[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 3, 2006
No. 04-14763 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-00586-CR-18-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR GARCIA,
HECTOR NUNEZ,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 3, 2006)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PRYOR, Circuit Judge:
This appeal by Cesar Garcia and Hector Nunez presents two main issues.
The first issue is whether, under the Sixth Amendment as interpreted in Crawford
v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the district court erred by
permitting an expert witness to explain that he had relied upon the out-of-court
statement of a drug trafficker who testified at trial to the same statement. The
second issue is whether, under Federal Rule of Evidence 703, the district court
abused its discretion by permitting the expert witness, an experienced law
enforcement officer, to explain that, in determining the meaning of coded
language, he had relied upon the out-of-court statement of the drug trafficker. We
conclude that the Sixth Amendment does not prohibit the admission of an out-of-
court statement when the declarant testifies at trial to the same statement, and the
district court did not abuse its discretion in admitting the testimony of the expert
witness whose expertise included debriefing drug traffickers about their use of
coded language. We also conclude that sufficient evidence supported Garcia’s and
Nunez’s convictions for knowingly participating in a drug trafficking conspiracy,
sufficient evidence supported Garcia’s conviction for possession of a firearm in
furtherance of a drug trafficking crime, and the district court was not required to
hold a second hearing to determine whether Garcia’s lawyer should have been
disqualified due to a conflict of interest. We affirm.
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I. BACKGROUND
Our decision in a related appeal, United States v. Molina, ___ F.3d ___, No.
04-13114 (11th Cir. Mar. 24, 2006), addressed several facts that also are relevant
to this appeal. On September 19, 2002, in the course of investigating a major drug
trafficking organization, agents of the Drug Enforcement Agency executed a
search warrant for the residence at 1131 Vermillion Lane near Atlanta in Georgia.
The agents found Garcia and his common-law wife, Eliany Molina, in an upstairs
bedroom. That bedroom, with the adjoining bathroom, contained substantial
evidence of a drug trafficking conspiracy. The evidence in the bedroom included a
bag containing 14.3 grams of cocaine on the floor, a digital scale on top of a
dresser, and a handgun in the open drawer of a nightstand next to the bed. The
evidence in the adjoining bathroom included a laundry hamper with a bag
containing 25.1 grams of cocaine and another digital scale, covered by clothes.
The agents also found evidence in the bedroom closets: one closet contained a
large blue garbage bag of bundled U.S. currency; the other closet contained a shoe
box of bundled U.S. currency. The garbage bag contained the bulk of the nearly
$300,000 that the agents seized from Garcia’s residence.
The agents arrested Garcia, Molina, and Carlos Garza. Molina is the sister-
in-law of Garza. She also is the sister-in-law of Sebastian Cuevas, the purported
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ringleader of the drug trafficking organization.
The next day, September 20, DEA agents arrested Hector Nunez at a
residence in Atlanta. The agents seized Nunez’s cell phone. Nunez stated he was
from Houston and admitted that Cuevas was his cousin. Nunez explained that he
traveled from Houston to Atlanta buying and selling cars, and Nunez denied that he
was involved in drug trafficking.
A month before Nunez was arrested, the government had used a wiretap to
record three conversations between Cuevas and a speaker at the cell phone that the
agents would later seize from Nunez when they arrested him. Transcripts of two of
these three conversations contain coded references to drug trafficking. In the
conversation recorded on August 18, the speaker at Nunez’s phone asks Cuevas,
“What have you heard about [STUTTERS] ‘Ruthie’?” Cuevas responds, “Uh, that
she was there at . . . she is still down there in McAllen.” The unidentified male
responds, “Look uhm, I spoke to the lady . . . about the number I gave you
yesterday. . . . And she was telling me that if you want, uh, she can send it over . . .
tomorrow at dawn.” The unidentified male later says, “the truck driver is going to
call her back in a little while, to see if she has anything.” A few lines later, Cuevas
tells the unidentified male, “Your shirts will be ready for tomorrow afternoon.” In
the conversation recorded three days later, on August 21, the speaker at Nunez’s
4
phone says, “I’m running around, trying to find the guy of the [STUTTERS] shirts.
. . . Uhm, I’m looking for him so that I don’t have the . . . the shirts here with me,
you understand?”
The government also recorded, on August 20 and 22, 2002, two other calls
to or from Cuevas in which the second number was not identified. In the
conversation recorded on August 20, Cuevas asks the unidentified female who
answers the phone, “Yes, hello. Excuse me, is that guy, Hector, there?” The
unidentified female says, “Uh . . . he’s asleep because he just arrived from
Houston.” Cuevas says, “Oh! Yes, yes, yes.” The unidentified female then
notifies the male referred to as Hector, who takes the phone and says, “Hello?”
