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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15583
Non-Argument Calendar
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D.C. Docket No. 1:17-cr-20153-RNS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE PABLO ORTIZ-SANTIZO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 15, 2019)
Before MARCUS, ROSENBAUM, and EDMONSON, Circuit Judges.
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PER CURIAM:
Juan Ortiz-Santizo appeals his convictions for (1) conspiracy to possess with
intent to distribute 50 grams or more of methamphetamine, in violation of 21
U.S.C. § 846; (2) distribution of 50 grams or more of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1); and (3) possession with intent to distribute 50
grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Ortiz-
Santizo also appeals his total 151-month sentence for his offenses. No reversible
error has been shown; we affirm.
Briefly stated, this appeal arises from these facts. In December 2016 and
January 2017, the Broward County Drug Task Force used a confidential informant
(“CI”) to arrange two controlled drug buys from Ortiz-Santizo. During the first
controlled drug buy, the CI purchased 82.9 grams of methamphetamine from Ortiz-
Santizo. During the second controlled drug buy -- at Ortiz-Santizo’s direction --
the CI purchased 54.22 grams of methamphetamine from Ortiz-Santizo’s brother.
Ortiz-Santizo was later arrested on 16 February 2017, after his car broke
down and was blocking traffic on the highway. When Sergeant Berthet
approached the car, he smelled marijuana and noticed that Ortiz-Santizo appeared
nervous and was hugging a backpack. Shortly thereafter, a second officer arrived
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on the scene with a narcotics-detecting dog, who alerted on the interior of the car
and on the backpack. The officers conducted a warrantless search of the car and
seized 111.6 grams of methamphetamine and 11.5 grams of marijuana from the
backpack.
I.
On appeal, Ortiz-Santizo contends that the district court erred in denying his
motion to suppress evidence seized during the warrantless search of his car. Ortiz-
Santizo argues that -- because his car was disabled at the time of the search -- the
automobile exception is inapplicable.
We review the district court’s denial of “a motion to suppress evidence
under a mixed standard of review, reviewing the court’s findings of fact for clear
error and the application of law to those facts de novo.” United States v. Pierre,
825 F.3d 1183, 1191 (11th Cir. 2016). We will construe the facts in the light most
favorable to the party who prevailed below. United States v. Nixon,
918 F.2d 895,
902 (11th Cir. 1990). In considering a ruling on a motion to suppress, we may
consider the evidence presented at the suppression hearing as well as evidence
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presented at trial. United States v. Villabona-Garnica,
63 F.3d 1051, 1056 (11th
Cir. 1995).
Under the automobile exception to the Fourth Amendment’s warrant
requirement, police may perform a warrantless search of a car if probable cause
exists to believe the car contains contraband or evidence of criminal activity.
California v. Acevedo,
500 U.S. 565, 569 (1991). For the exception to apply, there
must be both probable cause and exigent circumstances necessitating a search or
seizure.
Nixon, 918 F.2d at 903. We have said, however, that “the requirement of
exigent circumstances is satisfied by the ‘ready mobility’ inherent in all
automobiles that reasonably appear to be capable of functioning.”
Id. (emphasis in
original). “The vehicle does not have to be moving at the moment when the police
obtain probable cause to search.” United States v. Alexander,
835 F.2d 1406, 1409
(11th Cir. 1988).
The district court committed no error in denying Ortiz-Santizo’s motion to
suppress the drugs found during the warrantless search of his car. Sergeant Berthet
testified that when he first approached Ortiz-Santizo’s car, he detected the odor of
marijuana and observed that Ortiz-Santizo appeared nervous. Later, a narcotics-
detecting dog alerted to the interior of the car and then, to the backpack that Ortiz-
Santizo had been holding. Based on the totality of the circumstances, there existed
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a fair probability contraband would be found in Ortiz-Santizo’s car. Probable
cause existed to search both the car and the backpack. See United States v.
Tamari,
454 F.3d 1259, 1264-65 (“We have long recognized that ‘probable cause
arises when a drug-trained canine alerts to drugs.’”).
Exigent circumstances also justified the warrantless search. Although Ortiz-
Santizo’s car was non-operational at the time of the search, it was reasonable to
believe that the car could soon become mobile. The car was stopped in the middle
of the highway, evidencing that it had been operational moments before. Ortiz-
Santizo also commented that he had just had the car repaired and the officer
noticed that the car had a brand-new battery. Besides, Ortiz-Santizo had already
arranged to have the car towed before the officers arrived on the scene; the car was
about to become movable. Under these circumstances, it was reasonable to
conclude that Ortiz-Santizo’s car was readily mobile and, thus, that a warrantless
search was justified under the automobile exception. See
Nixon, 918 F.2d at 903.
II.
