IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2008
No. 06-20401 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FELICIANO YANEZ SOSA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
The defendant-appellant Feliciano Yanez Sosa appeals his judgment of
conviction and sentence for possession of one or more firearms in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Sosa raises two
issues on appeal. First, Sosa argues that the district court abused its discretion
in admitting as lay opinion testimony the opinions of various law enforcement
officers on matters related to firearms possession and drug trafficking. Second,
Sosa argues that the district court abused its discretion in refusing his requested
jury instruction on the definition of the “in furtherance” element of the crime of
possessing a firearm in furtherance of a drug trafficking offense. For the
following reasons, we AFFIRM.
No. 06-20401
I
The events leading to Sosa’s eventual arrest began with law enforcement
officers from the Houston Police Department’s narcotics team conducting
surveillance on a red Mercury Cougar based on a tip that the vehicle was
transporting illegal drugs. The Cougar was registered to Sosa. The officers
observed the driver of the Cougar conduct what appeared to be two drug deals
at two separate locations in the Houston area. After that, the officers followed
the Cougar to an apartment complex where they watched the driver enter and
leave an apartment and then drive off again. Most of the officers continued to
follow the Cougar; one officer remained behind to watch the apartment.
The officers stopped the Cougar for a traffic violation and then arrested
the driver, Porfirio Galliardo, when they discovered that he did not have a
driver’s license. A search of the vehicle revealed approximately sixty grams of
cocaine and $1,149 in currency. One of the officers testified, based on his past
experience purchasing drugs undercover, that the street value of the cocaine was
about $100 per gram, such that the total value of the cocaine found in the car
was about $6,000.
During the traffic stop, the officer who remained behind at the apartment
complex called the rest of the narcotics team to inform them that a white Lincoln
Navigator had arrived at the complex and that two occupants, a man (later
identified as Sosa) and a woman, entered the apartment where the driver of the
Cougar had been seen earlier.
The officers returned to the apartment. At the door, the officers spoke
with one of the occupants of the apartment, Israel Zuazo. Through the doorway,
the officers saw Sosa and another male sitting on the sofa in the living room.
Zuazo signed a written consent for the officers to search the apartment.
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No. 06-20401
Interviewing Zuazo, the officers learned that Zuazo slept on the couch in the
living room and that Sosa occupied the west bedroom of the apartment.
After obtaining Sosa’s consent, the officers searched the apartment and
found approximately 95.3 grams of powder cocaine and 2.3 grams of crack
cocaine behind the drywall in the linen closet of the west bedroom, packaged in
“small tiny baggies,” which one officer testified was indicative of packaging for
individual sales. The estimated street value of the drugs found in the west
bedroom was $10,000. The officers also found a loaded .357 caliber revolver in
the night stand by the bed in the west bedroom and an unloaded pistol-grip
shotgun in the clothes closet. The officers discovered additional cocaine in the
east bedroom and in the Navigator. The officers found cans of acetone and
lactose as well, chemicals which several officers testified—over objection—are
used in manufacturing cocaine. Also, the officers found scales and some
notebooks containing amounts of money and recipes for “cutting” or “stretching”
cocaine. One officer described the notebooks as “ledgers,” used for tracking the
financial details of drug transactions. A search of Sosa revealed about $1,400
cash.
Sosa was subsequently charged in a four-count indictment with unlawful
possession of a firearm by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5)
and 924(a)(2) (count one); possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (count two); possession with intent
to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (count
three); and possession of one or more firearms in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (count four). Sosa’s case
was tried to a jury. He stipulated at trial to all of the elements necessary to
convict him on the first three counts. After a two-day trial, the jury found Sosa
guilty of counts one, two, and three. However, on the parties’ consent, the
district court declared a mistrial as to count four after the jury informed the
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No. 06-20401
court that they were deadlocked eleven-to-one on that count and unable to reach
a verdict.
The case was retried about a month later. Prior to the second trial,
reacting to testimony elicited by the Government in the first trial, Sosa filed a
motion in limine asking the district court to exclude expert testimony for which
the Government had failed to provide disclosures under Rule 16 of the Federal
Rules of Criminal Procedure regarding: (1) how a narcotic is manufactured or
the inner workings of a narcotics distribution network; (2) the nature, uses,
construction or modification of the firearms at Sosa’s residence; and (3) the
reasons a person found with narcotics may also possess firearms. The district
court denied the motion.