Cuevas says, “What’s up, cuz . . . ? Did I wake you up?” Hector replies, “Cuz . . .
how are you?” Cuevas asks, “At what time did you arrive?” Hector replies, “Just
a little while ago. . . . I brought Ruthie from over there.” Cuevas asks, “You
already brought it []? . . . Well . . . it was about time, right?” Hector says, “Yeah
man [unintelligible] he didn’t . . . He didn’t want to come over here, up here.”
After several lines of conversation, Hector says, “Yes, uhm, I went to . . . pick him
up there in uhm . . . in San Antonio.” A few lines later Cuevas asks, “And did he
come with, and did he come with the lady that you were talking about?” Hector
replies, “No, the . . . he came with the same . . . the same ones from, from . . .
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others, man. Some others that . . . .” Cuevas asks, “Other people?” Hector says,
“Yes, they were able to get them.” Cuevas asks, “But did they, did they bring it
over alright, finally?” Hector says, “Yes. Uh, it did get there alright. . . . It took
them an hour and a half to put it inside. . . . It’s just that I had to go pick them up
really far away, and I just got in now. I was up all night.” Cuevas says, “Yes, I
can imagine.”
The conversation recorded on August 22 is between Cuevas and an
unidentified man. Neither speaker uses the word “Hector” and Nunez’s phone was
not linked to this call. In this conversation, the unidentified man tells Cuevas, “I’m
still . . . holding some for you,” and later says, “I’d like to go bring those shirts
over here for you once and for all, so I can have them here, but I say, ‘Well what,
what are they going to be doing just hanging here?’” The unidentified man also
describes how “a cousin called me . . . He needed one [] shirt, but that . . . he wants
two [] days . . . . he said that he’s . . . [unintelligible] jump today, you know what I
mean?” The unidentified man later says, “I don’t want to . . . grab the shirts and
then, they end up wearing them and then they say no. . . . I’d be letting you down
even more, and that’s what I don’t want.”
On December 16, 2003, a grand jury returned an amended indictment that
charged 14 defendants with a variety of drug-related crimes. The indictment
6
charged Garcia and Nunez with conspiracy to possess with the intent to distribute,
and to distribute, at least 5 kilograms of cocaine and at least 500 grams of
methamphetamine. See 21 U.S.C. §§ 846, 841(b)(1)(A)(ii), (viii). The indictment
also charged Garcia with possession of cocaine with the intent to distribute, see id.
§ 841(a)(1), and possession of a firearm in furtherance of a drug trafficking crime,
see 18 U.S.C. § 924(c)(1)(A)(i).
An attorney, Derek Wright, sought to represent Garcia, Molina, and Garza.
The government filed a pretrial motion to disqualify Wright because his
representation of multiple defendants created the potential for a conflict of interest.
Garcia and Molina filed a brief opposing the disqualification of Wright.
In their brief, Garcia and Molina stated that “Wright met with each
Defendant and explained the subject matter of conflict of interests, both actual and
potential, with all three Defendants.” According to Garcia and Molina, “All three
Defendants indicated that there was no conflict of interest or position that was
antagonistic to the other in either a trial issue or plea negotiation issue.” Garcia
and Molina reported that “all three Defendants executed waiver of conflict of
interest and an election to have Derek M. Wright represent all three.” Garcia and
Molina also stated that Wright would withdraw from representation of Garza.
Garcia and Molina stated that “Garcia strongly desires that Derek M. Wright
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represent him and his wife.”
Garcia and Molina filed with the court signed waivers of conflicts of
interest. Garcia and Molina each stated in individual waivers that they did not
believe that there were “any conflicts of interest which would cast doubt upon or
interfere in any way with Derek M. Wright fully representing my legal interests.”
Garcia and Molina also each stated, “In the event that a conflict of interest, an
appearance of a conflict of interest, or the possibility of a conflict of interest should
arise, I hereby waive any objection to Derek M. Wright representing me in the
above referenced matter.”
On December 10, 2003, a magistrate judge held a hearing on the matter of
Wright’s dual representation. The magistrate judge asked Garcia, “[W]ho do you
want to be your attorney?” Garcia replied, “Derek Wright.” The magistrate judge
asked Molina if she wanted to be represented by Mr. Wright. Molina answered,
“Yes.” The magistrate judge then stated, “There is, at the very least, a potential
conflict of interest . . . and I’m gonna try to explain some of that in a way that the
defendants can understand.” The magistrate judge invited the defendants to notify
her “if at any time you want to speak with me privately, that is without anyone else
present.” The magistrate judge confirmed that Garcia was fluent in English,
Molina understood the court proceedings through an interpreter, and neither Garcia
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nor Molina had used drugs or alcohol or taken medicine or pills in the past 24
hours.
