Case: 13-10959   Date Filed: 05/08/2014   Page: 1 of 10


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10959
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:11-cr-20739-DMM-7



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JEAN PAUL,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (May 8, 2014)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jean Paul appeals his conviction after a jury trial for conspiracy to possess

with intent to distribute 28 grams or more of cocaine base, in violation of 21

U.S.C. §§ 846 and 851. In this direct appeal he argues that the district court erred

by: (1) denying his motion to suppress evidence from a traffic stop; (2) allowing

two witnesses to testify that Paul had sold them crack cocaine previously; and (3)

allowing a law enforcement officer to testify as an expert on the code and jargon

used by drug traffickers. For the reasons below, we affirm.

                                          I.

      Paul first argues that the district court erred in denying his motion to

suppress evidence from a traffic stop. At the suppression hearing, Detective

Gregory Edlund testified that he had been told of Paul’s involvement with

narcotics before the traffic stop. He also testified that on May 8, 2012, he and two

other officers were driving behind Paul’s Suburban when it stopped in the middle

of a roadway just after driving through an intersection. Edlund stopped behind

Paul, turned on his lights, and approached Paul’s vehicle.

      When Edlund approached, he noticed the SUV was running. He also

noticed that Paul had no seatbelt on, was soaking wet, and was only wearing boxer

shorts. According to Edlund, Paul was very irate. Edlund also testified that Paul

gave inconsistent statements in response to his questions. Paul first told Edlund he

had been at a community pool, but had trouble describing where the pool was.


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Later in the conversation Paul changed his story and said he was coming from the

beach, but could not say which beach. Paul did not have his driver license with

him. Using his name and date of birth, Edlund confirmed Paul had a valid driver

license and was on federal probation.1

       At that point, Edlund decided to investigate further and asked Paul to get out

of the Suburban. Edlund was traveling with a police dog. After handcuffing Paul,

Edlund conducted a canine sniff of the outside of the vehicle and of Paul. The dog

alerted to the hood of the SUV. Edlund opened the hood and found an ashtray with

a magnet attached to the side of the engine compartment. The ashtray contained

several small pieces of cocaine rock. Edlund searched further and found a second

ashtray that did not match the interior of the vehicle.

       Prior to trial Paul moved to suppress the evidence recovered in the May 8,

2012 traffic stop. The district court denied his motion. On appeal Paul argues that

he did not commit a traffic violation that justified the stop. Paul also argues that

Edlund did not have a reasonable suspicion that Paul was involved in criminal

activity. Finally, he argues that there was not a sufficient basis to ask him to get

out of the Suburban, to handcuff him, or to allow a canine sniff.

       We review a district court’s denial of a motion to suppress under a mixed

standard, reviewing the court’s findings of fact for clear error and the application

1
 Paul was on bond in connection with this case and subject to monitoring by the U.S. Probation
office.
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of law to those facts de novo. United States v. Ramirez, 

, 1235 (11th

Cir. 2007). The district court’s factual findings are construed in the light most

favorable to the prevailing party. 

      We first consider whether the traffic stop here was lawful. “Temporary

detention of individuals during the stop of an automobile by the police, even if

only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’

within the meaning of [the Fourth Amendment].” Whren v. United States, 

, 809–10, 

, 1772 (1996). A traffic stop is lawful if it is

justified by probable cause to believe that a traffic violation occurred. United

States v. Harris, 

, 1338 (11th Cir. 2008) (officer had probable cause

to stop vehicle he saw failing to signal during a lane change).

      Against this legal backdrop, the relevant question here is whether Edlund

had probable cause to believe Paul had committed a traffic violation. We find no

error in the district court’s conclusion that he did. Florida law prohibits the

following conduct:

      It is unlawful for any person or persons willfully to obstruct the free,
      convenient, and normal use of any public street, highway, or road by
      impeding, hindering, stifling, retarding, or restraining traffic or
      passage thereon, by standing or approaching motor vehicles thereon,
      or by endangering the safe movement of vehicles or pedestrians
      traveling thereon . . . .

Fla. Stat. § 316.2045(1). The district court credited Edlund’s testimony that he

observed Paul stopped in the middle of the roadway with his vehicle running. The
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traffic stop was therefore justified because Edlund had probable cause to believe

that Paul was committing a traffic violation.

      We also conclude that Edlund’s decision to briefly detain Paul after the stop

was based on reasonable suspicion. Under Terry v. Ohio, 

, 

(1968), a police officer may briefly detain a person to investigate a

reasonable suspicion that the individual is involved in criminal activity. United

States v. Williams, 

, 1523 (11th Cir. 1989). We agree with the

district court that this standard was met here. Edlund testified that after

approaching Paul’s vehicle he observed that Paul was soaking wet and wearing

only his boxer shorts; he was unable to answer questions about where he had been

and what he had been doing; he gave inconsistent answers; and he acted

belligerently. He was also driving without his license and being monitored by

federal probation. We find no clear error in any of these factual findings, nor any

legal error in the district court’s conclusion that Edlund therefore had a reasonable

basis for further investigation. United States v. Harris, 

, 1117 (11th

Cir. 1991) (affirming finding of reasonable suspicion to further investigate

suspicious circumstances where defendant “was: (1) driving a rental car with a

restricted license; (2) ‘shaking’ and acting ‘extremely nervous;’ and (3) gave

conflicting responses as to where he had been”).




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      We also affirm the district court’s finding that there was no Fourth

Amendment violation in Edlund’s decision to order Paul from the Suburban or

handcuff him. During a lawful traffic stop, officers may take steps that are

reasonably necessary to protect their personal safety, including requiring the driver

and passengers to get out of a vehicle. United States v. Spoerke, 

,

1248 (11th Cir. 2009). They may also handcuff a suspect during a Terry stop

where officers reasonably believe there is a threat to their safety. United States v.