During trial, over Sosa’s objections, the Government elicited testimony on
each of these matters. First, Officer Veliz, a ten-year veteran of the Houston
Police Department’s Narcotics Division, testified about the use in drug
manufacturing of acetone, a chemical found in Sosa’s apartment. Officer Veliz
stated:
In narcotics trafficking, those substances are used when a person
would purchase a bulk amount of powder cocaine. However much
that amount would be, they would be stretched and these would be
the chemicals that would be used to stretch out the amount of the
cocaine in order to make more money.
Officer Veliz also testified that he had seen firearms located near drugs in prior
investigations on “many” occasions and that, based on his experience, it was
common to find firearms in close proximity to drugs because “[w]eapons are used
to defend whatever it is that you feel is valuable to you. You’re going to have
weapons to defend yourself from other people with the drugs that are in there,
in order to defend your product.”
Next to testify was Agent Saltarelli, a Special Agent of the Bureau of
Immigration and Customs Enforcement (“ICE”) and member since 2000 of the
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No. 06-20401
joint-task force Targeted Narcotics Enforcement Team. Agent Saltarelli testified
that in his personal experience it was common to find both guns and drugs
together in the same place, noting that “[i]t’s kind of a dangerous business.” He
also stated that he was not surprised to find the drugs and guns in such close
proximity.
Third, Officer Reeves testified. Officer Reeves was a twenty-year veteran
of the Houston Police Department with four years of experience as a narcotics
officer. He described the shotgun found in Sosa’s closet:
It is a pistol grip, which is often modified. Normally it would come
with a long stock. The pistol grip is for close quarters, where you
can hold the gun to your side. You’re not going to be bringing it up
to your shoulder as if in a hunting stance, and you’re not concerned
about taking a long shot. You’re doing a short shot. So, if you’re
pointing in the general area, you’re going to hit.
Officer Reeves testified that the pistol grip on the shotgun made it easier to
conceal because the shotgun was shorter. He also stated that he had seen
firearms in close proximity to drugs “[m]any, many times.” When asked why, he
testified: “One just coincides with the other. Either there is violence involved
and there is fear of being robbed or occasionally drug dealers rob other drug
dealers. Where you find drugs, you’re going to find weapons.”
Officer Reeves also testified about the role of chemicals found in Sosa’s
apartment, specifically lactose and acetone, in drug manufacturing. He
explained:
Well, you have your cocaine and when you purchase it, it’s at a
purity where you can take lactose or there is other products that you
can get at stores like lactose, and you take the acetone, you mix the
initial cocaine with the lactose and the acetone, you make it into a
mud or paste in a pot or bowl, and then after you are done with that,
you place it into a mold, whatever you want to shape it into.
It’s just like when you are filling up your car, you spill gasoline on
the ground, the acetone does the same thing, it will eventually just
evaporate. And as the acetone evaporates out of the cocaine and the
paste that you have made, it will again form into a chalky kind of
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No. 06-20401
hard substance if you can press it also, and some will press it back
into the brick form. And as they break it off and they make sales,
it looks chunkier and it makes the product look like it’s more pure
because it looks chunkier and not just so powdery.
With respect to acetone, Officer Reeves explained:
Just like I said, it’s used to break down the cocaine. It’s often found
in women’s fingernail cleaner. If you ever had your wife sit and
clean her fingernails, the strong pungent odor when she’s using the
cotton balls to clean the nails, the polish off of her nails, that’s what
acetone is. You’ll find acetone in nail polish remover. And you will
either find the acetone in this form or many times I’ll find large
bottles of fingernail polish remover. They will use that also.
The district court denied Sosa’s requested instruction on the “in
furtherance” element of the crime for which he was charged, possessing a
firearm in furtherance of a drug trafficking offense. The jury found Sosa guilty
of count four as alleged in the indictment. The district court sentenced Sosa to
fifty-one months imprisonment on counts one, two, and three to run concurrently
and sentenced Sosa to a consecutive sixty-month term on count four. Sosa
timely appealed.
II
Sosa claims that the district court committed reversible error by admitting
the testimony of law enforcement officers on (1) the use of chemicals found in
Sosa’s apartment to manufacture narcotics; (2) the modification of the shotgun
in Sosa’s closet; and (3) the prevalence of firearms in proximity to drugs and the
reasons why firearms are often found near drugs. The district court admitted
the officers’ testimony on these topics as lay opinion testimony. Sosa argues that
the officers’ testimony was inadmissible as lay opinion because it was based on
“specialized knowledge.”
We review a district court’s evidentiary rulings for abuse of discretion. See
United States v. Griffin, 324 F.3d 330, 347 (5th Cir. 2003); United States v.
