[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 8, 2006
No. 04-13838
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-20473-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEAN-MARIE ROSEMOND DULCIO,
PIQUION ST. FLEUR
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(March 8, 2006)
Before EDMONDSON, Chief Judge, BARKETT, Circuit Judge, and HUNT *,
District Judge.
*
Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of
Georgia, sitting by designation.
PER CURIAM:
Jean-Marie Dulcio (“Dulcio”) and Piquion St. Fleur appeal their convictions,
following a jury trial for conspiracy to import and possess cocaine as well as actual
possession and importation of cocaine.1 Dulcio and St. Fleur raise a number of
procedural and evidentiary issues on appeal, and St. Fleur also appeals his 151
month sentence on the basis of United States v. Booker, 125 S. Ct. 738 (2005).
BACKGROUND
On June 2, 2003, agents from the Bureau of Customs and Border Protection
inspected a cargo shipment of handicrafts from Haiti at Miami International
Airport and found that it contained cocaine. Law enforcement officers thereafter
kept the shipment under surveillance and observed two men picking up paperwork
for the cargo. St. Fleur took possession of the cargo as consignee in a U-Haul
truck rented by Dulcio and St. Fleur, and law enforcement officers followed the
truck to North Miami until it parked at 11520 NE 13th Avenue, the residence of
Dulcio and his wife, co-defendant Marie Freda Dulcio.2 A few hours later law
enforcement officers had the truck towed to a controlled area.
The next day St. Fleur, Dulcio, Marie Freda Dulcio, and a confidential
1
The third convicted co-defendant, Marie Freda Dulcio, initially joined this appeal but
later filed a motion to dismiss her appeal which was granted by this court.
2
St. Fleur was the brother of co-defendant Marie Freda Dulcio.
2
informant arrived at the impound lot where the U-Haul truck had been taken.
Dulcio signed a release form for the truck and drove it out of the lot, and then
Dulcio, St. Fleur, and Marie Freda Dulcio drove away in a black SUV while the
confidential informant drove the U-Haul truck. Police officers pulled over the
SUV, arrested Dulcio, St. Fleur, and Marie Freda Dulcio, and seized the cargo
shipment, which contained 19.01 kilograms of cocaine. After waiving his Miranda
rights, Dulcio admitted to law enforcement agents that he knew that he was picking
up drugs.
The government also presented evidence involving two other fugitive
defendants, Mona Rinchere and Jean Boles Dumay, in an ongoing conspiracy to
import cocaine, including a similar situation at Miami International Airport in
2000. St. Fleur told law enforcement officers that the May 2003 shipment had
come from Mona and that he had known Mona for 20 years. Marie Freda Dulcio
testified at trial that she, Dulcio, and St. Fleur all knew Mona and had done
business with her in the past. She also testified that it was St. Fleur and Mona who
had arranged the shipment from Mona in May 2003, and that St. Fleur spoke to
Mona once the shipment had arrived, before they were arrested. Following his
arrest, St. Fleur told a fellow inmate, Marcus Jefferson, that he had “been getting
dope from Mona for many, many years.”
3
The government initially charged St. Fleur, Dulcio, and Marie Freda Dulcio
based on their involvement in the 2003 shipment described above. However, the
government subsequently filed a superceding 6-count indictment against St. Fleur,
Dulcio, Marie Freda Dulcio, Dumay, and Rinchere, based on both the events of
2000 and 2003. As Dumay and Rinchere were fugitives, the government
proceeded to trial against Dulcio, Marie Freda Dulcio, and St. Fleur. The jury
found St. Fleur guilty on all counts 3 and Dulcio guilty on counts 2 and 6. The
district court sentenced St. Fleur to a term of 151 months giving three alternative
bases for the sentence.4
On appeal Dulcio and St.Fleur argue: (1) that the district court improperly
admitted expert testimony which usurped the jury’s function; (2) the district court
erroneously rejected a proposed jury instruction on multiple conspiracies; (3) the
government, in bad faith, superceded its initial indictment with a superseding
indictment adding events unrelated to their conduct. St Fleur additionally argues
3
The counts of this second indictment against Dulcio and St. Fleur were as follows.
