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United States v. Rodriguez-Flores

United States Court of Appeals, Tenth Circuit

November 5, 2018


          Appeal from the United States District Court for the District of New Mexico (D.C. Nos. 2:16-CR-00580-RB-1 & 2:16-CR-00580-RB-2)

          Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado for Defendant-Appellant Miguel Angel Rodriguez-Flores.

          Todd A. Coberly, Coberly & Martinez, LLLP, Santa Fe, New Mexico for Defendant-Appellant Jose Remberto Guzman-Dominguez.

          Richard C. Williams, Assistant United States Attorney (James D. Tierney, Acting United States Attorney, with him on the briefs), Las Cruces, New Mexico for Plaintiff-Appellee.

          Before LUCERO, HARTZ, and HOLMES, Circuit Judges.


         Defendants Jose Remberto Guzman-Dominguez and Miguel Angel Rodriguez-Flores were arrested at a state port of entry after an inspector found cocaine and heroin in their truck (a tractor-trailer). The truck contained a large quantity of legitimate cargo (chemical cleaner), but four boxes containing the drugs, weighing more than 115 pounds, were concealed behind that cargo. After a joint trial in the United States District Court for the District of New Mexico, Defendants were convicted on all three counts of the indictment against them: (1) conspiracy to distribute at least five kilograms of cocaine and at least one kilogram of heroin, see 21 U.S.C. § 846; (2) possession with intent to distribute at least five kilograms of cocaine, see id. §§841(a)(1) and (b)(1)(A); and (3) possession with intent to distribute at least one kilogram of heroin, see id. The chief issue at trial was whether Defendants knew of the contraband in the truck. Both had denied knowledge in statements to law-enforcement officers after their arrests. Guzman-Dominguez repeated the denial of knowledge in his trial testimony. Rodriguez-Flores did not testify.

         On appeal Rodriguez-Flores challenges the sufficiency of the evidence that he knew of the contraband in the truck, and both Defendants challenge the unobjected-to admission of a statement by an expert witness that he did not believe persons transporting drugs who denied knowledge of the drugs. But the evidence was more than sufficient for a reasonable juror to infer beyond a reasonable doubt that Rodriguez-Flores was involved in the drug offenses. And on plain-error review of the admission of the expert testimony, we hold that Defendants have not shown the prejudice necessary to require reversal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


         We review de novo the sufficiency of evidence for a criminal conviction, viewing "the evidence in the light most favorable to the verdict to ascertain whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt." United States v. Smith, 641 F.3d 1200, 1204-05 (10th Cir. 2011). In making this determination, we cannot weigh conflicting evidence or consider the credibility of witnesses, but instead we defer to the jury's resolution of these matters. See United States v. Brooks, 438 F.3d 1231, 1236 (10th Cir. 2006). And "rather than examining the evidence in bits and pieces, we evaluate the sufficiency of the evidence by considering the collective inferences to be drawn from the evidence as a whole." Id. (brackets and internal quotation marks omitted).

         Rodriguez-Flores challenges the sufficiency of the evidence against him. "To obtain a conviction for conspiracy, the government must prove that (1) there was an agreement to violate the law; (2) Defendant knew the essential objectives of the conspiracy; (3) Defendant knowingly and voluntarily took part in the conspiracy; and (4) the coconspirators were interdependent." United States v. Pulido-Jacobo, 377 F.3d 1124, 1129 (10th Cir. 2004) (emphasis added) (internal quotation marks omitted). To prove the two counts of possession with intent to distribute, "the government must show that [1] the defendant possessed the controlled substance; [2] knew that he had it; and [3] possessed it with the intent to distribute it." Id. at 1131 (emphasis added) (internal quotation marks omitted).

         Rodriguez-Flores does not challenge the sufficiency of the evidence on most of the elements of the three offenses. He limits his argument to the sufficiency of the evidence that he knew about the drug cargo. That is, he does not argue that even if he knew about the drugs, he was innocent of the charges.

         We reject the challenge. As we proceed to explain, there is compelling evidence that the drugs were added to the cargo after Defendants picked up the chemical cleaner, that Defendants were together and controlled the truck from the time of that pick-up until their arrests a few hours later, and that they were close associates who were working together in the venture.

         A. The Evidence

         1. The Arrests

         On November 14, 2015, at 12:29 a.m., Guzman-Dominguez drove his commercial truck into the state port of entry on Interstate 10 near Lordsburg, New Mexico. Rodriguez-Flores was his sole passenger. Inspector Jesus Salcedo was assigned to do level 1 inspections, which involve examining paperwork, the truck, and the cargo. Salcedo testified that as he was examining the underside of the vehicle, Guzman-Dominguez was unusually chatty. Guzman-Dominguez told the inspector that he had just installed new brakes, but Salcedo, a former mechanic, testified that there were no new brakes.

