[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11466 ELEVENTH CIRCUIT
AUGUST 6, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 05-00002-CR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW COX,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 6, 2010)
Before EDMONDSON, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Andrew Cox appeals his conviction for conspiracy to manufacture
marijuana, 21 U.S.C. §§ 841(a)(1), 846. No reversible error has been shown; we
affirm.
We first address Cox’s challenge to the district court’s denial of his motion
to suppress. We review the denial of a motion to suppress under a mixed standard
of review, examining the district court’s factual determinations for clear error and
its application of law to those facts de novo. United States v. Boyce, 351 F.3d
1102, 1105 (11th Cir. 2003). And we construe all facts in the light most favorable
to the prevailing party -- here, the government. Id.
Cox sought to suppress evidence seized pursuant to a search warrant issued
for property located at 4050 Youngblood Drive, Union County, Georgia. United
States Forest Service (“USFS”) Agents received a call that complained of ATV
tracks running across the caller’s property and onto USFS property. The caller
also noted that he observed “strange plants” on USFS property at the end of the
ATV tracks. USFS agents investigated and discovered between 150 and 200 dead
and dying marijuana plants in starter trays. The agents followed the ATV tracks
farther and found a footpath that led to a clearing. The ATV tracks were followed
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to Youngblood Drive, a dirt road, which agents believed was county-maintained.
After traveling a short distance on Youngblood Drive, the agents noticed another
footpath. Agents observed no signs indicating they were still within USFS
property and no signs -- such as “no trespassing” signs -- indicating they were on
private property. Following the footpath up a ridge agents reached the edge of the
tree line where they observed a cleared area and a cabin, an open carport, and an
outbuilding.
Agent Woodall wanted to inquire at the cabin about the ATV tracks that led
to the marijuana found on USFS property. To that end, he walked a direct path
from the roadbed straight to the cabin door. En route, no signage, fencing, or other
barriers restricting access were observed. What was observed, however, directly
on that route, was a large number of marijuana plants in starter trays similar to
those found on the USFS property. When no one responded to Agent Woodall’s
knock on the cabin door, Agent Woodall returned to the tree line.
Because agents had approached the cabin after hiking from USFS property
to the tree line on a footpath, they did not know the address of the cabin or how to
reach it by car. Following the driveway, agents reached a locked gate at the
intersection of the driveway and Youngblood Drive. A gap existed next to the gate
that led the agents to believe the gate was intended to restrict access by large
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vehicles. Agents recalled no signage on or near the gate.
A state-issued warrant was obtained for the cabin. Agents continued
surveillance of the property and commenced execution of the warrant only after
some activity was observed on the property in the vicinity of the marijuana plants.
The district court determined that Cox had no legitimate expectation of
privacy in the Youngblood Drive property: the cabin was not titled in his name,
lacked indicia of use, and housed no personal or business items. The district court
determined further that, even if Cox could show a legitimate expectation of privacy
sufficient to support a Fourth Amendment challenge, no entry to the property
violated his Fourth Amendment rights. We agree.
As Cox concedes, the surveillance point from which the footpath leading to
the cabin was observed did not fall within the curtilage of the cabin. See United
States v. Hatch, 931 F.2d 1478, 1480 (11th Cir. 1991) (“the special protection
accorded by the Fourth Amendment to the people in their ‘persons, houses, papers
and effects,’ is not extended to the open fields.”) (citation omitted). Cox argues
instead that the area along the footpath leading to the front of the cabin -- from
which marijuana starter plants were in plain view -- is within the protected
curtilage of the cabin such that Agent Woodall’s observations as he approached the
cabin violated his rights and tainted the warrant that issued to search the cabin.
4
To establish a legitimate expectation of privacy, a person must establish a
subjective expectation of privacy that society recognizes as legitimate. See United
States v. Smith, 459 F.3d 1276, 1290 n.14 (11th Cir. 2006). The Fourth
Amendment’s proscriptions are “not implicated by entry upon private land to
knock on a citizen’s door for legitimate police purposes unconnected with a search
of the premises.” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006).
