United States v. Jean Paul , 565 F. App'x 780 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10959
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20739-DMM-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEAN PAUL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 8, 2014)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Jean Paul appeals his conviction after a jury trial for conspiracy to possess
with intent to distribute 28 grams or more of cocaine base, in violation of 21
U.S.C. §§ 846 and 851. In this direct appeal he argues that the district court erred
by: (1) denying his motion to suppress evidence from a traffic stop; (2) allowing
two witnesses to testify that Paul had sold them crack cocaine previously; and (3)
allowing a law enforcement officer to testify as an expert on the code and jargon
used by drug traffickers. For the reasons below, we affirm.
I.
Paul first argues that the district court erred in denying his motion to
suppress evidence from a traffic stop. At the suppression hearing, Detective
Gregory Edlund testified that he had been told of Paul’s involvement with
narcotics before the traffic stop. He also testified that on May 8, 2012, he and two
other officers were driving behind Paul’s Suburban when it stopped in the middle
of a roadway just after driving through an intersection. Edlund stopped behind
Paul, turned on his lights, and approached Paul’s vehicle.
When Edlund approached, he noticed the SUV was running. He also
noticed that Paul had no seatbelt on, was soaking wet, and was only wearing boxer
shorts. According to Edlund, Paul was very irate. Edlund also testified that Paul
gave inconsistent statements in response to his questions. Paul first told Edlund he
had been at a community pool, but had trouble describing where the pool was.
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Later in the conversation Paul changed his story and said he was coming from the
beach, but could not say which beach. Paul did not have his driver license with
him. Using his name and date of birth, Edlund confirmed Paul had a valid driver
license and was on federal probation.1
At that point, Edlund decided to investigate further and asked Paul to get out
of the Suburban. Edlund was traveling with a police dog. After handcuffing Paul,
Edlund conducted a canine sniff of the outside of the vehicle and of Paul. The dog
alerted to the hood of the SUV. Edlund opened the hood and found an ashtray with
a magnet attached to the side of the engine compartment. The ashtray contained
several small pieces of cocaine rock. Edlund searched further and found a second
ashtray that did not match the interior of the vehicle.
Prior to trial Paul moved to suppress the evidence recovered in the May 8,
2012 traffic stop. The district court denied his motion. On appeal Paul argues that
he did not commit a traffic violation that justified the stop. Paul also argues that
Edlund did not have a reasonable suspicion that Paul was involved in criminal
activity. Finally, he argues that there was not a sufficient basis to ask him to get
out of the Suburban, to handcuff him, or to allow a canine sniff.
We review a district court’s denial of a motion to suppress under a mixed
standard, reviewing the court’s findings of fact for clear error and the application
1
Paul was on bond in connection with this case and subject to monitoring by the U.S. Probation
office.
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of law to those facts de novo. United States v. Ramirez, 476 F.3d 1231, 1235 (11th
Cir. 2007). The district court’s factual findings are construed in the light most
favorable to the prevailing party. Id. at 1236.
We first consider whether the traffic stop here was lawful. “Temporary
detention of individuals during the stop of an automobile by the police, even if
only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’
within the meaning of [the Fourth Amendment].” Whren v. United States, 517
U.S. 806, 809–10, 116 S. Ct. 1769, 1772 (1996). A traffic stop is lawful if it is
justified by probable cause to believe that a traffic violation occurred. United
States v. Harris, 526 F.3d 1334, 1338 (11th Cir. 2008) (officer had probable cause
to stop vehicle he saw failing to signal during a lane change).
Against this legal backdrop, the relevant question here is whether Edlund
had probable cause to believe Paul had committed a traffic violation. We find no
error in the district court’s conclusion that he did. Florida law prohibits the
following conduct:
It is unlawful for any person or persons willfully to obstruct the free,
convenient, and normal use of any public street, highway, or road by
impeding, hindering, stifling, retarding, or restraining traffic or
passage thereon, by standing or approaching motor vehicles thereon,
or by endangering the safe movement of vehicles or pedestrians
traveling thereon . . . .
Fla. Stat. § 316.2045(1). The district court credited Edlund’s testimony that he
observed Paul stopped in the middle of the roadway with his vehicle running. The
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traffic stop was therefore justified because Edlund had probable cause to believe
that Paul was committing a traffic violation.
We also conclude that Edlund’s decision to briefly detain Paul after the stop
was based on reasonable suspicion. Under Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868 (1968), a police officer may briefly detain a person to investigate a
reasonable suspicion that the individual is involved in criminal activity. United
States v. Williams, 876 F.2d 1521, 1523 (11th Cir. 1989). We agree with the
district court that this standard was met here. Edlund testified that after
approaching Paul’s vehicle he observed that Paul was soaking wet and wearing
only his boxer shorts; he was unable to answer questions about where he had been
and what he had been doing; he gave inconsistent answers; and he acted
belligerently. He was also driving without his license and being monitored by
federal probation. We find no clear error in any of these factual findings, nor any
legal error in the district court’s conclusion that Edlund therefore had a reasonable
basis for further investigation. United States v. Harris, 928 F.2d 1113, 1117 (11th
Cir. 1991) (affirming finding of reasonable suspicion to further investigate
suspicious circumstances where defendant “was: (1) driving a rental car with a
restricted license; (2) ‘shaking’ and acting ‘extremely nervous;’ and (3) gave
conflicting responses as to where he had been”).
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We also affirm the district court’s finding that there was no Fourth
Amendment violation in Edlund’s decision to order Paul from the Suburban or
handcuff him. During a lawful traffic stop, officers may take steps that are
reasonably necessary to protect their personal safety, including requiring the driver
and passengers to get out of a vehicle. United States v. Spoerke, 568 F.3d 1236,
1248 (11th Cir. 2009). They may also handcuff a suspect during a Terry stop
where officers reasonably believe there is a threat to their safety. United States v.
