United States v. Dwight Walden

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 10, 2006
No. 04-12457 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 03-20566-CR-JAL

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DWIGHT WALDEN,
ROY GEER,
LIONEL GALLIMORE,

Defendants-Appellants.

________________________

No. 04-12695
________________________

D. C. Docket No. 03-20566-CR-JAL

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus
JOSE L. GODINEZ,

Defendant-Appellant.

________________________

Appeals from the United States District Court
for the Southern District of Florida
_________________________

(April 10, 2006)

Before BARKETT and WILSON, Circuit Judges, and REAVLEY*, District Judge.

PER CURIAM:

Dwight Walden, Jose Godinez, Lionel Gallimore, and Roy Geer appeal their

convictions and sentences imposed after a jury found them guilty of conspiracy to

import cocaine, in violation of 21 U.S.C. §§ 952(a), 963, and 960(b)(1) (Count 1);

attempted importation of cocaine, in violation of 21 U.S.C. §§ 952(a), 963, and

960(b), and 18 U.S.C. § 2 (Count 2); conspiracy to possess with intent to distribute

cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846, and 841(b)(1)(A) (Count 3);

and attempted possession with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1),

846, and 841(b)(1)(A), and 18 U.S.C. § 2 (Count 4).

_______________________

* Honorable Thomas Reavley, United States Circuit Judge for the Fifth Circuit, sitting by
designation.

2
 The appellants raise several arguments. First, Walden, Godinez, Gallimore,

and Geer claim the evidence was insufficient to sustain their convictions. Second,

Godinez contends that the district court committed reversible error by restricting

the cross-examination of government witnesses and his presentation of evidence

pertaining to his defenses of lack of knowledge and specific intent. Third, Walden,

Gallimore, and Geer argue that the district court erred by allowing the redaction of

a post-arrest statement by Godinez in violation of Bruton v. United States, 391 U.S.

123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). Fourth, Gallimore and Godinez

claim that the district court committed reversible error under United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), in imposing their

sentences. We affirm the convictions of Walden, Godinez, Gallimore, and Geer,

but we vacate and remand the sentences of Godinez and Gallimore.

I. Facts

The security manager of Seaboard Marine, a shipping company, contacted

the Bureau of Immigration and Customs Enforcement (“BICE”) upon receipt of

information that the crew of the vessel Seaboard Florida discovered duffel bags

filled with cocaine. BICE agents and other law enforcement personnel boarded the

vessel, inspected the bags, replaced the suspected cocaine with sham cocaine, and

put the bags back in the location where they were discovered. BICE Agents

3
Figueroa, Keck, and Landry remained on board to conduct surveillance.

Shortly after the vessel was cleared for boarding and cargo unloading in

Miami, the agents observed several men go from the dock onto the main cargo

deck from which the cargo containers were to be unloaded. Figueroa, dressed as a

crew member and stationed just outside the vessel, testified that he observed

several men go on board and then saw a man, later identified as Geer, drive a

yellow work truck onto the main deck. Keck testified that he saw the four

defendants walk toward the storage area, also referred to at trial as the “junk pile”

area, where Keck was hiding. Keck said that Walden stood on top of a wooden

spool in the junk pile area while a flashlight beam panned over the space.

According to Keck, Walden made hand gestures in the direction of the other

defendants and then bent down and picked up one of the duffel bags, walking away

with it. Keck then saw Godinez pick up the other bag and start to walk out of the

area.

After the duffel bags were moved from the storage area, the agents arrested

the men. Landry testified that at the BICE office, Godinez consented to an

interview with the agents. Godinez stated that Geer directed him to follow him and

pick something up. Godinez said that he suspected that it was something illegal,

and that he was to receive an unknown amount of money for this task. The

4
presentence investigation report (“PSI”) also contained a statement that 58.95

kilograms of cocaine were seized. At trial, the parties stipulated to the amount of

cocaine and that the cocaine had a total value of approximately $1,061,100 to

$1,179,000.

