U.S. v. Mendoza-Medina
| Citation | 346 F.3d 121 |
| Decision Date | 10 September 2003 |
| Docket Number | No. 02-40978.,02-40978. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Juan Arturo MENDOZA-MEDINA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James Lee Turner, Asst. U.S. Atty. (argued), Houston, TX, for Plaintiff-Appellee.
Roland E. Dahlin, II, Fed. Pub. Def., Molly E. Odom (argued), Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit Judges.
Juan Arturo Mendoza-Medina appeals his convictions for conspiracy to possess and possession with intent to distribute more than fifty kilograms of marijuana.1 We affirm the judgment of conviction, finding that any error in the district court's charge to the jury on deliberate indifference was harmless and that the court's admission of hearsay evidence was not plain error. We also conclude that although the trial court erred in admitting the opinion testimony of a government agent, on the facts of this case this abuse of the use of a "background" witness was not reversible error. We pause to caution that it is time for our able trial judges to rein in this practice. The offering of this "expert" was not background for the jury — a jury is ordinarily blessed with a common sense well tuned by life in this age. Rather, excessive use of this "expert" testimony comes unacceptably close to the use of evidentiary profiles.
A grand jury indicted Mendoza-Medina on January 8, 2002, on two counts: conspiracy to possess with intent to distribute more than fifty kilograms of marijuana, a violation of 21 U.S.C. § 846; and possession with intent to distribute more than fifty kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1). Mendoza-Medina's first trial ended in a mistrial — eleven jurors finding him guilty, one juror when polled answered "not sure." The case was retried.
At the second trial, Senior Border Patrol Agent Mario Rebolledo testified that he and his drug detecting dog, "Rudy," were working in the Laredo Border Patrol checkpoint on December 21, 2001, when Rudy alerted to a tractor-trailer driven by Mendoza-Medina. Agents directed the truck to a secondary inspection point. After obtaining the keys from Mendoza-Medina, agents placed Rudy in the trailer, where he alerted to a group of boxes. Agents found marijuana in the boxes. They arrested Mendoza-Medina and escorted him to the checkpoint trailer. Mendoza-Medina's wife and children remained in the cab.
Agents advised Mendoza-Medina of his rights and placed him in a holding cell in the trailer. He waived his right to remain silent and agreed to an interview. He told Rebolledo that neither he nor his wife had anything to do with the substance found in the boxes. He also declared he was willing to talk about the people who hired him.
Two agents with the DEA task force were called, and arrived at the Laredo North Station, which is roughly twenty minutes from the checkpoint, between 1:30 and 2:00 a.m. the next day. Mendoza-Medina, his wife, and his two children were in the processing room. Initially, the agents planned to interview Mendoza-Medina with his wife and children in the room, but the children interrupted the interview. The agents conducted the interview in a separate room with the door open. The children still had access to Mendoza-Medina, and were in and out of the room several times during the interview.
Mendoza-Medina told the agents that he knew nothing about the contraband. He asked the agents what was going to happen, and they responded that he and his wife would be detained and taken before a magistrate judge. He then asked what would happen to his children, and the agents said they would be taken care of by Child Protective Services. Mendoza-Medina reacted to this disclosure by stating to the agents that he would tell them "anything [they] wanted to hear and he would take the blame." The agents said they wanted him to tell the truth. Mendoza-Medina told them that is what he would do.
Mendoza-Medina told the agents that his employer, Julian Ramirez, asked him to haul marijuana with his legitimate load. The legitimate load was en route to New York, while the marijuana was to be dropped off in Dallas. Ramirez had instructed Mendoza-Medina to pick up the trailer at a gas station in Laredo. They planned to rendezvous at the Pilot Station Truck Stop in Dallas where the drugs would be unloaded. Ramirez was to pay Mendoza-Medina $3000. Mendoza-Medina stated that this was his first time smuggling drugs. He told agents that his wife did not know anything about the drugs, which the agents confirmed. After a short interview, Mendoza-Medina's wife left with the children, and Mendoza-Medina was processed.
