United States v. Medeles-Cab

• Decision Date: 11 June 2014
• Docket Number: No. 13–40374.,13–40374.
• Citation: 754 F.3d 316
• Parties: UNITED STATES Of America, Plaintiff–Appellee, v. San Juanita Noemi MEDELES–CAB, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

754 F.3d 316

UNITED STATES Of America, Plaintiff–Appellee,

v.San Juanita Noemi MEDELES–CAB, Defendant–Appellant.

No. 13–40374.

United States Court of Appeals,Fifth Circuit.

June 11, 2014.

John Richard Berry, Assistant U.S. Attorney, Renata Ann Gowie, U.S. Attorney's Office, Houston, TX, Sanjeev Bhasker, Assistant U.S. Attorney, U.S. Attorney's Office, Laredo, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before STEWART, Chief Judge, and DENNIS and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Defendant–Appellant San Juanita Noemi Medeles–Cab appeals her conviction for possessing with the intent to distribute more than five kilograms of cocaine. Medeles–Cab argues that the United States put on improper “drug courier profile” evidence during her trial. Medeles–Cab also argues that knowledge of the type and quantity of drugs is an element of the offense of conviction and that the United States failed to prove that element. Because we disagree that the evidence at issue amounted to an improper drug courier profile and because we recognize that Medeles–Cab's knowledge argument is foreclosed by our precedent, we AFFIRM.

I.

This case arose out of a drug seizure at a border patrol checkpoint near Laredo, Texas.¹ Border Patrol agents first interacted with Medeles–Cab, a Mexican citizen, when she arrived at the checkpoint in a Volkswagen GTI. Three of Medeles–Cab's children were also in the car. In her initial exchange with the agents, Medeles–Cab presented a set of travel documents, demonstrating her lawful presence in the country.² After a drug dog “alert [ed] to the rear bumper” of the car in the course of a routine inspection, the agents directed Medeles–Cab's car to “secondary inspection.” The more thorough secondary inspection revealed approximately ten kilograms of cocaine in a hidden compartment in the rear of the car. Medeles–Cab was arrested and eventually indicted for possessing with the intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and for conspiring to do the same. Medeles–Cab went to trial.

Medeles–Cab's theory at trial was that she had no knowledge of the drugs in the car. Medeles–Cab testified that she merely was headed to San Marcos, Texas, to do some shopping and that, as a favor to a friend, she also was planning to pick up some money in San Antonio, Texas. To establish that Medeles–Cab knew that she was transporting drugs, the United States presented evidence of Medeles–Cab's on-scene statements as well as her communications with others via cell phone, including text messages and call records. In addition, through Agent Joseph Osborne of the Drug Enforcement Agency, the United States put on evidence pertaining to the business of drug trafficking. After explaining that he had become familiar with the value of cocaine “locally and elsewhere in the United States” as a result of his experience with cocaine investigations, Agent Osborne testified that the market price for a kilogram of cocaine is between $22,000 and $25,000 in Laredo and between $25,000 and $28,000 in San Antonio. Agent Osborne also testified thus:

Q: [I]n this particular case how many kilos are involved again?

A: Approximately ten kilos.

Q: Okay. So looking at the low end in Laredo, the approximate value would be how much?

A: [A]bout 220,000.

Q: Okay. And looking at the high end in Laredo at 10 kilos at 25,000, what would be the approximate value?

A: [250,000].

....

Q: Okay. And so at the low end, again, sticking to the amount in this particular case, ten kilos, at the low end in San Antonio at 25,000 a kilo it would be what amount?

A: [250,000].

Q: And at the high of 28,000 per kilo, how much would that be?

A: [280,000].

Q: All right. Now what accounts for the increase between Laredo and San Antonio?

A: Well, as ... the cocaine moves north from Mexico it actually increases from going—crossing the river there's an increase in price and then again crossing the checkpoint there's an increase in price. There's money paid to the driver, money to the person who set it up, and then they share the profits and then they also kick some of the profits back to the person who sent them so that the difference in price should go up.

Q: And so as the drugs or in this particular case the cocaine goes further say from San Antonio what's going to happen to the value of that particular load?

A: The farther it goes typically the more expensive it is. There's more risk involved taking it further into the country and they have to pay somebody to take it so the price continues to go up.