II. Discussion

A. Sufficiency of the Evidence

We review claims regarding sufficiency of the evidence supporting a

conviction de novo, resolving “all reasonable inferences and credibility evaluations

in favor of the jury’s verdict.” United States v. Rudisill, 187 F.3d 1260, 1267

(11th Cir. 1999) (internal quotes omitted). The evidence need not “exclude every

reasonable hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt,” because “[a] jury is free to choose among the

constructions of the evidence.” United States v. McDowell, 250 F.3d 1354, 1365

(11th Cir. 2001) (internal quotes omitted). “The jury’s verdict must stand unless

no trier of fact could have found guilt beyond a reasonable doubt.” United States

v. Lyons, 53 F.3d 1198, 1202 (11th Cir. 1995).

To support appellants’ conspiracy convictions (Counts 1 and 3), the

government must prove “(1) that a conspiracy existed, (2) that the defendant knew

of it, and (3) that the defendant, with knowledge, voluntarily joined it.” United

5
States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994). The government may

show participation in a conspiracy by direct or circumstantial evidence, United

States v. Anderson, 326 F.3d 1319, 1329 (11th Cir. 2003), and need prove only

“that the defendant[s] knew the general nature and scope of the conspiracy.”

United States v. Clark, 732 F.2d 1536, 1539 (11th Cir. 1984). Association with a

conspirator or presence at the scene of the crime is not in itself sufficient to prove

knowing participation in a conspiracy, but presence is nonetheless a “material and

probative factor that the jury may consider in reaching its verdict.” United States

v. Iglesias, 915 F.2d 1524, 1527 (11th Cir. 1990).

To sustain appellants’ convictions for attempted importation of cocaine and

attempted possession with intent to distribute cocaine (Counts 2 and 4), the

government must prove that the appellants (1) acted with the type of culpability

required to import cocaine or to possess cocaine with the intent to distribute it, and

(2) engaged in conduct which constituted a substantial step toward the commission

of the crime under circumstances strongly corroborative of their criminal intent.

See United States v. Forbrich, 758 F.2d 555, 557 (11th Cir. 1985).

Whether the evidence is sufficient to sustain the verdicts in this case is a

close call. Inexplicably absent from the government’s presentation is expert

testimony by an experienced narcotics agent about the significance of certain

6
conduct or methods of operation unique to the drug distribution business. See

United States v. Butler, 102 F.3d 1191, 1199 (11th Cir. 1997). However, “it need

not be proved that the defendant[s] had knowledge of the particular drug involved,

as long as [they] knew [they were] dealing with a controlled substance.” United

States v. Gomez, 905 F.2d 1513, 1514 (11th Cir. 1990). The government is not

required to rely on direct evidence to show knowledge, as “knowledge can be

based upon inferences from the surrounding circumstances.” United States v.

Peart, 888 F.2d 101, 104 (11th Cir. 1989) (per curiam).

Here, there was sufficient circumstantial evidence to support the jury’s

verdicts. While the appellants are correct that mere presence is not enough to

support a conviction for conspiracy, the evidence at trial showed that the men were

not just casually present at the port that day. The header of the ship, Larry Burney,

testified that Walden, a gantry crane operator, had no reason to be on the ship, as it

was normally easier and faster to use forklifts to remove containers from the main

deck than to use a gantry crane. Also, Godinez was supposed to work the yard as

stevedore superintendent, but Burney also stated that there is no reason for a yard

supervisor to come on the vessel to look around before it is unloaded. Nor was

Gallimore assigned to work on the Seaboard Florida that day. Although Burney

saw Gallimore on the docks, Gallimore never asked about working on the main

7
deck. Finally, Geer was originally scheduled to work on the Seaboard Star that day

but later switched his shift to work the Seaboard Florida. Based upon this

evidence, the jury was entitled to infer that the appellants were not merely present

on the Seaboard Florida, but rather that they knowingly and voluntarily

participated in a conspiracy.