Count 1: knowingly and intentionally conspiring to import cocaine into the United States in
violation of 21 U.S.C. §§ 952(a), 963 and 960(b)(1)(B); Count 2: knowingly and intentionally
conspiring to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii), and 846; Count 5: knowingly and intentionally importing cocaine into the United
States in violation of 21 U.S.C. §§ 952(a), 960(b)(1)(B) and 18 U.S.C. § 2; Count 6: knowingly
and intentionally possessing with intent to distribute cocaine in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A)(ii) and 18 U.S.C. § 2.
4
The sentences were based on three alternatives: if the sentencing guidelines were
constitutional, if Blakely applied to the guidelines, and if sentencing became indeterminate.
4
that his convictions should be vacated because: (4) his trial should have been
severed from that of Dulcio and he should have been granted a new trial as a result
of prejudicial statements made by co-defendant Dulcio during their joint trial; (5)
his counsel’s closing argument was erroneously restricted; (6) his motion for
acquittal should have been granted because the evidence presented was insufficient
to support his convictions; and (7) his sentence should be vacated because the
district court failed to rule on his objections to the pre-sentence investigation report
and imposed three alternative sentences. We first address the evidentiary issue
raised by both Dulcio and St. Fleur and then address St. Fleur’s additional
arguments.
DISCUSSION
A. Admissibility of Expert and Lay Testimony
At trial the government sought to introduce expert testimony by agent Gary
Imhoff. Objections to Imhoff’s testimony on the basis of unfair surprise, lack of
qualification, prejudice, and Federal Rule of Evidence704(b) were denied by the
district court. Imhoff opined, based on his experience, that individuals picking up
shipments of drugs generally do have knowledge of the contents of the shipment.
When experts testify, the opposing party can object for a number of reasons.
For example, objections may be made to the qualification of the expert under Rule
5
702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the
reliability of the testimony presented, id. at 592-93, or to the experience on which
the expert relies for her opinion, see United States v. Frazier, 387 F.3d 1244, 1261
(11th Cir. 2004) (en banc) (holding that when a witness relies “solely or primarily
on experience, then the witness must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis for the opinion, and
how that experience is reliably applied to the facts”).
In this appeal, Dulcio and St. Fleur do not object on any basis other than that
the expert testimony at trial usurped the function of the jury. They argue that this
testimony violated Federal Rule of Evidence 704(b) by expressing an “opinion or
inference as to whether the defendants did or did not have the mental state . . .
constituting an element of the crime charged . . . .”5
Courts have differed over whether the admission of expert testimony on
knowledge of the presence of drugs is error in violation of Rule 704(b). Compare
United States v. Gutierrez-Farias, 294 F.3d 657, 663 (5th Cir. 2002) (finding that
5
Federal Rule of Evidence 704(b) reads in full:
No expert witness testifying with respect to the mental state or condition of a
defendant in a criminal case may state an opinion or inference as to whether the
defendant did or did not have the mental state or condition constituting an
element of the crime charged or of a defense thereto. Such ultimate issues are
matters for the trier of fact alone.
Fed. R. Evid. 704(b).
6
the district court abused its discretion by admitting expert testimony of a
government agent as to knowledge of the presence of drugs in a vehicle), with
United States v. Richard, 969 F.2d 849 (10th Cir. 1992) (finding no error where a
government expert testified that “no drug dealer of a drug deal this size is going to
have four persons that don't know anything about it”).
Here, we need not address whether the district court erred,6 because even if
there was error in this case it would be harmless, as the error “did not affect the
verdict, or had but very slight effect,”7 because of the availability of other
admissible evidence, such as the testimony of Marcus Jefferson against St. Fleur,
the relationship between the Dulcios, St. Fleur, and Mona Rinchere, and the
testimony of Marie Freda Dulcio that her brother and Mona had organized this
2003 shipment. See United States v. Ramirez-Velasquez, 322 F.3d 868, 879 (5th
Cir. 2003) (finding that a violation of Rule 704(b) was error, but that this error was
harmless as it did not affect the substantial rights of the defendant where there was
6
District court rulings on the admissibility of expert testimony are subject to the abuse of
discretion standard. Rink v. Cheminova, Inc., 400 F.3d 1286 (11th Cir. 2005). “This standard of
review requires that we defer to the district court's ruling unless it is "'manifestly erroneous.'"
