United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2010 Decided March 30, 2010
No. 08-3097
UNITED STATES OF AMERICA,
APPELLEE
v.
ALVARO AUGUSTIN MEJIA,
ALSO KNOWN AS EDWIN RENEE SAPON RUIZ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cr-00248-JDB-5)
Carmen D. Hernandez, appointed by the court, argued the
cause for the appellant.
Stephan E. Oestreicher Jr., Attorney, United States
Department of Justice, argued the cause for the appellee. Lanny
A. Breuer, Assistant Attorney General, Gary G. Grindler,
Deputy Assistant Attorney General, and Brian M. Tomney,
Attorney, were on brief. Teresa A. Wallbaum, Attorney, and
Roy W. McLeese III, Assistant United States Attorney, entered
appearances.
Before: HENDERSON and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Alvaro
Augustin Mejia and four co-defendants were charged with a
single count of conspiring to import five or more kilograms of
cocaine into the United States after a United States Drug
Enforcement Administration (DEA) sting operation caught them
on tape plotting to transport and safeguard a 1,300 kilogram
drug shipment through Guatemala. On appeal, Mejia challenges
various aspects of his conviction and sentence. We affirm.
I.
In late 2005, the DEA initiated a Central American sting
operation that ensnared Mejia and four fellow Guatemalan co-
conspirators: Jorge Ricardo Bardales-Bourdet (Bardales), Edgar
Antonio Chiu Serrano (Serrano), Erik Donaire Constanza-Bran
(Bran) and Juan Daniel Del Cid Morales (Morales). According
to the evidence at trial, the DEA learned that Bardales was
helping Colombian drug traffickers move cocaine through
Guatemala with the help of corrupt Guatemalan law enforcement
officials. In response, the DEA enlisted a pseudonymous
confidential informant, “Augustine Cortez,” to pose as a cocaine
supplier and meet with Bardales. At their first meeting (also
attended by Serrano, who was introduced as a Guatemalan law-
enforcement officer), Cortez asked Bardales to arrange for
security to transport a container of cocaine through Guatemala
en route to the United States. Bardales agreed and proposed to
charge Cortez one million dollars to move 3,000 kilograms.
(Cortez surreptitiously recorded this and all subsequent meetings
and telephone calls, transcripts of which were introduced by the
government and described by Cortez at trial.)
In the weeks that followed the initial contact, Bran, who
was Serrano’s boss, followed up with Cortez numerous times to
set up a meeting at which Bran planned to introduce Cortez to
two Guatemalan law enforcement officials who would provide
3
protection for the cocaine shipments: Mejia and the fourth co-
defendant, Morales. Meeting at a restaurant in San Salvador, El
Salvador in July 2006, the informant Cortez told the four men
assembled (Bardales, Bran, Morales and Mejia) that he intended
to transport 1,300 “units” through their country. Meeting Tr.,
July 19, 2006 at 20. Bardales assured Cortez that Morales and
Mejia would take care of transportation and security. See id. at
13 (identifying Morales and Mejia as “the ones in charge of
everything that has to be done”). Although Mejia spoke little,
he presented false identification and posed as “Edwin Rene
Sapon-Ruiz,” a high-level Guatemalan official with customs
oversight authority. (Mejia was in fact a retired Guatemalan
police officer.) Mejia said that Guatemalan law enforcement
was “creat[ing] a new unit, DIPA [División de Protección de
Puertos y Aeropuertos],” to handle narcotics and to “work[]
ports and airports.” Trial Tr., Feb. 27, 2008 (P.M.) at 61-62.
Mejia suggested that he and Morales might be able to “control
the commanders, the people who control[] DIPA.” Id. at 62-63.
At the end of the meeting, Cortez paid Morales $10,000 in
advance.
Cortez met again with Bran, Morales and Mejia at the same
restaurant in August 2006. (Bardales, who had been seriously
injured in an automobile accident shortly before the meeting, did
not attend.) According to Cortez, Bran had paperwork involving
a “cover-up company” Bran controlled, and which could be used
to stash the cocaine amidst legitimate cargo—specifically,
Christmas decorations.1 Trial Tr., Feb. 28, 2008 (A.M.) at 11.
Bran explained to Cortez how to ship the drugs to prevent
detection. Again, Mejia said little.
The group met for a third and final time in September 2006.
A few minutes into the meeting, Salvadoran police officers
1
And thus giving unintended meaning to a “white Christmas.”
4
arrested all three men. Lead DEA Agent Stephen Fraga, who
did not witness the arrest, arrived at the scene about ten minutes
later. He testified that: one of the Salvadoran policemen handed
him a bag of seized evidence for each of the arrested men and
each bag contained a wallet; Mejia’s wallet contained a folded
piece of paper with a handwritten list of names and the word
“DEA” handwritten on the side; both Mejia’s and Morales’s
wallets contained semiautomatic handgun permits; and two
handguns were seized from Bran’s driver, who was not charged
as a co-conspirator.
