United States v. Sanders

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13667 FEBRUARY 2, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cr-00352-WCO-ECS-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WALTER SANDERS, JR.,

Defendant-Appellant.
________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(February 2, 2012)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

Following a jury trial, Walter Sanders, Jr., appeals his convictions for

conspiring to possess with intent to distribute five kilograms or more of cocaine in
violation of 21 U.S.C. §§ 841 and 846, and for aiding and abetting possession with

intent to distribute five kilograms or more of cocaine in violation of 18 U.S.C. § 2

and 21 U.S.C. § 841. After review of the record and oral argument, we affirm.

I. PROCEDURAL BACKGROUND

A. Sanders’s Arrest

In June 2006, Immigration and Customs Enforcement (“ICE”), a division of

the U.S. Department of Homeland Security, began investigating Gracie Priscilla

Medina for distributing cocaine on behalf of two drug cartels. Through a

confidential informant, ICE learned that a commercial tractor–trailer carrying a

concealed load of cocaine was bound for one of Medina’s distribution centers in

Fayetteville, Georgia.

On May 7, 2007, ICE alerted the Georgia State Patrol (“GSP”) to look out

for the tractor–trailer. An officer with the GSP stopped the tractor–trailer, which

was driven by Defendant Sanders, for various traffic and equipment violations.

The video camera in the GSP vehicle recorded what happened during the traffic

stop, which led to Sanders’s arrest. After obtaining Sanders’s consent, GSP

officers searched both the tractor and the trailer. They discovered 153 kilograms of

cocaine hidden in a pallet of cabbages, which were rotting because the refrigeration

unit in the trailer was inoperable. Sanders was arrested on state charges.

2
B. Sanders’s Indictment on Federal Charges

In 2008, a federal grand jury indicted Sanders on the present drug charges.

Specifically, the superseding indictment charges that (1) Sanders, Medina, and two

others—Daniel Marillo, Jr., and Salvador Marillo—conspired to possess with

intent to distribute five kilograms or more of cocaine and (2) Sanders and Salvador

Marillo aided and abetted others to possess with intent to distribute five kilograms

or more of cocaine.1

Daniel and Salvador Marillo pled guilty to the drug conspiracy charged in

the indictment. Medina pled guilty to a conspiracy charged in a separate

indictment. All three cooperated with the government. Sanders proceeded to trial.

C. Motions to Suppress and Other Pretrial Matters

Before Sanders’s trial, the government submitted both a “Sentencing

Information Establishing Prior Conviction for the Purpose of Increased

Punishment” and a notice that the government intended to introduce Sanders’s

1988 conviction for selling marijuana. Sanders moved in limine to exclude

evidence of his 22-year-old marijuana conviction as too remote and dissimilar

from the present offense. Sanders also moved to suppress (1) his statements

1
The indictment also includes a forfeiture provision, which applies only to Medina and is
not at issue in this appeal. Before this federal indictment, the state charges against Sanders were
dismissed.

3
during the traffic stop and (2) the cocaine seized from his tractor–trailer.2

At a suppression hearing on the eve of trial, the district court heard

testimony from Sanders and the GSP officer who stopped the tractor–trailer. The

government played an hour-long video of the traffic stop shot from the GSP

vehicle. The district court found that the video clearly showed that Sanders

consented to the search of both the tractor and the trailer. The district court denied

the motion to suppress (1) the cocaine seized during the traffic stop and (2) his

statements during the traffic stop. As to his prior marijuana conviction, the district

court denied Sanders’s motion in limine without prejudice to renewal during trial.

II. TRIAL EVIDENCE

At trial, several law-enforcement witnesses testified about both what

occurred at the traffic stop and the background of the government’s investigation.

Sanders’s co-conspirators testified about both the load of cocaine charged in the

indictment and a previous load of 7,700 pounds of marijuana that Sanders

transported from Texas to North Carolina.

A. Federal Investigation of Medina

The government’s first witness was Agent Andre Kenneybrew, a special

2
Sanders’s motion also sought to exclude statements at his re-arrest on federal charges,
but there were no such statements.

4
agent with ICE. Agent Kenneybrew testified that in 2006 he began investigating

drug activity by Gracie Priscilla Medina. Through confidential informants, Agent

Kenneybrew learned that Medina worked for a drug-trafficking organization run

by Dimas Gonzalez (the “Gonzalez organization”) and that Medina was

responsible for collecting money and acquiring warehouses in the Atlanta area.

Medina was instructed to lease the warehouses and “make it appear as if it was a

legitimate business. The organization would then send drugs concealed in

legitimate loads of merchandise from Mexico to Atlanta.”

When a tractor–trailer was arriving in the Atlanta area, Medina was

responsible for coordinating the delivery. Medina kept a separate cellular phone

only for calls from the drivers of the delivery trucks. She was “instructed to

answer the phone professionally with the business name and give the driver

instructions on how to get to the warehouse and set up a time for delivery.”

Although electronic surveillance and wiretaps were used in the Medina

investigation, Agent Kenneybrew was never able to intercept conversations

between Medina and the truck drivers. Medina used a separate phone to talk to

the truck drivers and the agents were unable to intercept the phone numbers.

Medina dated a man named Roberto Garcia, who belonged to a separate

drug-trafficking organization run by Daniel Marillo, Jr., and Salvador Marillo (the

5
“Marillo organization”). Garcia eventually went to jail, and Garcia asked Medina

to collect money for the Marillos. Medina was thus involved in two separate drug-

trafficking organizations.

On cross-examination, Agent Kenneybrew testified that, as with the

Gonzalez organization, the truck drivers for the Marillo organization were

unaware that they were transporting drugs and believed that they were transporting

legitimate loads. Although ICE was monitoring phones of the Gonzalez

organization, ICE was not monitoring the phones of the Marillo organization.

Medina pled guilty to money laundering and trafficking marijuana, agreed

to cooperate with the government, and also testified at Sanders’s trial. Medina’s

testimony largely corroborated Agent Kenneybrew’s. As explained later, Medina

testified that she had two phone conversations with Sanders but otherwise did not

know who he was.

