United States v. Mejia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 19, 2010 Decided March 30, 2010

No. 08-3097

UNITED STATES OF AMERICA,

APPELLEE

v.

ALVARO AUGUSTIN MEJIA,

ALSO KNOWN AS EDWIN RENEE SAPON RUIZ,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:06-cr-00248-JDB-5)

Carmen D. Hernandez, appointed by the court, argued the

cause for the appellant.

Stephan E. Oestreicher Jr., Attorney, United States

Department of Justice, argued the cause for the appellee. Lanny

A. Breuer, Assistant Attorney General, Gary G. Grindler,

Deputy Assistant Attorney General, and Brian M. Tomney,

Attorney, were on brief. Teresa A. Wallbaum, Attorney, and

Roy W. McLeese III, Assistant United States Attorney, entered

appearances.

Before: HENDERSON and GARLAND, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Alvaro

Augustin Mejia and four co-defendants were charged with a

single count of conspiring to import five or more kilograms of

cocaine into the United States after a United States Drug

Enforcement Administration (DEA) sting operation caught them

on tape plotting to transport and safeguard a 1,300 kilogram

drug shipment through Guatemala. On appeal, Mejia challenges

various aspects of his conviction and sentence. We affirm.

I.

In late 2005, the DEA initiated a Central American sting

operation that ensnared Mejia and four fellow Guatemalan co-

conspirators: Jorge Ricardo Bardales-Bourdet (Bardales), Edgar

Antonio Chiu Serrano (Serrano), Erik Donaire Constanza-Bran

(Bran) and Juan Daniel Del Cid Morales (Morales). According

to the evidence at trial, the DEA learned that Bardales was

helping Colombian drug traffickers move cocaine through

Guatemala with the help of corrupt Guatemalan law enforcement

officials. In response, the DEA enlisted a pseudonymous

confidential informant, “Augustine Cortez,” to pose as a cocaine

supplier and meet with Bardales. At their first meeting (also

attended by Serrano, who was introduced as a Guatemalan law-

enforcement officer), Cortez asked Bardales to arrange for

security to transport a container of cocaine through Guatemala

en route to the United States. Bardales agreed and proposed to

charge Cortez one million dollars to move 3,000 kilograms.

(Cortez surreptitiously recorded this and all subsequent meetings

and telephone calls, transcripts of which were introduced by the

government and described by Cortez at trial.)

In the weeks that followed the initial contact, Bran, who

was Serrano’s boss, followed up with Cortez numerous times to

set up a meeting at which Bran planned to introduce Cortez to

two Guatemalan law enforcement officials who would provide

3

protection for the cocaine shipments: Mejia and the fourth co-

defendant, Morales. Meeting at a restaurant in San Salvador, El

Salvador in July 2006, the informant Cortez told the four men

assembled (Bardales, Bran, Morales and Mejia) that he intended

to transport 1,300 “units” through their country. Meeting Tr.,

July 19, 2006 at 20. Bardales assured Cortez that Morales and

Mejia would take care of transportation and security. See id. at

13 (identifying Morales and Mejia as “the ones in charge of

everything that has to be done”). Although Mejia spoke little,

he presented false identification and posed as “Edwin Rene

Sapon-Ruiz,” a high-level Guatemalan official with customs

oversight authority. (Mejia was in fact a retired Guatemalan

police officer.) Mejia said that Guatemalan law enforcement

was “creat[ing] a new unit, DIPA [División de Protección de

Puertos y Aeropuertos],” to handle narcotics and to “work[]

ports and airports.” Trial Tr., Feb. 27, 2008 (P.M.) at 61-62.

Mejia suggested that he and Morales might be able to “control

the commanders, the people who control[] DIPA.” Id. at 62-63.

At the end of the meeting, Cortez paid Morales $10,000 in

advance.

Cortez met again with Bran, Morales and Mejia at the same

restaurant in August 2006. (Bardales, who had been seriously

injured in an automobile accident shortly before the meeting, did

not attend.) According to Cortez, Bran had paperwork involving

a “cover-up company” Bran controlled, and which could be used

to stash the cocaine amidst legitimate cargo—specifically,

Christmas decorations.1 Trial Tr., Feb. 28, 2008 (A.M.) at 11.

Bran explained to Cortez how to ship the drugs to prevent

detection. Again, Mejia said little.

The group met for a third and final time in September 2006.

A few minutes into the meeting, Salvadoran police officers

1

And thus giving unintended meaning to a “white Christmas.”

