UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4235
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE MORENO-AZUA,
Defendant – Appellant.
No. 14-4243
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
YOEL JIMENEZ,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:11-cr-00386-FDW-DSC-1; 3:11-cr-00386-
FDW-DSC-3)
Submitted: January 27, 2015 Decided: February 3, 2015
Before WYNN and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Ross Richardson, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina; Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville,
North Carolina, for Appellants. Anne M. Tompkins, United States
Attorney, J. George Guise, Amy Ray, Assistant United States
Attorneys, Asheville, North Carolina; Leslie R. Caldwell,
Assistant Attorney General, Sung-Hee Suh, Deputy Assistant
Attorney General, Thomas E. Booth, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In April 2012, a federal grand jury charged Jose
Moreno-Azua (“Azua”), Jose Fernando-Azua (“Fernando”), and Yoel
Jimenez with conspiracy to distribute and to possess with intent
to distribute five kilograms or more of powder cocaine, in
violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012). Fernando
and two other co-conspirators, Amber Griffin and Mashahri
Graham, were charged with a separate conspiracy to distribute
and to possess with intent to distribute 500 grams or more of
cocaine. Griffin and Graham accepted guilty pleas and testified
at trial against Azua and Jimenez (collectively “Defendants”).
Following a five-day trial at which nineteen witnesses
testified, the jury deliberated for approximately two hours
prior to convicting Defendants and finding that the conspiracy
involved five kilograms or more of cocaine.
The district court later imposed the statutory
mandatory term of life in prison on Azua 1 and sentenced Jimenez
to 128 months’ imprisonment. These appeals timely followed.
Jimenez raises three issues on appeal, assigning error
to two evidentiary rulings and the willful blindness jury
instruction that was given at the Government’s behest. Azua
1
Prior to trial, the Government filed a 21 U.S.C. § 851
(2012) notice of its intent to seek an enhanced penalty as to
Azua based on his two prior Texas felony drug convictions.
3
argues that the prosecutor violated due process by refusing
Azua’s mid-trial request to accept a pre-trial plea offer and
challenges the district court’s constitutional authority to
evaluate whether his prior convictions involved separate and
distinct criminal conduct. We find these contentions are
without merit and therefore affirm the criminal judgments.
I.
Jimenez first challenges the admission of testimony
pertaining to Azua’s phone calls from jail, offered by Special
Agent Ublado Rios of Homeland Security Investigations. Azua’s
calls were recorded, and Rios translated into English those
portions that were in Spanish. Over defense counsel’s
objection, the court allowed Rios to offer his lay opinion
regarding the true meaning of statements Azua made during these
calls, citing Rios’ familiarity with the case and experience
investigating drug offenses.
Jimenez focuses on Rios’ testimony decoding Azua’s
conversation with Griffin in which they discussed whether
Jimenez was a police informant. Rios opined that, in code, Azua
conveyed to Griffin that he did not believe that Jimenez was an
informant and further explained the basis for Azua’s belief.
On appeal, Jimenez argues that the district court
abused its discretion in allowing Rios to offer this lay opinion
testimony because Rios’ opinions were not based on his personal
4
knowledge but, rather, on his post-arrest investigation.
Jimenez relies on this court’s decision in United States v.
Johnson, 617 F.3d 286 (4th Cir. 2010), for support.
We review a district court’s evidentiary rulings for
abuse of discretion, which occurs when the district court’s
“decision is guided by erroneous legal principles or rests upon
a clearly erroneous factual finding.” Johnson, 617 F.3d at 292
(internal quotation marks omitted). Evidentiary rulings are
further evaluated under a “harmless error” standard, pursuant to
which an error will not warrant reversal if we may “say with
fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.” Id. (internal
quotation marks omitted).
“[A] witness’s understanding of what the defendant
meant by certain statements is permissible lay testimony, so
long as the witness’s understanding is predicated on his
knowledge and participation in the conversation.” United States
v. Hassan, 742 F.3d 104, 136 (4th Cir.), cert. denied, 135 S.