Mejia, Morales and Bran were handed over to DEA Agents
Fraga and Jason Sandoval about ninety minutes after the arrest
and were promptly taken aboard a DEA airplane bound for the
United States. During the flight, Mejia signed a written waiver
of rights and spoke to the DEA agents, who took notes but did
not record the interview. According to the agents’ testimony,
Mejia confessed that he and Morales had been asked by Bran “to
act as police officers . . . to facilitate a cocaine transaction [by
Cortez, who] . . . obtained a container filled with cocaine in
Colombia and was seeking protection for that cocaine once it
arrived in Guatemala”; “he specifically represented himself as
a different police officer to make money”; he “was aware that
the container was to contain cocaine . . . [and] was destined for
the United States”; “he was knowledgeable of the topic of the
stolen cocaine, and the prices of the stolen cocaine”; and “he had
given thought to stealing the cocaine and reselling the cocaine
in Guatemala for $4500 per kilogram.” Trial Tr., Mar. 3, 2008
(P.M.) at 9-10, 97-101.
On September 20, 2007, Mejia and his four co-defendants
were charged in a one-count superseding indictment with
conspiring to import five or more kilograms of cocaine into the
United States in violation of 21 U.S.C. §§ 952, 959, 960 and
963. Mejia, Morales and Bran all pleaded not guilty and the
district court severed their cases for separate trials. (Serrano
5
remains at large and Bardales eventually died from his auto
accident injuries.) After Bran’s trial resulted in a hung jury, he
pleaded guilty and was sentenced to 144 months’ imprisonment.
In February 2008, shortly before Mejia’s trial, the government
offered Morales and him a wired Rule 11(c)(1)(C) nine-year
plea agreement, which they rejected. Morales was convicted by
a jury and sentenced to 220 months’ imprisonment.2 On March
8, 2008, after an eight-day trial, Mejia was also convicted.
Because the conspiracy involved more than 150 kilograms of
cocaine, Mejia’s offense level was calculated at 38. Combined
with his criminal history category of I, the advisory range of
imprisonment was 235 to 293 months under the United States
Sentencing Guidelines (Guidelines). See U.S.S.G. Ch. 5, Pt. A
(sentencing table). The government recommended a below-
Guidelines sentence of 210 months. Mejia asked for 60 months
(one-half the 120-month statutory mandatory minimum),
seeking an adjustment for his minor role in the offense, see
U.S.S.G. § 3B1.2, as well as various discretionary departures,
see id. § 5H1.4 (physical condition), id. § 5H1.5 (employment
record), id. § 5H1.6 (family responsibilities), id. § 5H1.11
(military, civic, charitable and public service, employment-
related contributions and record of good works), and id.
§ 5K2.20 (aberrant behavior). The district court found Mejia’s
account of the facts implausible3 and declined to adjust his
2
Both Bran and Morales appealed to this Court. We affirmed
Bran’s conviction and sentence on October 29, 2009. See United
States v. Constanza-Bran, No. 08-3086 (D.C. Cir.). Morales’s appeal
remains pending. See United States v. Morales, No. 08-3038 (D.C.
Cir.).
3
The court found:
It is not plausible that he went to three meetings in another
country and believed that this only involved moving
Christmas goods for possible avoidance of Customs or tax
6
sentence based on his purportedly minor role; it then sentenced
Mejia to 208 months’ imprisonment. Mejia’s sentence—slightly
over seventeen years—was nearly twice as long as the sentence
proposed in the Rule 11(c)(1)(C) plea offer he rejected but more
than two years fewer than the advisory range of 235 to 293
months.
II.
Mejia now appeals, asking the court to vacate his conviction
or, in the alternative, to remand for resentencing. He contends
that the court made a series of errors that, alone or together,
entitle him to a new trial and sentence. His objections fall
within four categories that we address in turn: the court’s
admissibility rulings, its jury instructions, the government’s
closing argument and the sentence imposed.
A.
Mejia contends that the district court erred in admitting
various items and testimony into evidence. We review
admissibility rulings for abuse of discretion. See United States
v. Coumaris, 399 F.3d 343, 347 (D.C. Cir. 2005).
The “DEA Note.” We begin with Mejia’s chain-of-custody
objection. Citing Novak v. District of Columbia, 160 F.2d 588,
588-89 (D.C. Cir. 1947), which reversed a conviction because
of a gap in the chain of custody of certain physical evidence (the
defendant’s urine sample), Mejia contends that a similar gap as
requirements . . . [as that] does not comport with the
evidence at trial and is not in my view what an experienced
police officer could possibly have believed in light of the
circumstances that he was involved in and the discussions
that were taking place.
Sentencing Tr., Oct 16, 2008 (A.M.) at 59.
7
to evidence admitted against him likewise entitles him to a new
trial.
The handwritten note with “DEA” and several names on it
was admitted despite an undisputed break in the chain of
custody. As noted earlier, shortly after Mejia (along with
Morales, Bran and the informant Cortez) arrived at his third and
final meeting, several Salvadoran police officers entered the
restaurant where the three co-conspirators and Cortez were
meeting and arrested them. DEA Agent Fraga did not witness
the arrest because at the time he was in an automobile parked
several blocks away from the scene. He testified that he arrived
at the restaurant about ten minutes after the arrest, at which point
he was given a bag from a Salvadoran police officer he
presumed to be the leader of the arrest team. The bag contained
Mejia’s personal effects. The Salvadoran officer who seized
Mejia’s belongings did not testify and the government did not
identify him; in fact, the government did not call any witness
who took part in Mejia’s arrest and the seizure of his property.
