United States v. Dixon

• Decision Date: 24 August 2018
• Docket Number: No. 15-14354,15-14354
• Citation: 901 F.3d 1322
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James DIXON, Maurin Chacon, Rodolfo Portela, Christopher Altamirano, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

901 F.3d 1322

UNITED STATES of America, Plaintiff-Appellee,

v.James DIXON, Maurin Chacon, Rodolfo Portela, Christopher Altamirano, Defendants-Appellants.

No. 15-14354

United States Court of Appeals, Eleventh Circuit.

August 24, 2018

Phillip Drew DiRosa, U.S. Attorney's Office, Mark Dispoto, U.S. Attorney's Office, Fort Lauderdale, FL, Jason Wu, Assistant U.S. Attorney, Wifredo A. Ferrer, Ilham Aryan Hosseini, John C. Shipley, Assistant U.S. Attorney, Emily M. Smachetti, Nalina Sombuntham, Ignacio Jesus Vazquez, Jr., U.S. Attorney Service—SFL, Miami, FL, for Plaintiff-Appellee.

David A. Donet, Jr., Donet McMillan & Trontz, PA, Coconut Grove, FL, for Defendant-Appellant James Dixon, a.k.a. Smoke.

Manuel Gonzalez, Jr., Law Office of Manuel Gonzalez, Jr., Coral Gables, FL, for Defendant-Appellant Maurin Chacon, Tiny, Peludo, a.k.a. Yung Patron.

Gregory Antonio Samms, Law Office Of Gregory A. Samms, PA, Coral Gables, FL, for Defendant-Appellant Rodolfo Portela, a.k.a. Papo L. Desperado (Federal Prisoner: 04702-104).

Rodolfo Portela, Pro Se.

Philip Robert Horowitz, Law Office of Philip R. Horowitz, Esq., Miami, FL, for Defendant-Appellant Christopher Altamirano, a.k.a. Tango, a.k.a. Peter Baitz.

Before WILLIAM PRYOR, JILL PRYOR, Circuit Judges, and RESTANI,^* Judge.

WILLIAM PRYOR, Circuit Judge:

These consolidated appeals involve the convictions of four defendants who participated in a drug conspiracy in Little Havana, Miami. Maurin Chacon, Christopher Altamirano, Rodolfo Portela, and James Dixon were members of the self-described "Big Money Team," a gang of drug dealers who also committed robberies and illegally possessed guns as part of their conspiracy. A jury convicted the defendants of conspiracy to distribute 280 grams of cocaine base and several other charges of drug trafficking, firearm possession, armed robbery, and assault. All four defendants argue that the government presented insufficient evidence of a conspiracy. And they raise individual challenges about the sufficiency of the evidence for separate charges, the denial of a motion to suppress evidence, the refusal to give a jury instruction on entrapment, the admission of evidence of uncharged conduct, the prosecutor’s closing argument, the failure to conduct a competency hearing, and the reasonableness of their sentences. We affirm.

I. BACKGROUND

For several years, the "Big Money Team," a gang of drug dealers in Little Havana, Miami, maintained a set of "traps," locations where members of the Team—and only members of the Team or their associates—sold drugs. Individual dealers cooperated to establish a marketplace with a reliable supply of drugs to attract customers to the exclusive territory of the Team. They manned a cluster of locations in close proximity. Some members of the Team also committed robberies to sustain supplies. And some carried guns, especially when they were at the traps at night.

Two cooperating witnesses, Nadim Guzman and Dayaan Zerquera, provided key testimony about the Team. Guzman explained that being a member of the Team meant "[t]hat you [could] sell drugs and make money with them." He testified that members of the Team coordinated to supply drugs to the customers who visited the traps to buy drugs. Guzman explained that "if you had [what a customer wanted] on you, you could sell it." Otherwise, members would "bring[ ] customers to one another" to satisfy customers’ demands and facilitate each other’s sales. Some members also pooled their money to buy larger supplies of drugs. And they guarded against competition and disruption by warning nonmembers not to sell drugs near the traps, and by serving as lookouts for each other.

Guzman explained that he sold one to two grams a day of cocaine base, also known as crack cocaine, for 11 months in 2013. He also estimated that three to six members sold drugs at the traps at a time and that each sold about one gram a day. Zerquera testified that he sold two to three grams a day and estimated that the Team as a whole sold three to 18 grams a day, with average sales falling between 16 and 18 grams a day.

