717 F.3d 823 (10th Cir. 2013), 11-2186, United States v. Berry

Docket Nº:11-2186.
Citation:717 F.3d 823
Opinion Judge:O'BRIEN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Norman Washington BERRY, Defendant-Appellant.
Attorney:Margaret Ann Katze, Assistant Public Defender, District of New Mexico (Brian Anthony Pori, Assistant Federal Public Defender, on the brief), Albuquerque, NM, for Defendant-Appellant. Gregory J. Fouratt, United States Attorney Office (Kenneth J. Gonzales, United States Attorney; Laura Fashing, Ass...
Judge Panel:Before HOLMES, O'BRIEN, and MATHESON, Circuit Judges. HOLMES, J., concurring.
Case Date:June 26, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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717 F.3d 823 (10th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

Norman Washington BERRY, Defendant-Appellant.

No. 11-2186.

United States Court of Appeals, Tenth Circuit.

June 26, 2013

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Margaret Ann Katze, Assistant Public Defender, District of New Mexico (Brian Anthony Pori, Assistant Federal Public Defender, on the brief), Albuquerque, NM, for Defendant-Appellant.

Gregory J. Fouratt, United States Attorney Office (Kenneth J. Gonzales, United States Attorney; Laura Fashing, Assistant United States Attorney, on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before HOLMES, O'BRIEN, and MATHESON, Circuit Judges.

O'BRIEN, Circuit Judge.

What started as a routine inspection of Norman Washington Berry's commercial tractor-trailer at a New Mexico port of entry eventually revealed boxes of marijuana nestled in with his load of cantaloupe. A jury convicted Berry of possession with intent to distribute 100 kilograms or more of marijuana. He complains about a " permissive inference" instruction given to the jury and claims the evidence was insufficient to establish the weight of the marijuana to be more than 100 kilograms. He also claims his sentence ought not have been enhanced based on his use of a special skill— commercial truck driving

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— to facilitate the commission of the crime. We affirm.

BACKGROUND

We recite the facts in the light most favorable to the jury's verdict. See United States v. Pablo, 696 F.3d 1280, 1284 n. 5 (10th Cir.2012). At approximately 6:40 a.m. on May 23, 2007, Berry, a commercial truck driver, stopped at the Gallup, New Mexico port of entry in his tractor-trailer. 1 He was greeted by Hermilo Lucero, an officer with the New Mexico Department of Public Safety, Motor Transportation Police Department. Lucero asked Berry " where he was coming from, where he was going, and what he was carrying." (Vol. 3, Pt. 1 at 8.) He told Lucero he was carrying cantaloupe from Phoenix, Arizona, to Massachusetts. Lucero reviewed Berry's logbook. It confirmed he had been in Phoenix but contained no information about the cantaloupe or the total miles logged. Based on these logging violations, Lucero decided to perform a Level 2 safety inspection, which consists of reviewing the driver's paperwork, including the bill of lading, and inspecting the cargo.

The bill of lading did not indicate where the cargo had been loaded but did show the shipper was a company in Turlock, California. When Lucero asked Berry why he had come from Phoenix, Arizona, when the cargo came from California, Berry became nervous and started stuttering. He explained another driver had picked up the load in Turlock and met him in Phoenix, where they traded trailers. But the signature on the bill of lading of the individual who picked up the cargo appeared to be Berry's. The bill of lading also listed the cargo's destination as Bronx, New York, not Massachusetts. Berry could not explain this discrepancy. According to Lucero, during this exchange, Berry was " real nervous," " couldn't sit still," and " kept standing, sitting down." (R. Vol. 3, Part 1 at 17.)

When Lucero went to inspect the cab of the tractor, Berry volunteered that he was moving from California to Georgia. After looking in the cab Lucero moved to the trailer, accompanied by Berry. There was no seal on the cargo doors. When Berry opened them, Lucero immediately noticed the load of cantaloupe had shifted. He also noticed eight brown boxes stamped " UPS" sitting at the rear of the trailer; they did not match the boxes containing the cantaloupe. (R. Vol. 3, Part 1 at 19.) When Lucero asked what the eight boxes were, Berry " became nervous," " [h]is voice started to crack," and said they " were his personal household stuff, kitchen items, stuff from his house," which he was moving from California to Georgia. ( Id. at 22.) Because there was no bill of lading for the boxes, Lucero opened them. They contained thirty-three bundles of marijuana wrapped in brown contact paper, plastic wrap, and tin foil. Berry was arrested.

