United States v. Eddy Jean

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 17, 2008
No. 07-13719 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 07-20073-CR-PAS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDDY JEAN,

Defendant-Appellant.

________________________

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

(July 17, 2008)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

On February 8, 2007, a Southern District of Florida grand jury returned a
two-count indictment against appellant Eddy Jean for importation of cocaine, in

violation of 21 U.S.C. § 952(a), Count One, and possession with intent to distribute

cocaine, 21 U.S.C. § 841(a)(1), Count Two. After the district court, adopting the

recommendation of a magistrate judge, denied his motion to suppress his custodial

statements to Immigration and Customs Enforcement Agent Perez, Jean stood trial

on his pleas of not guilty. The jury found him guilty on both counts, and the

district court sentenced him to concurrent prison terms of 65 months. He now

appeals his convictions, contending that the district court erred in denying his

motion to suppress and that the evidence was insufficient to convict. We affirm.

On January 24, 2007, Jean arrived at Miami International Airport aboard an

Air France flight from Port-au-Prince, Haiti. He had a carry on bag, and a Customs

officer viewing it under the x-ray machine noticed that the contents of the bag were

unusually dense. An examination of the bag revealed four wooden plaques

containing cocaine powder.

Jean was arrested. Following his arrest, Agent Perez questioned him – after

advising him of his Miranda rights and obtaining Jean’s waiver of them. Jean told

Perez that he was fluent in Creole, and that he could not read English. He could

understand spoken English, however, and, as he spoke to Perez, he showed that he

had no difficulty understanding and speaking English. He told Perez that he had

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bought the plaques from a street vendor. Perez voiced disbelief, so Jean changed

his story, claiming that a friend, Innocent, had introduced him to two individuals

who gave him the plaques and told him that they contained drugs inside. He was

to deliver the plaques to “Bib Dog” in Miami, and agreed to cooperate with the

authorities and do that. A controlled delivery, however, proved unsuccessful.

Following his arraignment, Jean moved the district court to suppress his

statements to Agent Perez. The court referred the motion to a magistrate judge for

an evidentiary hearing. The focus of the hearing was whether Agent Perez had

properly advised Jean of his Miranda rights, whether Jean understood them, and

whether he freely and voluntarily waived his right to remain silent and to submit to

questioning. After hearing from Agent Perez, the only witness to testify, the

magistrate judge found that Perez had advised Jean of his Miranda rights in

English, that Jean understood them, and that he waived his right to remain silent.

She accordingly recommended that the district court deny Jean’s motion to

suppress. Jean objected to the magistrate’s recommendation. The court overruled

his objection and denied his motion.

I.

In reviewing the denial of a motion to suppress evidence, we accept the

district court’s findings of fact unless they are clearly erroneous, and we consider

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the court’s application of the law to the facts de novo. United States v. Garcia-

Jaimes, 484 F.3d 1311, 1320 (11th Cir.), petition for cert. filed, No. 06-11863

(U.S. June 11, 2007). Statements an accused makes during a custodial

interrogation are inadmissable unless he has been warned of his rights and

knowingly, voluntarily, and intelligently waived them. Miranda v. Arizona, 384

U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The Supreme

Court has developed a two-part test to determine whether a valid waiver occurred:

First, the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception. Second, the waiver must have
been made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it. Only
if the totality of the circumstances surrounding the interrogation
reveal both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the Miranda rights
have been waived.

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410

(1986) (internal quotations omitted).

After reviewing the transcript of the evidentiary hearing before the

magistrate judge, we are satisfied that Jean’s post-arrest statements were made

knowingly and voluntarily following a full advice, and waiver, of Miranda rights.

Having reached this holding, we consider Jean’s challenge to the sufficiency of the

evidence to convict.

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 II.

Where, as in this case, the defendant “does not move the district court for a

judgment of acquittal at the close of the evidence, we may reverse [his]

conviction[s] only to prevent a manifest miscarriage of justice.” United States v.

Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). A manifest miscarriage of justice

occurs when we find that the evidence supporting an element of the offense is so

tenuous that the conviction is shocking. Id. It is the jury’s responsibility to make

credibility determinations. United States v. Ndiaye, 434 F.3d 1270, 1296 (11th

Cir.), cert. denied, 127 S.Ct. 128 (2006).

“To sustain a conviction for possession of a controlled substance with intent

to distribute, the government must show that a defendant knowingly possessed the

controlled substance with the intent to distribute it.” United States v. Hernandez,

433 F.3d 1328, 1333 (11th Cir. 2005). United States v. Donahey, 529 F.2d 831,

833 (5th Cir. 1976). To sustain a conviction for importation of a controlled

substance, the government must prove that a defendant knew that he was importing

a controlled substance, even if he did not know the particular drug being imported.

United States v. Quilca-Carpio, 118 F.3d 719, 720-21 (11th Cir. 1997); United

States v. Lewis, 676 F.2d 508, 512 (11th Cir. 1982).

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 We have held that, when the government has introduced corroborative

evidence of guilt, a defendant’s disbelieved trial testimony may be considered as

substantive evidence of guilt, as the jury is permitted to conclude that the opposite

of the defendant’s testimony is true. United States v. Brown, 53 F.3d 312, 314-15

(11th Cir. 1995). This is particularly applicable for establishing subjective

elements, such as a defendant’s knowledge. Id. at 315.

Jean’s convictions do not constitute a manifest miscarriage of justice. The

jury obviously believed Agent Perez’s testimony that Jean admitted knowingly

possessing and importing drugs, and rejected Jean’s testimony, which, given the

prosecutor’s searching cross-examination, was internally conflicting, that he was

unaware that he possessed cocaine.

AFFIRMED.

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