Ct. 157 (2014). The latter component is missing here, as Rios
was not involved in the conversation between Azua and Griffin.
We thus conclude that Rios’ lay opinion testimony on this matter
was erroneously admitted.
5
But the error is harmless for two reasons. First, the
jury had already heard the gist of this opinion from Griffin
herself. Moreover, the record, taken as a whole, leads us to
conclude that the jury was not “substantially swayed” by this
isolated aspect of Rios’ testimony. See Johnson, 617 F.3d at
295. As we observed in Johnson, “[o]ften in criminal cases
where there is a significant amount of evidence which inculpates
a defendant independent of the erroneous testimony, the error is
considered harmless.” Id. This is precisely the case here.
The Government presented a substantial amount of
circumstantial evidence implicating Jimenez in this conspiracy,
including that Jimenez: orchestrated to transport a van, in
which nine one-kilogram packages of cocaine were found hidden,
from Texas to Charlotte; paid cash for a plane ticket from Texas
to Charlotte and planned to return to Texas the day after the
van was delivered; flew to Charlotte, as planned, using a
different name, to accept delivery of the van upon its arrival;
and was otherwise a stranger to the Azuas and the others
involved, but had a significant number of contacts with Azua in
the weeks leading up to the van’s delivery.
There was also testimonial evidence that more directly
linked Jimenez to the conspiracy, including (1) the testimony of
another inmate who had been incarcerated with Azua, who
testified that Azua told him that the drugs were shipped from
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Texas to Charlotte in a van, and that the man who arranged for
this flew to Charlotte; and (2) Graham’s testimony that he
understood from Azua that the man who was “flying in” was there
“to oversee everything[,]” including “mak[ing] sure the product
was right.” (J.A. 981-82). 2 Graham confirmed that “the product”
referred to cocaine. (J.A. 982).
This evidence, taken together, leads us to conclude
that the erroneously admitted testimony likely did not sway the
jury to convict Jimenez. Accordingly, Jimenez’s first claim of
trial court error fails.
II.
Prior to trial, the Government filed notice of its
intent to present evidence pursuant to Federal Rule of Evidence
404(b). This evidence was the testimony of William Brunelle, a
police officer from Meridian, Mississippi, who had stopped a
vehicle in which Jimenez was a passenger a few months before the
events underlying this trial. Jimenez sought to suppress this
evidence on various Fourth Amendment grounds.
The district court conducted a mid-trial hearing on
the motion to suppress, where Brunelle testified at length
regarding the stop. The court subsequently denied the motion to
2
Citations to the “J.A.” refer to the joint appendix
submitted by the parties in this case.
7
suppress and further ruled that Brunelle’s testimony was
admissible pursuant to Rule 404(b) because it established
Jimenez’s intent and knowledge of drug trafficking. The court
also observed that this testimony undermined Jimenez’s position,
raised in defense counsel’s opening statement, that there was no
evidence to establish Jimenez’s knowledge of the van’s contents.
On appeal, Jimenez restates his contention that
Brunelle’s testimony should have been suppressed because the
underlying traffic stop violated the Fourth Amendment.
Specifically, relying on United States v. Digiovanni, 650 F.3d
498 (4th Cir. 2011), Jimenez complains that the detention lasted
longer than necessary to effectuate the purpose of the stop,
which was to apprise the driver that he was following other
vehicles too closely and to issue either a citation or warning
for this violation.
When reviewing a district court’s denial of a motion
to suppress, we review factual findings for clear error and
legal determinations de novo and view the evidence in the light
most favorable to the Government. United States v. Green, 599
F.3d 360, 375 (4th Cir. 2010). The district court’s refusal to
suppress evidence is also subject to harmless error review. See
United States v. Blauvelt, 638 F.3d 281, 290-91 (4th Cir. 2011);
United States v. Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008).
8
Jimenez’s contention that, pursuant to this court’s
rationale in Digiovanni, Brunelle impermissibly extended the
otherwise lawful traffic stop, has some merit. However, even if
we assume that the district court’s ruling is erroneous under
Digiovanni, we conclude that this error is harmless. The jury
was instructed to consider Brunelle’s testimony only as proof of
intent, preparation, plan or scheme, or knowledge. And viewing
this evidence through this restricted lens, see United States v.