         When Salcedo searched the cargo area of the truck, he saw 17 four-foot-by-four-foot totes (plastic containers inside metal cages) filled with liquid chemical cleaner. Each tote weighed about 2400 pounds. According to the bill of lading, signed by Rodriguez-Flores but given to Salcedo by Guzman-Dominguez, the totes had been picked up the previous day from Mirachem, an industrial-cleaner manufacturer in Phoenix, Arizona. Climbing into the truck and over the totes, Salcedo discovered four cardboard boxes, which were unaccounted for in the bill of lading. One box was open, and he saw green saran-wrapped bundles inside. From his training he believed the boxes contained narcotics, so he returned to his booth to report the discovery. (It was later determined that the boxes contained 47.9 kilograms of cocaine and 5.24 kilograms of heroin.)

         Two New Mexico State Police officers who had arrest power arrived and arrested Defendants. Defendants were not interviewed, however, until after the arrival at 4:35 a.m. of Agents Antonio Palomares and Johnathan Butler with the Investigations Bureau of the New Mexico State Police. The agents began recorded interviews with Guzman-Dominguez at 5:23 a.m. and with Rodriguez-Flores about 6 a.m. Two investigators with the Department of Homeland Security (DHS)-Task Force Officer Jose Lopez and Special Agent William Shafer-arrived about 9:00 a.m. They interviewed Guzman-Dominguez at 10:30 a.m. and Rodriguez-Flores at 11 a.m.

         2. The relationship between Defendants

         Defendants were not mere acquaintances, nor did they have a typical employer-employee relationship. Their friendship and association were described in Guzman-Dominguez's trial testimony and Rodriguez-Flores's statements to law-enforcement officers after his arrest. The two men had known each other since they were children in El Salvador. A few months before their arrests, they had reconnected through Facebook after 15 years without seeing one another. Rodriguez-Flores, who had been struggling financially while living in California, began working with Guzman-Dominguez in June 2015 so that he could learn the business of commercial driving and get his commercial driver's license. Guzman-Dominguez's trucking business was based in Las Vegas, Nevada; but he kept his truck in Phoenix, Arizona, because more loads were available there. While the two men worked together, they slept in the two beds in the sleeper compartment of the truck; they "practically lived in the truck." R., Vol. XI at 85-86. Guzman-Dominguez paid Rodriguez-Flores between $150 and $400 per week, depending on how much he made. The justification for Rodriguez-Flores's compensation was that his English was superior to Guzman-Dominguez's, so he could communicate better with brokers and shippers. The two planned to go into business together once Rodriguez-Flores got his commercial license as two drivers can make more money than one. During his trial testimony, Guzman-Dominguez referred to Rodriguez-Flores as his "partner."

         Defendants traveled together even when they were not working. In early November, Guzman-Dominguez received a phone call from his sister in El Salvador, saying that their father had suffered a heart attack. Rodriguez-Flores was with him when he received the call. When Guzman-Dominguez said that he would be going to El Salvador to see his father for a few days, Rodriguez-Flores offered to keep him company on the trip, saying he wanted to see his family in El Salvador, where he had not been for 15 years. Defendants traveled by plane to El Salvador together, spent five days with their respective families, and then reunited for the flight home. While in El Salvador, Guzman-Dominguez had a toothache, but a dentist was not able to treat it while he was there because his blood sugar was too elevated (he has diabetes). After returning to Phoenix, Guzman-Dominguez drove his car to Nogales, Mexico, to see a dentist, who also could not operate on the tooth but gave him some antibiotics. Rodrigues-Flores accompanied him.

         3. Getting the job to haul the chemicals

         While in Nogales, Guzman-Dominguez attempted to obtain a contract to haul a load of cargo. On November 12 he used a broker service connecting drivers to cargo to search for a load he could pick up in Phoenix, but he could not come to an agreement with the broker. He continued his search the next morning.

         On November 13 at 7:07 a.m., Rodriguez-Flores told a cousin in a Facebook chat that he would be going to Michigan and Quebec. But Guzman-Dominguez had not yet booked a shipping contract. A search of his computer showed that at 8:09 a.m. he conducted a search on the broker-service website that led to his booking the load from Mirachem in Phoenix to Crystal Clean in Fairless Hills, Pennsylvania.

         After securing the load, Defendants drove back to Phoenix to retrieve the truck. The truck had been kept at Vasquez Diesel, which repairs trucks and rents parking spaces for them. When Defendants arrived, they discovered that a battery had died, so they had to purchase a new one and have it installed. Running a bit late for their pickup, Defendants arrived at Mirachem shortly after 3:00 p.m. on the 13th. Mirachem's warehouse shipping manager John Markovci estimated that it would have taken about 15 minutes to load the totes of cleaning products into the trailer.