Hastamorir, 

, 1557 (11th Cir. 1989).

      In Paul’s case he was acting belligerently towards Edlund in addition to

seeming out of sorts given his dress and inability to account for where he had been.

Paul had stopped his SUV in the middle of the roadway, was not wearing a

seatbelt, and did not have his license. Edlund also knew Paul was potentially

involved in narcotics and was being monitored by federal probation. Therefore,

under the circumstances of this case, it was not unreasonable for Edlund to ask

Paul to get out of his vehicle or to handcuff Paul for the officers’ safety while they

investigated further.

      Lastly, the canine sniff of Paul’s Suburban and the resulting discovery of the

ashtrays during the traffic stop did not violate the Fourth Amendment. A prompt

canine sniff conducted during a lawful traffic stop that reveals nothing but the

location of illegal drugs does not violate the Fourth Amendment. Illinois v.


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Caballes, 

, 410, 

, 838 (2005); see also United States v.

Hernandez, 

, 1211 n.5 (11th Cir. 2005) (describing canine sniff as

“brief, minimally intrusive investigation technique”).

      For these reasons, we affirm the district court’s denial of Paul’s motion to

suppress.

                                         II.

      Paul next argues that the district court erred by allowing two witnesses—

Eileen Callahan and Keith Cestaric—to testify about buying narcotics from Paul.

We review a district court’s evidentiary rulings for abuse of discretion. United

States v. Perez-Oliveros, 

, 783 (11th Cir. 2007).

      Under Rule 404(b), “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Fed. R.

Evid. 404(b)(1). However, evidence is only subject to a Rule 404(b) analysis if it

is extrinsic to the crime charged. United States v. Schlei, 

, 990 (11th

Cir. 1997). Evidence is not extrinsic “if it is (1) an uncharged offense which arose

out of the same transaction or series of transactions as the charged offense,

(2) necessary to complete the story of the crime, or (3) inextricably intertwined

with the evidence regarding the charged offense.” United States v. McLean, 

, 1403 (11th Cir. 1998) (citation omitted).


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      Finally, even if evidence is admissible under Rule 404(b), it must still satisfy

the requirements of Rule 403. United States v. Edouard, 

, 1344

(11th Cir. 2007). Rule 403 allows a court to exclude relevant evidence if its

probative value is substantially outweighed by a danger of unfair prejudice.

      With this legal framework in mind, we conclude that Callahan and

Cestaric’s testimony was admissible. First, Rule 404(b) does not apply here

because Callahan and Cestaric’s testimony was not extrinsic to the crime charged.

The superseding indictment charged Paul with conspiracy beginning around April

2010 and continuing through January 2011. Much of Callahan and Cestaric’s

testimony was therefore not extrinsic because it related to the period of the charged

conspiracy. See United States v. Ramsdale, 

, 830 (11th Cir. 1995)

(“Evidence of possession of the drug which [the defendant] was accused of

conspiring to manufacture, during the period of time alleged in the indictment, and

under circumstances which suggested drug trafficking, is not extrinsic evidence

within the meaning of 404(b).”). Although some of their testimony addressed

purchases before and after the charged conspiracy, this evidence was also not

extrinsic because it provided context regarding how Callahan and Cestaric became

Paul’s customers and demonstrated the continuing nature of the conspiracy. See

United States v. Costa, 

, 1360–61 (11th Cir. 1982) (witness’s

testimony about how he came to know the defendant as a dealer in cocaine was


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integral to showing why he expected defendant to provide him with a kilogram of

cocaine).

      Finally, the testimony was also highly probative of Paul’s participation in

the conspiracy as charged in the indictment and therefore was not subject to

exclusion under Rule 403. For these reasons, the district court did not abuse its

discretion in allowing Callahan and Cestaric to testify.

                                         III.

      Finally, Paul argues that the district court erred by admitting expert

testimony from Agent Gregory Cipriano. At trial Cipriano provided his opinion as

to the meaning of various words related to the sale and distribution of cocaine and

crack cocaine used by Paul to communicate with customers and another member of

the conspiracy.

      We review a district court’s decision to admit expert testimony under

Rule 702 for abuse of discretion. United States v. Garcia, 

, 1334–35

(11th Cir. 2006). Rule 702 provides that:

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if: (a) the expert’s scientific, technical, or other
      specialized knowledge will help the trier of fact to understand the
      evidence or to determine a fact in issue; (b) the testimony is based on
      sufficient facts or data; (c) the testimony is the product of reliable
      principles and methods; and (d) the expert has reliably applied the
      principles and methods to the facts of the case.



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Fed. R. Evid. 702. This Circuit has held that experienced narcotics agents may

testify about the methods of operation in the drug distribution business, including

interpreting drug codes and jargon. 

–35. However,

because expert evidence is powerful and potentially misleading, expert opinion that

otherwise meets the requirements of admissibility under Rule 703 may be excluded

under the balancing test in Rule 403. United States v. Frazier, 

,

1263 (11th Cir. 2004).

      On the facts of this case, we conclude that the district court did not abuse its

discretion by permitting Cipriano to testify as an expert witness. Neither did the

district court abuse its discretion in finding that the probative value of his

testimony was not substantially outweighed any danger of unfair prejudice.

Cipriano was an experienced narcotics agent and his testimony allowed the jury to

understand the terms used in Paul’s wiretapped conversations and text messages as

is permissible under this Circuit’s case law. 

–35. Paul

has not identified any danger of unfair prejudice that outweighs the relevant and

highly probative nature of this evidence. 

.

      Therefore, upon consideration of the parties’ appellate briefs and the record

on appeal, we affirm.

      AFFIRMED.




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