Chong Lam, 677 F.3d 190, 204 (4th Cir. 2012) (noting the long-
standing principle that “juries are presumed to follow their
instructions” (internal quotation marks omitted)), it was
secondary to the other direct and circumstantial evidence that
the Government presented to establish the same. Because we thus
conclude that any “rational fact finder would have found
[Jimenez] guilty absent the error[,]” United States v. Poole,
640 F.3d 114, 119–20 (4th Cir. 2011) (citing Chapman v.
California, 386 U.S. 18, 24 (1967)), we reject the second
assignment of error.
III.
In his final appellate contention, Jimenez maintains
that the district court abused its discretion in granting the
Government’s request for a willful blindness jury instruction.
According to Jimenez, under Supreme Court and circuit precedent,
such an instruction is only appropriate “when evidence exists
9
that the defendant deliberately avoided learning the facts.”
(Appellants’ Br. at 42). We review the district court’s
decision to offer a jury instruction for an abuse of discretion.
United States v. Jinwright, 683 F.3d 471, 478 (4th Cir. 2012).
An argument similar to Jimenez’s was pressed in United
States v. Ali, 735 F.3d 176, 187-88 (4th Cir. 2013), cert.
denied, 134 S. Ct. 1357 (2014). There, defendants maintained
that the willful blindness instruction “should not have been
given without evidence that they deliberately ignored relevant
facts.” Ali, 735 F.3d at 187. At the onset of our analysis, we
observed that a willful blindness instruction is appropriate
when “a defendant asserts that he did not have the requisite
mens rea to meet the elements of the crime but evidence supports
an inference of deliberate ignorance[.]” Id. (emphasis added)
(internal quotations marks omitted). We readily concluded that
the ample “warning signs” of criminality justified the
instruction. Id. at 188.
The same result is had here. Jimenez’s theory of
defense, as asserted in his opening and closing arguments, was
that the Government lacked sufficient evidence to establish his
knowledge of the van’s illegal contents. But there was
considerable evidence — including, most notably, Jimenez’s
decision to ship the van to Charlotte, as opposed to driving it
himself, and flying to Charlotte under another name — from which
10
the jury could infer that Jimenez’s claimed ignorance was
intentional or deliberate. Indeed, our review of the record
confirms, in Ali’s parlance, the myriad of “warning signs” that
certainly would have been known to, and were ignored by,
Jimenez. We therefore discern no abuse of discretion in giving
the willful blindness instruction here.
IV.
Azua, in the first of two issues raised on appeal,
argues that the prosecutor violated due process in declining his
mid-trial request to accept a pre-trial plea offer extended by
the Government. We disagree.
In the middle of the trial, the district court engaged
the parties in a colloquy to ensure that all plea offers had
been communicated to Azua and Jimenez. The Government explained
the offers it had made to both Defendants. Particularly, in
exchange for Azua’s guilty plea, the Government offered to
withdraw one of the § 851 predicates, which would have reduced
Azua’s sentencing exposure from a mandatory life sentence to
twenty years to life in prison. Azua explained that he chose to
decline the offer because he did not have any information to
earn a sentence reduction.
After Graham’s testimony concluded, Azua sought to
accept the pre-trial plea offer. The prosecutor and defense
counsel conferred, after which the prosecutor informed the court
11
that its prior offer was no longer available. The district
court questioned Azua to ensure that he understood his options,
which included entering a straight guilty plea or continuing
with the trial. Azua, again averring that he understood the
issues, indicated that he did not want to enter a guilty plea.
On appeal, Azua maintains that the prosecutor violated
the Due Process Clause of the Fifth Amendment by refusing his
mid-trial request to accept the pre-trial plea offer. Azua
relies on the Supreme Court’s decision in Bordenkircher v.
Hayes, 434 U.S. 357 (1978), for support.
But as the Government rightly identifies in its
response brief, a criminal defendant does not have a
constitutional right to plead guilty. See Weatherford v.
