U.S. v. Cortez

• Decision Date: 30 July 1991
• Docket Number: No. 90-1987,90-1987
• Citation: 935 F.2d 135
• Parties: 33 Fed. R. Evid. Serv. 152 UNITED STATES of America, Appellee, v. Primitivo CORTEZ, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 135

935 F.2d 135

33 Fed. R. Evid. Serv. 152

UNITED STATES of America, Appellee, v. Primitivo CORTEZ, Appellant.

No. 90-1987.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 10, 1991.

Decided May 30, 1991.

Rehearing Denied July 30, 1991.

Russell S. Dameron, Kansas City, Mo., for appellant.

Charles F. Teschner, Kansas City, Mo., for appellee.

Before McMILLIAN, JOHN R. GIBSON, and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Primitivo Cortez was convicted by a jury of knowingly possessing marijuana with intent to distribute it in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B) (1988). On appeal, defendant raises ten issues that he claims resulted in an unfair trial. Defendant seeks a reversal of the judgment of the District Court ¹ and an order for either his discharge or a new trial. For the reasons stated below, we affirm the conviction.

I.

On August 19, 1989, Cortez was stopped on Interstate 35 near Cameron, Missouri by Sergeant John Elliott of the Missouri Highway Patrol. The trooper had observed the northbound van driven by Cortez weaving across the centerline and back onto the shoulder. Cortez provided Sergeant Elliott with his driver's license and said that the van was owned by his uncle. The vehicle registration showed that the van was owned by an Elias Carlos with the same Pharr, Texas address as indicated on defendant's license. However, when Elliott asked Cortez the name of his uncle, he replied, "I don't know." Trial Transcript, vol. I at 18, 37. His suspicions aroused, Sergeant Elliott asked Cortez to take a seat in the patrol car for further questioning. After examining Cortez's resident alien and social security cards, Elliott asked Cortez where he was going. Defendant answered, "Illinois." When asked where in Illinois, defendant replied, "I don't know." Trial Transcript, vol. I at 19. The trooper asked if he could search the van. Cortez agreed and signed a consent-to-search form written in English and Spanish.

Inside the back of the van, Sergeant Elliott found wire, fencing, and an open bag of cement. However, his closer examination of the van's interior revealed that someone had tampered with the cargo compartment: the side rails had been removed and caulking material had been painted silver to resemble a weld. Elliott returned to his patrol car to get a tape measure. After measuring the exterior and interior walls of the cargo compartment, the trooper discovered a nineteen-inch discrepancy between the two walls. Elliott asked Cortez if he could take the van to the zone office in Cameron so it could be searched more thoroughly. Cortez again consented.

In Cameron, Cortez waited inside the zone office while the van was unloaded and searched by Sergeant Elliott. His inspection revealed 141 packages of marijuana (weighing a total of approximately 800 pounds) concealed behind two plywood panels. Edra Cheryl Anderson, a local Spanish teacher, was called to the office to read Cortez his Miranda rights and to act as an interpreter during the police interviews. Cortez told Mrs. Anderson that he did not know that marijuana had been concealed in the van, that he did not know where he was driving the van, and that he did not know whom he was supposed to meet or call when he arrived at the unknown destination. When she asked "how [he was] going to work this out if [he] didn't know where [he was] going to go and who [he was] going to call," Cortez again answered that he did not know. Trial Transcript, vol. I at 62. The police then had Mrs. Anderson ask Cortez if he would cooperate with them by continuing his journey. Defendant replied, "What's in it for me?" Believing that Cortez may not have understood the question, Mrs. Anderson repeated the police request two or three times. Defendant's response remained the same: "He wanted to know if he did that what would be in it for him." Trial Transcript, vol. I at 63.

Questioning of Cortez proceeded without Mrs. Anderson after police learned that Agent Jesse Stoker of the Immigration and Naturalization Service, who was fluent in Spanish, would be available to assist them. While waiting for the agent to arrive at the office, Sergeant Larry Stobbs of the Drug and Crime Control Division of the Missouri Highway Patrol continued to ask Cortez in English about his journey. With the aid of a map, Cortez told Stobbs that he had left Zapata, Texas the morning before he had been arrested. He said he had been instructed by his uncle--whose name he could not provide--to drive the van along Interstate 35 to Interstate 80 until he reached the Iowa River outside of Coralville, Iowa. Somebody, Cortez was told, would signal him to stop by honking a car's horn and flashing its lights. Whoever stopped him would tell him how he was to return to Texas. His uncle had paid him a thousand dollars to cover his expenses for delivering the van. Cortez had nearly seven hundred dollars cash in his possession at the time he was arrested.

