Unpublished Disposition, 935 F.2d 276 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 276 (9th Cir. 1989)

Nos. 90-10266, 90-10281 and 90-10282.

United States Court of Appeals, Ninth Circuit.

Before BRUNETTI and RYMER, Circuit Judges, and WILSON** , District Judge.

MEMORANDUM*** 

In these consolidated cases, Antonio Gomez-Cano, Rosendo Carrillo-Davalos, and Nicanor Pena-Nunez appeal their convictions, following a jury trial, for possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a) (1) and (b) (1) (B) (vii). All three appellants claim the district court abused its discretion by admitting expert testimony about the methods whereby drugs are commonly brought across the U.S.-Mexican border. Gomez-Cano and Carrillo-Davalos claim the district court abused its discretion by denying their motions to try them separately from their codefendant, Pena-Nunez. Carrillo-Davalos and Pena-Nunez claim the district court abused its discretion by permitting the jury to view a videotaped reenactment of the crime. Pena-Nunez claims the district court abused its discretion by refusing to give his requested jury instruction on reasonable doubt. Finally, Gomez-Cano claims the district court erred by denying his motion for acquittal. We affirm the district court's decision on all claims of error.

Early in the morning on December 7, 1989, Border Patrol agents arrested Gomez-Cano, Carrillo-Davalos, and Pena-Nunez near a defunct mining complex owned by Phelps-Dodge Corporation in Douglas, Arizona, one quarter of a mile north of the U.S.-Mexican border. The three were indicted and tried for possession with intent to distribute more than one hundred kilograms of marijuana. The following evidence was adduced at their trial.

Relying on an informant's tip, the Douglas police department alerted the U.S. Border Patrol on December 6 that a shipment of narcotics was expected to come into the west side of town. At approximately 5:30 a.m. on December 7, Border Patrol agents Arturo Guajardo and Javier Rodarte began surveillance at the Phelps-Dodge Corporation mining complex, located one quarter mile north of the international border, from Sugar Loaf Mound, an oblong-shaped dirt hill that stands 20-30 feet high northeast of an old warehouse.

At approximately 8:15 a.m. Guajardo and Rodarte observed three individuals later identified as appellants in the brush to the west of Sugar Loaf Mound. A yellow truck drove into the complex and stopped about 47 yards from where appellants were standing. Appellants approached the truck, each carrying a burlap bundle. After helping the driver load the bundles into the truck, they returned to the brush where each picked up another bundle. These they also loaded into the truck. From Sugar Loaf Mound, Guarjardo watched Border Patrol agents outside the complex stop the truck as it departed. The six bundles were found to contain 323 pounds of marijuana.

Rodarte continued to watch the appellants, who picked up some blankets, and began walking west. Another agent arrested Gomez-Cano, Carrillo-Davalos, and Pena-Nunez moments later within sight of agents Rodarte and Guajardo. Neither Rodarte nor Guajardo saw any other person during their vigil on Sugar Loaf Mound, and Rodarte testified that he had watched the three continuously from the time they loaded the bundles onto the truck until they were arrested.

Pena-Nunez admitted to Border Patrol agents after his arrest that he knew he had loaded marijuana into the vehicle. He explained that he had been approached by an unknown person on horseback in Mexico who asked him if he would work transporting marijuana.

The district court denied Gomez-Cano's and Carrillo-Davalos' repeated motions to sever their trial from Pena-Nunez's. At trial, Border Patrol Agent Lisandro Montijo testified as an expert witness that drug exporters in Mexico commonly hire "mules" to carry contraband across the border into the area around Douglas, where it is loaded into vehicles and taken to other places. He also testified that he had no knowledge connecting these defendants or the marijuana in the truck to any group in Mexico. The government also presented a videotaped reenactment of the alleged crime, taped from the top of Sugar Loaf Mound some three months after the defendants were arrested. Agent Guajardo testified that the actors who portrayed the defendants wore different clothing and took a different path from that defendants were alleged to have taken after loading the truck. Noting that Agent Guajardo had seen more clearly through his binoculars than the videotape suggested, the district court determined that the tape "would be helpful to the jury in understanding the descriptions and the evidence that's come in."

Pena-Nunez testified that, because he was nervous, he did not remember the agents asking him any questions about marijuana after his arrest. He denied bringing marijuana over the border and loading it onto a truck. He stated that he, Carrillo-Davalos and Gomez-Cano had entered the United States illegally on December 6, 1989 to look for work. They had planned to walk to the railroad tracks and jump onto a passing train. When the train went by too fast for them to board, they agreed to spend the night in the desert and return to Mexico the following morning. Border patrol agents arrested them, he testified, as they were on their way back to Mexico. Gomez-Cano testified and gave a similar account of the events of December 6 and 7, also denying carrying marijuana or loading it onto a truck. Carrillo-Davalos did not testify or present any evidence. The district court denied Gomez-Cano's motion for acquittal at the close of the evidence, and the jury found Gomez-Cano, Carrillo-Davalos and Pena-Nunez guilty. All three timely appealed their convictions.

All three appellants claim the district court abused its discretion by permitting the government's expert to describe the typical structure and methods of Mexican drug-importing organizations. This testimony, they claim, was irrelevant because they were not indicted for importing contraband, and was so prejudicial that its admission served to deny them a fair trial.