Hastamorir, 881 F.2d 1551, 1557 (11th Cir. 1989).
In Paul’s case he was acting belligerently towards Edlund in addition to
seeming out of sorts given his dress and inability to account for where he had been.
Paul had stopped his SUV in the middle of the roadway, was not wearing a
seatbelt, and did not have his license. Edlund also knew Paul was potentially
involved in narcotics and was being monitored by federal probation. Therefore,
under the circumstances of this case, it was not unreasonable for Edlund to ask
Paul to get out of his vehicle or to handcuff Paul for the officers’ safety while they
investigated further.
Lastly, the canine sniff of Paul’s Suburban and the resulting discovery of the
ashtrays during the traffic stop did not violate the Fourth Amendment. A prompt
canine sniff conducted during a lawful traffic stop that reveals nothing but the
location of illegal drugs does not violate the Fourth Amendment. Illinois v.
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Caballes, 543 U.S. 405, 410, 125 S. Ct. 834, 838 (2005); see also United States v.
Hernandez, 418 F.3d 1206, 1211 n.5 (11th Cir. 2005) (describing canine sniff as
“brief, minimally intrusive investigation technique”).
For these reasons, we affirm the district court’s denial of Paul’s motion to
suppress.
II.
Paul next argues that the district court erred by allowing two witnesses—
Eileen Callahan and Keith Cestaric—to testify about buying narcotics from Paul.
We review a district court’s evidentiary rulings for abuse of discretion. United
States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007).
Under Rule 404(b), “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Fed. R.
Evid. 404(b)(1). However, evidence is only subject to a Rule 404(b) analysis if it
is extrinsic to the crime charged. United States v. Schlei, 122 F.3d 944, 990 (11th
Cir. 1997). Evidence is not extrinsic “if it is (1) an uncharged offense which arose
out of the same transaction or series of transactions as the charged offense,
(2) necessary to complete the story of the crime, or (3) inextricably intertwined
with the evidence regarding the charged offense.” United States v. McLean, 138
F.3d 1398, 1403 (11th Cir. 1998) (citation omitted).
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Finally, even if evidence is admissible under Rule 404(b), it must still satisfy
the requirements of Rule 403. United States v. Edouard, 485 F.3d 1324, 1344
(11th Cir. 2007). Rule 403 allows a court to exclude relevant evidence if its
probative value is substantially outweighed by a danger of unfair prejudice.
With this legal framework in mind, we conclude that Callahan and
Cestaric’s testimony was admissible. First, Rule 404(b) does not apply here
because Callahan and Cestaric’s testimony was not extrinsic to the crime charged.
The superseding indictment charged Paul with conspiracy beginning around April
2010 and continuing through January 2011. Much of Callahan and Cestaric’s
testimony was therefore not extrinsic because it related to the period of the charged
conspiracy. See United States v. Ramsdale, 61 F.3d 825, 830 (11th Cir. 1995)
(“Evidence of possession of the drug which [the defendant] was accused of
conspiring to manufacture, during the period of time alleged in the indictment, and
under circumstances which suggested drug trafficking, is not extrinsic evidence
within the meaning of 404(b).”). Although some of their testimony addressed
purchases before and after the charged conspiracy, this evidence was also not
extrinsic because it provided context regarding how Callahan and Cestaric became
Paul’s customers and demonstrated the continuing nature of the conspiracy. See
United States v. Costa, 691 F.2d 1358, 1360–61 (11th Cir. 1982) (witness’s
testimony about how he came to know the defendant as a dealer in cocaine was
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integral to showing why he expected defendant to provide him with a kilogram of
cocaine).
Finally, the testimony was also highly probative of Paul’s participation in
the conspiracy as charged in the indictment and therefore was not subject to
exclusion under Rule 403. For these reasons, the district court did not abuse its
discretion in allowing Callahan and Cestaric to testify.
III.
Finally, Paul argues that the district court erred by admitting expert
testimony from Agent Gregory Cipriano. At trial Cipriano provided his opinion as
to the meaning of various words related to the sale and distribution of cocaine and
crack cocaine used by Paul to communicate with customers and another member of
the conspiracy.
We review a district court’s decision to admit expert testimony under
Rule 702 for abuse of discretion. United States v. Garcia, 447 F.3d 1327, 1334–35
(11th Cir. 2006). Rule 702 provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
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Fed. R. Evid. 702. This Circuit has held that experienced narcotics agents may
testify about the methods of operation in the drug distribution business, including
interpreting drug codes and jargon. Garcia, 447 F.3d at 1334–35. However,
because expert evidence is powerful and potentially misleading, expert opinion that
otherwise meets the requirements of admissibility under Rule 703 may be excluded
under the balancing test in Rule 403. United States v. Frazier, 387 F.3d 1244,
1263 (11th Cir. 2004).
On the facts of this case, we conclude that the district court did not abuse its
discretion by permitting Cipriano to testify as an expert witness. Neither did the
district court abuse its discretion in finding that the probative value of his
testimony was not substantially outweighed any danger of unfair prejudice.
Cipriano was an experienced narcotics agent and his testimony allowed the jury to
understand the terms used in Paul’s wiretapped conversations and text messages as
is permissible under this Circuit’s case law. Garcia, 447 F.3d at 1334–35. Paul
has not identified any danger of unfair prejudice that outweighs the relevant and
highly probative nature of this evidence. Frazier, 387 F.3d at 1263.
Therefore, upon consideration of the parties’ appellate briefs and the record
on appeal, we affirm.
AFFIRMED.
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