         Markovci testified that it would be nearly impossible for someone to place four cardboard boxes in the truck during the loading at Mirachem without being noticed, and he was surprised when he heard that the drugs had been found with Mirachem's product because nothing like that had happened in the past. Although he did not specifically remember loading the cargo on November 13, 2015, Markovci said that only he and Anthony Oliver loaded trucks for Mirachem at that time. Markovci testified that he was not a drug trafficker and had never loaded illegal drugs into a commercial vehicle at Mirachem. Anthony Oliver similarly testified that he did not specifically remember loading any vehicles on that date, but he was not a drug trafficker and had never loaded illegal contraband into a commercial vehicle.

         Similarly, the hub manager for Crystal Clean testified that in November 2015 only he and six others worked at the warehouse that would offload trucks. They had to wear distinctive protective equipment and no one else would be allowed in the area. Also, the only person unloading the truck would be the forklift operator, so it would be unusual and readily noticed if someone was carrying smaller boxes off a truck.

         After the legitimate cargo was loaded on the truck, a Mirachem employee gave Guzman-Dominguez a bill of lading describing the cargo and a commercial seal. Once the seal is placed on the trailer doors, the cargo area cannot be opened without breaking the seal, and the seal cannot be refastened. Thus, an unbroken seal shows the recipient that the cargo has not been tampered with on the trip. But although Guzmán-Rodriguez admitted that he went to the trailer after the cargo was loaded and affixed a strap to hold the cargo in place and closed the trailer door, he did not put on the seal. Sergeant Terri Gomez, the officer who arrested Guzman-Dominguez, saw the unbroken seal in the passenger area of the truck, where Rodriguez-Flores would have been riding, and found it unusual that it was not used to seal the trailer. She testified, "[W]hen a seal is given to a driver, almost always, the seal is placed on the trailer." R., Vol. VIII at 160.[1] The seal in the truck was a light one. She explained that a heavy seal was unnecessary because the size and weight of the totes would make it difficult for a thief to remove them from the truck, and a lighter seal is the normal practice with such cargo.

         Instead of a seal, there was a padlock on the truck. When Inspector Salcedo asked Guzman-Dominguez to open the lock, he fumbled with several keys on a ring, tried a few, stated the keys were in the truck, walked halfway to the cabin of the truck, and then finally returned, saying the key had been on the ring all along. Salcedo found this unusual as truckers are generally eager to be back on the road and hence are prepared for inspections.

         Although Guzman-Dominguez told DHS agent Lopez that the reason he did not put the seal on the truck was that he had forgotten to do so, his explanation at trial was that it is the shipper's responsibility to place the seal on the truck, and that some companies do not attach the seal or require that it be attached. He instead set the seal with the bill of lading in the window of the vehicle, which is his custom. He acknowledged that he did not expect someone to steal the cargo due to its size and weight, but he insisted that even if the seal had been placed on the cargo doors, truckers would still use a padlock "for our own safety" because this particular seal could be easily broken and someone could go into the trailer. R., Vol. XI at 73. Rodriguez-Flores provided the state police investigators with a puzzling explanation for the padlock: "[W]e don't know what we're carrying. So, we just, we just lock it." Gov't Ex. 26A at 12-13.

         Joseph Montoya, a special agent with the Drug Enforcement Administration (DEA), testified as an expert witness for the government. He said that drug traffickers typically avoid attaching the seal at the time it is provided by the shipper because it will need to be broken when drugs are loaded in with the legitimate cargo. Instead, they generally wait to attach the seal until after they drop off the illegal contraband so that when the legitimate load is delivered, the seal will be unbroken. To protect against theft of the drugs, however, they commonly use a padlock.

         4. The departure from Phoenix

         Because Defendants arrived at Mirachem shortly after 3:00 p.m., and it would normally take about 15 minutes to load the cargo, they likely left Mirachem by 3:30 p.m. But they did not depart Phoenix for another four hours. At 4:14 p.m. Defendants filled their truck with fuel at the Flying J, a truckstop in Phoenix, as shown by a receipt found in the truck that matches Flying J's records. In his state-police interview Rodriguez-Flores said that after loading the truck at Mirachem they returned to Vazquez Diesel (which is only a couple blocks from the Flying J), "ate and then . . . hit the road." R, Vol. IX at 100-01. He did not mention any delay after picking up the load, and he stated that the only time the truck was left alone was while he and Guzman-Dominguez ate. In his DHS interview Rodriguez-Flores said that after getting the load they took about an hour to return to Vasquez Diesel and get something to eat before leaving Phoenix. Guzman-Dominguez testified that Defendants were together all day and that after they left Mirachem no one else had access to the trailer. He also said that while they were eating at the truck stop they kept their eyes on the truck.

         Electronic data indicated that Defendants' departure from Phoenix was much more than an hour after fueling. Records of the cell-phone providers for phones of both Guzman-Dominguez and Rodriguez-Flores indicated that they were still in Phoenix at 7:36 p.m. And data retrieved from a GPS device found on the ...

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