U.S. v. McDowell

• Decision Date: 11 May 2001
• Docket Number: No. 00-10651,00-10651
• Citation: 250 F.3d 1354
• Parties: (11th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Shedrick McDOWELL, Bardomiano Piedra-Bustos, a.k.a. Bardomiano Bustos-Piedra, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1354

250 F.3d 1354 (11th Cir. 2001)

UNITED STATES of America, Plaintiff-Appellee, v. Shedrick McDOWELL, Bardomiano Piedra-Bustos, a.k.a. Bardomiano Bustos-Piedra, Defendants-Appellants.

No. 00-10651.

United States Court of Appeals Eleventh Circuit.

May 11, 2001.

May 23, 2001.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeals from the United States District Court for the Southern District of Florida. (No. 99-06095-CR-WJZ), William J. Zloch, Chief Judge.

Before CARNES and MARCUS, Circuit Judges, and HAND^*, District Judge.

MARCUS, Circuit Judge:

Shedrick McDowell ("McDowell") and Bardomiano Piedra-Bustos ("Piedra-Bustos") appeal their convictions of conspiracy to import cocaine into the United States, and attempted possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, 952, and 963, and 18 U.S.C. § 2. McDowell and Piedra-Bustos argue that their convictions should be reversed because (1) the district court should have granted a motion to suppress McDowell's pre-arrest statements; (2) the district court erroneously admitted evidence of extrinsic acts pursuant to Fed.R.Evid. 404(b); (3) there was insufficient evidence to support the jury's verdict; and (4) the prosecutor impermissibly commented on McDowell's post-arrest silence. After thorough review of the record we can discern no error and affirm the convictions.

I.

The relevant facts are straightforward. On the evening of April 23, 1999, inspectors of the United States Customs Service ("Customs") Port Everglades, Florida, anti-smuggling unit and the Florida National Guard conducted a routine search of the MV SEA RACER, a cargo ship, at the Port Everglades dock. The SEA RACER had just arrived on a bi-monthly route originating in Barranquilla, Colombia, with intermediate stops at several other Colombian ports, Venezuela, and Jacksonville, Florida, carrying between 70 and 100 containers. At 8:32 p.m., Customs agents inspected one of the containers, numbered CMCU 201990-5, which was manifested to contain rolls of vinyl fabric, and which had been sealed with a high security seal by Crowley American Marine Transport ("Crowley"), a marine transport company, prior to being offloaded from the vessel. Customs agents broke the Crowley seal in order to open the container, and observed two duffel bags sitting on top of the rolls of vinyl. They opened the duffel bags and immediately saw what appeared to be kilogram packages, retrieved the bags, and quickly resealed the container with a U.S. Customs seal. A trained narcotics dog confirmed the agent's suspicions when he alerted to the duffel bags, indicating that they contained narcotics. They took the duffel bags back to the Customs office, conducted a field test, and discovered that the 48 packages contained approximately 62 kilograms of cocaine.

After resealing the container, the Customs agents transported the container to its intended destination at the Crowley Yard, which is within Port Everglades, where the container was deposited at approximately 9 p.m. The Crowley Yard is approximately 70 acres in size and accommodates more than 2,200 containers. Crowley segregates the containers by type, such that there are separate sections of 20-foot, 40-foot, and refrigerated containers. The container in question was placed in the second row of 20-foot containers, about 5 or 10 containers from the right-hand side, and a Customs agent commenced surveillance immediately.

Appellant McDowell, a driver for Pittsville Services, Inc. ("PSI"), a trucking company that transports containers, entered the terminal at 8:36 p.m., almost immediately after the container in question had been offloaded from the MV SEA RACER. In order to enter the terminal, a driver must obtain a gate pass from the gate guard. McDowell gave the gate guard a false driver number, which was one digit off from his true number, and entered the terminal. At 9:10 p.m., just ten minutes after the container in question was deposited in a row of 20-foot containers, a Customs agent observed McDowell's truck drive up to the container. McDowell parked about 20 feet from the container, exited the truck, walked to the container, looked at it for 5 to 10 seconds, turned around, walked back to his truck, and started driving toward an exit. Customs agents stopped the truck as it attempted to leave Port Everglades.