Neither did it introduce a return or other official document
listing the items seized from Mejia upon arrest. Agent Fraga
testified that among the items included in the bag the Salvadoran
officer gave him was Mejia’s wallet and inside the wallet he
found a folded, handwritten note with “DEA” and a list of
names on it. The names included at least five agents stationed
in the DEA’s Guatemala City office. The paper did not include
Mejia’s name or signature and no handwriting or fingerprint
evidence was introduced to link Mejia to it. In short, Mejia’s
chain-of-custody objection to the admission of the list—that it
was given to Agent Fraga by “[s]omeone who’s not present here
and we don’t know what happened to it [before Agent Fraga
obtained it],” Trial Tr., Mar. 3, 2008 (P.M.) at 102—is
fundamentally correct.
But was it nevertheless admissible? “It is generally
recognized that tangible objects become admissible in evidence
8
only when proof of their original acquisition and subsequent
custody forges their connection with the accused and the
criminal offense.” Gass v. United States, 416 F.2d 767, 770 n.8
(D.C. Cir. 1969). Long ago we held that an unbroken chain of
custody is a prerequisite to admissibility. See Novak v. District
of Columbia, 160 F.2d 588, 588-89 (D.C. Cir. 1947) (citing
Smith v. United States, 157 F.2d 705 (D.C. Cir. 1947)). In
Novak, a police officer testified that he had obtained a urine
sample from the defendant, labeled the bottle and delivered it to
the laboratory for analysis; a lab chemist also testified as to the
alcohol content of a urine sample in a bottle labeled with the
defendant’s name and confirming lab records were introduced.
See id. at 588. The government did not establish, however, that
the bottle the arresting officer labeled and initialed was the same
one the lab chemist analyzed. See id. We concluded that the
evidence was “missing a necessary link in the chain of
identification” and reversed Novak’s conviction. Id. at 589.
We have since retreated somewhat from Novak, holding that
a challenge to the chain of custody goes to weight rather than
admissibility. See United States v. Stewart, 104 F.3d 1377, 1383
(D.C. Cir. 1997) (evidence of delay in testing lab sample “went
to the weight to be ascribed to the drug evidence by the jury, not
its admissibility”).4 Indeed, we held in Stewart that the
government’s burden “only requires it to demonstrate that, ‘as
a matter of reasonable probability,’ possibilities of
4
The United States Supreme Court made the same point last year.
See Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2532 n.1 (2009)
(“‘[G]aps in the chain . . . normally go to the weight of the evidence
rather than its admissibility.’” (quoting United States v. Lott, 854 F.2d
244, 250 (7th Cir. 1988))). The Court noted that the government’s
obligation to establish a chain of custody does not require it to call to
the stand every witness who may have handled a piece of evidence as
the government may decide “what steps in the chain of custody are so
crucial as to require evidence.” Id.
9
misidentification and adulteration have been eliminated.” Id.
(quoting United States v. Robinson, 447 F.2d 1215, 1220 (D.C.
Cir. 1971) (en banc)); see Fed. R. Evid. 901(a) (“The
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its
proponent claims.”); see also 2 McCormick on Evid. § 213 (6th
ed. 2009) (“Cases decided under Rule 901 . . . make it clear that
a complete chain of custody need not always be proved . . . [as
t]he standard of proof requires only evidence from which the
trier could reasonably believe that an item still is what the
proponent claims it to be.”) (internal footnotes omitted).
But Stewart involved circumstances in which there was in
fact no break in the chain of custody. See Stewart, 104 F.3d at
1383 (citing United States v. Lane, 591 F.2d 961, 964 (D.C. Cir.
1979)) (“Under the circumstances, because the evidence was at
no point missing or accessible to unauthorized persons, the
[twelve-day] delay in transferring the drugs from the vault at the
Narcotics Branch to the DEA did not constitute a break in the
chain of custody.”). Similarly, in Lane, we found a “continuous
chain of custody” for the drugs Lane sold to an undercover agent
when they were immediately put in secure envelopes and, at
trial, were “separately and uniformly identified by the
undercover agent who made the purchases, the supervising
control officers who received the purchased products from the
undercover agent, and the DEA chemist who analyzed them.”
591 F.2d at 965. Although we found that certain evidence
“indicate[d] some chance for inadvertent misidentification and
some opportunity for tampering,” e.g., the control officer’s
inability at trial to locate her initials on one of the envelopes and
her testimony that she occasionally took evidence home, we
concluded that the continuous chain afforded “substantial
protection against misidentification or adulteration.” Id. at
964-65. And in the cases holding evidence admissible
10
notwithstanding an interrupted chain there was nonetheless
ample corroborative evidence as to its acquisition and
subsequent custody. See, e.g., Robinson, 447 F.2d at 1220
(custody gap based on failure to testify by “middle link” in chain
excused by defendant’s stipulation as to movement of evidence
between police officers and corroborative circumstances); Gass,
416 F.2d at 770 (government not required to present testimony
of nurse who carried lab sample from clinician to pathologist
because both clinician and pathologist testified, there was no
indication sample had been tampered with and nurse enjoyed
“presumption that individuals entrusted with grave
responsibilities discharge them with care”). A break in the chain
of custody, then, can be serious enough that the district court
may abuse its discretion in admitting the evidence. See Novak,
160 F.2d at 589; see also 2 McCormick on Evid. § 213 (“If there
is some specifically identified risk of misidentification or
alteration, the proponent of the exhibit should produce evidence
to overcome this risk or suffer exclusion.”). We must decide
whether the district court did so here.