Upon Agent Stoker's arrival at the office, questioning resumed in Spanish. Cortez repeated his story, adding that the people who were supposed to meet him at the Iowa River would be taking him to the bus station so he could catch a bus back to Texas. Again, Cortez was asked if he would cooperate with police by continuing his journey. And again, Cortez responded: "What's in it for me?" Trial Transcript, vol. II at 8.

Indicted for possession of marijuana with intent to distribute, Cortez was confined to the Lafayette County Jail in Lexington, Missouri pending trial. The case was first tried in December 1989 with the jury unable to reach a unanimous verdict. At the second trial in January 1990, after deliberating for approximately four and a half hours, the jury indicated that it was deadlocked. Over defendant's objections, the District Court gave the jury an Allen charge. After an additional four and a half hours of deliberations, the jury returned a guilty verdict against Cortez.

Of the ten issues raised by Cortez on appeal, only five merit discussion. He argues that the trial court erred in 1) excluding the expert testimony of a clinical psychologist regarding the defendant's brain damage, psychological profile, and character traits; 2) admitting the opinion testimony of two police officers regarding the truthfulness of a government witness; 3) giving the jury an Allen charge after it was unable to reach a verdict; and 4) denying his motion to suppress the marijuana seized as a result of the highway stop. Finally, he argues that the evidence produced at trial was insufficient to sustain his conviction. ²

II.

Cortez argues that the trial court erred when it excluded evidence of his "character traits." Dr. Dennis Morgan, a psychologist who had examined Cortez, was prepared to testify that he suffered from mild dementia, memory impairment, and a schizoid personality disorder. These mental deficiencies, according to Dr. Morgan, manifest themselves in an "inability to recall certain facts" and a tendency to be "somewhat withdrawn, somewhat of a loner." Transcript of Testimony of Dennis Morgan at 11, 14 [hereinafter Morgan Testimony]. Cortez argues that Dr. Morgan's testimony was vital to his case to enable "the jury to fully appreciate and understand the events surrounding [his] arrest and interrogation, as well as the defendant himself and his in-court testimony." Appellant's Brief at 20-21. Without hearing testimony of an expert explaining the manifestations of such mental deficiencies, Cortez suggests, a jury might conclude that he was lying and being evasive.

The decision to exclude expert testimony is a matter within the sound discretion of the trial judge, and we will reverse only if his ruling was an abuse of discretion. United States v. Rose, 731 F.2d 1337, 1345 (8th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984). To be admissible, testimony by an expert must be based on specialized knowledge that will assist the jury in understanding the evidence or in determining a fact in issue. Fed.R.Evid. 702. As correctly stated by the District Court, the rule "permit[s] opinion or expert testimony only when it will be helpful to the finder-of-fact." Morgan Testimony at 17. After questioning Dr. Morgan during Cortez's offer of proof, the court determined that no useful purpose would be served by having Dr. Morgan tell the jury that Cortez "is slow to answer, forgets easily and doesn't express himself very well." Morgan Testimony at 17. Because these aspects of Cortez's personality could be readily observed by the jurors when he testified at trial, the court concluded that Dr. Morgan's testimony "does not fall into th[e] category" of being helpful to the finder of fact. Morgan Testimony at 22. We see no abuse of discretion in the court's decision excluding this testimony. ³

III.

Cortez contends that the District Court erred by allowing two law enforcement officers to testify to the truthfulness of a witness for the government. That witness, William Bright, had been detained in a cell with Cortez at the Lafayette County Jail for two or three days. Bright, a truck driver, had been arrested at the truck scales near Odessa, Missouri on three felony warrants from Arizona. He subsequently was transferred to Arizona where he was incarcerated for several weeks before pleading guilty to one count of larceny, for which he was sentenced to probation and time served. While his presentencing investigation was being conducted, Bright returned to Missouri where he contacted Guy Blankenship, a detective with the Carthage, Missouri Police Department. Following a brief telephone conversation to arrange a meeting, Bright told Blankenship in a one hour discussion that during his detainment at the Lafayette County Jail he was approached by Cortez with an offer of $75,000 to transport marijuana from Texas to the Kansas City area. Blankenship passed this information to Harvey Eugene Sparks, a special agent with the...