The magistrate judge explained how a conflict of interest could arise in plea
bargaining, the exercise of peremptory challenges to jurors, direct examination at
trial, and sentencing. The magistrate judge told Garcia and Molina “that money or
your ability to hire an attorney should not enter into your decision as to whether
you both want to proceed with the same attorney. You are entitled to a very
qualified attorney even if you cannot afford an attorney.” The magistrate judge
asked Garcia and Molina individually whether they wanted to speak to an
independent counsel, at no cost, “about the wisdom of going forward with the same
attorney.” Each defendant answered “no.” The magistrate judge asked Garcia and
Molina individually whether, “knowing everything that I’ve said, do you want to
continue with Mr. Wright as your attorney?” Each defendant answered “yes.” In
an order the next day, the magistrate judge denied the government’s motion to
disqualify Wright from representing both Garcia and Molina.
The government made its cases against Garcia and Nunez in one trial. The
case against Garcia consisted primarily of the testimony of the agents who had
searched his residence, the evidence seized in that search, and expert testimony
about drug trafficking organizations. As the testifying officers explained and
9
several exhibits illustrated, the evidence seized in the search of Garcia’s bedroom
and adjoining bathroom included two bags of cocaine, a digital scale, a digital
scale with cocaine residue, a firearm in the open drawer of a nightstand, a shoe box
of bundled U.S. currency, and a large blue garbage bag with the bulk of the nearly
$300,000 found in the house. In addition to the physical evidence and fact
witnesses, the government also proffered DEA Special Agent Keith Cromer as an
expert witness in the organization and structure of Mexican drug trafficking
organizations, including the use of coded language and the manufacture,
distribution, and packaging of narcotics.
The government tendered Cromer as an expert witness on the basis of
several factors. Cromer had been a DEA agent since 1999. Cromer had attended a
16-week training course at the DEA academy that included executive techniques,
legal aspects of drug offenses, interviewing and interrogations, drug identification,
the operation and structure of drug trafficking organizations, and how those
organizations transport and distribute drugs. Cromer had been involved in at least
50 drug investigations. Eighty-five to ninety percent of those investigations had
involved Mexican drug organizations and, in 12 of those cases, Cromer had been
the “case agent.” Cromer also had participated in numerous wiretap investigations.
Cromer explained that, on the basis of his training and experience, he was familiar
10
with the organization and structure of Mexican drug trafficking organizations. He
also explained that he was familiar with the coded language that some drug
trafficking organizations use and how drug trafficking organizations manufacture,
package, and distribute methamphetamine and cocaine. The district court
permitted Cromer to testify as an expert witness.
Cromer testified about how drug trafficking organizations are divided into
functional components that include, among others, transportation, distribution,
collection of drug proceeds, and money laundering. Cromer testified that drug
trafficking organizations often use separate “stash houses” to store drugs and drug
proceeds. Cromer explained that drug traffickers typically stash drug proceeds in
houses occupied by residents the drug traffickers trust, like longtime friends or
family members. Cromer testified that drug traffickers use scales to weigh and
package drugs for distribution. Cromer also testified that drug traffickers often
possess weapons “for protection from other drug traffickers and from law
enforcement. They . . . may have them at the residence where they are going to
store the drugs or they store the money.”
Cromer also testified about how drug traffickers use coded language to refer
to drugs. Cromer testified that “the majority of time different drug traffickers use
the same coded language that you would hear in one investigation to another
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investigation.” Cromer explained the meaning of several code words. Cromer
testified that the term “shirts” is used as a substitute for the word “cocaine,” and
sometimes for “methamphetamine” too. Cromer testified that the word “lady”
refers to “cocaine” and he believed the word “Ruthie” means drugs. Cromer also
explained that “McAllen” is a city in Texas “from where the drugs are smuggled
from Mexico into the United States” and the word “trailer” refers to “a tractor
trailer[,] which is one of the common forms of how to transport drugs from
McAllen, Texas, to Atlanta.” The jury heard each of the recorded conversations in
which the government alleged that Nunez used coded language to discuss drug
trafficking with Cuevas.
Cromer explained that cooperating informants often help investigators
establish the meaning of coded language. Cromer explained that, to determine the
meaning of coded language, investigators rely upon interviews with arrested
suspects and information gathered by surveillance and corroborated by seizures.
On redirect examination, Cromer testified that, in this case, a cooperating
defendant named Antonio Mojica, who had worked for Sebastian Cuevas and
talked with him by phone, had told Cromer that the word “t-shirts” meant
“cocaine.” When Garcia’s attorney objected to Cromer testifying about what
Mojica had told him, the government stated that, because the defendants had
12
challenged the basis of Cromer’s expert opinion, Cromer could explain the sources
he had used to form his opinion. The district court noted its discretion under
Federal Rule of Evidence 703 and admitted the testimony.
