JULIE A. ROBINSON, District Judge.
This matter is before the Court on Defendant Antonio Esquivel-Rios' Motion for Acquittal Pursuant to Fed. R. Crim. P. 29 (Doc. 102) and Motion for New Trial Pursuant to Fed. R. Crim. P. 33 (Doc. 103). The Government has responded and the Court is prepared to rule. For the reasons explained in detail below, Defendant's motions are denied.
The Superseding Indictment charged Defendant with one count of intent to possess methamphetamine, in violation of 21 U.S.C. § 841(a)(1).
The case proceeded to trial on August 2, 2011.
On a motion under Fed. R. Crim. P. 29, the court may not weigh the evidence or assess the credibility of the witnesses.
In order to prove a § 841(a)(1) violation, the Government must prove the defendant: (1) possessed the controlled substance; (2) knew he possessed the controlled substance; and (3) intended to distribute or dispense the controlled substance.
The following is a summary of the evidence presented at trial. On May 11, 2010, at approximately 6:50 a.m., Kansas Highway Patrol Trooper Andrew N. Dean was patrolling his assigned area in Wabaunsee County, Kansas. Dean observed a gold Ford Windstar minivan bearing a Colorado temporary registration tag as it traveled eastbound on Interstate 70, and, pursuant to standard procedure, ran the temporary tag through dispatch. The dispatcher advised the trooper that the registration came back "no return," and that "Colorado temp tags usually don't return." Dean testified that he had encountered Colorado temporary tags before, and had them come back on file when he ran them through dispatch. Dean explained that he asked dispatch whether the temporary tag came back "not on file" or "no return" because he likes to inquire into the exact verbiage so he can explain it to the occupants of the vehicles he stops. "Not on file" typically means the tag is not registered and could be fake or stolen, while "no return" typically indicates that there is no registration yet in the system. Trooper Dean testified that these terms meant virtually the same to him. Dean testified that he stopped the vehicle to verify that the registration was valid.
The van was occupied by three adults: Defendant, a woman, Defendant's brother, Felix and two young children. Defendant was the driver, and produced a valid Colorado driver's license and original registration papers. Trooper Dean found the paperwork to be in order, having been registered on May 10, 2010, the day before the stop. Dean asked Defendant about his travel plans, origination and destination. Defendant answered that he was traveling from Denver to Kansas City, that he worked at Sherwin-Williams, and that he had residences in both states. Dean observed that Defendants' hands shook when he was handling the documents. The trooper also observed two air fresheners on the rear view mirror and one air freshener on the turn signal handle.
After returning the driver's license and registration papers to Defendant, Trooper Dean told him to have a safe trip. Dean stepped back from the van, then stepped back forward and asked Defendant if he could ask him a few questions, and Defendant agreed. Dean asked Defendant to clarify his travel plans, explained that large amounts of drugs were being transported from the west and asked if there were any drugs in the van. Defendant answered "no." Dean then requested permission to search the vehicle. Defendant told him "go ahead," and responded "sure," and "glad to do it," when the trooper asked if he could open the back gate of the van and search under the hood and the passenger compartment. Defendant never asked the search to stop as it progressed.
Trooper Dean first discovered a glass pipe, believed to be used in smoking crack, in the seat near the spot previously occupied by Defendant's brother, Felix. When asked if the pipe belonged to him, Felix answered yes. Dean moved his search to the front of the van, where he noticed the dashboard was shiny and appeared to have been wiped down recently. Upon removing an air vent in the dashboard, the trooper found a cellophane-wrapped package containing a substance later determined to be methamphetamine. Law enforcement also seized four cell phones, a book that appeared to be a Bible, clothing, a large Cabela's bag, and miscellaneous papers, including an undated car wash receipt from Westminster, Missouri. A title to a 2000 S-10 Blazer was also located in the van showing that Defendant purchased the Blazer from Manuel Magallanes Perez, with the transfer bearing Defendant's name and an address on 73rd Street in Kansas City, Kansas.