The government asserts that the district court did not err
because it was entitled to presume the “integrity of evidence
routinely handled by government officials” and, although this
presumption may be rebutted with a “minimal showing of ill
will, bad faith, other evil motivation, or some evidence of
tampering,” Mejia made no such showing here. Lane, 591 F.2d
at 962. While we agree with the proposition as a general matter,
we do not believe it extends automatically to all government
officials, including those of a foreign government. As the
government acknowledges, “the record does not reveal what
procedures the Salvadoran police used to preserve his wallet [or]
whether the wallet was commingled with other evidence.”
Appellee’s Br. at 46. Moreover, it is unclear to us how Mejia
could have made even the minimal showing required of him,
given his immediate transfer by air to the United States. Indeed,
11
the government expressed doubt that “there’s any way for
anyone to be able to point out what happened in those ten
minutes other than the Salvadoran police.” Feb. 19, 2010 Oral
Arg. Recording at 22:17.
On the one hand, the defect here was different from the ones
in Lane and Stewart—both of which involved an unbroken chain
of custody but either an unexplained delay, see Stewart, 104
F.3d at 1383, or the possibility of misidentification and
adulteration, see Lane, 591 F.2d at 965. Nor does this case
involve an item of evidence transferred within a police
department or from one hospital employee to another. Cf.
United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988)
(rejecting chain of custody objection as to “lack of testimony
concerning the transfer of exhibit 4 from the DEA field office to
the DEA laboratory and the transfer of exhibit 5 from the
Holiday Inn to the DEA field office or from the field office to
the FBI laboratory”); Gass, 416 F.2d at 770. Here the first links
in the chain, i.e., the seizure of the list and its transfer to Agent
Fraga ten minutes later, were not established. See id. n.8
(physical evidence admissible only on “proof of [its] original
acquisition and subsequent custody [that] forges [its] connection
with the accused”). Nothing in the record indicates the identity
of the person (or persons) who seized the wallet or what was
done with it before Agent Fraga took possession of it. On the
other hand, there was substantial corroborative evidence tying
the list to Mejia, to wit: Agent Fraga testified that he found it
inside Mejia’s wallet, which Mejia does not deny was his, see
Feb. 19, 2010 Oral Arg. Recording at 17:12, and which also
contained his identifications cards, Trial Tr., Mar. 3, 2008
(P.M.) at 116-19. Moreover, the brief (ten-minute) gap between
Mejia’s arrest and Fraga’s taking possession of the list makes
implausible that it was planted, tampered with or misidentified.
See Fed. R. Evid. 901(a); Stewart, 104 F.3d at 1383 (citing
Robinson, 447 F.2d at 1220); see, e.g., Robinson, 447 F.2d at
12
1219, 1221 (finding no probability of tampering and thus no
error in admission of evidence based on stipulation and
“corroborative circumstances contained in the record” where
“middle link” officer in chain of custody was unavailable to
testify due to heart attack); United States v. Cardenas, 864 F.2d
1528, 1532 (10th Cir. 1989) (“The fact that [middle link in chain
of custody] was not available to testify is not determinative of
the admissibility of the cocaine since the whereabouts of the
cocaine was accounted for from its original seizure . . . until it
was offered as evidence at trial.”).
We conclude that the district court did not abuse its
discretion in admitting the list. Even if admitting the list was
error, however, it was harmless in light of its limited importance
and the strength of the other evidence against Mejia. See
Kotteakos v. United States, 328 U.S. 750, 765 (1946); cf. United
States v. Warren, 42 F.3d 647, 656 (D.C. Cir. 1994)
(erroneously excluded statement harmless error where
“cumulative of other evidence heard by the jury” and “evidence
of [defendant’s] guilt was strong”).
The Firearm Permit Evidence. The district court admitted
over Mejia’s objection a firearm permit found in Mejia’s wallet
as well as testimony that the police also seized a firearm permit
from Morales and two handguns from Bran’s driver. The
government is correct that “this circuit has frequently recognized
that guns and drugs go together in drug trafficking,” United
States v. McLendon, 378 F.3d 1109, 1113 (D.C. Cir. 2004), and
that evidence of seized guns is admissible to show a defendant’s
participation in the drug trade, see United States v. Jenkins, 928
F.2d 1175, 1180 (D.C. Cir. 1991) (“Weapons are, in short, ‘tools
of the trade’ and the government introduced the bullets found in
Jenkins’ bedroom to prove that she was engaged in the trade.”
(quoting United States v. Payne, 805 F.2d 1062, 1065 (D.C. Cir.
1986))).
13
But the probative value of a firearm permit possessed by a
former police officer seems to us to be nil. Likewise, the
probative value of testimony as to firearms carried by Bran’s
driver—who was not charged as a member of the
conspiracy—also seems negligible. In spite of the limited
probative value, we need not decide whether the district court
“grave[ly]” abused its discretion in admitting this evidence over
Mejia’s Rule 403 objection, see United States v. Douglas, 482
F.3d 591, 596 (D.C. Cir. 2007), because, even assuming error,
we find it to be harmless. Mejia does not identify any unfair
prejudice associated with the admission of the permits or the
testimony about the driver’s guns. The jury was made aware of
the undisputed fact that Mejia did not possess a gun at any of the
meetings. Under these circumstances, and especially given his
confession and the other strong evidence discussed above, we
cannot say that the introduction of the gun evidence affected his
substantial rights. See Kotteakos, 328 U.S. at 764-65; cf.