B. The Day of the Traffic Stop

In May 2007, Agent Kenneybrew learned from a confidential source that a

tractor–trailer was scheduled to arrive at a warehouse in Fayetteville, Georgia.

Agent Kenneybrew contacted local police, who surveilled the warehouse

beginning on May 7, 2007. Around noon, the local police informed Agent

Kenneybrew that the tractor–trailer had arrived at the warehouse. Before Agent

6
Kenneybrew arrived on the scene, the local police called back and said that the

tractor–trailer was leaving the warehouse without unloading anything.

One of the police officers surveilling the warehouse testified that the

tractor–trailer was at the warehouse for no more than ten or fifteen minutes. The

surveillance officer watched Sanders exit the tractor and Salvador Marillo exit his

vehicle, and “[f]rom their hand gestures and body language [the officer] could tell

that [Marillo] was trying to show [Sanders] how to negotiate his truck to back it up

to the loading bay.” A confidential source told Agent Kenneybrew that Sanders

had refused to unload because he “did not like the location of the warehouse and

wasn’t comfortable unloading there.”

During her testimony, Medina confirmed that, on May 7, 2007, she received

a call from the truck driver asking for directions, and she gave the truck driver

directions to the Fayetteville warehouse. Medina testified that she did not answer

this phone call by identifying herself—she simply answered the phone and gave

the driver directions to the warehouse. Later that day, Medina received another

call from the truck driver, who stated that he did not want to unload at the

warehouse because “he was uncomfortable,” the location was “too narrow” to

make a delivery, and he was upset that no one was there when he arrived. Medina

had never received any similar complaints about the warehouse, and she told the

7
truck driver to talk to Marillo. Salvador Marillo subsequently told Medina that the

delivery would occur at another location.

In any event, the local police followed Sanders’s tractor–trailer—which was

following a red Volkswagen belonging to Salvador Marillo—to a nearby truck

stop. At the truck stop, Sanders exited the tractor and joined Salvador Marillo in

the red Volkswagen, and they drove away. That afternoon, Agent Kenneybrew

contacted GSP and asked them to prepare a “whisper stop,” in which ICE tells a

local law enforcement agency that a vehicle contains drugs or other contraband but

asks the local agency to develop its own probable cause for the stop to avoid

compromising the federal investigation. Around 8:00 p.m., the red Volkswagen

returned to the truck stop, and Sanders returned to the tractor–trailer and followed

the red Volkswagen out of the parking lot. Agent Kenneybrew notified GSP,

which subsequently stopped the tractor–trailer for traffic and equipment

violations.

C. The Traffic Stop and Seizure of Cocaine

The government also called Officer James Lamar Thompson, the GSP

officer who stopped Sanders’s tractor–trailer on May 7, 2007. Although ICE

notified him to look out for the vehicle, Officer Thompson stopped Sanders’s

tractor–trailer because he saw Sanders illegally cross three or four lanes of traffic

8
and noticed several equipment violations on the tractor–trailer. When Officer

Thompson activated the blue lights to notify Sanders to stop the tractor–trailer, a

dash-mounted camera began recording video of the events in front of the police

vehicle. A microphone attached to Officer Thompson’s uniform made an audio

recording of the traffic stop.

The government played for the jury the hour-long video of the traffic stop

while Officer Thompson narrated the events shown on the video. During the

traffic stop, Sanders verbally consented to a search of both the tractor and the

trailer, and he also signed two consent-to-search forms. Officer Thompson wrote

Sanders citations for the traffic violation and various equipment violations while

another officer, Dallas VanScoten, searched the trailer for narcotics.

After the video played, Officer Thompson authenticated several documents

provided by Sanders during the traffic stop. Sanders provided (1) a commercial

driver’s license, (2) several registration cards showing that the tractor was

registered to Kelvin Snead but reporting different license numbers, (3) a certificate

of insurance, (4) a “cab card” for the tractor, (5) an inspection report dated January

12, 2007, and (6) a bill of lading, which indicated that Sanders’s load of cabbages

was scheduled for delivery at 5:00 a.m. the next morning in Raleigh, North

Carolina. Officer Thompson testified that the registration cards raised a red flag

9
because Sanders presented two registration cards for the same vehicle. Officer

Thompson obtained the second consent-to-search form so that the consent form

showed either of the two possible registration numbers.

Additionally, the bill of lading concerned Officer Thompson because

Sanders personally signed the bill of lading, the phone number for the shipper

contained too many digits (11 digits instead of 10), and the loading date was May

4, 2007, in Edinburg, Texas. Officer Thompson testified that this was odd because

(1) he stopped Sanders three days later on May 7, 2007, (2) Edinburg, Texas, was

only 18 to 20 hours away, and (3) Sanders was carrying perishable cabbages and

knew that the trailer’s refrigeration unit was broken. A line on the bill of lading,

titled “Special Instructions to Trucker,” stated, “Drivers must maint. temperature

at 36 F at all times.” Officer Thompson testified that a legitimate truck driver

would be more concerned with the integrity of the load because he would have to

deliver the load before being paid.

Sanders also provided Officer Thompson with two receipts for repair work

performed on the tractor–trailer. The first receipt, dated April 25, 2007, showed

work done to other parts of the tractor and trailer but no work on the refrigeration

unit. The second receipt, dated May 6, 2007, which was the day before the stop,

showed that a fan belt was replaced but showed no work performed on the

10
refrigeration unit.

The government then called Officer Dallas VanScoten, another GSP officer.

Officer VanScoten testified that Sanders’s trailer did not appear professionally

loaded because many of the boxes of cabbages were tilted or crushed. Sanders

told Officer VanScoten that he had stayed in a motel, which was unusual because

truck drivers typically sleep in their tractors to save money. After Sanders

consented, Officer VanScoten searched the trailer by crawling from the back to the

front on top of the rows of pallets full of rotten cabbages. Officer VanScoten

could search only the top row of pallets and failed to find any drugs. Officer

VanScoten then exited the trailer and used a trained narcotics-detection dog, who

alerted several times to the odor of narcotics coming from the trailer.

