United States v. Tercier
| Decision Date | 13 November 2020 |
| Docket Number | No. 18-10992,18-10992 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MULLER TERCIER, a.k.a. Mike, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLSIH]
D.C. Docket No. 1:17-cr-20282-CMA-7
Appeal from the United States District Court for the Southern District of Florida
Before MARTIN, GRANT, and LAGOA, Circuit Judges.
Muller Tercier appeals his conviction and sentence for conspiring to possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. After careful review and with the benefit of oral argument, we affirm his conviction and sentence.
In April 2017, a grand jury returned an indictment charging Tercier and nine other defendants with conspiracy to possess with intent to distribute five hundred grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. A grand jury subsequently returned a superseding indictment again charging Tercier and a codefendant with conspiracy to possess with intent to distribute cocaine, this time in an amount of five kilograms or more. In November 2017, the case proceeded to trial.
During voir dire, the government exercised a peremptory strike on prospective juror 17. Tercier, an African-American man of Haitian descent, objected to the strike and described the prospective juror as "apparently of Haitian descent." Tercier asked the government for a race-neutral reason for the strike. The government responded that the prospective juror, a college student, was too young and too disengaged in the proceedings to be a juror in the case.1 The government also noted that "there are a number of African-American jurors or that appear to be African-American jurors who the government has accepted at this point."
In response, the district court brought the prospective juror back for more questioning, and the prospective juror was asked about his college major, his favorite television show, and whether his exam schedule would interfere with the trial. The prospective juror never stated his ethnicity or national origin on the record. The government admitted that the prospective juror was more engaged than before but reiterated that "he doesn't really have substantial life experience." Tercier argued that the government's reason was a pretext. The district court granted the strike and ruled that "the [g]overnment has provided sufficient reason to exercise a peremptory with regard to [prospective juror 17] and has provided a race-neutral reason."
At trial, the government argued that Tercier was part of a cocaine trafficking conspiracy in South Florida. The government asserted that Tercier and his primary co-conspirators, Richard Lavalliere and Kevens Duroseau, delivered and sold imported cocaine, communicating via coded conversations and burner phones. After Lavalliere caught the attention of law enforcement, drug-enforcement authorities used wiretaps and onsite surveillance to investigate Lavalliere. The government wiretapped eighty-six conversations between Lavalliere and Tercier and twenty-five conversations between Lavalliere and Duroseau. The government introduced these wiretap recordings into evidence and introduced transcripts in English of selected wiretap sessions as several of those wiretap sessions recorded conversations in Creole. Tercier never objected to the accuracy of the English translations at trial.Special Agent Dearl Weber, a government witness, testified to both the translation verification process and the accuracy of the transcripts.
During its case in chief, the government focused on a September 26, 2014, hand-to-hand transaction between the conspirators and elicited testimony from surveilling officers Detective Kenny Veloz, Detective Yaniel Hernandez, and Special Agent Weber. The day before the September 26, 2014, transaction, Lavalliere called Duroseau asking for two to four kilograms of cocaine. Lavalliere paid for the cocaine that day and arranged for Duroseau to deliver the drugs the next day.
During trial, the government presented the following timeline for the September 26 events. At 9:57 a.m., Duroseau informed Lavalliere that he had the cocaine. At 10:22 a.m., Duroseau delivered the cocaine to Lavalliere's house. At 12:00 p.m., Lavalliere told Tercier that he received "two [kilograms] this morning." At 12:44 p.m., Lavalliere called Tercier, telling Tercier that he would leave his house in "15 minutes." Lavalliere arrived at Tercier's autobody shop at 1:19 p.m., quickly gave Tercier a package with the cocaine, and departed moments later. Tercier was not photographed during the transaction.
Lavalliere and Duroseau testified for the government. Regarding the September 26 transaction, Lavalliere could not remember whether he was delivering drugs to or solely picking up money from Tercier. But Lavalliere testified that he and Tercier "dealt" eight to eleven kilograms of cocaine within the six months priorto Lavalliere's arrest. Lavalliere and Duroseau also explained the meanings behind the coded conservations. Special Agent Christopher Mayo, the government's only expert witnesses, also testified about the coded conversations.
At trial, Tercier argued that he used the coded language in both drug-related and non-drug-related conversations alike. To rebut this claim, the government elicited testimony from Lavalliere and Forensic Examiner Ricardo Soto. The government also produced evidence obtained from a warrantless search of a cellphone owned by a third party who had sold Tercier construction-related materials. The testimony and cellphone content showed that these conversations were devoid of coded language.
Tercier vigorously cross-examined the government's witnesses, especially Lavalliere. After the government rested, Tercier moved for a judgment of acquittal and argued that the government did not produce any evidence of a conspiracy. The district court denied Tercier's motion for judgment of acquittal. During closing arguments, Tercier argued that the government did not show "any type of illegal activity or any other activity for that matter."
Tercier objected to the transcripts of the wiretap conversations being allowed into the jury room. Tercier argued that the transcripts should not be sent to the jury room because the wiretapped recordings themselves were the actual evidence, not thetranscripts. The district court overruled Tercier's objection and provided the following jury instruction:
On December 6, 2017, the jury found Tercier guilty of conspiracy to possess with intent to distribute at least five kilograms of cocaine.
In a January 9, 2018, presentence investigation report ("PSI"), the probation officer determined that Tercier should not be eligible for an acceptance-of-responsibility adjustment because Tercier fundamentally denied his guilt throughout trial. The PSI also indicated that safety-valve relief was not available to Tercier because he had not provided a safety-valve statement. Tercier objected to the PSI, arguing that he was entitled to an acceptance-of-responsibility adjustment because heonly went to trial to contest the quantity of the drugs. Regarding safety-valve relief, Tercier provided the following statement on January 29, 2018:
I, Muller Tercier, admit I was involved in the sale of cocaine in the Southern District of Florida. I received a total of a little less than 2 kilos of cocaine from May to November, 2014, from my business associate, Richard Lavalliere. Then I sold the cocaine by the ounce or grams to others. I knew this was wrong when I did it. I apologize to the Court and the government for my actions. I also apologize to my family.
The government responded that this admission differed from the jury's factual findings and noted that Tercier had previously given the government false information on two separate occasions before his conviction, i.e., at his arrest and after an incident concerning a co-defendant.
In February 2018, the district court conducted a sentencing hearing over the course of two days. The district court expressed surprise at Tercier's argument that the only reason he went to trial was to dispute the quantity of drugs, stating that it "never heard any of that before or during trial by Mr. Tercier." At the conclusion of the first day of the sentencing hearing, the district court denied Tercier's request for an acceptance-of-responsibility adjustment. Prior to the second day of sentencing, Tercier was given the opportunity to meet with the government in order to provide another safety-valve statement. On the second day of sentencing, Tercier took the witness stand, and the district court found his in-court statements truthful and complete and granted him safety-valve relief. The district court sentenced Tercierto eighty-three months' imprisonment, five years of supervised release, and a...
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