The appellants also engaged in acts that “strongly suggest their knowledge

and that they acted with the kind of culpability required to possess cocaine

knowingly and wilfully and with the intent to distribute it.” McDowell, 250 F.3d at

1366. When the Seaboard Florida arrived at the Port of Miami several hours

behind schedule, Geer approached the first mate of the ship, Georkys Noriega, for

the discharge plan for unloading the ship. Geer asked him twice why the boat was

late. Noriega responded that “they didn’t get anything, everything is all right.” He

then saw Geer enter the vessel by driving a yellow gear truck onto it, which

surprised Noriega because he had never seen the truck on the ship before.

Additionally, there were forty containers on the main deck that needed to be

unloaded. The duffel bags were located in the junk pile area, which could only be

accessed by maneuvering through the containers on the deck and the wires, pipes,

and bags of sawdust in the junk pile area itself. Within ten minutes after the boat

cleared, Godinez, Gallimore, and Walden headed straight to the junk pile area.

8
Geer then pulled up to the area in a yellow truck. Based upon these facts, a jury

reasonably could have inferred that the appellants knew the precise location of the

contraband and previously had conspired to possess it.

Once in the junk pile area, the appellants engaged in a series of acts that the

jury reasonably could have interpreted as the execution of a plan to possess to

cocaine. According to the testimony of the BICE agents who conducted

surveillance on the ship, Walden initially entered the junk pile and then stopped

and stood on a wooden spool. Walden looked in the direction of the barrels and a

flashlight beam panned across the area. After Walden jumped off the spool, he

looked in the direction of Gallimore and Godinez and gestured with his hand. Geer

was looking in Walden’s direction when he gestured. After making the gesture,

Walden turned in the direction of Gallimore and Godinez. Gallimore then made a

hand gesture looking down the pathway and in the direction of Walden. As soon

as Gallimore did this, Walden bent down and began to remove the wood chips

from the top of the duffel bags containing the sham cocaine. Walden stopped,

looked at Geer, and motioned. At that time Geer headed back out of the pathway

leading to the junk pile area. Once Geer left the junk pile, Walden looked in the

direction of Godinez and motioned. He then bent down to pick up the first duffel

bag, pausing momentarily to gesture again. Walden then started away from the

9
area. At that point, Godinez picked up the second bag and walked down the

pathway away from the junk pile area. Upon seeing this, BICE agents emerged

from their hiding places to arrest the men.

When one of the agents yelled “police,” Godinez was standing with his

hands in the bag. Gallimore disobeyed initial police commands and fled. The

agents arrested Geer, Gallimore, Godinez, and Walden and took them to the BICE

office, where Godinez gave an inculpatory statement. At trial, Agent Keck

testified that: “Jose Godinez stated that he was directed to go pick up some stuff or

something. He stated that the bags were to be placed on a truck. That he suspected

what he was picking up was illegal, and he stated to me that I caught him red

handed.”

Based on this evidence, a jury reasonably could have found that Walden,

Godinez, Gallimore, and Geer were guilty of the crimes charged. Appellants argue

that the government did not prove that they knew the bags contained cocaine.

However, the government need only show, by direct or circumstantial evidence,

that the appellants knew the bags contained a controlled substance. A reasonable

jury could infer that the appellants would not have been entrusted with bags

containing in excess of one million dollars worth of cocaine without knowing what

the bags contained. See McDowell, 250 F.3d at 1366, (citing United States v.

10
Quilca-Carpio, 118 F.3d 719, 722 (11th Cir. 1997) (per curiam) (“A reasonable

jury could infer from the quantity of drugs seized that a ‘prudent smuggler’ is not

likely to entrust such valuable cargo to an innocent person without that person’s

knowledge.”)). Therefore, there was sufficient evidence to support the jury’s

guilty verdicts, and we affirm the convictions of Walden, Godinez, Gallimore, and

Geer.