Mojica also testified at trial. Mojica admitted he had used code words to
describe drugs. Mojica testified that he and Cuevas had used the word “shirts” in
talking about drugs, and “an ounce of cocaine is one shirt.”
After the government presented its case, Garcia and Nunez each moved for a
judgment of acquittal. The district court reserved its ruling on the motions.
Nunez did not present evidence, but Garcia decided to testify. Garcia
testified that the drugs in his bedroom came from a man called Marcos, the same
man who had asked Garcia to store the garbage bag of money that the agents found
in Garcia’s closet. Garcia testified that he was addicted to cocaine, and he planned
to use the cocaine found in his bedroom with his friends. Garcia testified that the
drugs belonged to him, not Molina, and Molina did not know about the drugs or
the money in the garbage bag. Garcia admitted suspicions that Marcos was a drug
dealer and the garbage bag contained drug proceeds. Garcia admitted he was
concerned someone might try to steal the money Marcos gave him, but denied he
would have used the firearm to protect it. Garcia also recounted how initially he
had told the arresting agents he had no firearm, but then directed them to the
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firearm in the open drawer of the nightstand. Garcia admitted that he had lied “a
little bit” when the DEA agents questioned him upon arrest.
On January 28, 2004, a jury found Garcia and Nunez guilty of the charged
offenses. Garcia and Nunez each moved for judgments of acquittal. The district
court denied their motions, and Garcia and Nunez appealed.
II. STANDARD OF REVIEW
We apply three standards of review to Garcia’s and Nunez’s challenges.
First, when a district court is asked to decide whether the presumption in favor of a
defendant’s counsel of choice is overcome by actual conflict or serious potential
for conflict, the Supreme Court has instructed that the district court has “broad
latitude . . . in making this decision” and “[t]he evaluation of the facts and
circumstances of each case . . . must be left primarily to the informed judgment of
the trial court.” Wheat v. United States, 486 U.S. 153, 163, 164, 108 S. Ct. 1692,
1699, 1700 (1988). Second, we review evidentiary rulings, including whether to
admit expert testimony, for abuse of discretion. See Quiet Tech. DC-8, Inc. v.
Hurel-Dubois UK Ltd., 326 F.3d 1333, 1339-40 (11th Cir. 2003); United States v.
Range, 94 F.3d 614, 620 (11th Cir. 1996). Third, we review de novo whether
evidence is sufficient to sustain a conviction. See, e.g., United States v. Williams,
144 F.3d 1397, 1401-02 (11th Cir. 1998). “In considering a motion for the entry of
14
a judgment of acquittal, a district court ‘must view the evidence in the light most
favorable to the government, and determine whether a reasonable jury could have
found the defendant guilty beyond a reasonable doubt.’” United States v. Miranda,
425 F.3d 953, 959 (11th Cir. 2005) (quoting United States v. Sellers, 871 F.2d
1019, 1021 (11th Cir. 1989)). “It is not necessary for the evidence to exclude
every reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt . . . .” United States v. Bell, 678 F.2d 547, 549 (5th
Cir. Unit B 1982) (en banc); see Sellers, 871 F.2d at 1021. “The jury is free to
choose between or among the reasonable conclusions to be drawn from the
evidence presented at trial, and the court must accept all reasonable inferences and
credibility determinations made by the jury.” Sellers, 871 F.2d at 1021 (internal
quotations and citations omitted).
III. DISCUSSION
Our discussion is divided into four parts. We first discuss the admission of
Special Agent Cromer’s expert testimony, which also raises the two main issues in
this appeal: whether the district court erred under the Sixth Amendment or abused
its discretion when it admitted Cromer’s testimony about the out-of-court
statement of a drug trafficker. We then address whether the district court abused
its discretion by not holding a second hearing on whether to disqualify Garcia’s
15
counsel due to a conflict of interest. We next address whether sufficient evidence
supported the convictions for conspiracy. We end with a discussion of whether
sufficient evidence supported Garcia’s conviction for possession of a firearm in
furtherance of a drug trafficking crime.
A. The District Court Properly Admitted Cromer’s Expert Testimony.
Garcia and Nunez raise three issues with Special Agent Cromer’s expert
testimony. First, Garcia argues that the district court abused its discretion under
Federal Rules of Evidence 702 and 403 by permitting Special Agent Cromer to
testify as an expert witness. Second, Garcia and Nunez argue that the district court
erred under the Sixth Amendment by permitting Cromer to testify about the
hearsay statement of a cooperating conspirator. Third, Nunez argues that the
district court abused its discretion under Federal Rule of Evidence 703 when it
permitted Cromer to testify about the hearsay statement of a cooperating
conspirator. Each argument fails.