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No. 06-20401
Mendoza-Medina, 346 F.3d 121, 127 (5th Cir. 2003). “A trial court abuses its
discretion when its ruling is based on an erroneous view of the law or a clearly
erroneous assessment of the evidence.” United States v. Ragsdale, 426 F.3d 765,
774 (5th Cir. 2005) (quoting Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584
(5th Cir. 2003)). Moreover, our review of evidentiary rulings in criminal trials
is heightened. Mendoza-Medina, 346 F.3d at 127; United States v. Anderson,
933 F.2d 1261, 1268 (5th Cir. 1991).1
Federal Rule of Evidence 701 governs the admissibility of opinion
testimony by lay witnesses. Rule 701 provides:
If the witness is not testifying as an expert, the witness’ testimony
in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and (c) not based
on scientific, technical, or other specialized knowledge within the
scope of Rule 702.
(emphasis added). “[T]he distinction between lay and expert witness testimony
is that lay testimony ‘results from a process of reasoning familiar in everyday
life,’ while expert testimony ‘results from a process of reasoning which can be
mastered only by specialists in the field.’” FED. R. EVID. 701, Advisory
Committee Notes to 2000 Amendments (quoting State v. Brown, 836 S.W.2d 530,
549 (Tenn. 1992)). As explained by the Second Circuit, “a lay opinion must be
the product of reasoning processes familiar to the average person in everyday
life.” United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005). Moreover, any
1
The Government points to a number of instances of testimony regarding these (or
similar) matters to which Sosa did not object and argues that the court should review the
admission of such testimony for plain error only. The defendant argues that the “definitive”
ruling on his pretrial motion in limine was sufficient to preserve an objection to all such
testimony and that the court should therefore review all testimony on these matters for
harmless error. See FED. R. EVID. 103(a); Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th
Cir. 2002). We do not resolve this issue because even assuming for the sake of argument that
the harmless error doctrine applies, the defendant’s claim nonetheless fails.
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No. 06-20401
part of a witness’s opinion that rests on scientific, technical, or specialized
knowledge must be determined by reference to Rule 702, not Rule 701. Id.
(citing FED. R. EVID. 701, Advisory Committee Notes to 2000 Amendments).
The district court allowed law enforcement officials to provide lay
testimony on these subjects—the use of chemicals in drug manufacturing,
modifications to firearms, and the reason why drug dealers carry guns—under
Rule 701, reasoning that testimony on these matters was not based on
specialized knowledge within the scope of Rule 702, but rather upon the
witnesses’ personal knowledge. For much of the disputed testimony, we doubt
that the district court abused its discretion in determining that the particular
testimony at issue fell within the bounds of permissible lay opinion testimony
and thus did not impinge the territory of specialized knowledge. For example,
with respect to Officer Reeves’s testimony about the modifications made to the
shotgun, we doubt that this testimony exceeded the bounds of permissible lay
opinion testimony. Most of the testimony was merely descriptive. It is not clear
that the testimony that went beyond description, into the realm of opinion, was
based on “specialized knowledge” as opposed simply to common sense or the
officer’s past experience formed from firsthand observation. Yet, with respect
to at least some of the testimony, specifically the detailed testimony of Officer
Reeves regarding the use of the chemicals found in Sosa’s apartment, the district
court may have erred in admitting this testimony as lay opinion.
However, we need not conclusively resolve this issue because, even
assuming for the sake of argument that the evidence should have been excluded,
any error in admitting this testimony was harmless.2 An abuse of discretion in
admitting or excluding evidence is subject to harmless error review. Ragsdale,
2
For this same reason, we also do not address Sosa’s other argument that the
admission of this testimony was in error because it constituted impermissible profiling
evidence.
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No. 06-20401
426 F.3d at 774–75; Mendoza-Medina, 346 F.3d at 127. Under the harmless
error doctrine, even if the district court abuses its discretion in admitting or
excluding evidence, we will affirm “[u]nless there is a reasonable possibility that
the improperly admitted evidence contributed to the conviction.” Mendoza-
Medina, 346 F.3d at 127; see also FED R. CRIM. P. 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial rights must be
disregarded.”).
Apart from the disputed testimony, the evidence against Sosa in this case
was substantial. The evidence introduced at trial was more than sufficient to
establish the relevant factors supporting a finding that Sosa possessed the
firearm in furtherance of a drug trafficking offense. Whether a defendant
possessed a gun to help further, advance, or forward a drug trafficking offense
requires a consideration of several factors, including
the type of drug activity that is being conducted, accessibility of the
firearm, the type of the weapon, whether the weapon is stolen, the
status of the possession (legitimate or illegal), whether the gun is
loaded, proximity to drugs or drug profits, and the time and
circumstances under which the gun is found.