Around 9:30 p.m., the GSP officers moved the tractor–trailer to a nearby

parking lot to search the trailer. Agent Kenneybrew participated in unloading the

trailer, which contained pallets of rotting cabbages. The government showed

several photographs of the trailer and the cargo as it was being unloaded. In one

of the pallets in the second row from the front (i.e., the tractor side) of the trailer,

the agents discovered 153 kilograms of cocaine under a pile of rotting cabbages.

At the time, each kilogram of cocaine had a street value of approximately

11
$28,000.00.3

D. Co-conspirator Reyes’s Testimony About an Earlier Load of Marijuana

The government also presented the testimony of co-conspirator Eric Adrian

Reyes, who was currently serving a prison sentence after pleading guilty to

conspiracy to distribute cocaine.4

At age twelve, Reyes met Eddie Snead, who got Reyes involved in selling

crack cocaine. Before turning 21 years old, Reyes had three state drug convictions

and served 35 months in prison. While in prison, Reyes met Manuel Sanchez,

who had connections to drug traffickers in Texas.

About six months after Reyes was released from prison, Sanchez introduced

Reyes to Mario Cavazos, another drug trafficker. Sanchez and Cavazos were

looking for vehicles to transport drugs, and Reyes sold them two vehicles in

exchange for drugs. Shortly afterward, Reyes re-entered the drug business and

began working with Cavazos to import large amounts of marijuana and cocaine

from Texas to North Carolina.

3
Sanders was arrested on state charges because ICE was not ready to indict all the
co-conspirators in the federal investigation. Because the federal investigation remained ongoing
when the state charges had to be resolved, Agent Kenneybrew instructed the state officials to
release Sanders and drop the state charges to allow ICE to include the charges in a forthcoming
federal indictment.
4
Reyes was charged in North Carolina, pled guilty to conspiracy to distribute five
kilograms or more of cocaine, and agreed to cooperate with the government.

12
 Reyes was responsible for coordinating deliveries of narcotics, but he also

had his own list of customers to whom he sold. One customer was Kelvin Snead,

who amassed a drug debt of more than $100,000.00 and was Eddie Snead’s

cousin. Reyes knew that Kelvin Snead had a hauling business and that Cavazos

was looking for a tractor–trailer. Kelvin Snead agreed to provide the tractor if

Reyes purchased a refrigerated trailer. Reyes purchased the trailer in Kelvin

Snead’s name for approximately $7,500.00 cash. The refrigeration unit was

working when he purchased the trailer. Reyes testified that the “sole purpose” of

purchasing the trailer was to traffic narcotics from Texas to North Carolina.

According to Reyes, the tractor–trailer would be driven to Texas, where

someone would arrange for a load of produce—called a cover load—in which to

hide the narcotics. The drugs would be placed near the front of the trailer, and the

rest of the trailer would be filled with produce. Although Reyes had the truck and

the trailer, Kelvin Snead was responsible for hiring a driver, and his main driver

was Sanders.5

In March 2007, Reyes, Cavazos, Kelvin Snead, and Sanders participated in

the first trip using the newly purchased trailer. Reyes, Cavazos, and Kelvin Snead

5
On cross examination, Reyes admitted that Kelvin Snead also ran a legitimate business
hauling gravel and that Sanders had driven legitimate loads for Kelvin Snead in the past.

13
met to plan the trip, but Sanders was not present at the meeting. Sanders

subsequently drove the tractor–trailer from North Carolina to Texas and waited for

Reyes and Cavazos to prepare the load, and then Sanders drove the tractor–trailer

to the loading dock in Texas. Only Reyes and Cavazos organized the load;

Sanders waited at a truck stop until the load was ready. For this trip, 7,700 pounds

of marijuana were loaded on the truck, hidden in a cover load of cabbages.

Sanders did not help load the trailer.

For the return trip to North Carolina, Cavazos led a caravan in his own car,

followed by Sanders in the tractor–trailer, followed by Reyes driving his own car.

Reyes testified that they drove in this order to “take care of the load” and to watch

for law enforcement. If the trailer had contained only cabbages, Reyes and

Cavazos would not have traveled along with Sanders. At a checkpoint in Texas,

Reyes was stopped by law enforcement, who searched his vehicle. Reyes was

relieved to see that Sanders made it through the checkpoint undetected. Sanders

then pulled over to wait for Reyes, and Reyes had to call Sanders to tell him to go

ahead without him. Before leaving Texas, the caravan stopped in Houston to

unload 4,400 pounds of marijuana. Sanders was present while the marijuana was

being unloaded but did not help unload the trailer.

The rest of the return trip was uneventful until Sanders was driving through

14
South Carolina and jack-knifed the tractor–trailer trying to avoid a car merging on

to the interstate. Although law enforcement arrived on the scene, the driver of the

car admitted that the accident was her fault, and law enforcement never searched

the trailer. Sanders then drove to Kelvin Snead’s shop in North Carolina, where

the remaining 3,300 pounds of marijuana were unloaded. Sanders was on location

when the marijuana was unloaded, but he did not help unload the trailer and

remained inside the shop waiting to be paid.

Reyes testified that Sanders was originally supposed to be paid $50,000.00

for the marijuana trip, but Cavazos subsequently lowered Sanders’s share to

$30,000.00. After receiving an initial payment of approximately $9,000.00,

Sanders demanded more money “because he found out there was narcotics” in the

trailer. Reyes and Cavazos eventually gave Sanders 40 pounds of marijuana as

additional payment for driving the tractor–trailer. In Reyes’s experience, a truck

driver would typically charge only $3,300.00 to drive a load of legal merchandise

from North Carolina to Texas.

Several weeks later, Sanders drove the tractor–trailer back to Texas to pick

up another load. Subsequently, Cavazos told Reyes that Sanders was caught in

Georgia with 153 kilograms of cocaine. Reyes gave approximately $15,000.00 to

Kelvin Snead to pay for a lawyer for Sanders. Reyes did not believe that Snead

15
ever used the money to hire a lawyer. As far as Reyes knew, Sanders had driven

only the two loads—the first load of marijuana and the second load of cocaine for

which he was on trial.

E. Co-conspirator Richards’s Testimony About the Cocaine Load

The government also called co-conspirator Aaron Lamar Richards, who was

currently serving a 132-month sentence for conspiracy to distribute cocaine.

