The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10560
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-20518-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUGENE HILTON RUSSELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 31, 2020)
Before WILLIAM PRYOR, MARTIN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
In November 2018, a jury found Eugene Russell guilty of importation of five
or more kilograms of cocaine, in violation of 21 U.S.C. § 952(a), and possession
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with intent to distribute five or more kilograms of cocaine, in violation of 21
U.S.C. § 841(a)(1). Russell raises two issues on appeal. First, he argues that the
district court abused its discretion by allowing Noble Harrison to testify as an
expert at trial. Second, he argues that the evidence presented at trial was
insufficient to prove that he knowingly possessed the cocaine that was found on his
boat. After careful review, we affirm.
I.
In June 2018, a federal grand jury charged Russell with importation of five
kilograms or more of cocaine, 21 U.S.C. § 952(a), and possession with intent to
distribute five kilograms or more of cocaine, 21 U.S.C. § 841(a)(1).
At trial, the government called Felipe Ortiz Cintron, a Customs and Border
Protection (“CBP”) agent. Agent Ortiz Cintron testified that, on June 2, 2018, he
was on an aerial border security patrol near Bimini, Bahamas, when he spotted a
cuddy cabin boat stopped dead in the water. As Agent Ortiz Cintron watched,
another boat approached from the east and met the cuddy cabin boat. Agent Ortiz
Cintron considered this unusual, so his patrol plane approached to get a clearer
view. Agent Ortiz Cintron observed that each boat was occupied by one person
and the second boat appeared to be fueling the cuddy cabin boat. When the vessels
separated, the cuddy cabin boat headed west towards the United States and the
other boat headed east.
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Russell was the driver and sole occupant of the cuddy cabin boat. CBP
continued to track Russell’s boat as it made its way from Bimini towards Florida.
Once the boat entered U.S. territorial waters near Miami Beach, two CBP boats
approached to conduct a border inspection. The CBP vessels were clearly marked
and the officers on board were wearing law enforcement uniforms. As the CBP
vessels approached Russell’s boat, they turned on their blue lights. Russell
changed course and briefly attempted to evade the CBP vessels before stopping.
Agents searched the boat. On board was a cooler containing fish that were
frozen together, as though they had been “frozen in a freezer . . . not caught and
then put on ice on a hot, sunny day.” Agents also found a fishing rod, but it
“wasn’t equipped with fishing tackle or a hook of any kind.” Other than the
fishing rod, there was no other indication that the boat was a fishing vessel.
Agents inspected the cooler and noticed that it smelled strongly of epoxy or glue
and had “horizonal cuts,” which “did not look like they were supposed to be
there.” Upon further examination, they discovered approximately 12 kilograms of
cocaine hidden in the lining of the cooler, with a street value between $264,000
and $360,000.
Over Russell’s objection, the district court permitted the government to call
Harrison, a special agent with the Drug Enforcement Administration (“DEA”), as
an expert witness. Agent Harrison had worked as a DEA special agent for
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approximately 24 years, where he acquired extensive experience in drug
investigations “from the street level to international . . . drug trafficking.” He
testified that drugs from South America are typically shipped to the Caribbean,
where they are broken down into smaller shipments and sent to the United States in
smaller vessels. He said that it is common for drug-trafficking organizations to
arrange for ship-to-ship transfers of drugs, after which the vessel receiving the
drugs will often take them to a final destination point or transfer them to another
vessel. These drugs are normally concealed to avoid detection, including in
coolers or inside dead fish.
Agent Harrison also testified that drug smugglers are often held responsible
for anything that happens to the drugs in their possession. In Agent Harrison’s
opinion, “unwitting drug smugglers” who do not know they are transporting drugs
are “extremely rare.” Agent Harrison testified that he had seen unwitting
smugglers perhaps once or twice in his career in law enforcement, but he had not
personally seen a case in which a smuggler gave $300,000 of cocaine to someone
without first alerting them that they had that amount of contraband in their
possession.