Because the task of evaluating the reliability of expert testimony is uniquely entrusted to the
district court under Daubert, we give the district court "considerable leeway" in the execution of
its duty.” Id. at 1291 (citations omitted).
7
United States v. Hornaday, 392 F.3d 1306, 1315 (11th Cir. 2004) (“non-constitutional
error is harmless if, viewing the proceedings in their entirety . . . a court determines that the error
did not affect the verdict, or had but very slight effect . . . ” ).
7
otherwise sufficient evidence to sustain the conviction); Gutierrez-Farias, 294 F.3d
at 663 (finding that although the district court abused its discretion by admitting
expert testimony of a government agent as to knowledge of the presence of drugs
in a vehicle, the error was harmless because of the otherwise “strong case” against
the defendant).
Two other government witnesses, Agent Ferdella and Agent Reddin, had not
been disclosed as experts but were permitted by the trial judge to express “lay
opinion testimony.” Agent Ferdella’s “lay opinion testimony” concerned the
modus operandi of people involved in the drug business, tying each co-defendant’s
role to that typically seen in a narcotics importing business. Agent Reddin testified
as a lay witness regarding the shipment of cocaine apprehended in 2000, and
opined that persons picking up a high value narcotics shipment “knew what was in
there.”8
When lay witnesses testify, the opposing party can object for a number of
reasons, including the witness’s lack of personal knowledge, see United States v.
Castro, 89 F.3d 1443, 1454 (11th Cir. 1996), or that the opinion testimony of lay
witnesses is not “helpful to the determination of a fact in issue,” F. R. Evid. 701(b).
In this case, Dulcio and St. Fleur first argue that Reddin and Ferdella’s lay opinion
8
The district court ultimately ruled that the three defendants on trial had not been proven
to have anything to do with the January, 2000, crime.
8
testimony as to whether people transporting shipments of cocaine know that they
are transporting cocaine violated Rule 704(b). Because Rule 704(b) expressly
applies only to expert witness testimony and Rule 704(a) expressly allows opinion
testimony by non-expert witnesses,9 this argument lacks merit.
Dulcio and St. Fleur also argue that Ferdella’s testimony as a lay witness
violated Federal Rule of Evidence 701's mandate that lay witnesses may not testify
based on “scientific, technical, or other specialized knowledge . . . .” Fed. R. Evid.
701(c). We agree that it is error to admit opinion testimony of lay witnesses based
on specialized knowledge, such as Ferdella’s testimony here. See Fed. R. Evid.
701 Adv. Comm. Notes (2000) (“Rule 701 has been amended to eliminate the risk
that the reliability requirements set forth in Rule 702 [for expert witnesses] will be
evaded through the simple expedient of proffering an expert in lay witness’s
clothing.”). We find the error to be harmless, however, due to the other evidence
against Dulcio and St. Fleur, as noted above. See United States v. Cameron, 907
F.2d 1051, 1059 (11th Cir. 1990) (“Error in the admission or exclusion of evidence
is harmless if it does not affect the substantial rights of the parties.”). Moreover,
9
“Except as provided in subdivision (b), testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by
the trier of fact.” F. R. Evid. 704(a). See, e.g., Carter v. Decisionone Corp., 122 F.3d 997, 1005
(11th Cir. 1997) (noting that “[Rule 704(a)] has abolished the prohibition on opinion testimony
concerning the "ultimate issue" in a case”).
9
Reddin proffered the same testimony without objection.
B. Prosecutorial Misconduct
Dulcio and St. Fleur argue for the first time on appeal that the superceding
indictment against them was filed in bad faith and constituted prosecutorial
misconduct. Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B), a motion
alleging a defect in the indictment must be raised before trial. Since this was not
the case here, this issue is deemed to have been waived. See also United States v.