Customs agents asked McDowell and his passenger, Charles Herbert Harper ("Harper"), to exit the truck and provide identification. McDowell asked why he was being stopped, and, in response to an agent's inquiry as to what he was doing in the Crowley Yard, McDowell said that he was working for Pittsville Services and he was sent to pick up an empty container. McDowell returned to the truck and retrieved a PSI dispatch order for a 40-foot container to be transported to a company in Tampa, Florida, called Americold. McDowell claimed that he left the Crowley Yard upon learning that the container in question was not ready.

The agent who examined the work order a few minutes later thought it was unusual because all of the information on the form was handwritten, whereas the information was usually typed on PSI dispatch orders, and because it lacked complete addresses, booking numbers, and chassis numbers. Indeed, this information was insufficient for McDowell to locate the container he claimed to be looking for. Moreover, McDowell had approached the container in which the drugs had been found, in the section dedicated to 20-foot containers, although he later claimed to be looking for a 40-foot container.

In response to an agent's question as to the number of the container he was looking for, McDowell stated that he had not been told the container number, and that when he asked for it at the Crowley dispatch office, he was told that the container he was supposed to pick up was not ready, so he left. An agent asked McDowell for the telephone number of a dispatcher or of someone who could verify the dispatch order. McDowell said that someone named Peter had sent him, but that he could not provide a phone number.

Several minutes later, McDowell was again asked what he was doing at the seaport. This time, McDowell said that he had been dispatched by someone named Lee to pick up an empty container. An agent confronted McDowell and said, "Well, a minute ago it was Peter. Now it is Lee. Who was the dispatcher?" McDowell replied that he had never said it was Peter, that Lee was the dispatcher, and that the agent was "trying to put words in his mouth and confuse him." The agent again asked McDowell for a phone number, and this time McDowell gave him one. The agent tried the number but there was no answer and no answering machine. The agent asked McDowell if he had any other phone number, and McDowell said no.

Notably, Lee, the dispatcher for Pittsville Services, testified at trial that she had never dispatched anyone to pick up an empty container from the Crowley Yard to transport to Americold in Tampa. Moreover, Pittsville's dispatch log showed that McDowell had finished his assigned work between 4:30 and 5:00 p.m. on April 23, 1999. McDowell's gate pass was issued at 8:32 p.m. for Pittsville truck number 235 (McDowell's own truck had been assigned number 225). Nor did McDowell have his employer's permission to carry passengers in the truck on April 23, 1999, and, as a Pittsville driver, McDowell had signed an agreement not to work for any other trucking companies.

At approximately 9:45 p.m., agent Deangelus arrived. He asked McDowell to repeat what he had already told the other agents. McDowell again said that he had been dispatched by Lee, but could not provide a phone number for Lee. At approximately 10:30 p.m., Deangelus asked McDowell for consent to search the truck, and McDowell consented. When Deangelus shined his flashlight into the sleeper compartment of the truck's cab, he observed appellant Piedra-Bustos sitting "in the corner on top of the mattress," "crouched down a little." Deangelus noted that Piedra-Bustos's eyes were open. He yelled at Piedra-Bustos to put up his hands and get out of the truck.

In response to questioning as to what he was doing in the truck, Piedra-Bustos claimed to have been asleep. Deangelus removed Piedra-Bustos's wallet, looking for identification, and discovered, among other papers or documents, a business card for Caribbean Records Mfg. Corp. Underneath the printed name of the company was the handwritten telephone number, "305-245-2922," and the name Leticia. Notably, on the reverse side of the card was the handwritten number "CMCU 20257-8," which Deangelus recognized to be a Crowley container number. Indeed, on April 9, 1999, container number CMCU 202571-8 had been offloaded from the MV SEA RACER at Port Everglades. That container had been shipped by Propanol, the same company that shipped the container in which the cocaine was found on April 23. When container 202571-8 left Colombia, it bore a high security seal placed on it by the shipper, and before the container was offloaded at Port Everglades, it was affixed with a Crowley seal. However, when the container was picked up in the Crowley Yard, the trucker reported that the only thing on the container was a shipper's bolt, which is a regular bolt that can be purchased in a hardware store. The disappearance of the high security seals indicated that the container had been opened, but neither the shipper nor the consignee reported anything missing from the container. The container number on the card in Piedra-Bustos's wallet was only one digit off from the number of the opened container, and the card also contained the entire number of one of the removed high security seals.

Upon finding the business card in Piedra-Bustos's wallet, Deangelus asked Piedra-Bustos if he had any association with the Port. Piedra-Bustos said no. Deangelus asked Piedra-Bustos if he had ever worked at either...