USA v. Gonzalez-rodriguez, 09-40889.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation621 F.3d 354
Docket NumberNo. 09-40889.,09-40889.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Rafael GONZALEZ-RODRIGUEZ, Defendant-Appellant.
Decision Date21 September 2010

621 F.3d 354

UNITED STATES of America, Plaintiff-Appellee,
Rafael GONZALEZ-RODRIGUEZ, Defendant-Appellant.

No. 09-40889.

United States Court of Appeals,Fifth Circuit.

Sept. 21, 2010.

621 F.3d 355


621 F.3d 356
621 F.3d 357

Mary Jane Harmon (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Fed. Pub. Def., H. Michael Sokolow, Asst. Fed. Pub. Def. (argued), Houston, TX, for Defendant-Appellant.

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


BENAVIDES, Circuit Judge:

Defendant-Appellant Rafael Gonzalez-Rodriguez appeals his conviction for possession with intent to distribute more than 500 grams of methamphetamine. Gonzalez-Rodriguez contends that the evidence presented at trial was insufficient to prove

621 F.3d 358

beyond a reasonable doubt that he knowingly possessed a controlled substance. Gonzalez-Rodriguez further contends that the Government presented improper expert opinion testimony on an ultimate issue, and also presented improper drug courier profile testimony. Lastly, Gonzalez-Rodriguez asserts that the Government violated the Speedy Trial Act by failing to indict him within thirty days of his arrest. For the following reasons, we affirm Gonzalez-Rodriguez's conviction.


On the night of January 31, 2009, Gonzalez-Rodriguez drove a Freightliner tractor-trailer to the immigration checkpoint in Falfurrias, Texas. Gonzalez-Rodriguez was accompanied by his son, Jose De Jesus Gonzalez-Lopez. 1 The Freightliner was carrying a shipment of grapefruits destined for a Costco warehouse in Dallas, Texas. The grapefruits had been loaded earlier that day at Interstate Fruit and Vegetable Company, Inc. in Donna, Texas, a city near the Mexican border.

Border Patrol Agents Abel Quintana and Victor Valdez were on duty at the Falfurrias checkpoint when Gonzalez-Rodriguez arrived at approximately 11:26 P.M. Agent Valdez is a trained K-9 handler and was with his canine, Ringo. As Gonzalez-Rodriguez approached the primary inspection area, Ringo pulled Agent Valdez to the back of the Freightliner. Agent Valdez signaled to Agent Quintana that Ringo had alerted to the trailer, and Agent Quintana asked Gonzalez-Rodriguez to drive to a secondary inspection area.

At secondary inspection, Agent Valdez noticed a shiny new silver lock on the trailer and asked Gonzalez-Rodriguez to open the trailer door. After Gonzalez-Rodriguez opened the door, Ringo jumped on top of grapefruit bins stacked two high and ran full speed to the front of the trailer. Ringo started digging through a particular bin of grapefruits. Agent Valdez crawled to the area where Ringo was digging, moved some bags of grapefruits, and discovered bundles bearing an image of the grim reaper. Agent Valdez, with the assistance of other agents, ultimately recovered 124 such bundles weighing a total of 312.5 pounds. The bundles had been placed in the center of five different grapefruit bins, with grapefruits layered on all sides. The bundles contained extremely high quality methamphetamine, referred to as “ice” due to its purity, with an estimated street value of $10 to $40 million.

A bill of lading and log book were recovered from the Freightliner. The bill of lading was prepared by Interstate Fruit and indicates that Order 5349 contained 40 bins of 15-pound bags of grapefruit destined for a Costco warehouse in Dallas. Interstate Fruit's shed foreman testified that Order 5349 left Interstate at 12:56 P.M. The log book's latest entry, on the other hand, states that “Pickup # 4359” was made at 9:45 P.M. The log book was signed by Gonzalez-Rodriguez. It normally takes about one and one-half hours to drive from Interstate Fruit's warehouse in Donna to the immigration checkpoint in Falfurrias.

Gonzalez-Rodriguez was arrested on January 31, 2009 and made an initial appearance before a magistrate judge on February 2, 2009. The Government made an oral motion for pretrial detention at the initial appearance, and the magistrate

621 F.3d 359

judge entered an order of temporary detention pending hearing. After a detention hearing on February 5, 2009, the magistrate judge denied bond and remanded Gonzalez-Rodriguez to federal custody.