Nichols, 937 F.2d 1257, 1261 (7th Cir. 1991) (“Because Nichols did not object to
the superseding indictment or raise the issue of prosecutorial vindictiveness below,
he has also waived this issue on appeal.”).
C. Denial of St. Fleur’s Proposed Jury Instruction
Dulcio and St. Fleur next argue that the trial court erred in denying St.
Fleur’s proposed jury instruction on multiple conspiracies.10 We review a district
court’s refusal to give a jury instruction requested by the defense for abuse of
10
St. Fleur’s proposed jury instruction read in part:
You are further instructed, with regard to the alleged conspiracy offense, that
proof of several separate conspiracies is not proof of the single, overall
conspiracy charged in the indictment unless one of the several conspiracies which
is proved is the single conspiracy which the indictment charges. . . .
In other words, to find a Defendant guilty you must unanimously find that
such Defendant was a member of the conspiracy charged in the indictment and
not a member of some other separate conspiracy.
10
discretion. United States v. Chastain, 198 F.3d 1338, 1350 (11th Cir. 1999). For
the denial of a requested jury instruction to be reversible error a defendant must
show that the instruction: “(1) was a correct statement of the law; (2) was not
adequately covered in the instructions given to the jury; (3) concerned an issue so
substantive that its omission impaired the accused’s ability to present a defense;
and (4) dealt with an issue properly before the jury.” United States v. Brazel, 102
F.3d 1120, 1139 (11th Cir. 1997)(citation omitted). Because the proposed
instruction did not meet this test, we affirm the district court’s decision.
While St. Fleur’s proposed instruction was a pattern jury instruction that met
the first and last factor of the test, the instruction was both “adequately covered” by
the instructions the jury received and its omission did not “impair the accused’s
ability to present a defense.” Indeed, the district court instructed the jury that
“[E]ach defendant is only on trial for the specific offenses alleged in the
indictment.” This instruction has the same effect as St. Fleur’s proposed
instruction: it required the jury to find that Dulcio and St. Fleur were members of
the charged conspiracy and not members of some other conspiracy. For this
reason, the instruction cannot be said to have impaired Dulcio and St. Fleur’s
ability to present a defense.
D. Restriction of Scope of Defense Counsel’s closing argument
11
St. Fleur argues that the district court improperly restricted his closing
argument by precluding counsel from arguing two inferences that the jury could
make from the record evidence. The district courts have “broad discretion over
closing argument and will be reversed only if counsel is prevented from making all
legal arguments supported by the facts.” United States v. Hall, 77 F.3d 398, 400-01
(11th Cir. 1996). We find no such error and affirm the district court’s ruling.
St. Fleur wanted to argue during his closing that the jury should draw one of
two inferences: either that the informant who accompanied St. Fleur to pick up the
U-Haul at the lot was “crooked,” or that the police blundered in preventing the
informant from delivering the shipment of cocaine to its ultimate recipient. The
district court ruled that St. Fleur had no good faith basis to argue that the informant
was “crooked,” as no evidence had been offered to support such an inference. The
district court also held that the delivery of cocaine to its ultimate recipient was not
a relevant issue in the case. Since counsel was not prevented from making a legal
argument supported by the record facts, the district court will not be reversed on
this issue.
E. Denial of St. Fleur’s motions to sever trials and for a new trial
St. Fleur appeals the district court’s denial of his motions to sever and order
a new trial, based on a potential violation of Bruton v. United States, 391 U.S. 123
12
(1968), arising out of certain statement made by Dulcio. Because any potential
Bruton error was harmless in this case, we affirm.
In United States v. Gonzalez, 183 F.3d 1315 (11th Cir. 1999), we held that a
blatant Bruton error was harmless when evidence produced at trial other than that
derived from the Bruton error indicated the defendant’s full participation in the
drug conspiracy. Id. at 1323. The Bruton error was not harmless as applied to the
two other defendants, however, where the “only evidence linking them” to the
offense was the co-defendant’s confession. Id. In this case, there was more
evidence linking St. Fleur to the conspiracy than Dulcio’s statement, including his
own statements, and testimony regarding his actions relating to the cargo shipment.