The parties stipulated at trial that Russell had been convicted on August 28,
2008, of conspiracy to import 100 kilograms or more of marijuana, importation of
100 kilograms or more of marijuana, and possession with intent to distribute 100
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kilograms or more of marijuana. They further stipulated that Russell transported
that marijuana by boat from the vicinity of Bimini, Bahamas, to South Florida.
Following closing arguments, the district court instructed the jury that it was
not required to accept Agent Harrison’s testimony and that the jurors must “decide
for [themselves] whether to rely upon that opinion.” After deliberating, the jury
returned a verdict of guilty on both counts. The district court sentenced Russell to
300 months of imprisonment as to both counts, to run concurrently. Russell timely
appealed.
II.
We review a district court’s decision regarding the admissibility of expert
testimony and the reliability of an expert opinion for abuse of discretion. United
States v. Holt, 777 F.3d 1234, 1264 (11th Cir. 2015). We review the sufficiency of
evidence de novo, considering the evidence in the light most favorable to the
verdict and drawing all inferences and credibility choices in its favor. See United
States v. Capers, 708 F.3d 1286, 1296–97 (11th Cir. 2013).
III.
Russell argues that the district court abused its discretion by allowing Agent
Harrison to testify as an expert at trial. He claims that Agent Harrison’s testimony
violated Federal Rule of Evidence 704(b) by stating an opinion as to whether
Russell had the requisite knowledge of the cocaine secreted in the cooler on his
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boat. He also argues the district court “never conducted the requisite inquiry to
ensure that the basis for the proffered expertise was sound and properly applicable
to the facts of the case.” These arguments are without merit.
Rule 704(b) bars an expert witness from stating an opinion about whether
the defendant “did or did not have a mental state or condition that constitutes an
element of the crime charged or of a defense.” Fed. R. Evid. 704(b); United States
v. Alvarez, 837 F.2d 1024, 1030–31 (11th Cir. 1988). But this rule “does not
require the exclusion of expert testimony that supports an obvious inference with
respect to the defendant's state of mind” so long as the witness does not expressly
state this inference and allows the jury to draw its own conclusions from the
testimony. United States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011) (per
curiam); see also United States v. Steed, 548 F.3d 961, 977 (11th Cir. 2008) (per
curiam).
Agent Harrison’s testimony did not violate Rule 704(b). Harrison testified
that drug trafficking organizations typically hold the person who has actual or
constructive possession of narcotics responsible for their loss; that unwitting drug
smugglers are “extremely rare;” and that he had personally never seen a case in
which a smuggler gave someone $300,000 worth of cocaine without informing
them in advance what it was. In Alvarez, this Court held that expert testimony
from a DEA agent that “it would be unlikely crew members aboard a vessel
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carrying a large quantity of contraband would be unaware of its presence” still left
the jury to draw the inference as to whether the individual defendants were actually
aware of the presence of the contraband and so did not violate Rule 704(b). 837
F.2d at 1031. Similarly, Harrison provided information about the typical conduct
of drug smugglers that allowed, but did not require, the jury to draw the inference
that Russell was himself aware of the contraband aboard his vessel. This
testimony did not amount to an express statement as to Russell’s own state of mind
at the time of the offense and so did not violate Rule 704(b). See United States v.
Lozano, 711 F. App’x 934, 940 (11th Cir. 2017) (per curiam) (unpublished)
(holding that expert testimony that the “blind mule theory” has no factual basis did
not violate Rule 704(b) where the witness did not specifically state that the
defendant had knowledge of the drugs or was willfully blind to their presence).
Russell waived his argument that the district court failed to engage in the
required inquiry in deciding whether to allow Agent Harrison’s testimony. As
such, we review the admission of this testimony for plain error. United States v.
Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). This requires a showing that the
error was “so conspicuous that the judge and prosecutor were derelict in
countenancing it” and that harm resulted. Id. (quotation marks omitted).