Ortiz-Santizo next challenges the district court’s denial of his motions for a
judgment of acquittal. “We review de novo a district court’s denial of judgment of
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acquittal on sufficiency of evidence grounds.” United States v. Rodriguez,
732
F.3d 1299, 1303 (11th Cir. 2013). In determining the sufficiency of the evidence,
“we consider the evidence in the light most favorable to the government, drawing
all reasonable inferences and credibility choices in the government’s favor.”
Id.
We cannot overturn a jury’s verdict unless no “reasonable construction of the
evidence would have allowed the jury to find the defendant guilty beyond a
reasonable doubt.”
Id.
A.
About his conspiracy conviction, Ortiz-Santizo contends the evidence
produced at trial was insufficient to demonstrate the existence of an agreement
between Ortiz and another party.
To obtain a conviction for conspiracy to distribute a controlled substance
under 21 U.S.C. § 846, the government must prove, in pertinent part, that a
conspiracy or agreement existed between the defendant and others. United States
v. Holt,
777 F.3d 1234, 1259 (11th Cir. 2015). “The existence of a conspiracy may
be demonstrated by circumstantial evidence such as inferences from the conduct of
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the defendant or circumstances indicating a scheme or plan.” United States v.
Bascaro,
742 F.2d 1335, 1359 (11th Cir. 1984).
Viewed in the light most favorable to the government, the evidence
presented at trial was sufficient to permit a reasonable factfinder to conclude
beyond a reasonable doubt that Ortiz-Santizo conspired with others to possess with
intent to distribute a controlled substance. First, officers observed Ortiz-Santizo
obtain methamphetamine from a man named Guevara during a controlled buy
between Ortiz-Santizo and the CI. The government also introduced an email Ortiz-
Santizo sent after his arrest, in which he demanded that his brother convince
Guevara to clear his name and threatened to expose Guevara and Guevara’s
family’s involvement in the conspiracy. This evidence supported a finding that an
ongoing agreement existed between Ortiz-Santizo and Guevara, who was known to
the officers as a methamphetamine distributor.
Evidence also supported a finding that an agreement existed between Ortiz-
Santizo and his brother. Because Ortiz-Santizo was out of town when the CI
contacted him about the second controlled buy, Ortiz-Santizo arranged for his
brother to complete the sale while Ortiz-Santizo helped facilitate the transaction.
We acknowledge that a mere buyer-seller relationship or an agreement with
a CI -- by itself -- is insufficient to establish a conspiracy. See United States v.
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Wright,
63 F.3d 1067, 1072 (11th Cir. 1995) (explaining that “it takes at least two
to conspire neither of which may be government agents or informers.”);
Bascaro,
742 F.2d at 1359 (“the existence of a simple buyer-seller relationship alone does
not furnish the requisite evidence of a conspiratorial agreement.”). The evidence
produced at trial, however, was sufficient to support a finding that Ortiz-Santizo
had an agreement with Guevara and with his brother to sell drugs to third persons.
That the two controlled drug buys involved sales to a CI did not frustrate the
existence of that conspiracy.
Laboratory results also confirmed that the quantity of methamphetamine
involved in each of the controlled buys satisfied the 50-gram threshold; thus, each
of the controlled buys would support the conspiracy charged in the indictment.
B.
About Ortiz-Santizo’s conviction for possession with intent to distribute, he
contends that insufficient evidence existed to establish that he knew about the
drugs found in his backpack.
To sustain a conviction for possession with intent to distribute
methamphetamine, the government must establish three elements: knowledge,
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possession, and intent to distribute. United States v. Gamboa,
166 F.3d 1327, 1331
(11th Cir. 1999). All three elements may be proven by circumstantial evidence.
United States v. Poole,
878 F.2d 1389, 1391-92 (11th Cir. 1989).
Sufficient evidence existed from which a reasonable jury could conclude
that Ortiz-Santizo possessed with intent to distribute 50 grams or more of
methamphetamine. Ortiz-Santizo admitted that the backpack belonged to him.
Sergeant Berthet also testified that, when he first observed Ortiz-Santizo, Ortiz-
Santizo appeared nervous and was clutching the backpack in front of him. Based
on this evidence, a jury could infer reasonably that Ortiz-Santizo knew the
methamphetamine was in his backpack. Moreover, because the drugs were found
inside Ortiz-Santizo’s backpack and inside Ortiz-Santizo’s car, the jury could also
infer reasonably that Ortiz-Santizo had constructive possession over the drugs. See
United States v. Hernandez,
433 F.3d 1328, 1333 (11th Cir. 2005) (“Constructive
possession exists when a defendant has ownership, dominion, or control over an
object itself or dominion of control over the premises or the vehicle in which the
object is concealed.”). Although Ortiz-Santizo testified that the drugs “weren’t
supposed to be there” and did not belong to him, the jury was free to reject that
testimony and to infer that the opposite was true. See United States v. Hasner, 340
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F.3d 1261, 1272 (11th Cir. 2003) (“A proper inference the jury can make from
disbelieved testimony is that the opposite of the testimony is true.”).