Medeles–Cab did not object to this testimony. Later, in closing argument, the prosecutor argued the following to the jury:

She's going to deliver a load of cocaine—14 bundles, ten kilos. That's the other thing that was going on here. I'm sure she was going to do some shopping. Hey, take advantage of it. You're already there. Go shopping. She was going to get paid. You can surmise that too. You're delivering ten kilos of cocaine you're going to get paid a pretty good amount of money. I'm sure she's going to have a lot of money to shop.

Medeles–Cab did not object to this argument.

The district court denied Medeles–Cab's motion for acquittal. Particular to this appeal, the district court gave the following jury instruction regarding the knowledge element of the possession offense: “The government must prove beyond a reasonable doubt that the defendant knew she was possessing a controlled substance, but need not prove the defendant knew which particular controlled substance was involved.” The jury convicted Medeles–Cab on the possession count and acquitted her on the conspiracy count. The district court sentenced Medeles–Cab to the statutory minimum of 120 months in prison.

On appeal, Medeles–Cab characterizes Agent Osborne's testimony as an improper drug courier profile, specifically seizing on two phrases—“There's money paid to the driver” and “they have to pay somebody to take it so the price continues to go up.” Conceding that plain error review applies, Medeles–Cab argues that the admission of that testimony requires reversal of her conviction. In addition, Medeles–Cab argues that the prosecutor's remarks exacerbated the impropriety of the drug courier profile. Medeles–Cab also argues that the prosecutor's remarks were improper in their own right because they were not supported by the evidence.

In a separate point of error, Medeles–Cab argues that, under § 841, the United States must prove that the defendant has knowledge of the type and quantity of drugs underlying the offense and that the United States failed to satisfy that burden.

II.

We review Medeles–Cab's challenge to Agent Osborne's testimony and the prosecutor's closing argument for plain error. See United States v. Gonzalez–Rodriguez, 621 F.3d 354, 362–63 (5th Cir.2010). The first step in plain-error review requires us to determine if the error is “clear or obvious” under current law. Id. at 363. An error is “clear or obvious” if “the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it.” Id. (internal quotation marks omitted). Second, if the error is clear, we consider whether the error affected the defendant's substantial rights. Id. Under this second prong, the defendant has the burden of demonstrating that the error was prejudicial, which requires a showing that the error undermines confidence in the outcome of the trial. Id. To clear the last hurdle of plain-error review, we must decide whether the error seriously affected “the fairness, integrity, and public reputation of the judicial proceeding.” Id.

The crux of Medeles–Cab's argument is that Agent Osborne “improperly told, or at the very least suggested to, the jury that Ms. Medeles–Cab was knowingly involved in ... the transportation of drugs.” The United States, of course, disagrees. To settle this dispute, we begin with Federal Rule of Evidence 704(b): “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged.... Those matters are for the trier of fact alone.” Two basic principles derive from this rule. First, “a qualified narcotics agent typically may testify about the significance of certain conduct or methods of operation unique to the drug business,” as long as the testimony complies with Federal Rule of Evidence 403. Gonzalez–Rodriguez, 621 F.3d at 363; see United States v. Gutierrez–Farias, 294 F.3d 657, 663 (5th Cir.2002). Second, such testimony crosses the line into that which Rules 704 and 403 prohibit if it amounts to the “functional equivalent' of an opinion that the defendant knew he was carrying drugs.” Gonzalez–Rodriguez, 621 F.3d at 363 (quoting Gutierrez–Farias, 294 F.3d at 663). A so-called “drug courier profile” is generally inadmissible “because of its potential for including innocent citizens as profiled drug couriers.” United States v. Morin, 627 F.3d 985, 995 (5th Cir.2010) (internal quotation marks omitted).

A drug courier profile is “ ‘a compilation of characteristics that aid law enforcement officials in identifying persons who might be trafficking in illegal narcotics.’ ” United States v. Sanchez–Hernandez, 507 F.3d 826, 831 (5th Cir.2007) (quoting United States v. Williams, 957 F.2d 1238, 1242 (5th Cir.1992)). In “pure profile evidence” cases, “law enforcement personnel seek to testify that because a defendant's conduct matches the profile of a drug courier, the defendant must have known about the drugs he was transporting.” Gonzalez–Rodriguez, 621...