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United States v. Jeri

United States Court of Appeals, Eleventh Circuit

September 5, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MAX JERI, Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cr-20822-KMM-1

          Before HULL, MARCUS, and CLEVENGER, [*] Circuit Judges.

          MARCUS, Circuit Judge

         In October 2015, Max Jeri arrived at Miami International Airport on a flight from Lima, Peru, carrying 7.95 kilograms of cocaine secreted in various items in his luggage including jackets, notebooks, purses, and pillows. Jeri was charged, tried by a jury, and convicted of importing a controlled substance and of possessing a controlled substance with the intent to distribute. On the eve of trial, the Government came into possession of a video filmed for a television show, "Drug Wars, " that was filmed at the airport during the seizure of the drugs Jeri was carrying. The film showed the cocaine that had been recovered from Jeri's luggage. Jeri was given a copy of the video on the morning of trial, but his motion to continue the trial was denied and the case proceeded before he had a chance to watch the video.

         Jeri now appeals the denial of his motion for a new trial and challenges several of the trial court's rulings. He cites several errors, including that the trial court's denial of a continuance deprived him of his right to counsel; that the court erred by excluding what he characterized as the exculpatory "Drug Wars" video and several transcripts taken from controlled calls and text messages that Jeri placed under the guidance of law enforcement after he was taken into custody; that the trial court limited his ability to cross-examine two Government witnesses; that the trial court improperly allowed a lay witness to testify as an expert, allowed that witness to testify regarding an ultimate issue of the case, and allowed an expert witness to testify about drug-courier profiles; that the trial court erroneously instructed the jury on deliberate ignorance; and, finally, that the cumulative effect of these errors entitles him to a new trial.

         After closely reviewing the entire record, we cannot say that the trial court abused its discretion in denying Jeri's motion for a new trial. Although we think it would have been wiser to allow Jeri time to view the video before starting the trial, the tape was not exculpatory and Jeri has not come close to establishing specific and substantial prejudice from this omission. We can discern no other errors in this record, and, therefore, affirm the judgment of the district court.

         I.

         On October 9, 2015, Max Jeri arrived at Miami International Airport aboard American Airlines Flight #918 from Lima, Peru. Upon his arrival, he headed to passport control. The attending Passport Control Officer, David Saavedra, asked him several standard entry questions and ultimately referred him for secondary screening because his answers appeared to be "very vague, " his responses were "very long, " he would not make "eye contact, " and he was "looking around for answers." According to Saavedra, "it all appeared suspicious." Jeri then entered the country, collected his two checked bags, and proceeded for a customs examination. CBP Officer Claudia Laucerica asked Jeri whether the two items of checked luggage, the carry-on bag, and the duty-free bag he was carrying were his; whether everything belonged to him; whether he had packed everything by himself; and, finally, whether he was transporting anything for anyone else. Jeri answered the first three questions affirmatively and, as for the fourth, explained that he was transporting some souvenirs from his sister and some candies for his children.

         Laucerica and CBP Officer Carlos Iguina opened the bags. Immediately, they saw some adult-sized winter jackets and smelled "some odor of perfume." A bottle of perfume was found in his luggage, but the perfume had a different smell than the odor emanating from the jackets. The officers asked Jeri about the perfume and why it smelled so strongly; he "said they probably put perfume on it." The officers also asked Jeri about the jackets, and, notably, he explained that they were for his children in New York. Laucerica ran the jackets through an x-ray machine and saw irregularities that appeared to show small packages concealed inside the jackets. Around the same time, Iguina noticed that Jeri's luggage also contained purses and pillows that felt abnormally thick. The officers cut these items open and found still more small packages inside.

         The substances contained within these packages were field tested and indicated a positive result for cocaine. In all, the officers found ten purses, four adult jackets, three children's jackets, several notebooks, three pillows, and two bottles. All of the purses, jackets, notebooks, and pillows were filled with packages containing powdered cocaine; the bottles contained liquid cocaine. In all, the officers recovered some 7.95 kilograms of cocaine hydrochloride from Jeri's three bags. No property receipts or reports indicated which items containing narcotics were taken from which pieces of luggage, but, the officers explained, all of Jeri's bags contained some amount of cocaine. Laucerica testified that three of the purses containing cocaine were taken from Jeri's carry-on bag.

         Jeri was read his Miranda rights in Spanish (he did not speak English); he waived them and agreed to speak to law enforcement. He told the officers that in his wallet they would find a business card with the name of the person for whom he was transporting the bags. The business card contained the name Fancy Lopez, one of Jeri's coworkers at a nursing home in New York. Jeri explained that in September 2015, he approached Lopez, who he knew owned a travel agency, to ask if she had any cheap tickets to Peru. A few days later, Lopez told him that she would give him a free ticket if he would transport two bags from New York to Peru and then return with two bags from Peru. After he agreed, Lopez purchased his ticket and gave him the bags to take from New York to Peru; they contained electronic items, toys, and shoes. When Jeri got to Peru, he met Lopez's sister and gave her the suitcases. Before he left Peru, he met Lopez's sister again, at the airport; she accompanied him to an American Airlines ticket counter, where she opened the bags and showed him what was inside. Jeri then checked the bags and boarded the flight to Miami.