All occupants of the vehicle were taken into custody and transported to Alma, Kansas where they were met by Trooper David Grittman and Special Agent Robert Taylor of the Drug Enforcement Administration. Defendant invoked his right to counsel upon advisement of his Miranda rights, and Agent Taylor did not question Defendant any further. Approximately thirty to forty minutes later, Defendant approached Agent Taylor and indicated he wanted to talk. After consulting the United States Attorney's office, Agent Taylor re-advised Defendant of his Miranda rights, and Defendant signed a waiver. Defendant was interrogated by the officers for approximately two hours. Agent Taylor testified that the Windstar Defendant was driving had a bent tag on the front bumper that was registered to Mangallenes in Iowa. Taylor also testified that, during the interview, he realized the address on the title to the Blazer was connected with another investigation and address in Kansas City. Taylor testified that on August 7, 2009, nine months prior to Defendant's arrest, law enforcement agents conducting surveillance on the trailer at the same address in Kansas City observed three unidentified people working underneath the hood in the firewall area of a minivan driven by Ferid Nadarevic. Law enforcement stopped Nadarevic and found 3.25 kilograms of methamphetamine in the firewall area of the van, and Nadarevic was arrested. A vehicle present at the Kansas City address was registered to Defendant, but he was not identified as one of the individuals present at the scene. When Agent Taylor told Defendant about what happened at the Kansas City trailer, Defendant told him that he rented the property and paid utilities there, that his employees in the carpet installation business stayed there and that he stayed at the trailer during June and July 2009. Defendant also told Taylor that he worked for Sherwin-Williams in Kansas City, although Taylor later learned that Defendant had not worked there for several years. Defendant told Taylor that he would provide information about others involved in drugs if the officers would let the woman and her children go, and that his brother was responsible for the drugs found. Agent Taylor told Defendant that he could not offer any guarantees, and the interview ended.
Agent Taylor further testified that he had undergone special training on narco-trafficking and interdiction, where he learned about unofficial Mexican folk saints, specifically Jesus Malverde and Santa Muerte, the grim reaper. Taylor testified that members of drug cartels have adopted tokens and images of these "narco-saints" as good luck charms. A book titled, "Santa Biblia de law Santa Muerte" was found on the dashboard of the Windstar minivan Defendant was driving and he had a tattoo of Santa Muerte on his back.
Nadarevic testified that he was a drug mule for Magallanes, and that he was en route to Waterloo, Iowa, when the methamphetamine was seized from the minivan. Louis Melchor testified that he sold a kilo of cocaine to Defendant in June 2009, at a trailer in Kansas City. Melchor testified that he had conversations/negotiations with Defendant in Colorado, Iowa and Kansas. Melchor was present at a meeting with Defendant and others, including Nadarevic, in Waterloo, Iowa after the methamphetamine was seized from the van Nadarevic was driving from Kansas City, where the discussion focused on whether Naderevic had actually been stopped by the police.
Defendant's wife, Maria Esquivel-Rios, testified that Defendant was with her in Colorado August 6 through 8, 2009, where they attended a WWE wrestling event and produced a sales receipt showing he purchased exotic boots at a western store that weekend. Mrs. Esquivel-Rios further testified that Defendant would drive from Denver to Kansas City twice a month, where he would stay with people he worked with.
Defendant argues that his actions in giving consent to search the van were the actions of an innocent man. Viewed in the light most favorable to the Government, however, there is sufficient evidence that Defendant was relying on the camouflage provided by his girlfriend and her children as well as the hidden nature of the drugs. Defendant's knowledge and intent to possess the drugs was corroborated by testimony of Agent Taylor regarding the concealment of drugs in the van driven by Nadarevic and the testimony of Nadarevic and Melchor regarding the meeting in Waterloo, Iowa regarding seizure of the methamphetamine from the van Nadarevic was driving. Defendant also argues that the drugs belonged to his brother. Although this might be true, it does not exculpate Defendant, who was in control of the van and whose intent to possess the drugs was confirmed by the Government's witnesses, as discussed above. While Defendant is correct that mere presence, without more, is insufficient for conviction on the charges against him, the record supports the jury's finding that he knowingly and intentionally possessed the methamphetamine with intent to distribute.