B. Restrictions on Cross-Examination and Presentation of Evidence

Godinez argues that the district court erred in restricting both the

cross-examination of essential government witnesses and the Godinez’s

presentation of evidence supporting his defense of lack of knowledge and specific

intent. Godinez claims that the redaction of his statement was “so great as to

change the full meaning of the statement,” and that the district court’s limitations

on cross-examination as to the full statement made it impossible for him to show

that the redacted statement was not an “accurate recounting” of the full statement.1

1
Prior to its redaction, Godinez’s post-arrest statement was recounted by BICE Agent
Landry in a sworn affidavit as follows:

Godinez stated that he was directed by Geer to follow him to go pick up
something. Godinez stated that he assumed that what he was picking up was
something illegal and that he was to receive an unknown amount of money.
Godinez stated he followed Walden to the location of the duffel bags and that
Walden directed him on the location of the second duffel bag. Godinez stated
that the duffel bags were to be placed on the yellow work truck that Geer drove
into [sic] the vessel.

11
For this reason he claims that he was unable to correct the statement. He was also

foreclosed from eliciting testimony concerning the fact that crew members of the

Seaboard Florida had cell phones that they could have used to alert onshore

participants that the real cocaine had been replaced with sham cocaine. Further, he

claims he was unable to fully develop the defense expert witness’s testimony as to

the physical conditions aboard the ship under which the agents had seen appellants

immediately prior to their arrests. Finally, Godinez argues that the prosecutor’s

reference to his statement as a “confession” in the government’s closing argument

exacerbated any prejudice that occurred.

We review a district court’s evidentiary rulings for a clear abuse of

discretion. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). “The

trial court has broad discretion under [Federal] Rule [of Evidence] 611(b) to

Another version of the statement, produced by the government during discovery, is as follows:

Godinez stated that Geer told him to follow or get into the truck so they could go
pick up the “stuff.” Godinez stated that Walden was the one who jumped onto the
wooden spool and pointed out the two duffel bags. Also, that Walden was the
one who secured the first duffel bag and left the area with it. Godinez stated that
they were to load the duffel bags onto the yellow truck. Godinez went on to state
that he didnt [sic] know what they were picking up but that he suspected that it
was illegal. Godinez also stated to me that I got him (Godinez) “red-handed” but
that he could get out of this situation.

Agent Keck provided the redacted version of the statement at trial, testifying that: “Jose
Godinez stated that he was directed to go pick up some stuff or something. He stated that
the bags were to be placed on a truck. That he suspected what he was picking up was
illegal, and he stated to me that I caught him red handed.”

12
determine the permissible scope of cross-examination . . . .” United States v.

Jones, 913 F.2d 1552, 1564 (11th Cir. 1990). “The district court’s discretion in

limiting the scope of cross-examination is subject, however, to the requirements of

the Sixth Amendment,” which includes the right of cross-examination. United

States v. Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992). “Cross-examination has

traditionally been allowed for the purpose of impeaching or discrediting the

witness.” Id. Nonetheless, “[t]he right to cross-examine is not unlimited . . .

because once there is sufficient cross-examination to satisfy the Confrontation

Clause, further questioning is within the district court’s discretion.” United States

v. Diaz, 26 F.3d 1533, 1539 (11th Cir. 1994). “The test for the Confrontation

Clause is whether a reasonable jury would have received a significantly different

impression of the witness’[s] credibility had counsel pursued the proposed line of

cross-examination.” Id. at 1539-40 (internal quotes omitted).

Here, the district court’s rulings did not constitute an abuse of discretion.

Godinez was able to examine the defense witness as to the general conditions on

the ship with respect to lighting, heat, and cargo configuration, allowing the jury to

consider the possibility that BICE agents were not able to accurately observe the

defendants on July 3, 2003. Godinez’s claim that the redaction of his statement

changed “the full meaning” thereof is unsupported by the record. Further, the

13
testimony that Godinez sought to elicit regarding cell phones was not particularly

relevant and the district court’s decision to disallow this line of questioning did not

create a “significantly different impression of the witness’[s] credibility.” See id.

As such, none of the court’s rulings constituted an abuse of discretion.