III.
Ortiz-Santizo next contends that the district court abused its discretion in
permitting the government to impeach him on cross-examination with a suppressed
prior statement.
Before trial, Ortiz-Santizo moved to suppress a statement he made to police
after his arrest, in which he admitted he had purchased two ounces of
methamphetamine the night before. The government conceded the statement was
inadmissible during the government’s case-in-chief because the statement was
obtained after Ortiz-Santizo invoked his Miranda * rights. Accordingly, the district
court granted the motion to suppress but reserved ruling on whether the statement
could be introduced for impeachment purposes.
We review for an abuse of discretion the district court’s decision to allow the
introduction of suppressed evidence for purposes of impeachment. United States
v. Quesada-Rosadal,
685 F.2d 1281, 1283 (11th Cir. 1982). A “defendant’s
*
Miranda v. Arizona,
384 U.S. 436 (1966).
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statements made in response to proper cross-examination reasonably suggested by
the defendant’s direct examination are subject to otherwise proper impeachment by
the government,” including by suppressed evidence inadmissible in the
government’s case-in-chief. United States v. Havens,
446 U.S. 620, 627-28
(1980).
The district court abused no discretion in allowing the government to
impeach Ortiz-Santizo on cross-examination with his suppressed statement. On
direct examination, Ortiz-Santizo testified that he was no drug dealer, had never
sold methamphetamine before the controlled buys, and was merely a drug addict
who was coerced into acquiring methamphetamine by the CI, who was also his
romantic partner. On cross-examination, the government -- staying within the
scope of Ortiz-Santizo’s direct examination -- questioned Ortiz-Santizo about his
relationship with the CI, about the quantity of drugs he sold to the CI, about his
text messages with the CI arranging drug sales, and about his association with
Guevara.
The government also questioned Ortiz-Santizo about conduct pertinent to the
credibility of his direct testimony, including that he was later arrested with nearly
four ounces of methamphetamine in his backpack. When Ortiz-Santizo denied
knowledge and possession of those drugs, he opened the door for the government
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to rebut that testimony, including with Ortiz-Santizo’s suppressed statement that he
had purchased two ounces of methamphetamine at Guevara’s house the night
before his arrest. On this record, the district court abused no discretion in allowing
the introduction of the suppressed statement to impeach Ortiz-Santizo’s credibility.
IV.
Ortiz-Santizo next challenges the district court’s decision permitting the
government’s expert witness to testify that the quantity of drugs seized from Ortiz-
Santizo was consistent with the distribution of methamphetamine.
We review the district court’s rulings on the admissibility of expert
testimony under an abuse-of-discretion standard. United States v. Frazier,
387
F.3d 1244, 1258 (11th Cir. 2004) (en banc). Under this standard, we will not
reverse unless the district court’s ruling was “manifestly erroneous.”
Id. We must
affirm unless the district court made a clear error of judgment or applied the
incorrect legal standard. See
id. at 1259.
An expert witness in a criminal case may not state expressly a conclusion
about the defendant’s mental state at the time of the offense. United States v.
Alvarez,
837 F.2d 1024, 1031 (11th Cir. 1988) (interpreting Fed. R. Evid. 704(b)).
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This rule does not, however, preclude expert testimony that would support an
inference about the defendant’s mental state, provided that the testimony leaves it
to the jury to draw the inference. See
id.
The district court abused no discretion in allowing Officer Passman to testify
that -- based on his experience investigating methamphetamine cases -- the
quantity of methamphetamine seized from Ortiz-Santizo’s car (111.6 grams) was
consistent with distribution, not personal use. Officer Passman testified that, on
average, the amount of methamphetamine sold for personal use is between 0.5 and
1 gram, and no more than 3.5 grams. Based on his experience, a quantity of 3 or 4
ounces of methamphetamine would be consistent with distribution. Officer
Passman expressed no opinion about Ortiz-Santizo’s state of mind in this case.
Because the jury was left to decide the ultimate issue of whether Ortiz-Santizo had
the requisite intent to distribute the methamphetamine seized from his car, the
testimony was permissible under Rule 704(b). See
id.
V.
Ortiz-Santizo challenges his 151-month sentence. He contends that the
district court erred in calculating the drug quantity attributable to him and, thus in
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enhancing his base offense level from 32 to 36. We need not address this
argument, however, because the district court said expressly that it would impose
the same sentence regardless of whether Ortiz-Santizo’s base offense level was 32
or 36. See United States v. Barner,
572 F.3d 1239, 1247-48 (11th Cir. 2009)
(“Where a district judge clearly states that he would impose the same sentence,
even if he erred in calculating the guidelines, then any error in the calculation is
harmless.”).
AFFIRMED.
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