“Absent express orders from the person in possession, an officer may walk up the
steps and knock on the front door of any man’s ‘castle,’ with the honest intent of
asking questions of the occupant thereof. Thus, officers are allowed to knock on a
residence’s door or otherwise approach the residence seeking to speak to the
inhabitants just as any private citizen may.” Id. (internal quotations and citations
omitted).
We see no error in the district court’s factual findings and conclusion of law
that Agent Woodall’s approach to the cabin to conduct a “knock and talk” violated
no reasonable expectation of privacy. His plain view observations while properly
on the property constitute no constitutional violation; and inclusion of these
observations in the warrant affidavit do not taint the validity of the warrant issued
to search the cabin.
Cox also argues that the district court erred by admitting his two prior
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marijuana trafficking convictions in violation of Fed.R.Evid. 404(b). We review
the district court’s Rule 404(b) rulings for an abuse of discretion. United States v.
Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008). Under Rule 404(b), evidence of
other crimes is not admissible to show proof of bad character. But it may be
admissible to prove motive, knowledge, or intent as long as the evidence is
relevant to an issue other than defendant’s character and the risk of undue
prejudice from the evidence does not outweigh substantially its probative value.
See Fed.R.Evid. 404(b); see also Fed.R.Evid. 403.
Here, Cox’s intent was at issue because he pleaded not guilty and denied
participating in the conspiracy. United States v. Kopituk, 690 F.2d 1289, 1334
(11th Cir. 1982) (concluding that, “in the context of a conspiracy case, the mere
entry of a not guilty plea sufficiently raises the issue of intent to justify the
admissibility of extrinsic offense evidence”). And “[e]vidence of prior drug
dealings is highly probative of intent to distribute a controlled substance, as well as
involvement in a conspiracy.” United States v. Cardenas, 895 F.2d 1338, 1344
(11th Cir. 1990).
Cox argues that the prior trafficking convictions were dissimilar to the
manufacturing or growing of marijuana and, thus, were unduly prejudicial. But the
prior convictions involved large amounts of drugs just like the instant offense; and
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the lack of similarity between the convictions does not render the evidence
substantially more prejudicial than probative. See United States v. Delgado, 56
F.3d 1357, 1366 (11th Cir. 1995) (rejecting the argument that the lack of similarity
between a large-scale drug conspiracy and a comparatively smaller, one-time drug
purchase from an undercover law enforcement officer made evidence subject to
Rule 403 exclusion). Because Cox’s prior drug convictions were highly probative
of intent and not subject to exclusion under Rule 403, the district court abused no
discretion in admitting them.
Cox also challenges the district court’s admission of Special Agent Russell
Arthur as an expert witness under Fed.R.Evid. 702. He maintains that Arthur’s
testimony was unreliable, speculative, and unhelpful to the jury.1 We review a
district court’s ruling on the admissibility of expert testimony for an abuse of
discretion and we “defer to the district court’s ruling unless it is manifestly
erroneous.” United States v. Douglas, 489 F.3d 1117, 1124 (11th Cir. 2007).
Expert testimony must be based on reliable methodology and must be helpful to
the jury. See Fed.R.Evid. 702; United States v. Frazier, 387 F.3d 1244, 1260 (11th
Cir. 2004). The trial judge is responsible for ensuring that an expert’s testimony is
both reliable and relevant. Daubert v. Merrell Dow Pharms., Inc., 113 S.Ct. 2786,
1
Cox does not challenge that Arthur was qualified to testify as an expert in the field of
outdoor marijuana field manufacturing.
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2795 (1993).