Bursey, 429 U.S. 545, 560-61 (1977). Azua fails to point us to
any authority, controlling or persuasive, to support his
contention that the Government was constitutionally obligated to
re-invigorate an expired plea offer or explain its reasons for
declining to do so. Existing precedent from other circuits cuts
against Azua’s claim. See, e.g., United States v. Osif, 789
F.2d 1404, 1405 (9th Cir. 1986) (“The government is . . . under
no obligation to reoffer an agreement that was previously
rejected and [defendant] has no right to the plea agreement that
he was originally offered.”). We thus reject this assignment of
error.
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V.
Azua’s final argument is that the district court
lacked the constitutional authority to evaluate whether his
prior felony drug convictions involved “separate and distinct
criminal episodes.” (Appellants’ Br. at 47). Azua maintains
that, in making this factual finding, the district court ran
afoul of Descamps v. United States, 133 S. Ct. 2276 (2013).
We cannot accept this newly minted constitutional
argument 3 as there was no error, plain or otherwise, in the
district court’s § 851 analysis. See United States v. Higgs,
353 F.3d 281, 324 (4th Cir. 2003) (reviewing for plain error a
constitutional claim raised for the first time on appeal). It
is well established in this circuit that, to qualify for an
enhanced sentence pursuant to 21 U.S.C. § 841(b)(1)(A), the
defendant’s prior convictions must be for “‘separate criminal
episodes, not separate convictions arising out of a single
3
In the district court, Azua argued that the two § 851
predicates qualified as a single conviction because he received
concurrent sentences. Defense counsel acknowledged that he was
seeking an extension of our decision in United States v. Davis,
720 F.3d 215 (4th Cir. 2013) (holding that, “where a defendant
receives a ‘consolidated sentence’ (or ‘consolidated judgment’)
under North Carolina law, it is one sentence and absent another
qualifying sentence, the [career offender] enhancement is
inapplicable”). The district court concluded that the
dispositive inquiry was not whether the sentences were set to
run concurrent but, rather, whether the convictions arose from
separate criminal episodes.
13
transaction.’” United States v. Ford, 88 F.3d 1350, 1365 (4th
Cir. 1996) (quoting United States v. Blackwood, 913 F.2d 139,
145-46 (4th Cir. 1990)); see also United States v. Holmes, 384
F. App’x 219, 228 (4th Cir. 2010) (unpublished after argument).
Here, the criminal judgments from Azua’s two prior Texas
convictions establish that Azua possessed a controlled substance
on two separate occasions, almost five years apart. 4 The
district court acted well within its authority in reviewing the
Texas judgments to determine this critical fact. See United
States v. McDowell, 745 F.3d 115, 123-24 (4th Cir. 2014)
(explaining the Supreme Court’s holding in Almendarez-Torres v.
United States, 523 U.S. 224 (1998), that “the Sixth Amendment
permits a judge to find the fact of a prior conviction by a mere
preponderance of the evidence, even if this fact raises the
statutory maximum or minimum penalty for the current offense[,]”
and noting that this exception “remains good law”), cert.
denied, 2015 WL 132957 (U.S. Jan. 12, 2015) (Nos. 13-10640,
13A1200); see accord United States v. Blair, 734 F.3d 218, 226-
27 (3d Cir. 2013) (opining that neither Descamps nor Alleyne 5
restricts the Almendarez–Torres exception, which “allows judges
4
These facts were included in the presentence report, and
defense counsel conceded the existence of an intervening arrest
at sentencing.
5
Alleyne v. United States, 133 S. Ct. 2151 (2013).
14
to consider prior convictions. When the pertinent documents
show . . . that the prior convictions are for separate crimes
against separate victims at separate times, Alleyne does not
somehow muddy the record and convert the separateness issue into
a jury question”), cert. denied, 135 S. Ct. 49 (2014).
Accordingly, Azua’s constitutional challenge to the district
court’s evaluative process fails.
For the foregoing reasons, we affirm Defendants’
criminal judgments. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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