Richards used to deal cocaine with Eddie and Kelvin Snead. In 2007, Richards

talked with the Sneads about an imminent load of cocaine that was going to be

delivered from Texas. Richards and the Sneads were discussing the cocaine

delivery when Sanders arrived. During the conversation, Sanders told Kelvin

Snead that Sanders planned to change his route during this trip because he

encountered too many cops on the route he took during his last trip.

Eddie Snead told Richards that Sanders was preparing to drive the

tractor–trailer to Texas to pick up cocaine, and Richards agreed to buy 20

kilograms of cocaine from the load at $26,000.00 per kilogram. Richards never

received the cocaine because Sanders was caught in Georgia and the cocaine was

seized.

About a year later, Richards ran into Sanders at a restaurant in North

Carolina, and Sanders stated that he had “beat the case down in Atlanta” and was

16
released. Richards suspected that Sanders’s release meant that he was likely to be

indicted by the federal government, but Richards did not reveal this suspicion. On

cross-examination, Richards conceded that he knew that Sanders was going to face

federal charges because Richards was recently arrested on federal drug charges

and was released after agreeing to cooperate and collect evidence on his co-

conspirators.

F. Sanders’s 1988 Marijuana Conviction

After this testimony, the government renewed its Rule 404(b) request to

admit Sanders’s 1988 conviction for selling 1.4 grams of marijuana. The

government argued that the conviction was probative of Sanders’s intent to enter

into the drug conspiracy. Sanders responded that the 22-year-old conviction was

too remote to be probative and that a street-level sale of 1.4 grams of marijuana

was too dissimilar to the international drug-trafficking conspiracy at issue to be

probative of Sanders’s intent.

The district court admitted the 1988 conviction but gave a cautionary

instruction. The court instructed that the jury could consider the prior conviction

only for the “very limited purpose” of determining whether Sanders had the state

of mind or intent to commit the crimes charged in the indictment. The government

rested.

17
 Sanders moved for a judgment of acquittal. The district court denied the

motion. Sanders presented no evidence.

G. Jury Charge

Because Sanders’s appeal involves the jury charge, we also review what

happened in that regard.

During closing arguments, defense counsel argued that Sanders was “just a

truck driver” and that the government had failed to prove that Sanders knew he

was hauling cocaine in the cabbages. Defense counsel asserted that the

government “could have charged him with marijuana,” and had “let one of his

codefendants Ms. Medina plead guilty to marijuana,” but the government was

trying to “put this whole truckload of cocaine on Walter Sanders.” Continuing

with this theme, defense counsel argued that Sanders “obviously has a thing for

marijuana” but “[t]hat doesn’t mean he has a thing for cocaine.” Defense counsel

asserted that the government “charged a very particular conspiracy in this case,”

and specifically charged Sanders, Medina, and two others “with conspiracy to do

this load of cocaine.” Defense counsel questioned why the government was

“trying to prove that Walter Sanders particularly knew it was cocaine in that trailer

when they’re letting other people plead to marijuana[?]”

In its jury instructions, the district court stated that, to convict Sanders of

18
the conspiracy charged in the indictment, the evidence must show beyond a

reasonable doubt “that the object of the unlawful plan was to possess with intent to

distribute more than five kilograms of cocaine, as charged.” After the charge was

given, the government objected that the charge should have stated merely that the

object of the plan was to possess with intent to distribute a “controlled substance,”

rather than any specific drug. In reply, Sanders argued that the indictment

specifically charged cocaine and that a “controlled substance” charge would

undercut his defense. Sanders asked that the jury be given the option of

convicting on the lesser-included offense of conspiracy to distribute marijuana.

Over Sanders’s objection, the district court called the jury back in and

instructed that Sanders did not have to know the nature of the particular drug but

must know that he was possessing a controlled substance.6 After deliberating for a

6
The district court charged the jury:
Ladies and gentlemen, I’m going to try to clear up one thing that arose maybe in the
closing arguments that I had not specifically and normally do not have specifically
in my charge, but to clear it up.
The defendant does not have to—I instruct you that when I was giving the
elements of the three elements in each instance, I want you to understand that the
defendant does not have to know specifically the nature of the particular drug that
he’s possessing, but must know that it is a controlled substance. Now, of course it
has to be and you have to make those findings that it, in fact, was cocaine because
that is charged what was possessed. And if you don’t—and you must find the
quantity, but it’s not an element of the offense under the law. Under the law it is that
he intended to possess a controlled substance, and then it happened to be whatever
it might be in this case, alleged cocaine. It could be marijuana or whatever else is
charged.

19
while, the jury asked whether the indictment terms “controlled substance” and

“cocaine” were interchangeable.7 Over Sanders’s objection, the district court

advised the jury that the terms “are not totally interchangeable because ‘controlled

substance’ is a broader term than ‘cocaine’” and “includes many things,” such as

methamphetamine and other drugs. The district court explained that the defendant

“only has to have knowledge that it’s a controlled substance” and “he does not

have to have knowledge that it was actually cocaine that was being possessed.”

The district court advised that the controlled substance may turn out to be cocaine,

or marijuana, or methamphetamine, and the jury would also determine the amount

of the drug involved for later sentencing calculations under the sentencing

guidelines.

Sanders iterated his objection to the court’s answer to the jury’s question.

Less than ten minutes later, the jury returned a verdict of guilty on both counts.

On the special verdict form, the jury found that Sanders conspired to possess with

intent to distribute five kilograms or more of cocaine and that he possessed with

intent to distribute five kilograms or more of cocaine.

7
The jury asked:
In Counts 1 and 2, it uses the following: “controlled substance.” In the . . .
amounts shown it was the following—“cocaine.” Is the word “cocaine” in the
statement still interchangeable with the words “controlled substance”?

20
H. Sentencing

Sanders’s presentence investigation report (“PSI”) calculated a total offense

level of 388 and a criminal history category of II, yielding a guidelines range of

262 to 327 months’ imprisonment. Given Sanders’s prior drug conviction, he

faced a mandatory minimum sentence of 20 years’ imprisonment. See 21 U.S.C.