To the extent that Godinez claims that the district court’s rulings coupled

with the prosecutors’ remarks characterizing Godinez’s statement as a

“confession” constitute reversible cumulative error, this argument is without merit.

“The harmlessness of cumulative error is determined by conducting the same

inquiry as for individual error – courts look to see whether the defendant’s

substantial rights were affected.” Baker, 432 F.3d at 1223 (internal quotes

omitted). In determining whether cumulative error occurred, we consider “‘the

nature and number of the errors committed; their interrelationship, if any, and

combined effect; how the district court dealt with the errors as they arose

(including the efficacy – or lack of efficacy – of any remedial efforts); [ ] the

strength of the government’s case,’ and the length of trial.” Id. (citations omitted)

(brackets in original). Here, these factors do not counsel in favor of reversal. The

limitations on cross-examination and other evidentiary rulings were proper, and

even assuming that the prosecutor’s remarks were improper, the jury was

instructed that the lawyers’ statements were not evidence. See Shriner v.

14
Wainwright, 715 F.2d 1452, 1459 (11th Cir. 1983) (“[W]ith a properly instructed

jury, there is nothing to show the jury relied on the prosecutor’s remarks.”).

Therefore, we affirm Godinez’s convictions.

C. Bruton Redaction

Walden, Gallimore, and Geer argue that the use of the Bruton-redacted

statement at trial was improper, as it implicated them in the crime by inference and

violated their rights under the Confrontation Clause and Crawford v. Washington,

541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Gallimore claims the

statement referenced others generally, as Godinez stated that he was acting under

the control of another and that he was to place the duffel bag in the back of a

pick-up truck belonging to another. Geer argues that he was linked to the

statement because Godinez mentioned a truck, and in closing argument, the

prosecutor linked Geer to that truck. Walden contends that he was connected to

the statement through the evidence that his hard hat and gloves were found in the

truck and through the prosecutor’s closing argument. Additionally, they claim that

the district court’s denial of their motions for severance constituted reversible

error.

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

Baker, 432 F.3d at 1202. We likewise review the denial of a motion for severance

15
for abuse of discretion. United States v. Garcia, 405 F.3d 1260, 1272 (11th Cir.

2005) (per curiam).

In Bruton, the Supreme Court held that “because of the substantial risk that

the jury, despite instructions to the contrary, looked to the incriminating

extrajudicial statements in determining petitioner’s guilt, admission of [the co-

defendant’s] confession in [a] joint trial violated petitioner’s right of

cross-examination secured by the Confrontation Clause of the Sixth Amendment.”

391 U.S. at 126, 88 S. Ct. at 1622. However, no Bruton problem exists in cases

where the statement “was not incriminating on its face, and became so only when

linked with evidence introduced later at trial.” Richardson v. Marsh, 481 U.S. 200,

208, 107 S. Ct. 1702, 1707, 95 L. Ed. 2d 176 (1987). “Thus, ‘[f]or Bruton to

apply, a codefendant’s statement must be clearly inculpatory standing alone.’”

United States v. Brazel, 102 F.3d 1120, 1140 (11th Cir. 1997) (citation omitted)

(brackets in original). Here, any linkage of Walden, Gallimore, or Geer to the

statement is inferential and only possible when considering the statement with

other trial evidence. Moreover, a jury is presumed to follow its instructions, and

the district court more than once instructed the jury that the statement was only to

be considered in reference to Godinez. Brazel, 102 F.3d at 1145 (juries presumed

to follow instructions); see also Marsh, 481 U.S. at 208, 107 S. Ct. at 1708 (Where

16
there exists the necessity of linking the confession with other evidence introduced

at trial, “there does not exist the overwhelming probability of [the jurors’] inability

to [disregard an incriminating reference] that is the foundation of Bruton’s

exception to the general rule [that a jury follows its instructions].”). Therefore, the

district court did not err in allowing the use of the redacted statement or in denying

the appellants’ motions for severance.