The Federal Rules of Evidence permit testimony by a qualified expert where it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. "Law enforcement officers with sufficient qualifications may testify concerning the methods and techniques employed in an area of criminal activity." United States v. Espinosa, 827 F.2d 604, 612 (9th Cir. 1987), cert. denied, 485 U.S. 968 (1988); see also United States v. Johnson, 735 F.2d 1200, 1202 (9th Cir. 1984); United States v. Maher, 645 F.2d 780, 783-84 (9th Cir. 1981). "Expert testimony on the structure of criminal enterprises is allowed to help the jury understand the scheme and assess a defendant's involvement in it." United States v. Patterson, 819 F.2d 1495, 1507 (9th Cir. 1987).

Here, the appellants were arrested one quarter of a mile north of the U.S.-Mexican border and indicted for possessing drugs. Thus, evidence about narcotics traffic across the international border was highly relevant to the possession charge. Moreover, the testimony established that even sophisticated smuggling operations commonly used the relatively primitive method of hand-carrying contraband over the border. This testimony helped the jury to assess the likelihood that the defendants had in fact possessed and loaded the marijuana police found in the yellow pickup truck. The district court's determination that the testimony was more probative than prejudicial was not manifestly erroneous. See Patterson, 819 F.2d at 1507.

Carrillo-Davalos and Gomez-Cano claim that the district court abused its discretion in denying their motions to sever their trials from that of codefendant Pena-Nunez because admission of his post-arrest statement impermissibly prejudiced their defense. See United States v. Sherlock, 865 F.2d 1069, 1078 (9th Cir. 1989) (citing United States v. Gonzales, 749 F.2d 1329, 1333 (9th Cir. 1984)).

Bruton v. United States, 391 U.S. 123 (1968), requires that defendants' trials be severed only in cases where a joint trial would impinge a defendant's sixth amendment right of confrontation. " [A] defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial ..." Sherlock, 865 F.2d at 1079 (quoting Richardson v. Marsh, 481 U.S. 200, 210 (1987).

While there is little doubt that admission of Pena-Nunez's statement undermined his codefendants' defense, any prejudice it might theoretically have created was permissible. Pena-Nunez took the stand and thus eliminated any potential Bruton problem. His statement, in any event, did not explicitly implicate either of his codefendants. Further, the defenses of Pena-Nunez and Carrillo-Davalos were not inconsistent, and the district judge gave a limiting instruction regarding the testimony of Pena-Nunez. Therefore, the district court properly refused to sever the defendants' trials. See Sherlock, 865 F.2d at 1078.

Carrillo-Davalos and Pena-Nunez argue that the government's videotaped reenactment of the alleged crime was cumulative and so inaccurate that its admission denied them a fair trial.

Evidence is relevant where it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. The district court must balance the probative value of the evidence against its potential for unfair prejudice or confusion of the issues. United States v. Layton, 767 F.2d 549, 553 (9th Cir. 1985).

The government's case rested on the border patrol agents' testimony that, from Sugar Loaf Mound, they watched the defendants continuously as the defendants traversed several hundred yards of rough terrain between the time they loaded marijuana into a truck and the time they were arrested. The tape helped the jury to assess the likelihood that this observation was possible from the border patrol agents' vantage point. Moreover, the government explained to the jury how the reenactment differed from the actual transaction, thus minimizing any potential prejudice. Therefore, the district court did not abuse its discretion by permitting the jury to view the tape. See United States v. Brannon, 616 F.2d 413, 418 (9th Cir.) (applying abuse of discretion standard to the admissibility of photographs), cert. denied, 447 U.S. 908 (1980).

Pena-Nunez claims the district abused its discretion by declining to use the words he suggested to define reasonable doubt.

Generally, the district court has broad discretion in formulating jury instructions, and neither party may demand specific language. United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir.), cert. denied, 474 U.S. 1032 (1985). We have expressly approved the instruction of which Pena-Nunez complains. See, e.g., United States v. Nolasco, 926 F.2d 869, 872 (9th Cir. 1991) (en banc); United States v. Bustillo, 789 F.2d 1364, 1368 (9th Cir. 1986). The district court did not abuse its discretion by failing to instruct the jury regarding the definition of reasonable doubt in the exact words requested by Pena-Nunez. See United States v. Smith, 891 F.2d 703, 708 (9th Cir. 1989), cert. denied, 111 S. Ct. 47 (1990).

Gomez-Cano claims the district court erred by denying his motion for acquittal because "the Government ... failed to present any evidence that [he] intentionally possessed [marijuana] with intent to distribute." Appellant's Brief at 19.

21 U.S.C. § 841 forbids any person from knowingly or intentionally possessing a controlled substance with intent to distribute. Here, the evidence showed that three people loaded marijuana into a truck and walked several hundred yards westward before Border Patrol agents arrested them. Government witnesses testified that they watched the three continuously from the time they loaded the contraband until the time they were arrested. The government's videotape enabled the jury to determine whether this was possible. No other people were seen in the area, and Gomez-Cano and his codefendants were the subjects the Border Patrol agents apprehended a few hundred yards west of the scene of the crime. Pena-Nunez admitted, following his arrest, that he had carried marijuana over the border and loaded it into the truck. Carrillo-Davalos and Pena-Nunez both testified that they had crossed the border with Gomez-Cano. This evidence amply sustained the jury's determination that Gomez-Cano had possessed marijuana with intent to distribute it. See United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987).

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

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Honorable Stephen V. Wilson, United States District Judge for the Central District of California, sitting by designation