1. The District Court Did Not Abuse Its Discretion by Permitting Cromer to
Testify as an Expert Witness.
Federal Rule of Evidence 702 permits expert testimony if “specialized
knowledge” will help the jury “to understand the evidence or to determine a fact in
issue.” Fed. R. Evid. 702. “[A] witness [may be] qualified as an expert by
knowledge, skill, experience, training, or education.” Id. “The operations of
16
narcotics dealers are a proper subject for expert testimony under Rule 702,” United
States v. Ginsberg, 758 F.2d 823, 830 (2d Cir. 1985), and we have recognized the
“well-established” “rule” that “an experienced narcotics agent” may testify as an
expert to help a jury understand “the significance of certain conduct or methods of
operation unique to the drug distribution business.” United States v. Butler, 102
F.3d 1191, 1199 (11th Cir. 1997) (internal quotations omitted). We also have
“affirmed the admission under Rule 702 of the expert testimony of a police officer
interpreting ‘drug codes and jargon.’” United States v. Novaton, 271 F.3d 968,
1008 (11th Cir. 2001) (quoting United States v. Brown, 872 F.2d 385, 392 (11th
Cir. 1989)).
The district court did not abuse its discretion by permitting Special Agent
Cromer to testify as an expert witness. Cromer had been a DEA agent for several
years and had received training regarding the operation and structure of drug
trafficking organizations and how those organizations transport and distribute
drugs. Cromer had been involved in at least 50 drug investigations and the
majority of those involved Mexican drug trafficking organizations. Cromer also
had participated in numerous wiretap investigations and was familiar with the
coded language that some drug trafficking organizations use. Cromer clearly was
an “experienced narcotics agent,” and his testimony could have helped the jury
17
understand the evidence. See id.; Fed. R. Evid. 702.
Relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.” Fed R. Evid. 403. Special Agent
Cromer’s testimony was highly probative. Cromer’s testimony about drug
traffickers’ use of code words, for example, was probative because “drug dealers
often camouflage their discussions . . . [and] expert testimony explaining the
meanings of code words may ‘assist the trier of fact to understand the evidence or
to determine a fact in issue.’” United States v. Dukagjini, 326 F.3d 45, 52 (2d Cir.
2003) (quoting Fed. R. Evid. 702). Cromer’s testimony about how drug trafficking
organizations compartmentalize certain operations and roles was highly probative
because, as the government argues, “this is precisely the type of testimony . . . [that
could] help the jury understand how the conduct and evidence relating to the
individual participants might further the goals and purposes of the drug trafficking
organization.” The district court did not abuse its discretion in concluding that any
unfair prejudice Cromer’s testimony could have caused did not outweigh its high
probative value.
2. The District Court Did Not Err Under the Sixth Amendment by Admitting
Cromer’s Testimony About the Out-of-Court Statement of a Drug Trafficker Who
Testified at Trial to the Same Statement.
Garcia and Nunez contend that, because Cromer explained that his opinion
18
about the meaning of “shirts” was based on a statement made by Mojica, a
cooperating conspirator, part of Cromer’s testimony was hearsay admitted in
violation of the Sixth Amendment, as interpreted in Crawford. 541 U.S. 36, 124 S.
Ct. 1354. This argument fails because the Sixth Amendment, as interpreted in
Crawford, bars the admission of the out-of-court statements of declarants who do
not testify at trial: “the Framers would not have allowed admission of testimonial
statements of a witness who did not appear at trial.” Id. at 53-54, 124 S. Ct. at
1365 (emphasis added). Unlike the declarant in Crawford, id. at 40, 124 S. Ct. at
1357, Mojica testified at trial and he testified to the same statement Cromer had
described. Garcia and Nunez had ample opportunity to confront and cross-
examine Mojica, and Cromer’s testimony about Mojica’s statement was offered to
explain the basis of Cromer’s opinion as an expert.
3. The District Court Did Not Abuse Its Discretion Under Rule 703 by Admitting
Cromer’s Testimony About Mojica’s Statement.
Nunez objects that Cromer’s testimony was inadmissible hearsay, but a
district court enjoys the discretion to permit an expert witness to “disclose[] to the
jury” “[f]acts or data that are otherwise inadmissible” if “the court determines that
their probative value in assisting the jury to evaluate the expert’s opinion
substantially outweighs their prejudicial effect.” Fed. R. Evid. 703. It is
understandable that the district court might have wanted the jury to understand that
19
Cromer had relied on the statements of Mojica: any problems with the credibility
of Mojica, whom the jury saw and heard testify, might have affected the decision
of the jury to credit or reject Cromer’s testimony.