United States v. Ceballos-Torres, 218 F.3d 409, 414–15 (5th Cir. 2000). In this
case, the evidence introduced at trial established (1) that Sosa was engaged in
significant drug activity based, for example, on the amount and value of the
drugs and cash found in his apartment and car, (2) that the two firearms were
easily accessible, located in the night stand and clothes closet in his bedroom, (3)
that Sosa possessed the firearms illegally (as an illegal alien), (4) that one of the
guns, the .357 revolver was fully loaded, (5) that the guns were located near the
bulk of the drugs that were recovered, in Sosa’s bedroom, and (6) that other than
the cocaine and its cash proceeds, there were no other valuables in the
apartment. Based on these factors, the Government presented a strong case
that Sosa’s possession of the firearms was in furtherance of a drug trafficking
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No. 06-20401
crime. Cf. Ceballos-Torres, 218 F.3d at 415 (“[T]he evidence before us supports
a conclusion that [the defendant’s] possession of the Glock was ‘in furtherance’
of his drug trafficking offense. The weapon was loaded and easily accessible in
[the defendant’s] apartment, and he confessed to ownership of the firearm. It
was possessed illegally. And it was possessed in the apartment along with a
substantial amount of drugs and money.”).
In light of the substantial evidence against Sosa, we cannot conclude that
there is a reasonable possibility that the disputed testimony contributed to
Sosa’s conviction. First, the testimony that certain chemicals found in Sosa’s
apartment were used in manufacturing cocaine was harmless error. This
testimony was relevant to the question of whether Sosa was engaged in drug
trafficking. However, the evidence that Sosa was engaged in drug trafficking
was strong and included the substantial amount and value of drugs found in
Sosa’s bedroom and vehicle, the notebooks the officers found, the scales, and the
individualized packaging of the cocaine. The officers’ testimony about the use
of the chemicals in Sosa’s apartment in manufacturing cocaine was simply a
small portion of an otherwise strong showing that Sosa was engaged in drug
trafficking and thus its admission was harmless error.3
Second, we question whether the testimony about the shotgun found in
Sosa’s closet was admitted in error at all, but even assuming it was, that
admission also was harmless error. Most of the testimony simply described the
shotgun. The testimony that went beyond description, to discuss the
modifications made to the shotgun—and which, again, we doubt was “specialized
knowledge” at all—did not undercut Sosa’s defense that the weapon was for
personal protection. Although the testimony may have undercut a possible
3
At Sosa’s first trial, Sosa stipulated to all of the facts necessary to sustain a conviction
on the charges against him for possession with intent to distribute. However, it is not clear
from the record that a similar stipulation was entered by the parties during the second trial.
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No. 06-20401
defense that the shotgun was used for hunting, Sosa did not raise or suggest a
hunting defense at trial. Further, the officer explained that the shotgun was
easier to conceal because it was shorter. However, even without this testimony,
the jury could observe the weapon and determine for itself whether the shotgun
was capable of concealment. In any event, again, the testimony about the
shotgun was only a small portion of a strong case against the defendant and thus
its admission was harmless error.
Finally, Sosa complains about the admission of the testimony that—in
substance—drugs and guns are commonly found together and that drug dealers
use guns to protect their business because of the inherent violence of the trade.
This testimony was relevant to the issue of why Sosa possessed the gun, in other
words, whether his possession was “in furtherance” of a drug trafficking crime.
In Ceballos-Torres we emphasized that establishing that a defendant possessed
a firearm in furtherance of a drug trafficking crime required evidence “more
specific to the particular defendant, showing that his or her possession actually
furthered the drug trafficking offense.” 218 F.3d at 414. The critical question,
therefore, is whether a particular defendant possessed the firearm in
furtherance of the drug trafficking offense, not whether drug dealers “generally
use guns to protect themselves and their drugs.” Id.
The district court in this case properly instructed the jury that it was to
find whether the Government proved beyond a reasonable doubt that “the
Defendant” knowingly possessed a firearm in furtherance of a drug trafficking
crime and that “to prove that the defendant possessed a firearm in furtherance,
the government must prove that the defendant possessed a firearm that furthers,
advances, or helps forward the drug trafficking crime” (emphasis added). In
addition, in closing, the prosecutor argued that Sosa personally possessed the
guns to protect his stash of drugs, made minimal (if any) use of the more
generalized argument identified in Ceballos-Torres, and did not expressly invoke
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No. 06-20401
any of the officers’ disputed testimony on this general point as authority for the
proposition that Sosa possessed the guns in furtherance of a drug trafficking
crime. Instead, the prosecutor argued that the particular circumstances of this
case warranted a finding that Sosa possessed the firearms in furtherance of drug
trafficking. Under these circumstances, we find that the admission of this
testimony was, if anything, harmless error.