Warren, 42 F.3d at 656.
Other Evidentiary Rulings. We quickly dispense with
Mejia’s other assertions of error in evidentiary rulings. First, he
maintains that the government erroneously failed to correct the
false denial of its main witness, Cortez. This contention (which
we review de novo, see United States v. O’Keefe, 128 F.3d 885,
893-94 (5th Cir. 1997)), stems from another court’s finding in an
unrelated case that Cortez was “not entirely truthful.” See
Appellant’s Br. at 31. Cortez had been cross-examined about
that court’s finding at co-defendant Bran’s trial and had denied
any knowledge of it. When again asked during cross-
examination at Mejia’s trial whether he was “aware of a federal
judge ever making a finding that you were not entirely truthful,”
Cortez replied unequivocally: “I have never read or heard any
judge, federal judge for that matter, ever saying that I haven’t
been truthful in any of the cases I have testified on behalf of the
United States Government. . . . Or read about any judge
14
doubting my truthfulness. I have never seen that before.” Trial
Tr., Feb. 29, 2008 (A.M.) at 63; see generally id. at 54-63.
Although the government “may not knowingly use . . . false
testimony[] to obtain a tainted conviction,” including testimony
that goes to the credibility of a witness, see Napue v. Illinois,
360 U.S. 264, 269-70 (1959), Cortez made no false statement for
the government to correct. There is no dispute that Cortez had
no direct knowledge of the credibility finding in Smith, see
Appellant’s Br. at 32, so that his knowledge of it could have
come only from his cross-examination in Bran’s trial. And
although Cortez denied having read or heard about the finding,
he did not deny that he had been earlier questioned about it. See
Trial Tr., Feb. 29, 2008 (A.M.) at 57 (“That question was asked
to me previously.”) Thus, we agree with the district court that,
in context, Cortez testified truthfully as to his lack of personal
knowledge. See June 20, 2008 Mem. and Order, Doc. No. 218
at 12 (rejecting Mejia’s new trial motion because “[a]lthough
Cortez’s answers may appear to be disingenuous at first glance
. . . [he] answered defense counsel’s questions in a truthful
manner since” he had no personal knowledge of other court’s
finding).
Citing Whitmore, 359 F.3d at 618, Mejia also contends the
district court abused its discretion in sua sponte curtailing his
cross-examination of Cortez regarding the same prior credibility
finding. In Whitmore we held that it was error to deny the
defendant the opportunity to cross-examine a witness regarding
the witness’s character for truthfulness. See 359 F.3d at 619-21.
But the error in that case was that the district court had
prohibited the entire line of cross-examination under Rule 403.
See Whitmore, 359 F.3d at 621 (“We . . . believe the district
court erred in excluding the entire line of cross-examination”
regarding prior untruthful testimony). Here, in contrast, after
hearing extensive arguments and expressly relying on Whitmore,
the court allowed Mejia to ask Cortez specific questions about
15
the Smith credibility finding. Whitmore contemplates this
precise procedure. 359 F.3d at 621 (district court should
respond to “unfair prejudice or undue delay” concern not by
excluding but by “limiting” cross-examination); see also Fed. R.
Evid. 608(b) (character for truthfulness or untruthfulness may be
inquired into on cross-examination if probative in “the discretion
of the court”).
Finally, Mejia complains that the district court erred in
qualifying Carrillo Garcia, a Guatemalan police officer with
fourteen years’ experience, as an expert in drug trafficking
because none of the cases Garcia participated in was prosecuted
in the United States. But Garcia was not qualified as an expert
in cocaine importation or prosecution in the United States but
rather “in the field of drug-trafficking and transportation
activities as they relate to Guatemala.” See Trial Tr., Feb. 29,
2008 (P.M.) at 45-46. Moreover, Garcia had, in fact, testified in
at least two U.S. prosecutions. See Trial Tr., Feb. 29, 2008
(P.M.) at 35 (Garcia testified a dozen times or more in
Guatemala and twice in the United States). Accordingly, Mejia
has not shown that the district court erred in qualifying Garcia
as an expert. See Haarhuis v. Kunnan Enters., Ltd., 177 F.3d
1007, 1015 (D.C. Cir. 1999) (“[T]he decision whether to qualify
an expert witness is within the broad latitude of the trial court
and is reviewed for abuse of discretion.”). And because Garcia
was properly qualified, Mejia’s two hearsay objections to
Garcia’s testimony are without merit. See Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 592 (1993) (“[A]n expert is
permitted wide latitude to offer opinions, including those that
are not based on firsthand knowledge or observation.”).5
5
Mejia also challenges the admissibility of Agent Fraga’s notes
of his interview with Mejia, which notes were discussed during his
cross-examination and on redirect. But Agent Fraga’s notes were not
admitted into evidence.
16
B.
