United States v. Sosa

• Decision Date: 25 July 2018
• Docket Number: No. 17-40460,17-40460
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Oscar SOSA, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

897 F.3d 615

UNITED STATES of America, Plaintiff-Appellee
v.
Oscar SOSA, Defendant-Appellant

No. 17-40460

United States Court of Appeals, Fifth Circuit.

FILED July 25, 2018

Jessica Carol Akins, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Kayla R. Gassmann, H. Michael Sokolow, Assistant Federal Public Defenders, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before ELROD, COSTA, and HO, Circuit Judges.

GREGG COSTA, Circuit Judge:^*

Oscar Sosa was convicted of bringing methamphetamine from Mexico into the United States. Sosa argues that three errors he did not object to during his five-day trial rendered the proceeding unfair. Two of his claims—the prosecution’s use of drug profiling evidence and bolstering of witnesses’ credibility—are errors that we have repeatedly warned the government about. Troubled as we are by the continued use of these improper tactics, we do not find that Sosa has met his burden of showing that the errors substantially affected the outcome of the trial. United States v. Olano , 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We also find no clear or obvious Confrontation Clause violation.

897 F.3d 618

I.

The case against Sosa began with the arrest of two drug couriers, Juan Sarmiento and Jose Galvan, in Harlingen, Texas. A DEA task force received a tip about two suspicious subjects heading to a gas station that also served as a bus stop. Two sheriff’s deputies and a DEA agent stopped Sarmiento and Galvan before they could board a bus and obtained consent to search their luggage and persons. The officers found six bundles of crystal meth sewn into the lining of Sarmiento’s jacket and four bundles in Galvan’s pockets. Galvan and Sarmiento were arrested and interviewed.

The two suspects gave conflicting statements about the origin of the drugs, but both said they were planning on taking the meth to a man named Oscar in Plant City, Florida. They also identified two women, "Betty" and "Patti," as the "owners or managers" of the narcotics. Police later identified those individuals as Patricia Sosa and Bertha Sosa, Oscar Sosa’s mother and aunt, respectively, who lived in Mexico and supplied the drugs. The attempt to identify "Oscar" led investigators to Sosa. The investigation further revealed that Genaro Luera was connected to Patricia and Bertha because they were his wife’s aunts.

The government argued that the conspiracy worked like this: (1) Patricia and Bertha obtained the drugs in Mexico; (2) Sosa and Luera hired couriers such as Galvan and Sarmiento to pick up the drugs from the U.S. side of the Texas-Mexico border and transport them to Florida; and (3) Sosa and Luera received the meth in Florida where they sold it.

Galvan, Sarmiento, and Luera all pleaded guilty and agreed to cooperate, which included testifying against Sosa. All three identified Oscar (both in-court and through a photo array) as a member of their drug trafficking organization. In addition to the testimony of these three cooperators, the government called DEA Agent Jason Bradford who testified as an expert on drug trafficking. A Customs and Border Patrol officer also testified about the various familial relationships. The jury convicted Sosa on both of the charged counts: possession with intent to distribute 50 grams or more of meth and conspiracy to commit that offense.

Sosa now challenges his conviction based on three alleged errors that he did not identify in the district court: first, that the government presented impermissible profiling evidence when the DEA agent linked the profile of a drug dealer to Sosa’s behavior; second, that the government improperly bolstered the credibility of all three eyewitnesses; and third, that the government violated the Confrontation Clause when a DEA agent testified about a tipster’s statements that inculpated Sosa’s mother. Sosa also argues the conviction should be reversed based on the cumulative effect of the three errors, even if each error alone does not warrant reversal.

II.

Because Sosa failed to object to this testimony, which might have eliminated the errors, he must surmount the significant hurdles of plain error review to receive a new trial. There are four of them: (1) there must be an "error or defect," (2) the error must be "clear or obvious, rather than subject to reasonable dispute," (3) the error "must have affected the appellant’s substantial rights," and (4) the error must have "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

897 F.3d 619

A.