On March 3, 2009, Gonzalez-Rodriguez was indicted on one count of possession with intent to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Later that day, Gonzalez-Rodriguez moved to dismiss the indictment on grounds that his rights under the Speedy Trial Act had been violated. On March 30, 2009, the district court held a hearing on the motion. At the hearing, the Government conceded that the indictment was not filed within 30 days due to an oversight and miscalculation of days, but nonetheless argued that the Act was not violated because the period from February 2-5, 2009 was an excludable delay under 18 U.S.C. 3161(h)(1). On April 2, 2009, the district court denied Gonzalez-Rodriguez's motion to dismiss. The district court held that the Government's oral motion for pretrial detention was a “pretrial motion” for purposes of 18 U.S.C. § 3161(h)(1)(D), and therefore the period from February 2-5, 2009 did not count towards the 30 days within which the Government needed to file an indictment.

An initial jury trial was held from April 29-May 1, 2009. The trial ended in a mistrial after the jury was unable to reach a unanimous verdict. A second jury trial was held from June 15-16, 2009. The evidence presented in the second trial was substantially the same as in the first trial, except the government added the expert testimony of Special Agent Robert Crawford of the Drug Enforcement Administration (DEA). Drawing on over 19 years of DEA experience, Agent Crawford testified that most large quantity methamphetamine in this country is produced in Mexico by drug organizations and transported to the United States by drug couriers for distribution. He stated that he would “classify” the majority of people arrested at immigration checkpoints as couriers, and that couriers generally are at the bottom of drug organizations and do not actually handle the drugs they transport. Agent Crawford explained that this is to reduce the cost of the courier's services, and also to ensure that the courier has little information that could be traced back to the broader organization. Because drug couriers typically do not handle drugs, Agent Crawford testified that a courier probably did not hide the methamphetamine in Gonzalez-Rodriguez's trailer, and thus Agent Crawford did not expect to find, and was not surprised when he did not find, Gonzalez-Rodriguez's fingerprints on the bundles of methamphetamine. Agent Crawford additionally testified that large drug organizations often seek couriers with no criminal history to give an appearance of legitimacy to their operation. For a similar reason, Agent Crawford stated that drug organizations often try to hide their illegitimate contraband in seemingly legitimate places for transportation. He explained that drugs often are hidden in “false walls, false compartments, they will put it in engines, they will put it in tires, they will put it in produce just various different particular ways.” Indeed, Agent Crawford asserted that the “first thing” he wanted to know when conducting his investigation was whether the Freightliner was carrying a “legitimate load.” Agent Crawford further testified that two drain holes in the Freightliner's trailer had been plugged, and that this indicated an effort to impede a detectable drug odor. Finally, Agent Crawford suggested that Gonzalez-Rodriguez must have known about the drugs in the Freightliner because he falsified the Freightliner's log book. Gonzalez-Rodriguez

621 F.3d 360

did not object to any of this testimony.

In closing argument, Gonzalez-Rodriguez drew the jury's attention to Agent Crawford's inability to find Gonzalez-Rodriguez's fingerprints on the methamphetamine, and also to Gonzalez-Rodriguez's lack of criminal history. In rebuttal, the Government argued:

As Agent Crawford told you, he didn't expect that to be-there to be any prints there. That wouldn't make sense. That's not the way the drug organizations work. He's hired to drive it from point A to point B. The drug organization doesn't want him with his hands on the packages. They don't even want him to know exactly how much he's got on there. They don't want him probably to even know exactly where it is. That helps him out later because he doesn't know as much.
* * *
Now, of course, [the drug organization]'s going to look for somebody, a driver, ... somebody without a criminal history. That's the type of person exactly they're going to be looking for.
* * *
Whoever lied on that log book is hiding a critical fact. He's trying to make it look like he went straight from the interstate to the checkpoint, and it didn't happen. Why would he lie? Why would he lie? There's only one reason he would lie. There's only one reason, because he's guilty, because he knows.

Gonzalez-Rodriguez did not object to the Government's argument.

Gonzalez-Rodriguez moved for a judgment of acquittal at the end of the Government's case in chief, which the district court denied. The jury ultimately returned a guilty verdict on count one of the indictment, and the district court sentenced Gonzalez-Rodriguez to 235 months in prison followed by five years of supervised release. Gonzalez-Rodriguez appealed on August 27, 2009. We have jurisdiction over the district court's final judgment of conviction and sentence pursuant to 28 U.S.C. § 1291.


Gonzalez-Rodriguez asserts that the evidence presented at his second trial was insufficient to prove beyond a reasonable doubt that he knowingly possessed a controlled substance. Gonzalez-Rodriguez further contends that Agent Crawford presented...

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