We therefore find no reversible error in the district court’s admission of the
testimony of these law enforcement officials as lay opinion testimony.4
III
Sosa next argues that the district court abused its discretion by refusing
his requested jury instruction on possession of a firearm “in furtherance” of a
drug trafficking offense.
We review the district court’s refusal to give a defense-tendered
instruction for abuse of discretion. United States v. John, 309 F.3d 298, 304 (5th
Cir. 2002). A district court’s rejection of a requested jury instruction constitutes
an abuse of discretion and reversible error “only if the requested jury instruction
(1) was a substantially correct statement of the law, (2) was not substantially
covered in the charge as a whole, and (3) concerned an important point in the
trial such that the failure to instruct the jury on the issue seriously impaired the
defendant’s ability to present a given defense.” United States v. O’Keefe, 426
4
Based on Sosa’s claim that this testimony should have been admitted as expert
testimony, or not at all, Sosa also contends that the Government violated the disclosure
requirements of Federal Rule of Criminal Procedure 16, which requires the Government to
provide pretrial expert reports. Even assuming Sosa were correct, Sosa suffered no prejudice
as a result of any such violation. See United States v. Lopez, 271 F.3d 472, 483–84 (3d Cir.
2001) (requiring a showing that any action or inaction taken by the district court under Rule
16 resulted in prejudice). The first trial, which occurred about a month prior to the second
trial, disclosed the relevant alleged “expert” testimony introduced against Sosa in the second
trial. Under these circumstances, there was no unfair surprise or prejudice resulting from the
Government’s prior failure to disclose any alleged expert testimony.
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No. 06-20401
F.3d 274, 277 (5th Cir. 2005) (quoting United States v. Richards, 204 F.3d 177,
204 (5th Cir. 2000)).
The crime of possession of a firearm in furtherance of a drug trafficking
offense is set out in 18 U.S.C. § 924(c)(1)(A). Section 924(c)(1)(A) punishes “any
person who, during and in relation to any crime of violence or drug trafficking
crime . . . uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm . . . .”
The defendant argues that the district court erred in refusing his
instruction that the mere presence of a firearm at the scene is not enough to
convict. Rather, relying on this court’s decision in United States v. Ceballos-
Torres, the defendant sought an instruction that “[w]hat is instead required is
evidence more specific to the particular defendant, showing that his or her
possession actually furthered the drug trafficking offense.” 218 F.3d at 414.
The district court did not abuse its discretion in refusing Sosa’s requested
instruction on the “in furtherance” element because the district court’s charge
substantially covered the underlying principle of Sosa’s requested charge, that
mere possession is not enough. The district court’s charge on this element,
modeled after the Fifth Circuit pattern jury instructions, provided in relevant
part that the Government was required to prove each element of the offense
beyond a reasonable doubt and that “to prove that the defendant possessed a
firearm in furtherance, the government must prove that the defendant possessed
a firearm that furthers, advances, or helps forward the drug trafficking crime”
(emphasis added). Continuing, the instruction provided:
In considering whether the defendant possessed the firearm
in furtherance of a drug trafficking crime, that is, to further advance
or to help forward the crime, you may consider such factors as the
following: The type of drug activity that is being conducted,
accessibility of the firearm, the type of weapon, whether the weapon
is stolen, the status of the possession (legitimate or illegal), whether
the gun is loaded, proximity to drugs or drug profits, the time and
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No. 06-20401
circumstances under which the gun was and found, and such other
factors.
(emphasis added). The district court’s instruction thus twice emphasized that
the Government was required to prove beyond a reasonable doubt that the
defendant’s possession actually furthered the drug trafficking offense and was
therefore consistent with the holding in Ceballos-Torres that “firearm possession
that furthers, advances, or helps forward the drug trafficking offense violates the
statute.” 218 F.3d at 415. The factors for making this determination, outlined
for the jury’s consideration, were also consistent with those articulated in
Ceballos-Torres. See id. at 414–15.
Because the district court’s instructions clearly required that the
possession be in actual furtherance of the drug trafficking offense, we conclude
that the instruction as a whole substantially covered the principle that mere
possession was not enough. The district court’s rejection of the defendant’s
instruction thus did not constitute an abuse of discretion.
Finding no reversible error, we AFFIRM.
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