United States v. Cristerna-Gonzalez

• Decision Date: 23 June 2020
• Docket Number: No. 19-7009,19-7009
• Citation: 962 F.3d 1253
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Abel Eduardo CRISTERNA-GONZALEZ, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

962 F.3d 1253

UNITED STATES of America, Plaintiff - Appellee,

v.Abel Eduardo CRISTERNA-GONZALEZ, Defendant - Appellant.

No. 19-7009

United States Court of Appeals, Tenth Circuit.

FILED June 23, 2020

John Arceci, Assistant Federal Public Defender, Denver, Colorado (Shira Kieval, Assistant Federal Public Defender, Denver, Colorado on the briefs) for Defendant-Appellant.

Linda A. Epperley, Assistant United States Attorney, Muskogee, Oklahoma (Robert Wallace, Assistant United States Attorney, Muskogee, Oklahoma on the briefs) for Plaintiff-Appellee.

Before HARTZ, EBEL, and MATHESON, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Abel Cristerna-Gonzalez appeals his conviction by a jury on one count of possession with intent to distribute methamphetamine and one count of possession with intent to distribute heroin. He claims that three evidentiary errors occurred at trial: (1) two law-enforcement witnesses gave expert testimony without being admitted as experts; (2) the government made an impermissible propensity argument in violation of Federal Rule of Evidence 404(b) ; and (3) the district court allowed irrelevant and prejudicial testimony about the Sinaloa cartel. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Defendant did not raise the first two issues at trial, and we hold that there was no plain error. And although we agree with Defendant that the Sinaloa-cartel evidence was inadmissible, the error was harmless.

I. BACKGROUND

On April 24, 2018, Oklahoma State Trooper Cody Hyde stopped a black Dodge Durango for speeding at 81 mph while traveling eastbound on Interstate 40 in Sequoyah County, Oklahoma, which borders Arkansas. The driver was Luis Lopez Arce. Defendant, the sole passenger, was sitting in the front seat. After obtaining license and registration information and asking the occupants about their travel plans, Hyde grew suspicious. To begin with, the vehicle registration document showed that the Durango had been registered to Arce only two days before the trip, and Arce said he had just bought it. Hyde testified that in his experience, drug-trafficking organizations commonly register vehicles in the name of the driver shortly before use. Arce and Defendant also contradicted each other in several respects. Among other things, Arce referred to Defendant as his cousin, but did not know his last name, whereas Defendant conveyed in Spanish (though Hyde knew little Spanish) that Arce was a friend, not a relative, and that he did not know Arce's name. Also, Arce said they were going to Arkansas to work in agriculture—a claim Hyde found strange given the time of year and his knowledge of the region's farm production. Defendant, on the other hand, said they were traveling to Nashville.

Hyde requested permission to search the vehicle, and both men agreed. He and two fellow officers found four packages of drugs weighing about a pound each in a light bar atop the Durango. A light bar is an accessory mounted atop a vehicle to provide additional lighting, often for traveling off-road. It is an "aftermarket" accessory; an owner must separately acquire and attach it because it is not factory-installed. The light bar on the Durango had been specially enlarged to create more space inside it. Tools fitting the light bar's parts were found set aside by a toolbox in the rear of the Durango, and the officers were able to open the light bar with those tools. Laboratory tests showed that three packages contained nearly pure methamphetamine and one contained heroin.

Defendant was not interrogated on the day of his arrest because none of the officers adequately spoke Spanish and no interpreters were readily available. But he gave an account of the trip at trial. He testified that he had met Arce for the first time only five days to a week before the arrests. He said he had worked in Phoenix, Arizona, as a welder for Crossroads Equipment Repair (which apparently included a tire shop) until two weeks before the arrests. He also had his own business as a welder and metalworker for which he rented workspace behind Crossroads.

According to Defendant, Arce paid him $100 to install the light bar, which Defendant did some two days before the two left on their trip. The light bar was wired at Crossroads, though Defendant said he did not know who performed that work. The day that the two departed from Phoenix in the Durango, Arce picked Defendant up from Crossroads.

