U.S. v. Landrau-Lopez, 05-1299.

• Decision Date: 06 April 2006
• Docket Number: No. 05-1299.,05-1299.
• Citation: 444 F.3d 19
• Parties: UNITED STATES of America, Appellee, v. Kellnum LANDRAU-LOPEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

444 F.3d 19

UNITED STATES of America, Appellee, v. Kellnum LANDRAU-LOPEZ, Defendant, Appellant.

No. 05-1299.

United States Court of Appeals, First Circuit.

Heard February 7, 2006.

Decided April 6, 2006.

Mark L. Stevens, with whom Law Office of Mark Stevens was on brief, for appellant.

Mariana E. Bauzá-Almonte, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Senior Appellate Attorney in Charge, were on brief, for appellee.

Before SELYA, LYNCH, and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

In July 2003, Kellnum Landrau-López was a new employee of Ponce Air Service (PAS), a ground service provider at Luis Muñoz Marín International Airport (LMMIA) in Puerto Rico. His duties included loading and unloading luggage for commercial flights. Landrau obtained this job with the help of his neighbor and long-time friend, Pedro Villegas-López, who worked for PAS and who has admitted to smuggling drugs into the continental United States through flights departing from LMMIA.

Following a seizure of drugs from a commercial flight originating from LMMIA, the Drug Enforcement Administration (DEA) commenced an investigation of the ramp and baggage handling employees at the airport. In July 2003, a DEA confidential informant infiltrated the smuggling ring. Posing as a cocaine supplier, the informant brokered a deal with Melvin Poupart to smuggle 30 kilograms of what was actually "sham" cocaine onto a flight from LMMIA to Newark, New Jersey. After Poupart offered the smuggling job to Landrau, Landrau informed Villegas about it. Villegas initially declined to participate, but offered to enroll the services of two other PAS employees who had previously helped him with drug shipments, Saulo Hernández and José Ramírez-Báez.

In the early morning hours of July 23, 2003, with DEA agents observing from a concealed location, Poupart and the informant hand delivered two large duffel bags containing 30 kilograms of sham cocaine to Landrau at his house. Shortly thereafter, Hernández arrived. Landrau loaded the two duffel bags into Hernández's car, and the two then proceeded to the airport. At the airport, Ramírez protested that the duffel bags were ill-suited for smuggling drugs because they would appear suspicious and their contents would be easily detectable by feeling the outside of the bags. Landrau, nevertheless, insisted that they continue as planned. Ramírez and Landrau loaded the two bags onto a baggage cart, placed some garbage and an empty suitcase on top, and then drove the cart out to the make-up area for a Continental Airlines flight to New Jersey. Ramírez removed the tags from two suitcases that had been checked-in for the flight and attached them to the duffel bags. After baggage handlers finished loading all the legitimate luggage into the plane, Landrau drove the cart to the plane and personally loaded the two duffel bags. The bags were seized in New Jersey later that day.

A federal grand jury subsequently indicted Landrau and four others, including Villegas and Hernández, for conspiracy to possess with intent to distribute five or more kilograms of cocaine. See 21 U.S.C. §§ 841(a), 846. Although Landrau's four co-defendants pleaded guilty, Landrau elected to plead not guilty. He contended at trial that he was unaware of the contents of the duffel bags. Villegas, Ramírez and Hernández, however, testified that Landrau was the primary person responsible for smuggling this particular shipment. A jury returned a guilty verdict and the district court sentenced Landrau to 151 months in prison. Landrau challenges the conviction on two grounds.

Landrau first argues that the district court delivered an erroneous jury instruction that may have caused the jury impermissibly to shift the burden of proof to him in violation of his due process rights. The allegedly erroneous instruction was delivered during jury selection. Addressing a panel of 38 potential jurors, the court explained the process of jury selection and outlined the allegations contained in the indictment. The court then stated as follows:

[In] this case, the defendant has plead [sic] not guilty to the charges contained in the indictment, and thereby has raised issues of fact that need to be tried by a jury, and that is why you are here this morning, we are going to select the jury and proceed to try the issues of fact in this case.

Landrau contends that this instruction, regarding the effect of his not-guilty plea, diminished the presumption of his innocence and impermissibly shifted or reduced the government's burden of proof at trial. According to Landrau, because a defendant is never required to "raise issues of fact," the court's instruction may have confused the jury as to the proper standard of proof required of the government. See Hill v. Maloney, 927 F.2d 646, 648 (1st Cir.1990) (holding that the due process clause "requires that the prosecution bear the burden of proving every essential element of a crime beyond a reasonable doubt, and evidentiary presumptions in a jury charge that have the effect of relieving the government of that burden are therefore unconstitutional"). Because Landrau did not raise this issue below, our review is for plain error. See United States v. Bailey, 405 F.3d 102, 110 (1st Cir.2005) (citing United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

The district court's introductory statement to the venire, while perhaps infelicitously phrased, was not erroneous. On its face, the statement accurately explained why the jurors had been assembled and did not suggest that Landrau bore the burden of raising an issue of fact. It merely expressed a truism — that, by pleading not guilty, Landrau had put the facts alleged in the indictment at issue, thus necessitating a jury trial to determine those facts. See, e.g., United States v. Argentine, 814 F.2d 783, 788 (1st Cir.1987) ("[T]he plea of not guilty places every issue in doubt, and not even undisputed fact may be removed from the jury's consideration, either by direction or by omission in the charge.") (internal quotation marks omitted). Moreover, when read in the context of the court's entire introductory remarks, it is clear that the court did not suggest that Landrau bore any burden in proving his innocence. At the outset of jury selection, the court noted that the indictment constituted allegations, not proof, and that at trial, "it is the government who has the burden of proving the defendant guilty beyond a reasonable doubt." Finally, any initial confusion potentially caused by the court's introductory remarks was undoubtedly cured by the court's subsequent instructions to the selected and sworn jury. See United States v. Nishnianidze, 342 F.3d 6, 16 (1st Cir. 2003) (no plain error where the district court's misstatement at the start of an instruction was clarified later in the instruction). Just before the commencement of the trial, and again before submitting the case to the jury for deliberation, the court properly instructed the jurors on the government's burden and repeatedly emphasized that Landrau was entitled to "rely entirely on the presumption of innocence."¹

Landrau's second argument is that the district court abused its discretion by allowing testimony concerning certain prior bad acts that he had allegedly committed. Landrau argues that the government improperly presented this testimony to illustrate his bad character and his propensity to commit crimes. See Fed.R.Evid. 404(b) (barring the admission of evidence of other crimes, wrongs or acts in order to illustrate a person's character to suggest action in conformity therewith). The government counters that the evidence was presented to rebut Landrau's defense — that he did not know what was inside the duffel bags. See id. (providing that evidence of other crimes, wrongs or acts ...