D. Booker Error

Gallimore claims that it was error for the district court to sentence him based

on a drug quantity which was not found by a jury and that he should not have been

sentenced as a career offender because the court determined his status in violation

of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403

(2004). Godinez likewise argues that the district court erred in enhancing his

sentence based on uncharged sentence enhancements, including drug quantity and

obstruction of justice, under Blakely. The government concedes that the district

court committed reversible Booker error in sentencing Gallimore. However, the

government argues that Godinez’s objections in the district court did not suffice to

preserve the issue on appeal, and that Godinez cannot satisfy the plain error

standard. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)

(when Booker objection is raised for the first time on appeal, we review for plain

17
error affecting substantial rights).

“[A] defendant may preserve a constitutional Booker objection in a number

of ways, and need not object explicitly on constitutional or Sixth Amendment

grounds.” United States v. Munoz, 430 F.3d 1357, 1374 (11th Cir. 2005). We will

consider an defendant’s Booker objection on appeal where: “(1) the defendant’s

objection at trial invoked Booker, Blakely, or their direct predecessors; (2) the

defendant objected that a fact relevant to a sentencing enhancement ‘should go to

the jury;’ or (3) the defendant argued that a fact relevant to a sentencing

enhancement must be proved beyond a reasonable doubt.” Id.

Here, the court instructed the jury on the elements of conspiracy, and

Godinez objected to this instruction. The instruction read:

The Government does not need to prove that each Defendant had
knowledge of the particular drugs involved, as long as he knew he
was dealing with a controlled substance or substances. The
Government also does not need to prove that each Defendant knew the
quantity of the controlled substances.

Godinez objected, saying, “I just want to posit an objection to the fact the

government need not prove that the defendant had knowledge of the particular

drugs involved. And I also object to the last line, the government doesn’t need to

prove the quantity of the controlled substance.” When asked what his objection

was, Godinez stated, “My objection is the government does have to prove that Mr.

18
Godinez knew that the agreement or the plan was to import more than five

kilograms of cocaine.” Such an objection suffices to preserve both statutory and

constitutional Booker issues because Godinez argued that the jury should

determine a relevant fact; here, the drug amount.

Because Godinez preserved the issue, we will reverse unless the government

shows the error is harmless. United States v. Mathenia, 409 F.3d 1289, 1291 (11th

Cir. 2005) (per curiam). There are two types of Booker error: “(1) the

constitutional error of using extra-verdict enhancements to reach a Guidelines

result that is binding on the sentencing judge and (2) the statutory error of applying

the Guidelines in a mandatory fashion.” United States v. Cain, 433 F.3d 1345,

1347 (11th Cir. 2005). A constitutional error is harmless if “the government can

show, beyond a reasonable doubt, that the error did not contribute to the

defendant’s ultimate sentence.” Mathenia, 409 F.3d at 1291-92. A

“non-constitutional error is harmless if, viewing the proceedings in their entirety, a

court determines that the error did not affect the [sentence], or had but a very slight

effect. If one can say with fair assurance . . . that the [sentence] was not

substantially swayed by the error, the [sentence] is due to be affirmed even though

there was error.” Id. at 1292 (quotation marks and citations omitted) (alterations in

original).

19
 In Godinez’s case, constitutional Booker error occurred when the district

court relied on judicially-found facts in its application of an obstruction of justice

enhancement in a mandatory guidelines system, and statutory Booker error

occurred because Godinez was sentenced under a mandatory guidelines system.2

The government points to nothing in the record that indicates that either type of

Booker error was harmless. Therefore, the government has failed to meet its

burden, and we vacate and remand the sentences of both Gallimore and Godinez.3

III. Conclusion

Upon careful consideration of the record, the parties’ briefs, and arguments

on appeal, we determine that there was sufficient evidence to support the jury’s

verdicts. Further, the district court did not commit reversible error by limiting

Godinez’s cross-examination or by permitting the use of the Bruton-redacted

statement. However, finding reversible Booker error, we vacate and remand the

sentences of both Gallimore and Godinez.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

2
Godinez argues that constitutional Booker error occurred because the district court
enhanced his sentence based on a drug quantity not found by the jury. However, Godinez
stipulated to this amount at trial and lodged no objection to the drug quantity contained in the
PSI. Therefore, Godinez admitted the drug quantity and no Booker error occurred on this
ground. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (failure to object to
PSI’s factual statements constitutes admission of those facts).
3
We find no merit in the appellants’ other sentencing issues.