The first alleged error is that the government introduced impermissible profiling testimony by having the expert witness not only describe the typical aspects and behavior of a drug trafficking organization but also tell the jury where Sosa fit into that structure. An expert witness may explain to a jury the mechanics of a drug trafficking organization. See United States v. Gonzalez-Rodriguez , 621 F.3d 354, 364 (5th Cir. 2010). When stated in general terms, such testimony may help the jury "understand the significance and implications of" certain conduct. Id. ; United States v. Medeles-Cab , 754 F.3d 316, 321 (5th Cir. 2014). But the ultimate responsibility of linking a defendant’s conduct with the typical characteristics of drug trafficking must be left to the jurors. Gonzalez-Rodriguez , 621 F.3d at 364. If the profile testimony itself makes that connection, then it crosses into the forbidden territory in which testimony with the "expert" imprimatur is allowed to opine on the ultimate issue of guilt which is for the "trier of fact alone." FED. R. EVID. 704(b) ; Medeles-Cab , 754 F.3d at 321.

Agent Bradford’s testimony stepped well past the "fine but critical line" between "expert testimony concerning methods of operation unique to the drug business, and testimony comparing a defendant’s conduct to the generic profile of a drug courier." Gonzalez-Rodriguez , 621 F.3d at 364. Bradford began with acceptable testimony describing the typical roles within a drug trafficking organization, such as the couriers, the wholesalers, and the distributors. But the testimony invaded the province of the jury when Bradford began matching those roles to individuals in the case, including the defendant, in this manner:

[the Prosecution] - ... Can you kind of draw this drug trafficking organization with the players that you know from your investigation.

[Agent Bradford] - ... All right. So, again, we’re going to start off with the source of supply or transportation coordinator. Sometimes they’re the same, sometimes they’re different, okay?

In this case, we recognize Patti and Bertha Sosa as filling those roles, okay? The investigation showed that an unknown man named Freddie LNU, meaning last name unknown, filled the role of the courier because he would take the drugs into the United States. Okay?

Once it got to the United States, we had more couriers, okay? And you got to see them live and in person. That was Mr. Galvan and Mr. Sarmiento, okay? They went to a wholesaler, then the distributor who we will recognize as Mr. Oscar Sosa.

Oscar had clients. That was Mr. Genaro Luera. And then Mr. Luera sold to, and this is unique, back to Mr. Galvan and other people. Okay?

Mr. Luera also spoke about unknown other clients and customers that Mr. Sosa had, but he didn’t have extensive knowledge of.

That alone would be impermissible. But the government went even further in eliciting testimony (via a leading question no less) that Sosa’s specific behavior was "common of drug traffickers":

[the Prosecution] - When you’re looking at [Sosa’s records] and you’re not finding any assets—well, really, three things—not finding any assets in Mr. Sosa’s name, is that somehow in fact indicative of—of some things that say, okay, you know what, it’s kind of strange he doesn’t have any assets in his name, that tells me what?

[Agent Bradford] - Yes, we consider that conduct common of drug traffickers.

897 F.3d 620

[the Prosecution] - And why is that?

[Agent Bradford] - Because they don’t want to leave a trail for their assets.

Given the number of times we have found quite similar profile testimony improper, the above testimony was obvious error. See, e.g., Gonzalez-Rodriguez , 621 F.3d at 366 (finding obvious error when a law enforcement agent expressly linked a defendant’s behavior with general profiling evidence to prove knowledge of the crime); United States v. Vedia , 288 F. App'x 941, 947–48 (5th Cir. 2008) (explaining that it was obvious error when an expert witness used "drug profiling" to imply that most drug couriers know that they are carrying drugs in their vehicle and thus the defendant likely knew he had drugs in his vehicle). The government, while not conceding error, at least ultimately recognized that the testimony was problematic in stating during oral argument that it "would not advise [its] prosecutors to do this again." Today’s opinion, and the body of precedent it relies on that is filled with similar warnings,...