Viewed in the light most favorable to the Government, the Court finds sufficient evidence from which the jury could find Defendant guilty beyond a reasonable doubt on Count 1. Accordingly, Defendant's motion is denied.
Fed. R. Crim. P. 33 states that the court may grant a motion for a new trial "if the interest of justice so requires." A motion for new trial under Rule 33 is not regarded with favor and is granted with great caution.
Prior to trial, the Court overruled Defendant's motion to suppress, where he challenged the initial stop of his vehicle on the grounds that because his temporary license tag was visible and displayed in accordance with law, Trooper Dean lacked a reasonable suspicion to stop the van based on the dispatch computer results showing the temporary tag "did not return."
Defendant next argues that he is entitled to a new trial because in his closing remarks, the prosecutor (1) significantly diverted the jury's attention from whether Defendant knowingly possessed a controlled substance with the intent to distribute; (2) prejudiced the jury by stating that society's future as it goes into this century is what is important, not Defendant's case; and (3) appealed to the jury's responsibility to future generations. Defendant also contends that the prosecutor improperly vouched for the credibilty of his cooperating witnesses. The Government categorically denies that there was an incorrect motive in any of the closing arguments to the jury, noting that former trial counsel did not contemporaneously object during closing arguments and that the arguments are quoted out of context.
When a motion for new trial is based on allegations of prosecutorial misconduct, the court applies a two-part test to determine the merits of the claim.
Defendant takes issue with the following remarks made by the prosecutor in his closing argument:
Defendant omits, however, the rest of the prosecutor's statement that belies his argument that the Government's closing amounts to a prohibited "community impact" argument. As the Government points out, the quoted portion of the prosecutor's argument is part of a larger argument informing the jury that they should decide the case dispassionately, based on the evidence, since the greater good for society is served by a just verdict, even if that verdict is not guilty.
Defendant further argues that the government improperly commented on the evidence, in effect vouching for the cooperating witnesses, Nadarevic and Melchor. Defendant points to the following statement:
Defendant again takes the prosecutor's statements out of context, as they were part of an argument informing the jury that they were to carefully judge the cooperating witnesses' testimony in light of their cooperation with the Government, to use their common sense and to base their credibility determinations on what they saw, not on anything related to the prosecution.
Defendant contends that the Court improperly denied his motion in limine with respect to the Government's Rule 404(b) evidence. In considering evidence under Rule 404(b), the Supreme Court instructs courts to weigh four factors: (1) whether the evidence is offered for a proper purpose, (2) whether it is relevant, (3) whether the probative value is not substantially outweighed by its potential for unfair prejudice, and (4) whether the court provided a limiting instruction at defendant's request.
After an evidentiary hearing where the Government proffered its evidence, the Court found that Defendant's knowledge and intent were at issue and allowed the Government's Rule 404(b) evidence on a limited basis.
Finally, Defendant argues that the Court erred in denying his motion in limine to exclude evidence of the book, "Santa Biblia de law Santa Muerte" found on the dashboard of the Windstar minivan. Defendant's former counsel objected to admission of the book as well as any testimony by law enforcement officers concerning the significance of the book on the grounds that it is an unconstitutional infringement on his freedom of religion, it is irrelevant to the issues of this trial, and the potential prejudice from admission of this book and possible accompanying testimony far exceeds any imagined probative value under Fed. R. Evid. 403. The Court denied the motion after the in limine hearing, and again the morning of trial when counsel renewed his objection. The Court held that the adherence to the principles of Santa Muerte is not exclusively by those in drug trafficking, but that a law enforcement officer's experience and training indicates that some drug traffickers have these sort of artifacts for protection.
Under Rule 403, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." Unfair prejudice within the meaning of Rule 403 "means an undue tendency to suggest decision on an improper basis," commonly an emotional one, wholly apart from the accused's guilt or innocence of the crime charged.
Id. at 1559.