         Jeri further explained that he had met Lopez some ten years earlier and that he had previously transported bags for Lopez. In 2014, Lopez gave him a ticket from New York to Peru in exchange for transporting bags to Peru, but Jeri refused to bring bags back to New York. He said that he had seen drug seizures on the news and on the Discovery Channel and did not feel comfortable transporting bags from Peru to the United States.

         The officers asked Jeri why he had lied to them about the jackets, initially asserting that they were for his children. He claimed he "didn't see anything wrong with it, and he was also trying to move along with the process." According to Homeland Security Investigation (HSI) Officer Eduardo Escobar, Jeri then "stood there for a while almost trying . . . to think of what to say, " before remarking, "I can't believe she did that to me, we have known each other for 10 years."

         Hours after the seizure, Jeri volunteered to make several controlled phone calls to Lopez. The law-enforcement officers coached Jeri on what to say; the goal was to elicit inculpatory comments from Lopez about the contents of the luggage. Jeri told Lopez he was concerned the bags contained drugs, but she repeatedly said the bags were clean and asked him to continue his trip to New York. The officers also arranged a controlled delivery of the bags, but the individuals who came to pick them up refused to take possession and left empty-handed. No arrests were made.

         Jeri was then indicted by a federal grand jury in Miami for one count of importing a controlled substance in violation of 21 U.S.C. § 952(a) and one count of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). In various pretrial motions, Jeri objected to the Government's request to exclude transcripts of the controlled calls and text messages and also objected to one of the Government's experts. These motions were denied. Jeri also moved for a continuance twice, seeking additional time to review evidence and investigate potential witnesses. Both motions were denied.

         On the eve of trial, the prosecution learned for the first time that a film crew from the television show "Drug Wars" was at Miami International Airport at the time of Jeri's seizure. The prosecutor informed defense counsel of a video that had been made and said every effort would be made to obtain a copy of the footage. The prosecution received a copy from the show's production company on the evening before trial (December 13); they informed defense counsel at 8:52 p.m. that they had obtained a copy of the video and would make it available. The video was produced to defense counsel at 8:30 a.m. on the morning of the first day of trial (December 14), but the trial court denied Jeri's request for a continuance or a recess to allow him an opportunity to view the video before the trial started.

         The trial began on December 14, 2015, and lasted only a day and a half. And the only question at issue was whether Jeri knew there was cocaine in the luggage he had transported. The Government called six witnesses: CBP Officers Saavedra, Laucerica, and Iguina; HSI Officer Escobar; and two expert witness, Special Agent Marco Suarez and Doraida Diaz (a forensic chemist with the Drug Enforcement Administration). At the end of the first day, the defendant moved for a mistrial because the court had denied his motion for a continuance and because it had admitted expert testimony from Escobar. The next day -- after the defense had an opportunity to view the "Drug Wars" video -- Jeri's counsel offered the video as evidence. The district court denied that application as well as a renewed motion for a mistrial.

         Jeri did not call any witnesses or testify on his own behalf. After the Government rested, the defense renewed its previous motions for a mistrial, again without success. The jury received the trial court's instructions -- including an instruction on deliberate ignorance, as requested by the Government -- and left to deliberate at 10:30 a.m. on December 15. The jury finished deliberating at 11:50 a.m. and returned a guilty verdict on both counts.

         Jeri was sentenced two and a half months later. The Presentence Investigation Report recommended an offense level of 30 and a criminal-history category of I, yielding a guidelines range of 97 to 121 months. Jeri was sentenced to 120 months on both counts, to be served concurrently, followed by four years of supervised release. The defendant unsuccessfully moved for a new trial, and he timely appealed his convictions to this Court.

         II.

         Jeri first claims that the district court's denial of his motions to continue violated his right to counsel by impairing his ability to present a defense. "We review a district court's denial of a motion for continuance only for an abuse of discretion." United States v. Valladares, 544 F.3d 1257, 1261 (11th Cir. 2008). "To prevail on such a claim, a defendant must show that the denial of the motion for continuance was an abuse of discretion which resulted in specific substantial prejudice." United States v. Verderame, 51 F.3d 249, 251 (11th Cir. 1995). As we see it, while the district court would have been wiser to allow a continuance, we are hard-pressed to say, on this record, that the error was fatal. Jeri has not come close to showing specific and substantial prejudice because the video revealed the contents of the luggage only after they had been removed from the various bags, and none of the film exculpated Jeri.

          "The Sixth and Fourteenth Amendments to the U.S. Constitution guarantee that any person brought to trial in any state or federal court must be afforded the right to assistance of counsel before he or she can be validly convicted and punished by imprisonment." Id. And "[i]mplicit in th[e] right to counsel is the notion of adequate time for counsel to prepare the defense." Id. at 252. Thus, under some circumstances, the "denial of a motion for continuance of trial may vitiate the effect of this fundamental right" by "render[ing] the right to defend with counsel an empty formality, " id. at 251 (quotations omitted), and depriving the defendant of an opportunity to adequately prepare his defense.