§ 841(b)(1)(A) (“If any person commits such a violation [of § 841(a)] after a prior

conviction for a felony drug offense has become final, such person shall be

sentenced to a term of imprisonment which may not be less than 20 years and not

more than life imprisonment . . . .”).

At sentencing, Sanders requested a two-level reduction for having a minor

role in the offenses. The district court denied the reduction based on the trial

evidence. The district court adopted the PSI’s factual recitations and guidelines

calculations. After considering the 18 U.S.C. § 3553(a) factors and Sanders’s

mitigation arguments, the district court sentenced Sanders to concurrent sentences

of 250 months’ imprisonment on his two convictions.

III. DISCUSSION

On appeal, Sanders raises these six errors: (1) improper jury charge that

8
The Drug Quantity Table in U.S.S.G. § 2D1.1(c)(1) provides for an offense level of 38
for a § 841(a) offense involving 150 kilograms or more of cocaine.

21
amended and broadened the indictment to include any controlled substance,

(2) erroneous admission of his 1988 marijuana conviction, (3) insufficiency of the

evidence, (4) wrongful denial of the motion to suppress evidence seized at the

traffic stop, (5) wrongful denial of the motion to suppress his statements to the

police, and (6) improper admission of co-conspirator Richards’s hearsay

testimony. After review of the record, and given Sanders’s consent to the search

of his tractor–trailer, we conclude that issues 3, 4, 5, and 6 wholly lack merit and

do not warrant further discussion. However, issues 1 and 2 require further

consideration.

A. Jury Charge and the Indictment

It is well settled that a defendant enjoys a Fifth Amendment right to be tried

on felony charges returned by a grand jury indictment and that only the grand jury

may broaden the charges in the indictment once it has been returned. Stirone v.

United States, 361 U.S. 212, 215–16, 80 S. Ct. 270, 272, 4 L.Ed.2d 252 (1960).

The district court may not broaden the charges by constructive amendment. Id.

“A constructive amendment to the indictment occurs where the jury instructions so

modify the elements of the offense charged that the defendant may have been

convicted on a ground not alleged by the grand jury’s indictment.” United States

22
v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995) (quotation marks omitted).9

Sanders argues that the district court’s jury instructions impermissibly

broadened the charges in the indictment by instructing that Sanders did “not have

to know specifically the nature of the particular drug that he’s possessing, but

must know that it is a controlled substance.” For the reasons explained below, we

conclude that this instruction is fully consistent with the statutory requirements

and our precedent.

As background, we begin with the language of the relevant statutes. Section

841(a)(1) provides that “it shall be unlawful for any person knowingly or

intentionally . . . to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C.

§ 841(a)(1) (emphasis added).10 As is evident from the statutory language, a

person violates § 841(a) merely by knowingly possessing with intent to distribute

a controlled substance. The § 841(a) offense is complete once the person commits

the proscribed act and knows that the substance is a “controlled substance.”

9
Both parties agree that the applicable standard of review of the particular issue here is de
novo.
10
Section 846 provides that any person “who attempts or conspires to commit any offense
defined in this subchapter [including § 841(a)] shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”
21 U.S.C. § 846.

23
“[B]ecause the specific amount and type of drugs are not elements of the

[§ 841(a)(1)] offense, the government’s failure to prove the amount or type

charged in the indictment does not merit reversal.” United States v. Baker, 432

F.3d 1189, 1233 (11th Cir. 2005); see also United States v. Mejia, 97 F.3d 1391,

1392–93 (11th Cir. 1996); United States v. Gomez, 905 F.2d 1513, 1514–15 (11th

Cir. 1990).

At the outset, we also recognize that § 841(b) provides enhanced maximum

sentences for persons convicted of violating §§ 841(a) or 846, depending on the

quantity and type of drug involved. 21 U.S.C. § 841(b). Further, the enhanced

statutory maximum penalties in § 841(b) cannot apply unless the jury determines

the drug type and quantity involved in the overall drug conspiracy offense. See

United States v. Sanchez, 269 F.3d 1250, 1270 (11th Cir. 2001) (en banc) (“[T]here

is constitutional error in a defendant’s sentencing procedures when drug quantity

increases a defendant’s sentence beyond the prescribed statutory maximum under

§ 841(b)(1)(C),11 unless it was submitted to a jury and proven beyond a reasonable

doubt.”); see also Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S. Ct. 2348,

11
Section 841(b)(1)(C) provides a maximum penalty of 20 years’ imprisonment for a
§ 841(a) offense involving any amount of any controlled substance in Schedule I or II, which
includes cocaine. Section 841(b)(1)(B) increases the statutory maximum to 40 years’
imprisonment for an offense involving 500 grams or more of cocaine. Section 841(b)(1)(A)
increases the statutory maximum to life imprisonment for an offense involving five kilograms or
more of cocaine.

24
2362–63 (2000) (holding that, “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt”).

Although the jury must determine the quantity and type of drug involved,

nothing in the statute, the Constitution, or Apprendi requires the government to

prove that the defendant had knowledge of the particular drug type or quantity for

which a sentence is enhanced under § 841(b). Unlike § 841(a), § 841(b)’s penalty

scheme imposes no mens rea requirement.12 Rather, § 841(b) refers only to a

violation of § 841(a) “involving” certain quantities and types of controlled

substances.

In other words, Apprendi requires that the indictment must charge—and the

jury must find beyond a reasonable doubt—that the offense “involv[ed]” a

particular drug type and quantity before a defendant may receive a sentence above

the maximum penalty in § 841(b)(1)(C). But, as other circuits have held, the

defendant’s knowledge of drug type or quantity is not a fact that increases the

statutory maximum penalty, and therefore Apprendi does not require the jury to

find that the defendant knew what controlled substance was involved. See, e.g.,

12
Sanders’s reply brief acknowledges as much, stating: “Sanders does not argue that the
district court erred by failing to instruct the jury that the government was required to prove
specific intent to possess a particular drug.”