Mejia next objects that the trial court improperly instructed
the jury in two respects. Our review is de novo. See United
States v. Orenuga, 430 F.3d 1158, 1166 (D.C. Cir. 2005). First,
Mejia argues that the district court’s “reasonable doubt”
instruction lessened the government’s burden of proof and
improperly shifted that burden to him.6 But Mejia’s argument
is entirely foreclosed by United States v. Taylor, 997 F.2d 1551
(D.C. Cir. 1993), where we rejected a similar challenge based on
language drawn from the same pattern instruction,
characterizing the instruction as “not in error.” Id. at 1556.
True, we recognized that other “circuits have criticized
reasonable doubt instructions modeled on the Pattern
6
Over Mejia’s objection, the court defined “reasonable doubt” as
follows:
Proof beyond a reasonable doubt is proof that leaves you
firmly convinced of the Defendant’s guilt. There are very
few things in this world that we know with absolute
certainty, and in criminal cases, the law does not require
proof that overcomes every possible doubt.
If, based on your consideration of the evidence you are
firmly convinced that the Defendant is guilty of the crime
charged, you must find him guilty. If, on the other hand, you
think there is a real possibility that the Defendant is not
guilty, you must give him the benefit of the doubt and find
him not guilty.
Trial Tr., Mar. 5, 2008 (P.M.) at 32. The instruction is taken verbatim
from the Federal Judicial Center’s Pattern Criminal Jury Instruction 21
(Federal Judicial Ctr. 1988), which has been described as “clear,
straightforward, and accurate.” Victor v. Nebraska, 511 U.S. 1, 26-27
(1994) (Ginsburg, J. concurring in part and in judgment) (“This model
instruction surpasses others I have seen in stating the reasonable doubt
standard succinctly and comprehensibly.”).
17
Instruction” and noted “that the greatest wisdom may lie with
[other circuits’] instruction to leave to juries the task of
deliberating the meaning of reasonable doubt.” Id. at 1557-58.
But we also noted that none had in fact held the use of the
instruction to be reversible error and likewise declined to do so.
Id. at 1557.
Mejia acknowledges that Taylor “affirmed a conviction
involving the same instruction at issue here,” Appellant’s Br. at
14, but attempts to distinguish it in several ways. For example,
he asks us to attach significance to the fact that, unlike Taylor,
who had unsuccessfully requested an alternative “reasonable
doubt” instruction, Mejia requested that no charge be given. We
decline to do so. “[T]he Constitution neither prohibits trial
courts from defining reasonable doubt nor requires them to do
so as a matter of course,” Victor v. Nebraska, 511 U.S. 1, 5
(1994), and Mejia offers no reason why the Constitution would
apply differently simply because he preferred no instruction. He
also argues that the instruction invaded the jury’s province by
providing that the jurors “must find him guilty” if firmly
convinced of his guilt. Trial Tr., Mar. 5, 2008 (P.M.) at 32
(emphasis added); see Appellant’s Br. at 13. In contrast, the
Taylor instruction stated that it was the jury’s “duty to find him
guilty” if firmly convinced. Taylor, 997 F.2d at 1556 (emphasis
added). But we have already found neither iteration more
objectionable than the other. In United States v. Pierre, 974
F.2d 1355 (D.C. Cir. 1992), we affirmed the instruction that the
jury had a “duty” to return a guilty verdict if the government
proved the elements of the offense beyond a reasonable doubt.
Id. at 1357. We noted that, while an earlier case had reversed an
instruction that the jury “must” find a defendant guilty, the error
had resulted from the omission of the phrase “beyond a
reasonable doubt.” Id. (citing Billeci v. United States, 184 F.2d
394, 399 (D.C. Cir. 1950)). We did “not think it significant that
the district court used the word ‘must’” in Billeci. Id. In sum,
18
the instruction was “not in error because there is no reasonable
likelihood that the jury applied the challenged instruction in a
way that violates the Constitution.” Taylor, 997 F.2d at 1558.
Additionally, Mejia contends that the district court deprived
him of due process of law when it instructed the jury: “You may
infer but are not required to infer that a person intends the
natural and probable consequences of acts knowingly done or
knowingly omitted.” Trial Tr., Mar. 5, 2008 (P.M.) at 48. The
Supreme Court has distinguished between language that creates
a “mandatory presumption” and language that allows a
permissive inference. See Francis v. Franklin, 471 U.S. 307,
311 (1985) (rejecting instruction that “[a] person of sound mind
and discretion is presumed to intend the natural and probable
consequences of his acts but the presumption may be rebutted”);
see also Sandstrom v. Montana, 442 U.S. 510 (1979). The
language here is permissive. Our sister circuits recognize the
same distinction, consistently upholding similar instructions in
specific intent crimes, including the crime of which Mejia was
convicted.7 See, e.g., United States v. Love, 767 F.2d 1052,
1059 (4th Cir. 1985); United States v. Cotton, 770 F.2d 940, 946
7
We have also upheld an instruction containing similar language
in a case involving a specific intent crime. See United States v.
Moore, 435 F.2d 113, 115-16 & n.2 (D.C. Cir. 1970) (“It may be
inferred that one intends the natural and probable consequences of his
act, but you are not required to so infer”). Although we found no plain
error in Moore, we did note that the challenged instruction “may be
misleading” in a specific intent case and that it “should not have” been
given. Id. at 116 & n.5. But the court’s principal concern was that the
instruction omitted the phrase “knowingly done or knowingly
omitted.” Id. Here, the instruction included the knowledge
component. See Trial Tr., Mar. 5, 2008 (P.M.) at 48 (“You may infer
but are not required to infer that a person intends the natural and
probable consequences of acts knowingly done or knowingly
omitted.”) (emphasis added).