20
BARKETT, Circuit Judge, dissenting:

This record is completely devoid of any evidence whatsoever pertaining to

any appellants’ knowledge of the presence of any controlled substance on the

Seaboard Florida. To support convictions on both the attempt and conspiracy

counts, all of which relate to cocaine, the government must prove that appellants

acted with the specific intent required to commit these inchoate crimes. Without

any evidence of appellants’ knowledge of the presence of drugs, which the

government conceded at oral argument, the government cannot prove specific

intent. Affirmance of the convictions in this case contravenes existing law.

Accordingly, I dissent.

For the attempt counts, the government must prove that the appellants acted

with the “kind of culpability required to possess cocaine knowingly and wilfully

and with the intent to distribute it.” United States v. McDowell, 250 F.3d 1354,

1365 (11th Cir. 2001); see also United States v. Martin, 747 F.2d 1404, 1410 (11th

Cir. 1984) (describing attempt as a specific intent crime); Quality Foods de Centro

America, S.A. v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 996 n.7 (11th

Cir. 1983) (“[S]pecific intent is required in attempt cases.”). Similarly, for the

conspiracy counts, the government’s burden is not merely to prove beyond a

reasonable doubt (1) an agreement between two or more people, (2) the object of

21
which is to do either an unlawful act or a lawful act by unlawful means, United

States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998), but to prove an agreement to

commit the specific crime that forms the object of the conspiracy, in this case

conspiracy to import cocaine or conspiracy to possess with intent to distribute

cocaine, United States v. Charles, 313 F.3d 1278, 1286 (11th Cir. 2002). See id.

(“[W]e agree with the government that the evidence presented at trial was

sufficient to convict [the appellant] of his involvement in a conspiracy. . . .

However, . . . the government presented no evidence that [he] knew the conspiracy

involved the theft of narcotics, and no reasonable inference could support such a

finding. . . . We therefore reverse [his] convictions, both of which are predicated

upon his knowledge of a conspiracy to possess cocaine.” (citation omitted)); see

also United States v. Schwarz, 283 F.3d 76, 110 (2d Cir. 2002) (reversing

conspiracy conviction because government proved a conspiracy but failed to prove

specific intent to commit the charged conspiracy).

Without knowledge of the presence of drugs, appellants cannot have the

specific intent required for the conspiracy and attempt charges in this case. Indeed,

we frequently reverse convictions for specific intent crimes relating to narcotics

where the government fails to show defendants’ knowledge of the narcotics

charged in the indictment. For example, in United States v. Martinez, 83 F.3d 371

22
(11th Cir. 1996), we reversed a conviction for conspiracy to possess cocaine even

though the government introduced evidence that defendant Gomez had been told

by co-conspirator Gallo that they were going to steal money, that closed suitcases

were stolen, and that Gallo had told another person that he had “men and guns

ready” to steal cocaine. Id. at 374. We held that Gallo’s statement was

“insufficient, alone, to prove that Gomez knew he was going to steal cocaine.” Id.

In United States v. Perez-Tosta, 36 F.3d 1552 (11th Cir. 1994), we similarly

reversed a conspiracy conviction for insufficient evidence because the government

did not establish beyond a reasonable doubt that Tosta knew about the drugs.