25
United States v. Branham, 515 F.3d 1268, 1276 (D.C. Cir. 2008) (“In short, the

defendant’s knowledge of the type of drug at issue in his offense is not a ‘fact that

increases the penalty for a crime beyond the prescribed statutory maximum,’ and

hence is not a fact that ‘must be submitted to a jury, and proved beyond a

reasonable doubt.’” (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348)

(emphasis added)); United States v. King, 345 F.3d 149, 153 (2d Cir. 2003);

(“[T]he structure and language of § 841 clearly indicates that the terms ‘knowingly

or intentionally’ in § 841(a) modifies the conduct set forth in that sub-section of

the statute, and not the penalty provisions in § 841(b).”); United States v. Brower,

336 F.3d 274, 277 (4th Cir. 2003) (“The holding in Apprendi . . . does not require

the Government to prove that [the defendant] knew that he was distributing a

substance containing cocaine base and, accordingly, the district court did not err

by instructing the jury that the Government needed only to prove that [the

defendant] knew that he was distributing a controlled substance.”); United States

v. Villarce, 323 F.3d 435, 439 (6th Cir. 2003) (“Apprendi does not require proof

of knowledge or intent with respect to drug type and quantity.”); United States v.

Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003) (“Knowledge of drug type

and quantity is not, in the words of Apprendi, a ‘fact that increases the [subsection

(b) ] penalty.’ The penalty is, instead, based solely on the type and quantity

26
involved in the unlawful act.” (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at

2362) (alteration in original)); United States v. Carranza, 289 F.3d 634, 644 (9th

Cir. 2002) (“Apprendi did not change the long established rule that the

government need not prove that the defendant knew the type and amount of a

controlled substance that he imported or possessed; the government need only

show that the defendant knew that he imported or possessed some controlled

substance.”); United States v. Collazo-Aponte, 281 F.3d 320, 326 (1st Cir. 2002)

(“[N]othing in the statutory language of § 841(b) supports a mens rea

requirement.”); United States v. Barbosa, 271 F.3d 438, 458 (3d Cir. 2001)

(same); United States v. Carrera, 259 F.3d 818, 830 (7th Cir. 2001) (same); United

States v. Sheppard, 219 F.3d 766, 768 n.2, 769 (8th Cir. 2000) (same).

In Sanders’s case, the district court instructed the jury, in varying iterations,

that the defendant “only has to have knowledge that it’s a controlled substance”

and “he does not have to have knowledge that it was actually cocaine that was

being possessed.” These instructions correctly state the law of our Circuit

applying § 841(a) and (b), and the district court did not amend or broaden the

indictment by instructing the jury that Sanders did not have to know specifically

that he possessed cocaine. See Baker, 432 F.3d at 1233–34.

Although knowledge is not required under § 841(b), Sanders argues that his

27
particular indictment narrowly charges only a “subset” of the statutory

offenses—conspiracy to possess and possession of cocaine—rather than the

generic crimes of conspiracy to possess and possession of a controlled substance.

We disagree because the precise language of his indictment charges controlled

substance crimes. For example, Count One charges that Sanders:

did knowingly combine, conspire, confederate, agree and have a tacit
understanding with each other and others known and unknown to the
Grand Jury, to commit violations of Title 21, United States Code,
Section 841(a)(1), that is, to knowingly and intentionally distribute and
possess with intent to distribute a controlled substance, said conspiracy
involving at least five (5) kilograms of cocaine hydrochloride, a
Schedule II substance, all in violation of Title 21, United States Code,
Sections 846, 841(a)(1) and 841(b)(1)(A)(ii).

The indictment tracks the statutory language of § 841(a) by charging that Sanders

conspired to knowingly and intentionally possess with intent to distribute a

“controlled substance.” Count One charges a generic violation of §§ 841(a) and

846 in which Sanders conspired to knowingly and intentionally distribute “a

controlled substance.” Count Two similarly charges a generic violation of

§ 841(a) in which Sanders knowingly possessed with intent to distribute “a

controlled substance.”13 We recognize that each count adds sentencing language

13
Count Two charges that Sanders and Salvador Marillo:
aided and abetted by each other and others known and unknown, to knowingly and
intentionally possess with intent to distribute a controlled substance, said act
involving at least five (5) kilograms of a mixture and substance containing a
detectable amount of cocaine hydrochloride, a Schedule II controlled substance, all

28
to give Apprendi notice that the government also charged that the overall

conspiracy “involv[ed] at least five (5) kilograms of cocaine.” This language,

however, is not required for conviction under § 841(a) but is required to set the

statutory maximum sentence under § 841(b). Because the indictment charges

generic, “controlled substance” violations of §§ 841(a) and 846, the district court

correctly instructed the jury that Sanders had to know only that he was conspiring

to distribute, and possess with intent to distribute, any controlled substance.

Contrary to Sanders’s contention, our decision in United States v. Narog,

372 F.3d 1243 (11th Cir. 2004), does not help him. In Narog, the defendants were

charged with conspiring to possess and distribute pseudoephedrine “knowing and

having reasonable cause to believe that the listed chemical [pseudoephedrine]

would be used to manufacture a controlled substance, that is, methamphetamine.”

Id. at 1246 (emphasis added). The government prosecuted the Narog case only as

a methamphetamine-production case. There was no evidence that the

pseudoephedrine pills would be used to manufacture a controlled substance other

than methamphetamine. Id. at 1247. Therefore, the jury should have been

instructed that the term “controlled substance” “was synonymous with

in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A)(ii),
and Title 18, United States Code, Section 2.
Given the parallel structure of Counts One and Two, we read them similarly.

29
methamphetamine.” Id. at 1249. Reversing the defendants’ convictions in Narog,

this Court concluded that the phrase “that is, methamphetamine” in the indictment

“essentially charged a subset of the statutory crime.” Id. at 1249. We also stressed

that the jury “may well have convicted appellants of believing that the pills would

be used to manufacture a controlled substance other than the one specified therein,

although there was no evidence of such.” Id. (emphasis added). This Court

concluded that the district court’s instructions unconstitutionally broadened the

indictment. Id. at 1249.14

The material differences here are threefold. First, Sanders’s indictment

charges generic violations of § 841(a)(1), “that is, to knowingly and intentionally

distribute and possess with intent to distribute a controlled substance.” Unlike

Narog, the phrase “that is” in Sanders’s indictment is followed by “controlled

substance.” Second, unlike in Narog, there was ample evidence that Sanders knew

he was transporting a controlled substance, and there is no danger that Sanders

was convicted for an offense not charged by the grand jury. See United States v.