Defendant testified that he knew nothing of the drugs in the lightbar. Thus, the only issue at trial was Defendant's knowledge. One item of evidence used by the government to prove his knowledge was a text message sent to the cell phone that he was holding during the traffic stop. The text was sent via WhatsApp, an application that provides end-to-end encryption, so that no one other than the sender and recipient can read the message. The phone number of the sender was saved in the cell phone's contact list as belonging to "TN Bro 2." R., Vol. II at 207. The text arrived not long after Defendant had been arrested. (He had been told to leave the phone in the Durango while it was being searched.) The parties stipulated to the following English translation of the Spanish text:

As soon as you take out the material I'll need you to send me pictures of the China and the Cold before sending it so see what the quality is ok ... Right now send me at least 10 of 28 points of the cold and 10 of the China from the 25 points each ok friend leave them in pieces and don't grind it ... Put also 4 separate points individually as samples friend, ok and let me know as soon as the material is ready, friend[.]

Aplt. Supp. App., Ex. 23.

Agent Brian Epps, a special agent with the Drug Enforcement Administration (DEA), testified to his interpretation of the message. He said that the terms "China" and "Cold" were code for heroin and methamphetamine, respectively. He explained that the text directed the recipient to take the drugs out upon arrival and send photos of the drugs. Then the heroin was to be placed into 10 bags of 25 grams (points) each, and the methamphetamine was to be put in 10 bags of 28 grams each. Finally, there should be four bags of 1 gram each as samples.

Three additional texts were sent from "TN Bro 2" about four-and-a-half hours after Defendant and Arce were taken into custody. As translated into English, those texts read:

(1) What's up my man? Everything ok?

(2) Our friend Pepe has been trying to locate you my man he is wanting to do a job with you it's what I hope and that all of you are well, ok

(3) What happened my man, are you all ok?

Id .

In its case in chief the government offered additional evidence tying Defendant to the phone. Stored on the phone were numerous videos and audio files of Defendant singing, and about 20 photos depicting Defendant, including "selfies." And in some of the WhatsApp outgoing texts on the phone the user had identified himself by Defendant's first name, Abel, and had referred to the phone as "my phone." (The record does not indicate the timing of the videos, audios, or texts.)

In any event, when Defendant took the stand in his own defense, he admitted that the cell phone that received the texts was his. He testified that the day he met Arce at the tire shop, Arce said that he was trying to sell the phone. Defendant agreed to buy it, although he did not have the money to pay for it at the time. The phone service was in the name of José Catana, a person that Defendant testified he did not know.

Nevertheless, Defendant testified that the incriminatory texts were not intended for him and that Arce had used the phone at times during the trip. Defendant did not explain why Arce could not have used one of the two cell phones in the vehicle's console. Both phones were new. On one, Arce was the subscriber. All that was stored on the other phone was evidence of three calls to the phone Defendant had in his hands at the time of the stop. Neither phone contained any messages related to a drug delivery. (There was a fourth cell phone in a duffel bag in the back of the Durango; Defendant acknowledged it as his own, but it could not take calls or receive messages because the service contract had expired.)

On Defendant's phone there were no drug-related text messages preceding the arrests. But Defendant was alone in the Durango while Hyde questioned Arce in the police vehicle. And when Hyde returned to the Durango, Defendant was constantly looking at his phone while Hyde asked him questions. In closing argument the prosecutor suggested that Defendant could have erased any previously sent or received incriminating texts while alone during the stop.

Also to show Defendant's knowledge of the purpose of the trip to Nashville, the government offered into evidence bank-account records obtained during the investigation. In the Durango was a copy of an application for a bank account opened on April 18, 2018, about a week before the stop. It was signed by Defendant and gave his address as 3450 W. Missouri Avenue in Phoenix and his employer as C Rock and Supply, although he testified that he had not lived at that address for a number of months and he had worked for that employer only when he first arrived in the United States about two years earlier. The bank records, which were subpoenaed by the government, revealed two accounts, although the government focused on certain transactions on the earlier-created account.

The bank records themselves are not part of the record on appeal, but we get some idea of their content from the trial testimony. Several large cash deposits (including deposits of $8000 on January 30, 2018; $5000 on February 12; and $6000 on February 23) were made in Nashville into Defendant's first account, with the full amount being withdrawn by Defendant (his signature is on the receipt) in Phoenix on the same day for the first two deposits and over a period of time for the third. Altogether, $29,600 in cash was deposited in Nashville into Defendant's account...