4

arrested all three men. Lead DEA Agent Stephen Fraga, who

did not witness the arrest, arrived at the scene about ten minutes

later. He testified that: one of the Salvadoran policemen handed

him a bag of seized evidence for each of the arrested men and

each bag contained a wallet; Mejia’s wallet contained a folded

piece of paper with a handwritten list of names and the word

“DEA” handwritten on the side; both Mejia’s and Morales’s

wallets contained semiautomatic handgun permits; and two

handguns were seized from Bran’s driver, who was not charged

as a co-conspirator.

Mejia, Morales and Bran were handed over to DEA Agents

Fraga and Jason Sandoval about ninety minutes after the arrest

and were promptly taken aboard a DEA airplane bound for the

United States. During the flight, Mejia signed a written waiver

of rights and spoke to the DEA agents, who took notes but did

not record the interview. According to the agents’ testimony,

Mejia confessed that he and Morales had been asked by Bran “to

act as police officers . . . to facilitate a cocaine transaction [by

Cortez, who] . . . obtained a container filled with cocaine in

Colombia and was seeking protection for that cocaine once it

arrived in Guatemala”; “he specifically represented himself as

a different police officer to make money”; he “was aware that

the container was to contain cocaine . . . [and] was destined for

the United States”; “he was knowledgeable of the topic of the

stolen cocaine, and the prices of the stolen cocaine”; and “he had

given thought to stealing the cocaine and reselling the cocaine

in Guatemala for $4500 per kilogram.” Trial Tr., Mar. 3, 2008

(P.M.) at 9-10, 97-101.

On September 20, 2007, Mejia and his four co-defendants

were charged in a one-count superseding indictment with

conspiring to import five or more kilograms of cocaine into the

United States in violation of 21 U.S.C. §§ 952, 959, 960 and

963. Mejia, Morales and Bran all pleaded not guilty and the

district court severed their cases for separate trials. (Serrano

5

remains at large and Bardales eventually died from his auto

accident injuries.) After Bran’s trial resulted in a hung jury, he

pleaded guilty and was sentenced to 144 months’ imprisonment.

In February 2008, shortly before Mejia’s trial, the government

offered Morales and him a wired Rule 11(c)(1)(C) nine-year

plea agreement, which they rejected. Morales was convicted by

a jury and sentenced to 220 months’ imprisonment.2 On March

8, 2008, after an eight-day trial, Mejia was also convicted.

Because the conspiracy involved more than 150 kilograms of

cocaine, Mejia’s offense level was calculated at 38. Combined

with his criminal history category of I, the advisory range of

imprisonment was 235 to 293 months under the United States

Sentencing Guidelines (Guidelines). See U.S.S.G. Ch. 5, Pt. A

(sentencing table). The government recommended a below-

Guidelines sentence of 210 months. Mejia asked for 60 months

(one-half the 120-month statutory mandatory minimum),

seeking an adjustment for his minor role in the offense, see

U.S.S.G. § 3B1.2, as well as various discretionary departures,

see id. § 5H1.4 (physical condition), id. § 5H1.5 (employment

record), id. § 5H1.6 (family responsibilities), id. § 5H1.11

(military, civic, charitable and public service, employment-

related contributions and record of good works), and id.

§ 5K2.20 (aberrant behavior). The district court found Mejia’s

account of the facts implausible3 and declined to adjust his

2

Both Bran and Morales appealed to this Court. We affirmed

Bran’s conviction and sentence on October 29, 2009. See United

States v. Constanza-Bran, No. 08-3086 (D.C. Cir.). Morales’s appeal

remains pending. See United States v. Morales, No. 08-3038 (D.C.

Cir.).

3

The court found:

It is not plausible that he went to three meetings in another

country and believed that this only involved moving

Christmas goods for possible avoidance of Customs or tax

6

sentence based on his purportedly minor role; it then sentenced

Mejia to 208 months’ imprisonment. Mejia’s sentence—slightly

over seventeen years—was nearly twice as long as the sentence

proposed in the Rule 11(c)(1)(C) plea offer he rejected but more

than two years fewer than the advisory range of 235 to 293

months.

II.

Mejia now appeals, asking the court to vacate his conviction

or, in the alternative, to remand for resentencing. He contends

that the court made a series of errors that, alone or together,

entitle him to a new trial and sentence. His objections fall

within four categories that we address in turn: the court’s

admissibility rulings, its jury instructions, the government’s

closing argument and the sentence imposed.

A.

Mejia contends that the district court erred in admitting

various items and testimony into evidence. We review

admissibility rulings for abuse of discretion. See United States

v. Coumaris, 399 F.3d 343, 347 (D.C. Cir. 2005).

The “DEA Note.” We begin with Mejia’s chain-of-custody

objection. Citing Novak v. District of Columbia, 160 F.2d 588,

588-89 (D.C. Cir. 1947), which reversed a conviction because

of a gap in the chain of custody of certain physical evidence (the

defendant’s urine sample), Mejia contends that a similar gap as

requirements . . . [as that] does not comport with the

evidence at trial and is not in my view what an experienced

police officer could possibly have believed in light of the

circumstances that he was involved in and the discussions

that were taking place.