Behety, 32 F.3d 503, 509 (11th Cir. 1994) (“The danger that we are concerned

14
During deliberations, the jury asked about the “that is” clause: “Did a defendant have to
have knowledge or reasonable cause to believe the pseudoephedrine would be used to make
specifically methamphetamine to be guilty?” Id. at 1247. Yet, the district court responded that
the government did not have to prove that the defendant knew the exact nature of the controlled
substance to be manufactured, only that the defendant knew the pseudoephedrine would be used
to manufacture some controlled substance. Id.

30
with is that a defendant may have been convicted on a ground not alleged by the

grand jury’s indictment.” (quotation marks omitted)).

Third, although the indictment here goes further and adds the type and

amount of drug in the conspiracy, that indictment fairly read is not charging that

Sanders had knowledge of that type or amount of drug but is charging that the

overall conspiracy involved that type and amount of drug. Rather, the best reading

of Count One is that the four named defendants, including Sanders, knowingly

entered into a conspiracy with intent to distribute a controlled substance, and at

least five kilograms of cocaine were involved. And, unlike in Narog, the jury’s

special verdict form in Sanders’s trial specifically finds that the conspiracy

involved five kilograms or more of cocaine.

Finally, Sanders argues that the district erroneously responded to the jury’s

question by referring to marijuana and to the “weight and quantity of cocaine or

some other drug, if there was some other drug.”15 Sanders’s argument ignores that

15
We review for abuse of discretion the district court’s response to a jury question.
United States v. Lopez, 590 F.3d 1238, 1247 (11th Cir. 2009). Although the district court enjoys
“considerable discretion regarding the extent and character of supplemental jury instructions, it
does not have discretion to misstate the law or confuse the jury.” Id. at 1247–48. “A challenged
supplemental jury instruction is reviewed as part of the entire jury charge, in light of the
indictment, evidence presented and argument of counsel to determine whether the jury was
misled and whether the jury understood the issues.” Id. at 1248 (quotation marks omitted). As
noted above, however, we review the correctness of jury instructions de novo to determine if they
misstate the law or mislead the jury to the prejudice of the objecting party. Id. at 1248 n.7.

31
the district court also instructed that Sanders had “to have knowledge that it was a

controlled substance. [The controlled substance] may turn out to be cocaine or

whatever it is, and then you have to determine the amounts for sentencing

calculations under the sentencing guidelines.”16

16
The portion of transcript to which Sanders refers provides in full:

[“Cocaine” and “controlled substance”] are not totally interchangeable
because “controlled substance” is a broader term than “cocaine.” It includes many
things, marijuana, and there are various schedules of controlled substances, it
includes methamphetamine and other drugs.
In this case, as you’ve read the indictment and that’s what’s apparently
causing you some concern, it charges the defendant either in the conspiracy count or
substantive count, whichever one you want to deal with, but I’ll deal with the
substantive because that’s a little simpler, with knowingly and intentionally
possessing with intent to distribute a controlled substance. And then it goes on to
modify that by saying, said act involving at least five kilograms of a mixture and
substance containing a detectable amount of cocaine hydrochloride, which is the
more technical name.
Now, maybe I should tell you at this time in language that I did not use
previously, the purpose for those three determinations of weights [in the verdict
form] relates not to anything you are to do except to find how much—what weight
and quantity of cocaine or some other drug, if there was some other drug, you found
goes to the determination that the court must use at sentencing time. And that’s the
reason for the determination of amounts. Otherwise, the word “cocaine” and the
weight wouldn’t be there at all, it would just be “controlled substance.”
Now, where the problem came is an argument was made that the defendant
had to have knowledge that what . . . he was transporting was, in fact, cocaine. He
only has to have knowledge that it’s a controlled substance, and that’s the distinction
I think the lawyers are arguing about presenting to you, and that he does not have to
have knowledge that it was actually cocaine that was being possessed. He has to
have knowledge that it was a controlled substance. It may turn out to be cocaine or
it may turn out to be marijuana or it may turn out to be methamphetamine or
whatever it is, and then you have to determine the amounts for sentencing
calculations under the sentencing guidelines. But that’s not a concern of yours except
to determine that amounts that you say. But beyond that, it’s not your concern. I will
have to deal with that.

32
 Although the district court referred to other drugs, the jury charge as a

whole correctly explains the knowledge required to convict Sanders of the

offenses charged in the indictment: Sanders had to know that he was possessing a

controlled substance but did not have to know that the substance was cocaine.

And, contrary to Sanders’s argument, the district court did not relieve the

government of its burden to show that five kilograms or more of cocaine were

involved in the offenses. The district court correctly noted that the government

retained the burden to identify the type and quantity of drugs involved in the

offenses and that the jury had to find the drug types and quantities only after

determining whether Sanders had committed the charged offenses.

In sum, the grand jury charged Sanders with §§ 841(a) and 846 offenses

“involving” five kilograms of cocaine, the government presented unrebutted

evidence that 153 kilograms of cocaine were found in Sanders’s tractor–trailer,

and the jury specifically found in its special verdict that each offense involved five

kilograms or more of cocaine. After considering the district court’s instructions in

context and in light of the trial evidence and the jury’s special verdict, we

conclude that the jury was not misled into convicting Sanders of a crime for which

he was not indicted. Because Sanders could not have been convicted of an offense

for which he was not indicted, the district court’s jury charge did not

33
constructively amend or broaden the indictment. See Starke, 62 F.3d at 1380.

B. Admission of Sanders’s Prior Drug Conviction

Sanders next argues that the district court erred by admitting into evidence

his 1988 conviction for selling 1.4 grams of marijuana. Relying on Rule 404(b) of

the Federal Rules of Evidence, Sanders argues that any probative value of the prior

conviction was diminished by the 22-year gap between the prior conviction and

the current trial, that the lack of similarity between a street-level sale and a

153-kilogram trafficking conspiracy reduced the prior conviction’s probative

value, and that the government had no incremental need to introduce the 1988

conviction in light of all the other evidence.17

Rule 404(b) prohibits evidence of another crime, wrong, or act to prove a

person’s character in order to show action in conformity therewith. FED. R. EVID.