Nunez correctly reminds us that Rule 703 applies only when an expert
witness testifies about matters within the scope of his expertise. See Dukagjini,
326 F.3d at 58. We certainly agree that hearsay evidence admitted under Rule 703
“must be the type of evidence reasonably relied upon by experts in the particular
field in forming opinions or inferences on the subject,” United States v. Scrima,
819 F.2d 996, 1002 (11th Cir. 1987), but there is no abuse of discretion in
concluding that the debriefing of suspected drug traffickers is “the type of
evidence” that is “reasonably relied upon” by seasoned drug enforcement officers
“in forming opinions or inferences” about the use of coded language by drug
traffickers. This Court has recognized that a law enforcement officer testifying as
an expert witness may rely on information he received from other people if “such
sources of information were regularly relied upon” “by experts in his field.”
United States v. Brown, 299 F.3d 1252, 1257, 1258 (11th Cir. 2002), vacated, 538
U.S. 1010, 123 S. Ct. 1928 (2003), remanded to and reinstated by 342 F.3d 1245
(11th Cir. 2003), cert. denied, 543 U.S. 823, 125 S. Ct. 37 (2004). We have stated,
for example, that “Rule 703 encompasses hearsay statements in a context . . .
20
where the government expert specifically testified that his opinion was based on
his experience and expertise, in conjunction with the information he received from
a DEA intelligence agent and Bermudan authorities, and that such sources of
information were regularly relied upon in valuating narcotics.” Id. at 1257. We
also have explained that “expert testimony by an ATF agent based partly on his
own analysis, but verified by consultation with an ATF technical specialist, was
properly admitted under Rule 703 where the agent testified that the consultation
was of the kind regularly relied upon by experts in his field.” Id. at 1257-58
(characterizing the holding in United States v. Floyd, 281 F.3d 1346, 1349-50
(11th Cir. 2002)).
Nunez’s reliance on Dukagjini is misplaced. That court concluded that the
expert testimony “at times departed from the bounds of Rules 702 and 703 and
from reliable methodology” and the witness had “repeatedly deviated from his
expertise on drug jargon.” Id. at 58-59. Unlike Cromer, the expert in Dukagjini
“was relying on his conversations with non-testifying witnesses and co-defendants
in order to prove ‘the truth of the matter asserted’” rather than “translating drug
jargon, applying expert methodology, or relying on his general experience in law
enforcement.” Id. at 59. The court recognized that “an expert [is permitted] to rely
on hearsay evidence for the purposes of rendering an opinion based on his
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expertise,” id., but excluded the testimony in that case because “the expert was
repeating hearsay evidence without applying any expertise whatsoever,” id.
In contrast with Dukagjini, the district court did not abuse its discretion in
concluding that Cromer had applied his expertise in relying on, among other
sources, his interview with Mojica to determine the meaning of coded language.
An experienced agent like Cromer, by virtue “of his professional knowledge and
ability, [was] competent to judge for himself the reliability of” statements made by
an admitted drug trafficker in post-arrest debriefings in forming an expert opinion
about the drug traffickers’ use of coded language. United States v. Williams, 447
F.2d 1285, 1290 (5th Cir. 1971). The district court did not abuse its discretion in
admitting that testimony.
B. The District Court Did Not Abuse Its Discretion by Not Holding a Second
Hearing on Whether to Disqualify Garcia’s Attorney.
Garcia argues that the district court abused its discretion by not conducting a
second hearing on whether to disqualify Garcia’s attorney due to a conflict of
interest. Garcia does not argue that he received ineffective assistance of counsel.
Garcia argues that the district court should have intervened at trial when he
testified adversely to himself and favorably to Molina, although the district court
already had held a full hearing and Garcia had waived any actual, apparent, or
possible conflict. Garcia’s argument fails.
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An attorney “may” be disqualified when an actual or even a potential
conflict of interest exists, United States v. Ross, 33 F.3d 1507, 1523 (11th Cir.
1994), but the defendant “may waive this conflict of interest and elect to have the
attorney continue representation, so long as that waiver is knowing, intelligent, and
voluntary,” id. at 1524; see McConico v. Alabama, 919 F.2d 1543, 1548 (11th Cir.
1990). “In order for a waiver of the right to conflict-free counsel to be knowing
and intelligent, the State must show that the defendant (1) was aware that a conflict
of interest existed; (2) realized the consequences to his defense that continuing
with counsel under the onus of a conflict could have; and (3) was aware of his right
to obtain other counsel.” Zuck v. Alabama, 588 F.2d 436, 440 (5th Cir. 1979).
Although the district court is not required to accept a defendant’s waiver, Wheat,
486 U.S. at 164, 108 S. Ct. at 1700, “a criminal defendant has a presumptive right
to counsel of choice and courts should hesitate to disqualify defense counsel,”
Ross, 33 F.3d at 1522-23 (citing Wheat, 486 U.S. at 164, 108 S. Ct. at 1700).