Here, evidence showed that Arthur had worked with the USFS for 25 years,
received specialized training in outdoor marijuana grow operations, participated in
a thousand investigations involving marijuana grow operations, and interviewed
over 50 people associated with marijuana grow operations. Based on Arthur’s
extensive experience with this subject, we cannot say that the district court’s ruling
allowing Arthur to testify about the nature of marijuana grow operations was
manifestly erroneous. See United States v. Garcia, 447 F.3d 1327, 1335 (11th Cir.
2006) (there is a “well-established rule that an experienced narcotics agent may
testify as an expert to help a jury understand the significance of certain conduct or
methods of operation unique to the drug distribution business”) (internal quotations
omitted). Moreover, Arthur’s testimony assisted the jury in assessing the role
played by the co-conspirators in the marijuana grow operation, the connection
between prior marijuana trafficking and marijuana cultivation, and the role
typically played by the manager of a marijuana grow operation, which was outside
the common knowledge of the jury.2
Now we address Cox’s challenge to the sufficiency of the evidence.
2
Contrary to Cox’s appellate argument, the record does not show that the government
questioned Arthur specifically about Cox’s alleged involvement in this case; instead, Arthur
testified in generalities and interpreted the evidence collected by investigative agents.
8
Because Cox failed to move for a judgment of acquittal at the close of all the
evidence, “we will reverse his conviction[] only to prevent a manifest miscarriage
of justice.” United States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006).
“This standard requires a finding that the evidence on a key element of the offense
is so tenuous that a conviction would be shocking.” Id. (internal quotation
omitted).
To convict Cox of conspiracy to manufacture marijuana, the government had
to “prove beyond a reasonable doubt that there existed an agreement between two
or more persons to [manufacture marijuana] and that [Cox] knowingly and
voluntarily participated in that agreement.” United States v. Arbane, 446 F.3d
1223, 1228 (11th Cir. 2006). The government need not prove that Cox “knew all
of the detail or participated in every aspect of the conspiracy,” but instead “must
only prove that [he] knew the essential nature of the conspiracy.” United States v.
Garcia, 405 F.3d 1260, 1270 (11th Cir. 2005). “Once the existence of a conspiracy
is established, only slight evidence is necessary to connect a particular defendant to
the conspiracy.” Id.
Here, Cox did not dispute that a conspiracy to manufacture marijuana
existed between the Hispanic workers he hired to do landscaping work on his
father’s property. He merely argued that the workers committed the offense
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without his knowledge. Thus, only slight evidence was needed to connect Cox to
the conspiracy. See id.
And evidence showed that Cox (1) took his business partner to his father’s
property and told her that he had hired workers to grow marijuana and that his
landscaping business was a cover3 ; (2) purchased the truck used by the workers on
the property using a false name; (3) occasionally visited his father’s property,
where the marijuana plants were in plain view; and (4) fled the day of his initial
appearance to avoid going to prison and admitted to Arizona police when he later
was pulled over for a traffic violation that they “had caught a big fish.” See United
States v. Wright, 392 F.3d 1269, 1277-78 (11th Cir. 2004) (explaining that “a
defendant’s flight, escape, resistance to arrest, concealment, assumption of a false
name, and related conduct [is] admissible evidence of consciousness of guilt, and
thus of guilt itself”). Based on this record, the evidence was not so tenuous that
Cox’s conviction was shocking.4
3
While Cox argues that his partner’s testimony was not credible, credibility
determinations are within the exclusive province of the jury and may not be revisited unless the
testimony is “incredible as a matter of law.” United States v. Calderon, 127 F.3d 1314, 1325
(11th Cir. 1997).
4
Cox also argues that the evidence failed to support the jury’s special finding that the
conspiracy involved over 1000 marijuana plants because evidence did not connect him to three
grow sites located off of his father’s property. But USFS agents testified that the three additional
grow sites (which contained 594 plants) contained similar marijuana plants in black trays and
starter cups and empty bags of potting soil as found at the initial site and on the Cox
property, which contained 724 plants.
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AFFIRMED.
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