404(b). This type of evidence is admissible, however, for another purpose, such as

to prove motive, intent, or absence of mistake or accident (provided that the

government provides reasonable notice of the general nature of the evidence to be

17
We review for abuse of discretion the district court’s decision to admit under Rule
404(b) Sanders’s prior conviction for selling marijuana. See United States v. Lampley, 68 F.3d
1296, 1299 (11th Cir. 1995). However, “evidentiary and other nonconstitutional errors do not
constitute grounds for reversal unless there is a reasonable likelihood that they affected the
defendant’s substantial rights; where an error had no substantial influence on the outcome, and
sufficient evidence uninfected by error supports the verdict, reversal is not warranted.” United
States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990).

34
introduced at trial). Id. Rule 404(b) “is one of inclusion which allows extrinsic

evidence unless it tends to prove only criminal propensity. The list provided by

the rule is not exhaustive and the range of relevancy outside the ban is almost

infinite.” United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008)

(quotation marks and alteration omitted).

To be admissible, the Rule 404(b) evidence (1) “must be relevant to an issue

other than the defendant’s character,” (2) “there must be sufficient proof” to allow

a jury to find that the defendant committed the extrinsic act, and (3) the evidence

“must possess probative value that is not substantially outweighed by its undue

prejudice, and the evidence must meet the other requirements of Rule 403.”

United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc).

Regarding the first element, a not-guilty plea to a conspiracy charge “‘renders the

defendant’s intent a material issue . . . unless the defendant affirmatively takes the

issue of intent out of the case.’” United States v. Matthews, 431 F.3d 1296, 1311

(11th Cir. 2005) (quoting United States v. Roberts, 619 F.2d 379, 383 (5th Cir.

1980)) (internal quotation marks and alterations omitted).

Furthermore, our precedent holds that “[e]vidence of prior drug dealings is

highly probative of intent to distribute a controlled substance, as well as

involvement in a conspiracy.” Matthews, 431 F.3d at 1311. Indeed, “virtually any

35
prior drug offense [is] probative of the intent to engage in a drug conspiracy.” Id.

Because Sanders pleaded not guilty to the conspiracy charge, his intent was at

issue, and the first element was established. The second element was also met

because Sanders was convicted of the prior act of selling marijuana. Thus, the

issue for the district court was whether the undue prejudice from the character

evidence substantially outweighed the probative value of the prior conviction.

We conclude that the district court abused its discretion by admitting this

particular 22-year-old, 1.4-gram-marijuana conviction. Although we have

declined to establish a bright-line rule for when a prior conviction is too old to be

admissible, Sanders’s 22-year-old conviction is nearly fifty percent older than the

oldest conviction we have previously allowed. See United States v. Lampley, 68

F.3d 1296, 1300 (11th Cir. 1995) (holding that a 15-year-old drug conviction was

not so remote that it lacked any probative value to show the defendant’s intent to

traffic cocaine). Furthermore, Sanders’s prior conviction was for a street-level

sale of 1.4 grams of marijuana, and the current charges involved an international

conspiracy to traffic 153 kilograms of cocaine. Given the factual combination

here of the lengthy time span, the extremely disparate amounts of different drugs,

and the materially differing roles in the offenses, we conclude that Sanders’s prior

conviction had virtually no probative value in establishing Sanders’s intent to

36
enter into the present conspiracy. Allowing the government to admit such a

remote and factually dissimilar conviction would effectively create a per se rule of

admissibility of any prior drug conviction in drug conspiracy cases—no matter

how old or how different. Our precedent does not create such a rule, and we

decline to adopt one today. Because Sanders’s prior 1988 conviction involving

1.4 grams of marijuana had so little, if any, probative value, the district court

abused its discretion by admitting the conviction.

Nevertheless, the paucity of probative value creates an additional problem

for Sanders—the remoteness and dissimilarity of the prior conviction not only

decreases the probative value to show intent but also diminishes the potential for

unfair prejudice. In other words, the prior conviction was so old and dissimilar

that it is unlikely that the jury convicted Sanders because of the prior conviction,

either because the jury believed Sanders should still be in jail for the prior

conviction, or because the conviction demonstrates a propensity to transport large

quantities of drugs in a tractor–trailer from Texas to North Carolina.

Given the abundant evidence admitted at trial, we conclude that the district

court’s admission of the prior conviction was harmless error. As described above,

Sanders’s co-conspirator Eric Reyes testified that Sanders drove a previous load of

7,700 pounds of marijuana from Texas to North Carolina. Reyes testified that

37
Sanders knew that he was transporting narcotics. Although a truck driver would

typically charge $3,300.00 for such a trip, Sanders received $9,000.00 and 40

pounds of marijuana for this trip. Additionally, co-conspirator Aaron Richards

testified that Sanders planned to take a different route for his second trip because

he encountered too many cops on the route he took during his last trip.

The other trial evidence fully corroborated the co-conspirator testimony.

Importantly, Sanders was arrested while driving a tractor–trailer loaded with 153

kilograms of cocaine hidden in a pallet of rotten cabbages. Although Sanders

admitted that he knew that the refrigeration unit on the trailer was broken and that

he was hauling perishable cabbages, the bill of lading (that Sanders gave the GSP

officer) showed that Sanders accepted the load on May 4th and was stopped on

May 7th in Georgia. The trip from Texas to North Carolina typically takes only 18

to 20 hours—in other words, despite hauling perishable goods with a broken

refrigeration unit, Sanders had not completed the one-day trip in the three days

since picking up his load. Furthermore, Sanders had a receipt showing that he had

maintenance performed on the truck on May 6th—the day before he was

stopped—but the receipt showed no effort to repair the broken refrigeration unit.

In sum, although the district court abused its discretion by admitting

Sanders’s 1988 conviction for selling 1.4 grams of marijuana, the error was

38
harmless in light of the overwhelming evidence presented at trial.

AFFIRMED.

39