillo (the “Marillo organization”). Garcia eventually went to jail, and Garcia asked Medina to collect money for the Marillos. Medina was thus involved in two separate drug-trafficking organizations.

On cross-examination, Agent Kenneybrew testified that, as with the Gonzalez organization, the truck drivers for the Marillo organization were unaware that they were transporting drugs and believed that they were transporting legitimate loads. Although ICE was monitoring phones of the Gonzalez organization, ICE was not monitoring the phones of the Marillo organization.

Medina pled guilty to money laundering and trafficking marijuana, agreed to cooperate with the government, and also testified at Sanders's trial. Medina's testimony largely corroborated Agent Kenneybrew's. As explained later, Medina testified that she had two phone conversations with Sanders but otherwise did not know who he was.

B. The Day of the Traffic Stop

In May 2007, Agent Kenneybrew learned from a confidential source that a tractor-trailer was scheduled to arrive at a warehouse in Fayetteville, Georgia. Agent Kenneybrew contacted local police, who surveilled the warehouse beginning on May 7, 2007. Around noon, the local police informed Agent Kenneybrew that the tractor-trailer had arrived at the warehouse. Before Agent Kenneybrew arrived on the scene, the local police called back and said that the tractor-trailer was leaving the warehouse without unloading anything.

One of the police officers surveilling the warehouse testified that the tractor-trailer was at the warehouse for no more than ten or fifteen minutes. The surveillance officer watched Sanders exit the tractor and Salvador Marillo exit his vehicle, and [f]rom their hand gestures and body language [the officer] could tell that [Marillo] was trying to show [Sanders] how to negotiate his truck to back it up to the loading bay.” A confidential source told Agent Kenneybrew that Sanders had refused to unload because he “did not like the location of the warehouse and wasn't comfortable unloading there.”

During her testimony, Medina confirmed that, on May 7, 2007, she received a call from the truck driver asking for directions, and she gave the truck driver directions to the Fayetteville warehouse. Medina testified that she did not answer this phone call by identifying herself—she simply answered the phone and gave the driver directions to the warehouse. Later that day, Medina received another call from the truck driver, who stated that he did not want to unload at the warehouse because he was uncomfortable,” the location was “too narrow” to make a delivery, and he was upset that no one was there when he arrived. Medina had never received any similar complaints about the warehouse, and she told the truck driver to talk to Marillo. Salvador Marillo subsequently told Medina that the delivery would occur at another location.

In any event, the local police followed Sanders's tractor-trailer—which was following a red Volkswagen belonging to Salvador Marillo—to a nearby truck stop. At the truck stop, Sanders exited the tractor and joined Salvador Marillo in the red Volkswagen, and they drove away. That afternoon, Agent Kenneybrew contacted GSP and asked them to prepare a “whisper stop,” in which ICE tells a local law enforcement agency that a vehicle contains drugs or other contraband but asks the local agency to develop its own probable cause for the stop to avoid compromising the federal investigation. Around 8:00 p.m., the red Volkswagen returned to the truck stop, and Sanders returned to the tractor-trailer and followed the red Volkswagen out of the parking lot. Agent Kenneybrew notified GSP, which subsequently stopped the tractor-trailer for traffic and equipment violations.

C. The Traffic Stop and Seizure of Cocaine

The government also called Officer James Lamar Thompson, the GSP officer who stopped Sanders's tractor-trailer on May 7, 2007. Although ICE notified him to look out for the vehicle, Officer Thompson stopped Sanders's tractor-trailer because he saw...

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