Garcia knowingly, intelligently, and voluntarily waived objection to his
attorney’s conflict of interest. The magistrate judge held an extensive pretrial
hearing and confirmed that Garcia spoke English and was not under the influence
of drugs, alcohol, or medication. The magistrate judge explained how a conflict of
interest could arise in plea bargaining, exercising peremptory challenges to jurors,
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direct examination, and sentencing. The magistrate judge told Garcia the
government would pay for a lawyer to represent him. The magistrate judge told
Garcia the government even would pay for a lawyer to discuss with Garcia the
wisdom of proceeding without independent counsel. Garcia knew there was at
least a possible conflict, he knew how this conflict could harm his interests, and he
knew he had the right to an attorney at no cost to himself. Because Garcia
effectively waived any conflict following a thorough pretrial hearing, the district
court was not required to inquire at trial about Wright’s conflict of interest.
C. Sufficient Evidence Supported Both Convictions for Conspiracy.
Garcia and Nunez argue that the district court erroneously concluded that
sufficient evidence supported their convictions for conspiracy. “To convict a
defendant for conspiracy . . . , the evidence must show (1) that a conspiracy
existed, (2) that the defendant knew of it, and (3) that the defendant, with
knowledge, voluntarily joined it.” United States v. Perez-Tosta, 36 F.3d 1552,
1557 (11th Cir. 1994). “The very nature of conspiracy frequently requires that the
existence of an agreement be proved by inferences from the conduct of the alleged
participants or from circumstantial evidence of a scheme.” United States v. Ayala,
643 F.2d 244, 248 (5th Cir. Unit A 1981); see United States v. Spradlen, 662 F.2d
724, 727 (11th Cir. 1981). “A conspiracy conviction will be upheld . . . when the
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circumstances surrounding a person’s presence at the scene of conspiratorial
activity are so obvious that knowledge of its character can fairly be attributed to
him.” United States v. Figueroa, 720 F.2d 1239, 1246 (11th Cir. 1983). We apply
these standards to each verdict of guilt and conclude the evidence was sufficient.
1. Sufficient Evidence Supported Garcia’s Conviction for Conspiracy.
Garcia argues that his “mere presence” at the scene of a crime is insufficient
to convict him for conspiracy, but Garcia was not “merely” present in a house full
of drugs, drug money, drug traffickers, and at least one firearm. Most of the
physical evidence against Garcia was found in either his bedroom or bathroom,
Garcia admitted the drugs were his, and one of the digital scales had cocaine
residue. Garcia testified the drugs were merely for his personal use, but the jury
reasonably could have concluded that the drugs were for distribution because “a
defendant [who] chooses to testify . . . runs the risk that if disbelieved ‘the jury
might conclude the opposite of his testimony is true.’” United States v. Brown, 53
F.3d 312, 314 (11th Cir. 1995) (quoting Atkins v. Singletary, 965 F.2d 952, 961
n.7 (11th Cir. 1992)). Garcia lived with two conspirators and was related through
his common-law marriage to Cuevas, the ringleader of the conspiracy. It would
have been reasonable to conclude that Garcia’s drug activity was related to the
charged conspiracy.
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The DEA agents also found nearly $300,000 in Garcia’s house, most of it in
his bedroom closet. “A person who owns or exercises dominion and control over a
. . . residence in which contraband is concealed may be deemed to be in
constructive possession of the contraband,” United States v. Vera, 701 F.2d 1349,
1357 (11th Cir. 1983), and “a defendant involved only in the money laundering
facet of the drug business could be considered a part of the conspiracy to distribute
those drugs,” United States v. High, 117 F.3d 464, 469 (11th Cir. 1997). The large
sum of money in Garcia’s room provided yet another basis for conviction.
Sufficient evidence supported Garcia’s conviction for conspiracy.
2. Sufficient Evidence Supported Nunez’s Conviction for Conspiracy.
Nunez argues the government failed to prove that he was the person
recorded on the phone calls, the phone calls involved illegal activity, the phone
calls referred to cocaine, or the phone calls were part of the conspiracy alleged in
the indictment. Each argument fails.
First, a jury reasonably could have concluded that Nunez was the speaker in
the five phone calls. Self-identification and telephone subscriber information are
recognized means to establish the identity of persons speaking in recorded
conversations. See United States v. Green, 40 F.3d 1167, 1173 (11th Cir. 1994).
Three of the calls were to or from Nunez’s cell phone. In the fourth call, Cuevas
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asked for “Hector” and an unidentified female said that Hector had just returned
from Houston. Nunez’s first name is Hector and he is from Houston. In that same
call, Hector and Cuevas call each other “cuz.” Nunez and Cuevas are cousins.