The agents checked Mendoza-Medina's story. They found phone calls to and from Ramirez on Mendoza-Medina's cell phone. A bill of lading found in Mendoza-Medina's truck reflected that Ramirez had picked up the trailer on December 20. Agents learned that Mendoza-Medina had begun working for Ramirez only two months earlier, and that Ramirez had a drug trafficking conviction.
The shipping company had loaded the truck with women's jeans at a warehouse in Laredo on December 20. Ramirez had brought the trailer to the warehouse, and left with it some time between 7:30 and 8:00 p.m. The trailer was locked and sealed. An employee of the shipping company testified that he inspected the trailer after it was seized by the Border Patrol, and he believed someone tampered with the lock and opened the doors without breaking the seal.
At trial, the Government had DEA Special Agent Keith Warzecha qualified as an expert. He testified that the marijuana seized was worth $77,600 in Laredo, and about $135,000 in Dallas. He described the cultivation, wrapping, and packaging of the drugs. He also described how traffickers usually recruited people who needed the money to transport the drugs, and enticed them with a quick pay day. He testified that many truck drivers passed through Laredo, and some were susceptible to the lure of drug trafficking. In the usual case, contraband owners limited inexperienced drivers to smaller loads. After successfully moving two or three small loads and proving he could be trusted, a driver would be given bigger loads. When the prosecutor asked if traffickers concealed contraband in a truck without telling the driver it was there, the district court answered Mendoza-Medina's objection with the observation that some times they do, and some times they don't. After persisting in the objection, the district court had the prosecutor move on. The agent then testified that it was possible to put the drugs in the trailer without disturbing the seal. He also recalled that he had investigated cases in which children were involved in smuggling, and suggested smugglers were under the impression that law enforcement personnel were not inclined to suspect individuals with children of smuggling drugs.
Warzecha then testified that Ramirez had a history of narcotics trafficking, including a 1993 conviction involving over 1000 pounds of marijuana. Warzecha also explained that agents had seized $368,000 in cash from Ramirez in October 2001, and opined that the money was drug related. At the time of that seizure, Ramirez told agents that he was returning from a three-day trip hauling goods to and from Ohio with Mendoza-Medina. Hotel records showed that Ramirez had stopped in Dallas during the time he said he was on the trip. However, this trip was missing from both Mendoza-Medina's and Ramirez's logbooks, although the logbooks showed that Mendoza-Medina had been driving with Ramirez since early October. On cross-examination, Warzecha admitted that Ramirez had told agents that he had found the money outside the gate of a forwarding company while Mendoza-Medina was driving the truck through the gate and that Mendoza-Medina did not know about the money. Warzecha admitted that nothing tied the money to Mendoza-Medina. He also opined that Ramirez was lying.
Mendoza-Medina's wife testified that late in the evening on December 20 she learned that Mendoza-Medina was going to transport a load of goods. Because of the late hour, she suggested she take their two four-year-olds with them, and leave their other children with her sister. They picked up the tractor-trailer at a gas station, and Ramirez took their van.
She explained that at the Laredo North Station, agents separated her and the children from Mendoza-Medina. She heard agents yelling at her husband, and it caused the girls to call out for their father. An agent told her he did not believe what her husband was telling them, emphasizing his point by striking the wall with heavy blows. He reportedly told her that if neither she nor her husband took responsibility for what was going on, they would lose their daughters to the state. At the end of his interrogation, Mendoza-Medina told her that he would have to take responsibility for the drugs in the trailer so that the agents would not take the children from her. According to Mendoza-Medina's wife, neither agent told her about Child Protective Services; instead they told her the children would be taken away.
During cross-examination, she admitted that in an earlier hearing she did not say that the agent threatened to take her children away. She conceded that she could see everything that went on in the interrogation room, and that she did not hear her husband tell agents how he agreed to haul the drugs.
The jury found Mendoza-Medina guilty on both counts. The district court sentenced him to concurrent fifty-one month prison terms followed by concurrent three-year terms of supervised release. Mendoza-Medina timely appealed.
We turn first to Mendoza-Medina's objection to the admission of the expert testimony of Special Agent...
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