19
(11th Cir. 1985). Mejia’s challenge to portions of the
instructions therefore fails.
C.
Mejia contends that the government’s closing argument
included several statements unsupported by the evidence.
Specifically, he objects to the government’s contentions that (1)
the co-conspirators needed Mejia because of his police
connections (even though another conspirator, Morales, was also
a retired Guatemalan police officer); (2) Mejia lived in
Guatemala City at the time of the conspiracy (when the only
record evidence was that he had lived there five or six years
earlier); (3) Guatemalan police were essentially powerless to
stop the gangs because Guatemala was emerging from a bloody
civil war (based on a lack of record evidence regarding the civil
war); and (4) DIPA was the Guatemalan “customs anti-narcotics
agency” and Mejia was willing to use his connections there
(based on a lack of supporting evidence).
A prosecutor errs in closing argument by making a
statement unsupported by evidence, misstating evidence or
misquoting testimony. See United States v. Watson, 171 F.3d
695, 699 (D.C. Cir. 1999). After “comparing the witness[es]’
testimony with the statements made by the prosecutor in closing
arguments,” id. at 700, we find no error as every statement was
permissibly based on record evidence. First, contrary to Mejia’s
suggestion, the prosecutor never argued that “Mejia was brought
into the conspiracy because he alone among the others had a law
enforcement background.” Appellant’s Br. at 23 (emphasis
added). Rather, the prosecutor’s argument was consistent with
the theory that the conspirators needed a) both Morales and
Mejia because of their police backgrounds and b) Mejia
specifically because of his extensive supervisory experience (of
which there was ample record evidence). See Trial Tr., Mar. 5,
2008 (P.M.) at 15 (Mejia spent fifteen years with the
20
Guatemalan police department “not only as a cop on the beat
apparently, but as a supervisor, as someone with a sufficiently
sophisticated position that he was planning major operations,
and that’s why . . . . they recruited him into the conspiracy”).
Second, the only record evidence regarding Mejia’s
residence was the testimony of the sole defense witness,
Francisco De Leon, that Mejia had lived in Guatemala City five
or six years earlier, but “no longer lives there now.” Trial Tr.,
Mar. 5, 2008 (A.M.) at 36. Considering that Mejia was in
federal custody at the time of the witness’s testimony, this
statement is ambiguous and hardly stands for the proposition
that Mejia was no longer a Guatemala City resident when
arrested.8 Third, the prosecutor’s argument was not, contrary to
Mejia’s objection, about the relationship between Mejia and the
Guatemalan civil war but instead about the powerlessness of the
Guatemalan police, of which there was plenty of record
evidence. See, e.g., Trial Tr., Feb. 29, 2008 (A.M.) at 88
(“Guatemala has a very fragile law enforcement system, and it’s
very easy to bring large quantities of drugs into Guatemala
without really worrying about being caught.”). Last, we
disagree with Mejia’s complaints as to the lack of evidence that
DIPA was an anti-drug agency and that Mejia was willing to use
police connections, as the record sufficiently supports both
claims. See Trial Tr., Feb. 29, 2008 (P.M.) at 21 (DIPA’s “main
purpose . . . was to attack the narcotic activity at” Guatemala’s
seaports); see Meeting Tr., July 19, 2006 at 16 (Mejia’s
videotaped statements that DIPA’s “commands are ours,” and
“[w]hat we have to control is the structure” of DIPA).
8
Indeed, even on appeal, Mejia does not assert that the statement
was wrong, simply that “[t]here also was no evidence in the record
that Mejia lived in Guatemala City during the time of the offense.”
Appellant’s Br. at 25.
21
Mejia also challenges the prosecutor’s embellishment in
closing: “[W]e forget that the success of a drug trafficker is
based upon a human weakness called addiction” and that drug
dealers “make a lot of money by preying on that human
weakness.” Trial Tr., Mar. 5, 2008 (A.M.) at 71. We have held
that a more detailed comment was improper. See United States
v. Johnson, 231 F.3d 43, 47 (D.C. Cir. 2000) (prosecutor
“improperly suggested that the jury should convict the defendant
in order to protect others from drugs” by arguing that “[j]ustice
protects not only the person who is accused, but it also protects
persons like those . . . 400-plus individuals [whom] the crack
cocaine [was] intended for”). We believe the statement here was
harmless because it was isolated and the case was not close. See
United States v. Hemphill, 514 F.3d 1350, 1361-62 (D.C. Cir.
2008) (“A single misstatement in a lengthy argument . . . is
rarely a severe error.”); Johnson, 231 F.3d at 49-50 (despite lack
of specific curative instruction error harmless because, among
other reasons, “great weight of the evidence strongly supports
Johnson’s conviction”).
D.
Finally, Mejia challenges his sentence on multiple grounds.
We review the district court’s sentence for abuse of discretion,
first ensuring that the court committed no significant procedural
error and then ascertaining if the sentence is substantively
reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008).