A more thorough inspection of the cab revealed documentation showing Berry and his tractor-trailer had been in California on May 21 and 22 and in Kingman, Arizona, on May 22. His logbook, however, showed he had driven from Van Horn, Texas, to Phoenix, Arizona, on May 21 and had stayed in Phoenix until 3 a.m. on May 23.

Berry was indicted for possession with intent to distribute 100 kilograms or more of marijuana. He was released on bond

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and permitted to return to his home in Georgia. The trial was scheduled to start on May 7, 2008, but Berry failed to appear. He remained a fugitive until April 29, 2010, when he was located in Canada after returning from Jamaica (his home country).

The presentence report (PSR) assigned a base offense level of 26 because the weight of the marijuana was between 100 and 400 kilograms. See USSG § 2D1.1(c)(7).2 Two points were added for obstruction of justice due to Berry's pre-trial flight. He had no criminal history, resulting in a Criminal History Category of I. With that criminal history and a total offense level of 28, the advisory guideline range is 78-97 months imprisonment. The government objected to the PSR. It argued the offense level should be increased by two under USSG § 3B1.3 because Berry used a special skill— commercial truck driving— to facilitate the commission or concealment of the offense. The probation officer disagreed and concluded Berry did not use his commercial driver's license in a manner significantly facilitating the commission or concealment of the offense.

The judge decided the " special skill" adjustment applied, making the total offense level 30 and raising the advisory guideline range to 97-121 months. He sentenced Berry to 97 months imprisonment.

DISCUSSION

a. " Permissive Inference" Jury Instruction

" We review a district court's decision to give a particular jury instruction for an abuse of discretion and consider the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law." United States v. Gwathney, 465 F.3d 1133, 1142 (10th Cir.2006).

The key issue at trial was whether Berry knew about the marijuana in his trailer. The judge told the jury a guilty verdict required it to find the government had proved beyond a reasonable doubt that, inter alia, Berry knowingly or intentionally possessed a controlled substance. The instructions also advised the jury about the meaning of the word " knowingly," to wit: " the act was done voluntarily and intentionally, and not because of mistake or accident." (R. Vol. 1 at 99.) The instructions also addressed permitted inferences.

The first sentence of the " permissive inference" instruction seemingly allowed the jury to infer criminal knowledge based solely on Berry's exclusive possession of the vehicle containing the drugs:

In determining whether or not the defendant knowingly possessed the controlled substance, if you find the government has proved beyond a reasonable doubt that the defendant had sole possession of a vehicle in which the controlled substance was found, you may infer— but are not required to infer— that the defendant knowingly possessed the controlled substance.

( Id. at 101.) However, the remaining sentences qualified the basis of the inference and reminded the jury of the government's burden:

Any inference you draw must be based upon all the evidence in the case, not merely the defendant's relationship to the vehicle. Although this inference is permitted— if you believe it is justified in light of all the evidence— I caution

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you that the burden of proof does not shift. The burden remains with the government to prove beyond a reasonable doubt that the defendant knowingly possessed the controlled substance.

( Id. at 101.) Berry objected to the instruction before it was given and continues to do so.

The challenged instruction is permissive because it allows— but does not require— the jury to infer an elemental fact (knowledge) from Berry's sole possession of the vehicle in which the drugs were found. Cnty. Court of Ulster Cnty., N.Y. v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979) (habeas case); see also Gwathney, 465 F.3d at 1143 (" The jury instruction ... is a permissive instruction because it tells the jury it may, but is not required to, draw an inference about Gwathney's knowledge of the marijuana stored in his truck based on his operation of the vehicle." ); United States v. Cota-Meza, 367 F.3d 1218, 1221 (10th Cir.2004) (" The instruction in question is permissive because it tells the jury that it may, but is not required to, draw the inference of Cota-Meza's knowledge of the cocaine, and that it is not required to convict the defendant based on this inference alone." ). " A permissive inference instruction is valid if there is a rational connection between the fact that the prosecution proved and the ultimate fact presumed, and the latter is more likely than not to flow from the former." Cota-Meza, 367 F.3d at 1221-22 (citing Ulster Cnty., 442 U.S. at 165, 99 S.Ct. 2213). " We judge that likelihood not in the abstract but as applied to the specific case in which the instruction was given." Id. at 1222.

In Gwathney, the defendant, like Berry, was a commercial truck driver, who was found at a New Mexico port of entry with a large amount of marijuana in his trailer. 465 F.3d at 1136-37. With respect to Gwathney's knowledge of the contraband in his truck, the jury was told it could— but was not required to— infer that the driver and sole occupant of a vehicle containing drugs has...

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