In deciding whether to admit expert testimony, trial courts must consider
whether (1) the expert is qualified to testify competently regarding the matters he
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intends to address; (2) the method by which he reaches his conclusions is
sufficiently reliable; and (3) the testimony assists the trier of fact in understanding
the evidence or determining a fact in issue. United States v. Frazier, 387 F.3d
1244, 1260 (11th Cir. 2004) (en banc) (quotation marks omitted). Even if the
district court did not adequately weigh these questions at trial, the error was
harmless. On appeal, Russell does not challenge Agent Harrison’s qualifications,
the reliability of the bases for his conclusions, or whether his testimony assisted the
jury. Rather, he argues only that the testimony violated Rule 704(b). As already
discussed, it does not. And the record reflects that Agent Harrison was qualified as
an expert in the operations of drug trafficking organizations. The record also
leaves us with no reason to doubt the reliability of his conclusions or that his
testimony assisted the jury. We therefore find no plain error resulted from the
district court’s inquiry into Agent Harrison’s expert testimony.
IV.
Russell argues that the government failed to prove beyond a reasonable
doubt that he knowingly possessed the cocaine hidden in the lining of the cooler on
his boat. He argues that the government’s evidence showing knowledge of the
cocaine was purely circumstantial and required speculation.
We consider the evidence underlying a conviction to be sufficient if a
reasonable trier of fact, drawing all inferences in favor of the verdict, could
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determine that the evidence established the defendant’s guilt beyond a reasonable
doubt. United States v. Jiminez, 564 F.3d 1280, 1284–85 (11th Cir. 2009). To
sustain a conviction for importation of a controlled substance under 21 U.S.C.
§ 952(a), the government must prove beyond a reasonable doubt that the defendant
had knowledge that he was importing a controlled substance. See United States v.
Peart, 888 F.2d 101, 104 & n.2 (11th Cir. 1989) (per curiam). To sustain a
conviction for possession of a controlled substance with intent to distribute under
21 U.S.C. § 841(a)(1), the government must prove that the defendant knowingly
possessed a controlled substance and intended to distribute it. See United States v.
Poole, 878 F.2d 1389, 1391 (11th Cir. 1989) (per curiam). This can be proven by
either direct or circumstantial evidence. Poole, 878 F.2d at 1391–92. Factors
tending to show knowing possession of drugs include the “size of the vessel and
quantity of drugs on board; suspicious behavior of the crew; absence of equipment
or supplies necessary to the intended use of the vessels; and other factors.”
Alvarez, 837 F.2d at 1028.
A reasonable jury, drawing all inferences in favor of the government, could
find that the circumstantial evidence presented at trial was sufficient to prove
beyond a reasonable doubt that Russell had knowledge of the cocaine in the cooler.
Russell was observed in a brief rendezvous with another vessel in an area known
for drug trafficking. After their meeting, the boats headed in opposite directions,
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with Russell piloting his boat towards Florida. On board his boat was a fishing rod
with no hooks and frozen fish, which a reasonable jury could infer were intended
to serve as a cover for illegal activity. And hidden in the cooler was cocaine with a
street value of between $264,000 and $360,000. Based on the expert testimony of
Agent Harrison, a reasonable jury could conclude that it was unlikely that a drug
smuggling operation would place such a large quantity of cocaine on the vessel
without Russell’s knowledge. And a reasonable jury could also have concluded
that Russell’s prior convictions for importing over 100 kilograms of marijuana by
boat from Bimini to Florida strongly undercut any argument that the presence of
the cocaine was accidental or coincidental. See Fed. R. Evid. 404(b)(2) (stating
that evidence of past offenses is admissible to show “plan, knowledge, . . . absence
of mistake, or lack of accident.”). Taken together, this circumstantial evidence was
sufficient for a reasonable jury to conclude that the government proved beyond a
reasonable doubt that Russell had knowledge of the cocaine in his possession.
AFFIRMED.
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