Sentencing Tr., Oct 16, 2008 (A.M.) at 59.

7

to evidence admitted against him likewise entitles him to a new

trial.

The handwritten note with “DEA” and several names on it

was admitted despite an undisputed break in the chain of

custody. As noted earlier, shortly after Mejia (along with

Morales, Bran and the informant Cortez) arrived at his third and

final meeting, several Salvadoran police officers entered the

restaurant where the three co-conspirators and Cortez were

meeting and arrested them. DEA Agent Fraga did not witness

the arrest because at the time he was in an automobile parked

several blocks away from the scene. He testified that he arrived

at the restaurant about ten minutes after the arrest, at which point

he was given a bag from a Salvadoran police officer he

presumed to be the leader of the arrest team. The bag contained

Mejia’s personal effects. The Salvadoran officer who seized

Mejia’s belongings did not testify and the government did not

identify him; in fact, the government did not call any witness

who took part in Mejia’s arrest and the seizure of his property.

Neither did it introduce a return or other official document

listing the items seized from Mejia upon arrest. Agent Fraga

testified that among the items included in the bag the Salvadoran

officer gave him was Mejia’s wallet and inside the wallet he

found a folded, handwritten note with “DEA” and a list of

names on it. The names included at least five agents stationed

in the DEA’s Guatemala City office. The paper did not include

Mejia’s name or signature and no handwriting or fingerprint

evidence was introduced to link Mejia to it. In short, Mejia’s

chain-of-custody objection to the admission of the list—that it

was given to Agent Fraga by “[s]omeone who’s not present here

and we don’t know what happened to it [before Agent Fraga

obtained it],” Trial Tr., Mar. 3, 2008 (P.M.) at 102—is

fundamentally correct.

But was it nevertheless admissible? “It is generally

recognized that tangible objects become admissible in evidence

8

only when proof of their original acquisition and subsequent

custody forges their connection with the accused and the

criminal offense.” Gass v. United States, 416 F.2d 767, 770 n.8

(D.C. Cir. 1969). Long ago we held that an unbroken chain of

custody is a prerequisite to admissibility. See Novak v. District

of Columbia, 160 F.2d 588, 588-89 (D.C. Cir. 1947) (citing

Smith v. United States, 157 F.2d 705 (D.C. Cir. 1947)). In

Novak, a police officer testified that he had obtained a urine

sample from the defendant, labeled the bottle and delivered it to

the laboratory for analysis; a lab chemist also testified as to the

alcohol content of a urine sample in a bottle labeled with the

defendant’s name and confirming lab records were introduced.

See id. at 588. The government did not establish, however, that

the bottle the arresting officer labeled and initialed was the same

one the lab chemist analyzed. See id. We concluded that the

evidence was “missing a necessary link in the chain of

identification” and reversed Novak’s conviction. Id. at 589.

We have since retreated somewhat from Novak, holding that

a challenge to the chain of custody goes to weight rather than

admissibility. See United States v. Stewart, 104 F.3d 1377, 1383

(D.C. Cir. 1997) (evidence of delay in testing lab sample “went

to the weight to be ascribed to the drug evidence by the jury, not

its admissibility”).4 Indeed, we held in Stewart that the

government’s burden “only requires it to demonstrate that, ‘as

a matter of reasonable probability,’ possibilities of

4

The United States Supreme Court made the same point last year.

See Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2532 n.1 (2009)

(“‘[G]aps in the chain . . . normally go to the weight of the evidence

rather than its admissibility.’” (quoting United States v. Lott, 854 F.2d

244, 250 (7th Cir. 1988))). The Court noted that the government’s

obligation to establish a chain of custody does not require it to call to

the stand every witness who may have handled a piece of evidence as

the government may decide “what steps in the chain of custody are so

crucial as to require evidence.” Id.

9

misidentification and adulteration have been eliminated.” Id.

(quoting United States v. Robinson, 447 F.2d 1215, 1220 (D.C.

Cir. 1971) (en banc)); see Fed. R. Evid. 901(a) (“The

requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its

proponent claims.”); see also 2 McCormick on Evid. § 213 (6th

ed. 2009) (“Cases decided under Rule 901 . . . make it clear that

a complete chain of custody need not always be proved . . . [as

t]he standard of proof requires only evidence from which the

trier could reasonably believe that an item still is what the

proponent claims it to be.”) (internal footnotes omitted).

But Stewart involved circumstances in which there was in

fact no break in the chain of custody. See Stewart, 104 F.3d at

1383 (citing United States v. Lane, 591 F.2d 961, 964 (D.C. Cir.