         "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process." Ungar v. Sarafite, 376 U.S. 575, 589 (1964). Rather, "[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Id. We have explained that the "[d]enial of a continuance, requested by a defendant in order to permit additional preparation for trial, must be upheld unless the defendant can show an abuse of discretion and specific, substantial prejudice." United States v. Saget, 991 F.2d 702, 708 (11th Cir. 1993). "To make such a showing, [the defendant] must identify relevant, non-cumulative evidence that would have been presented if his request for a continuance had been granted." Id. We have also considered the "time available for preparation, the likelihood of prejudice from denial, the accused's role in shortening the effective preparation time, the degree of complexity of the case, and the availability of discovery from the prosecution." United States v. Uptain, 531 F.2d 1281, 1286 (5th Cir. 1976)[1](footnotes omitted).

         The facts of this case suggest to us that the trial court would have been wiser to grant a continuance or at least a short recess. After all, the video was not made available to Jeri until the morning of trial and he did not get to watch the video until after the first day of the day-and-a-half-long trial, by which time five Government witnesses had already testified.

         However, we cannot say that this error was fatal because Jeri has not shown (as he must) specific or substantial prejudice caused by the denial of a continuance. The essential point is that the video showed the luggage only after the contents had been unloaded and after the contraband had been removed. The video did not depict the contraband as it was unloaded from Jeri's bags, and it did not show the initial search of the bags that revealed the contraband. The clips that Jeri sought to introduce showed items inside open suitcases, items being removed from Jeri's personal suitcase, and items being returned to that suitcase. The defense says these clips prove that Jeri was not carrying cocaine in his personal carry-on bag and impeach the government witnesses who said otherwise. However, these clips also showed the items that contained cocaine -- the notebooks, purses, jackets, and pillows -- already laid out on a table, indicating that they had been removed before anything was filmed. Indeed, we have no way of telling from the video which purses, pillows, and jackets came from which suitcase.

         In these circumstances, we are hard-pressed to see how a video showing contraband already spread out on tables would have exculpated Jeri. In the absence of any footage of cocaine actually being removed from the suitcases, a video filmed after the cocaine had been removed does not add much, if anything at all, to an evaluation of whether Jeri knew the suitcases contained cocaine or whether his carry-on bag also contained cocaine. The officers depicted on the video repeatedly mentioned that cocaine was found in all three bags. Finally, it's worth noting that the defense spent much of its cross-examination of Officer Laucerica highlighting the missteps in her examination, including her failure to create itemized property receipts delineating which items containing cocaine were pulled from which suitcase. Thus, even if it was a mistake to deny the motion to continue, Jeri has not shown specific, substantial prejudice stemming from the delay.

         Jeri's earlier motions to continue fare no better. Those applications sought additional time to investigate and interview potential witnesses, namely, individuals who appeared on the transcripts of the controlled calls. However, to succeed on these claims, Jeri must show that "due diligence has been exercised to obtain the attendance of the witness, that substantial favorable testimony would be tendered by the witness, that the witness is available and willing to testify, and that the denial of a continuance would materially prejudice the defendant." Id. at 1287. Jeri's motions do not satisfy this score and merely claim, only at the highest order of abstraction, that he "needs more time to investigate the information." This bare assertion, without more, is not enough.

         Despite this obvious conclusion, it is worth reiterating "that a scheduled trial date should never become such an overarching end that it results in the erosion of the defendant's right to a fair trial." Id. at 1291. The costs attendant to a continuance were low, but the potential risk to the defendant was real. While we are acutely aware of the district courts' heavy caseloads and fully appreciate the important public interest in their expeditious resolution, it is often wise to counsel patience in finding the "delicate balance between the defendant's right to adequate representation by counsel of his choice and the general interest in the prompt and efficient administration of justice." United States v. Baker, 432 F.3d 1189, 1248 (11th Cir. 2005), abrogated in part on other grounds by Davis v. Washington, 547 U.S. 813 (2006).

         III.

         Jeri raises several other trial-related issues that he says warrant a new trial. First, he claims that he was prejudiced by the delayed disclosure of the "Drug Wars" video and that the trial court abused its discretion by excluding the video and the transcripts of the controlled calls and text messages. Jeri also offers that the trial court improperly limited his ability to cross-examine two witnesses and allowed two Government witnesses to improperly opine. Finally, he challenges the jury instructions because they included a deliberate ignorance instruction. We are persuaded by none.

         "A timely motion for new trial is addressed to the sound judicial discretion of the trial court"; therefore, "[a] decision denying a new trial motion is reviewable only for an abuse of that discretion." Hercaire Int'l, Inc. v. Argentina, 821 F.2d 559, 562 (11th Cir. 1987). In evaluating whether specific trial errors warrant a new trial, we apply the harmless-error standard found in Fed.R.Civ.P. 61. Rule 61 says that "a new trial is warranted only where the error has caused substantial prejudice to the affected party (or, stated somewhat differently, affected the party's substantial rights or resulted in substantial injustice)." Peat, Inc. v. Vanguard ...


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