Chacon, Altamirano, Portela, and Dixon were all members of the Team. Although the Team had no official "boss" who gave members orders, the Team had an internal hierarchy. Members would "gain respect" or "lose respect" based on perceived contributions, including a reputation for violence and participation in robberies. Chacon and Altamirano were "top guys" who "call[ed] shots." They also participated in robberies and carried guns. Portela also carried guns.

The City of Miami Police Department started to investigate the Team in the summer of 2013. Detective David Bernat of the Gang Intelligence Unit coordinated surveillance of the traps and arranged for purchases of narcotics by a confidential informant. An undercover detective, Kenneth Veloz, also conducted controlled purchases from members of the Team and made video and audio recordings of their interactions.

On November 18, 2013, Officer David Segovia of the Miami-Dade Police Department stopped a car driving on the wrong side of the road. The driver was Portela’s girlfriend, and Portela was in the front passenger seat. During the stop, Segovia "smell[ed] ... marijuana" wafting from the vehicle, and Portela admitted to Segovia that he had a bag of marijuana on his person. Segovia looked inside the car and saw "loose particles" of marijuana on the floorboard. He also observed a gun under the front passenger seat. Another officer then informed him that there was an outstanding warrant for Portela’s arrest. Segovia arrested Portela and put him in the police car.

Detective Thomas Wever arrived on the scene approximately two hours later and interviewed Portela. After Wever warned Portela of his rights to remain silent and to counsel, Portela signed a waiver of rights form. He explained that he bought the gun for protection, that it was loaded, and that he had been carrying the gun on his person before the stop, at which point he placed it under the seat.

Meanwhile, Agent Rosniel Perez of the Bureau of Alcohol, Tobacco, Firearms, and Explosives was investigating a separate incident involving Portela’s illegal possession of a gun. Although Perez was still "considering whether to open a formal federal investigation," he obtained a search warrant for Portela’s DNA shortly after Portela’s arrest at the traffic stop. Perez then executed the warrant at the jail where Portela was being held on state charges after having been appointed counsel. When Perez presented the warrant, Portela initiated a conversation and stated that he "wanted to cooperate and make a deal." After Perez warned Portela of his rights and that Perez could not make any deals with him at that time, Portela waived his rights and made incriminating statements.

On November 20, 2013, Altamirano left a trap to go on a "mission" with another member. The duo robbed five people at gunpoint, taking cash and cell phones. As they fled the scene, Altamirano fired a shot from his gun. Altamirano and the other member then returned to the trap, where the robbers "talk[ed] about [the] robbery ... and show[ed] [other Team members] ... a phone and a wallet they took." Police officers traced one of the stolen phones to the trap, where they found Chacon, Guzman, other members of the Team, cocaine base, other drugs, and a gun. The officers found Altamirano one block away.

On February 25, 2014, Veloz, the undercover detective, asked Chacon if he had guns for sale during a recorded conversation. Chacon said that he had a "couple" but "need[ed] some more" and mentioned that guns were "expensive right [then]." At a later meeting in Veloz’s car, Chacon sold Veloz a revolver that he referred to as "[his] baby."

Also in 2014, Perez obtained search warrants for Team members’ social media accounts. He collected posts in which members of the Team identified themselves, boasted about drug sales and violence, brandished weapons, and displayed the Team hand sign.

A federal grand jury indicted Chacon, Altamirano, Portela, Dixon, and several codefendants on one count of conspiracy to possess with intent to distribute 280 grams or more of cocaine base, 21 U.S.C. §§ 841(a), (b)(1)(A)(iii), 846, between 2011 and October 2014. The grand jury also indicted Portela on two counts of possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), one count of possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1), and one count of possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c). The grand jury indicted Altamirano for assault with a dangerous weapon in aid of a racketeering enterprise, id. § 1959(a)(3), for possession of a firearm in furtherance of a crime of violence, id. § 924(c), and for possession of cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1). The grand jury indicted Chacon for two charges stemming from the same robbery—assault with a dangerous weapon in aid of a racketeering enterprise, 18 U.S.C. § 1959(a)(3), and possession of a firearm in furtherance of a crime of violence, id. § 924(c). The grand jury also indicted Chacon for possession with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c), on the basis of the drugs and the gun that police found when they searched the trap after the November 20 armed robbery. And the grand jury indicted Chacon for possession of a firearm by a convicted felon, id. § 922(g)(1).

Before trial, Portela filed a motion to suppress the gun that police found in his girlfriend’s car, his statements to Wever after he was arrested, and the statements he later made at the jail. After an evidentiary hearing, the magistrate judge recommended denying the motion. The district court adopted the report and recommendation of the magistrate judge.

The four defendants, as well as a fifth codefendant, went to trial in February 2015. After the parties rest...