Since Dulcio’s statement was not the “only evidence” linking St. Fleur to the
conspiracy, any Bruton error is harmless. Therefore, the denial of both motions is
affirmed.
F. Denial of Motion for Acquittal
St. Fleur argues that the district court erred when it denied his motion for
acquittal. We review a district court’s decision to deny a motion for judgment of
acquittal based on sufficiency of the evidence de novo. United States v. Williams,
144 F.3d 1397, 1401 (11th Cir. 1998). In determining whether the government
produced sufficient evidence, we must review the evidence in the light most
13
favorable to the government and draw all reasonable factual inferences in favor of
the jury’s verdict. Id. In this case, because sufficient evidence was presented by
the government at trial, we affirm the district court’s denial of the motion.
At trial, the government presented evidence that a shipment arrived at Miami
International Airport from Haiti, that it contained 19.01 kilograms of cocaine, that
St. Fleur was the consignee of the shipment, and that St. Fleur drove the truck
containing the shipment to Dulcio’s residence. St. Fleur stated that the shipment
came from “Mona” in Haiti and acknowledged that his name was on the shipment.
The record also contains statements made by St. Fleur to a cellmate, that he had
received “dope” from Mona for many years. This evidence, taken in the light most
favorable to the government and drawing all reasonable factual inferences in favor
of the jury’s verdict, is sufficient to support the jury’s guilty verdict as to St. Fleur.
G. Sentencing
Finally, St. Fleur argues that the district court violated his constitutional
rights when it imposed his sentence. Because St. Fleur preserved his
Blakely/Booker claim at sentencing, we review for harmless error. United States v.
Petho, 409 F.3d 1277, 1279 (11th Cir. 2005). We find that any error was harmless
and affirm.
St. Fleur’s PSI set his base offense level at 34 under the sentencing
14
guidelines, based on a section which applies to offenses involving at least 15
kilograms, but less than 50 kilograms, of cocaine. USSG § 2D1.1(c)(3). No
adjustments or departures applied to St. Fleur. St. Fleur filed written objections to
the PSI, arguing that since the indictment charged him with “five kilograms or
more of cocaine,” his base offense level should be 32. The district court imposed
three alternative sentences on St. Fleur, each consisting of 151 months. The
alternative sentences were directly linked by the district court to the applicability of
Blakely v. Washington, 542 U.S. 296 (2004), to the sentencing guidelines. For the
court, three scenarios were possible: (1) that the guidelines were constitutional; (2)
that Blakely applied to the guidelines; or (3) that sentencing would become
indeterminate. The court found that, under each scenario, St. Fleur would be
sentenced to 151 months.
St. Fleur’s sentence does not involve any constitutional error, as his offense
level was based on the presence of 19 kilograms of cocaine, a fact found by the
jury at trial. See United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005)
("'The constitutional error is the use of extra-verdict enhancements to reach a
guidelines result that is binding on the sentencing judge; the error is in the
mandatory nature of the guidelines once the guidelines range has been
determined.'" (citation omitted)). However, there is statutory error when a district
15
court sentences a defendant “under a mandatory guidelines scheme, even in the
absence of a Sixth Amendment enhancement violation.” United States v. Shelton,
400 F.3d 1325, 1330-31 (11th Cir. 2005). Such an error is harmless, however,
when the “mandatory nature of the guidelines in place at the time of sentencing did
not contribute” to the sentence. Petho, 409 F.3d at 1280 (finding harmless error
when a district court judge imposed a sentence of 37 months and noted that “the
sentence I'm going to impose of 37 months is the same sentence that I would
impose if Blakely were applied to the Federal Sentencing Guidelines so that the
guidelines were non-binding.”). Here, the district court clearly stated that the
sentence of 151 months would have been imposed under three different scenarios,
including the unconstitutionality of the guidelines, and therefore the error is
harmless.
AFFIRMED
16
EDMONDSON, Chief Judge, concurs in the result.
17