The fifth call was subject to comparison by the jury with the first four calls
because the government played all the calls at trial. The jury had the opportunity
to compare the voice, matter of discussion, manner of speech, and use of language
in the fifth call with these qualities and characteristics in the first four calls. We
view the evidence in the light most favorable to the government, see Miranda, 425
F.3d at 959, and a jury reasonably could have concluded that Nunez was the
speaker on these five phone calls.
Second, a jury reasonably could have concluded that the recorded
conversations involved illegal activity. Nunez and Cuevas discuss “shirts,” a
“lady,” a “truck driver,” “McAllen,” and “Ruthie.” Special Agent Cromer testified
that “shirts” means “cocaine” and sometimes “methamphetamine,” “lady” means
“cocaine,” and he believed “Ruthie” referred to drugs. Cromer explained that
“McAllen” is a city in Texas that is an entry point for drugs smuggled into the
United States from Mexico and the word “trailer” refers to “a tractor trailer[,]
which is one of the common forms of how to transport drugs from McAllen, Texas,
to Atlanta.” A cooperating co-conspirator also testified that, in his conversations
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with Cuevas, “one shirt” meant “an ounce of cocaine.” The combination of
testimony about the meaning of coded language and conversations that “make little
facial sense at all but gain a great deal of meaning when viewed as coded
references to dealings in [drugs],” United States v. Atkins, 618 F.2d 366, 370 n.4
(5th Cir. 1980), was sufficient evidence to support a finding that Cuevas and
Nunez’s conversations were about drugs.
Third, it was reasonable for the jury to conclude that the conversations were
about cocaine or methamphetamine. Mojica testified that “an ounce of cocaine is
one shirt.” Cromer testified that “shirts” meant “cocaine,” and sometimes
“methamphetamine.” Cromer also testified that “lady” meant “cocaine.” The
phone calls support the inference that Nunez was transporting something and it was
reasonable to conclude that that something was cocaine.
Fourth, it was reasonable for a jury to conclude that the phone calls were
related to the charged conspiracy. Nunez contends that a “buyer-seller
relationship” is not sufficient to prove a conspiracy. We recognize that “two
parties . . . charged with agreeing to distribute drugs” might not be guilty of
conspiracy when the “evidence [demonstrates] that the parties understood their
transactions to do no more than support the buyer’s personal drug habit,” United
States v. Dekle, 165 F.3d 826, 830 (11th Cir. 1999), but there was ample evidence
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that Nunez was involved in much more than supplying whatever personal drug
habit Cuevas might have had. Nunez participated in the transportation of drugs in
cooperation with the ringleader of the charged conspiracy and used at least some of
the same coded language to discuss that conspiracy as had at least one other
conspirator. The jury reasonably could have concluded that Nunez was involved in
the conspiracy charged in the indictment.
D. Sufficient Evidence Supported Garcia’s Conviction for Possession of a Firearm
in Furtherance of a Drug Trafficking Crime.
Garcia argues that the district court erroneously concluded that sufficient
evidence supported his conviction for possession of a firearm in furtherance of a
drug trafficking crime. A person violates federal law when “during and in relation
to any crime of violence or drug trafficking crime . . . [he] uses or carries a firearm,
or . . . , in furtherance of any such crime, possesses a firearm.” 18 U.S.C. §
924(c)(1)(A). To be “in furtherance” of a drug trafficking crime, there must be
“some nexus between the firearm and the drug selling operation.” United States v.
Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002) (internal quotations omitted).
This argument fails.
Because Garcia testified that the firearm belonged to him, the only question
is whether he possessed it “in furtherance” of a drug trafficking crime. Garcia
testified that he did not possess the firearm to protect the money, but “when a
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defendant chooses to testify, he runs the risk that if disbelieved ‘the jury might
conclude the opposite of his testimony is true.’” Brown, 53 F.3d at 314 (quoting
Atkins, 965 F.2d at 961 n.7). Because “a statement by a defendant, if disbelieved
by the jury, may be considered as substantive evidence of the defendant’s guilt,”
id., the jury was free not only to conclude that Garcia possessed the firearm to
protect the money, but also to rely upon that conclusion to convict Garcia. A
conclusion of guilt based on Garcia’s testimony would have been supported by
evidence that Garcia’s firearm was in the open drawer of the nightstand in the
bedroom, the bedroom and adjoining bathroom contained drugs, a bedroom closet
contained a large amount of money that Garcia openly admitted he suspected to be
drug proceeds, and Garcia was concerned someone might try to take the money.
Sufficient evidence supported Garcia’s conviction under section 924.
IV. CONCLUSION
We affirm the convictions of Garcia and Nunez.
AFFIRMED.
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United States v. Cesar Garcia
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2006-05-03
Citations: 447 F.3d 1327
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