While the government introduced evidence showing that Tosta was a “runner” for

the keys and registration papers for a truck with concealed compartments

containing narcotics, that he was sitting in a parked car where smugglers were

preparing to offload the drugs, and that he was riding in a counter-surveillance

vehicle near the site of a cocaine transfer, we noted that the

evidence was insufficient to convict. Id. at 1559; see also United States v. Kelly,

749 F.2d 1541 (11th Cir. 1985).

No one argues with the proposition that “[t]he government is not required to

rely on direct evidence to show knowledge,” Majority Op. at 6. The troubling

point is that there is nothing in this record from which it can even be inferred that

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these appellants “engaged in acts that ‘strongly suggest their knowledge and that

they acted with the kind of culpability required to possess cocaine knowingly and

wilfully and with the intent to distribute it.’” Majority Op. at 7 (quoting McDowell,

250 F.3d at 1366). Indeed, the majority’s reliance on McDowell is inapposite.

In McDowell, the two defendants were linked in numerous ways to the drugs

they were charged with attempting to possess, and this court placed great

importance on defendants’ acts of concealment. First, the defendants intentionally

used a number of false documents to gain access to the area where the cocaine was

located, 250 F.3d at 1358-59, unlike this case where the appellants were lawfully

present in the port. Second, in McDowell both of the defendants were carrying

business cards with the number of the container full of cocaine written on them.

Id. at 1360-61. Third, in McDowell the district court admitted evidence of a prior

incident in which a truck from the same company used by the two defendants had

entered the same premises using false documentation a few weeks earlier, as

indicative of the modus operandi of defendants’ conspiracy to import cocaine,

namely the so-called “rip method,” whereby “duffel bags of cocaine are placed

inside a container with an otherwise legitimate shipment.” Id. at 1364. Finally, the

defendants in McDowell repeatedly lied to law enforcement officers following

their arrests. Id. at 1360-62. In finding that there was sufficient evidence to

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support an attempt conviction, this court placed significant emphasis on

defendant’s “acts and statements of falsity and concealment which strongly suggest

their knowledge and that they acted with the kind of culpability required to possess

cocaine knowingly and wilfully and with the intent to distribute it.” Id. at 1366.

Indeed, these acts of concealment seem to have been determinative in this court’s

analysis in McDowell. Id. at 1367 (“Quite simply, a jury was free to infer from

appellants’ false statements and acts of concealment, evidence of their guilty

knowledge, culpability, and intent to import cocaine and attempt to possess with

intent to distribute cocaine.”). Moreover, there was evidence in McDowell

regarding the usual packaging of cocaine. Id. at 1364

In contrast, the government here conceded that it presented no evidence at

trial regarding appellants’ knowledge of the presence of cocaine. As the majority

notes, “[i]nexplicably absent from the government’s presentation is expert

testimony by an experienced narcotics agent about the significance of certain

conduct or methods of operation unique to the drug distribution business.”

Majority Op. at 6. Instead, the majority evinces appellants’ knowledge of the

presence of drugs from actions and statements on the day of the incident which

were not acts of concealment or otherwise incriminatory, but rather neutral in

character – such as the fact that Geer asked the first mate why the boat was late,

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and the fact that Godinez, Gallimore, and Walden walked towards the area of the

ship where the bags were located. Majority Op. at 7-8. None of these actions,

even when taken together, relate to cocaine or any other controlled substance.

Although based on this record appellants could have been thought to be

retrieving contraband from the junk pile area, no evidence permitted the jury to

find, beyond a reasonable doubt, that it was narcotics that the appellants knew they

were retrieving from the junk pile. Often, contraband other than narcotics is

imported. See, e.g., United States v. Thirty-Seven Photographs, 402 U.S. 363

(1971) (forfeiture of obscene photographs as contraband at airport); Compania

Naviera Vascongada v. United States, 354 F.2d 935 (5th Cir. 1966) (affirming

forfeiture of undeclared duty free goods seized in the port of Mobile, Alabama).

Appellants’ actions may well have indicated their participation in a criminal

venture, but in order to convict on either an attempt or conspiracy charge the

government needs to prove the defendants acted with the specific intent to commit

the charged crime, and this they have failed to do. See Charles, 313 F.3d at 1286.

I would therefore reverse the convictions.

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