Contrary to Mejia’s first argument, his sentence is
consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000),
which held 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.” Id. at 490. The jury convicted
Mejia of conspiring to import five kilograms or more of cocaine
22
into the United States in violation of 21 U.S.C. § 960(a). The
verdict triggered a statutory imprisonment range of ten years to
life, with ten years being the mandatory minimum. See 21
U.S.C. § 960(b)(1)(B)(ii). Mejia argues that because the jury
did not ascribe a specific amount of cocaine to Mejia personally,
the statutory maximum should have been twenty years under 21
U.S.C. § 960(b)(3). But the sentence he received—208 months,
or a little over seventeen years—is less than the statutory
maximum Mejia himself urges. See Settles, 530 F.3d at 923
(sentencing court not constitutionally barred from finding facts
by preponderance of evidence as long as “sentence does not
exceed the statutory maximum for the crime of conviction”
because “the Supreme Court has ‘never doubted the authority of
a judge to exercise broad discretion in imposing a sentence
within a statutory range’” (quoting United States v. Booker, 543
U.S. 220, 233 (2005))).
Second, we do not agree that Mejia’s sentence was
unreasonable based on the district court’s failure to grant a
number of the adjustments and departures Mejia requested—
including, most significantly, a multi-level adjustment for his
allegedly minor role in the offense. See U.S.S.G. § 3B1.2.
Although the district judge (who also presided over the trials of
Bran and Morales) determined that “Mejia’s role was the least
of the three,” he permissibly and reasonably concluded that no
one in the conspiracy played a “minor” role. Sentencing Tr.,
Oct. 16, 2008 (A.M.) at 56-57, 70 (finding Mejia “was aware of
the full plan,” took “three trips to El Salvador for purposes of
meetings to further this conspiracy” and “was to have the
important role of a security function”). As for the discretionary
departures, because the judge plainly recognized his authority to
impose a below-Guidelines sentence—he gave one, after
all—his decision was in accord with United States v. Booker.
Insofar as Mejia contends that his sentence was substantively
unreasonable, see Gall, 552 U.S. at 51, we do not agree. Indeed,
23
it is hard to imagine how Mejia could make such a showing
given that his sentence is two years below the range we
ordinarily view as reasonable. See United States v. Dorcely, 454
F.3d 366, 376 (D.C. Cir. 2006) (“We agree with our sister
circuits that a sentence within a properly calculated Guidelines
range is entitled to a rebuttable presumption of
reasonableness.”); see also United States v. George, 403 F.3d
470, 473 (7th Cir. 2005) (“It is hard to conceive of below-range
sentences that would be unreasonably high.”).
Third, Mejia argues that his sentence resulted in an
unwarranted disparity between himself and co-defendant Bran,
in contravention of a statutory sentencing factor. See 18 U.S.C.
§ 3553(a)(6) (sentencing court must take account of “need to
avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct”).
It is true that Bran, who—the court determined—had played a
leadership role in the conspiracy, received only 144 months, a
sentence more than five years shorter than Mejia’s 208-month
sentence. See Sentencing Tr., Oct. 16, 2008 (A.M.) at 69-70
(“Mr. Bran was more of the leader than these two were.”). But
Morales—the third co-defendant, who, according to the district
court, played a role closer to Mejia’s than Bran’s—was
sentenced to 220 months, one year longer than Mejia.
We conclude that there was no error in the disparity
between Mejia and Bran, which disparity is entirely explained
by Bran’s three-level acceptance-of-responsibility reduction for
his having pleaded guilty after his jury hung, which lowered his
advisory Guidelines range to 168-210 months. See U.S.S.G.
§ 3E1.1 (defendant who “clearly demonstrates acceptance of
responsibility for his offense” is entitled to reduction); see, e.g.,
In re Sealed Case, 488 F.3d 1011, 1014 (D.C. Cir. 2007)
(affirming sentence based on plea agreement awarding
defendant three-level reduction for acceptance of responsibility
under § 3E1.1). Unlike Bran, Mejia never accepted
24
responsibility. See Trial Tr., Oct. 16, 2008 at 53 (A.M.) (Mejia
said, “[w]ith regard to the charges against me, I put my hand on
my heart and with all my—with all sincerity I can tell you . . .
that I am innocent. I am totally innocent”); Sentencing Tr., Oct.
16, 2008 (A.M.) at 70-71 (court found “Mejia obviously has
shown no remorse of any kind . . . and he says that he was not
aware that cocaine was involved, which I find to be
unbelievable, I do not accept that”). Under these circumstances,
Mejia’s harsher sentence was not an abuse of discretion.
Fourth, we reject Mejia’s claim of prosecutorial
vindictiveness. His claim is premised on the fact that the
sentence the government recommended following trial was
nearly twice the length of the plea offer he rejected before trial.
But there is nothing impermissible (or even unusual) with the
prosecutor recommending a longer sentence after trial than
before trial. Nor, as noted, is there anything out of the ordinary
with the defendant’s acceptance of responsibility factoring into
the sentencing calculus. See U.S.S.G. § 3E1.1; United States v.
Jones, 997 F.2d 1475, 1476 (D.C. Cir. 1993) (en banc); see also
Alabama v. Smith, 490 U.S. 794, 801-02 (1989) (no presumption
of vindictiveness for imposition of greater penalty by same
judge following trial than after earlier guilty plea (subsequently
withdrawn) because “after trial, the factors that may have
indicated leniency as consideration for the guilty plea are no
longer present”).
III.
For the foregoing reasons, Mejia’s conviction and sentence
are affirmed.
So ordered.