1979)) (“Under the circumstances, because the evidence was at

no point missing or accessible to unauthorized persons, the

[twelve-day] delay in transferring the drugs from the vault at the

Narcotics Branch to the DEA did not constitute a break in the

chain of custody.”). Similarly, in Lane, we found a “continuous

chain of custody” for the drugs Lane sold to an undercover agent

when they were immediately put in secure envelopes and, at

trial, were “separately and uniformly identified by the

undercover agent who made the purchases, the supervising

control officers who received the purchased products from the

undercover agent, and the DEA chemist who analyzed them.”

591 F.2d at 965. Although we found that certain evidence

“indicate[d] some chance for inadvertent misidentification and

some opportunity for tampering,” e.g., the control officer’s

inability at trial to locate her initials on one of the envelopes and

her testimony that she occasionally took evidence home, we

concluded that the continuous chain afforded “substantial

protection against misidentification or adulteration.” Id. at

964-65. And in the cases holding evidence admissible

10

notwithstanding an interrupted chain there was nonetheless

ample corroborative evidence as to its acquisition and

subsequent custody. See, e.g., Robinson, 447 F.2d at 1220

(custody gap based on failure to testify by “middle link” in chain

excused by defendant’s stipulation as to movement of evidence

between police officers and corroborative circumstances); Gass,

416 F.2d at 770 (government not required to present testimony

of nurse who carried lab sample from clinician to pathologist

because both clinician and pathologist testified, there was no

indication sample had been tampered with and nurse enjoyed

“presumption that individuals entrusted with grave

responsibilities discharge them with care”). A break in the chain

of custody, then, can be serious enough that the district court

may abuse its discretion in admitting the evidence. See Novak,

160 F.2d at 589; see also 2 McCormick on Evid. § 213 (“If there

is some specifically identified risk of misidentification or

alteration, the proponent of the exhibit should produce evidence

to overcome this risk or suffer exclusion.”). We must decide

whether the district court did so here.

The government asserts that the district court did not err

because it was entitled to presume the “integrity of evidence

routinely handled by government officials” and, although this

presumption may be rebutted with a “minimal showing of ill

will, bad faith, other evil motivation, or some evidence of

tampering,” Mejia made no such showing here. Lane, 591 F.2d

at 962. While we agree with the proposition as a general matter,

we do not believe it extends automatically to all government

officials, including those of a foreign government. As the

government acknowledges, “the record does not reveal what

procedures the Salvadoran police used to preserve his wallet [or]

whether the wallet was commingled with other evidence.”

Appellee’s Br. at 46. Moreover, it is unclear to us how Mejia

could have made even the minimal showing required of him,

given his immediate transfer by air to the United States. Indeed,

11

the government expressed doubt that “there’s any way for

anyone to be able to point out what happened in those ten

minutes other than the Salvadoran police.” Feb. 19, 2010 Oral

Arg. Recording at 22:17.

On the one hand, the defect here was different from the ones

in Lane and Stewart—both of which involved an unbroken chain

of custody but either an unexplained delay, see Stewart, 104

F.3d at 1383, or the possibility of misidentification and

adulteration, see Lane, 591 F.2d at 965. Nor does this case

involve an item of evidence transferred within a police

department or from one hospital employee to another. Cf.

United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988)

(rejecting chain of custody objection as to “lack of testimony

concerning the transfer of exhibit 4 from the DEA field office to

the DEA laboratory and the transfer of exhibit 5 from the

Holiday Inn to the DEA field office or from the field office to

the FBI laboratory”); Gass, 416 F.2d at 770. Here the first links

in the chain, i.e., the seizure of the list and its transfer to Agent

Fraga ten minutes later, were not established. See id. n.8

(physical evidence admissible only on “proof of [its] original

acquisition and subsequent custody [that] forges [its] connection

with the accused”). Nothing in the record indicates the identity

of the person (or persons) who seized the wallet or what was

done with it before Agent Fraga took possession of it. On the

other hand, there was substantial corroborative evidence tying

the list to Mejia, to wit: Agent Fraga testified that he found it

inside Mejia’s wallet, which Mejia does not deny was his, see

Feb. 19, 2010 Oral Arg. Recording at 17:12, and which also

contained his identifications cards, Trial Tr., Mar. 3, 2008

(P.M.) at 116-19. Moreover, the brief (ten-minute) gap between

Mejia’s arrest and Fraga’s taking possession of the list makes

implausible that it was planted, tampered with or misidentified.

See Fed. R. Evid. 901(a); Stewart, 104 F.3d at 1383 (citing

Robinson, 447 F.2d at 1220); see, e.g., Robinson, 447 F.2d at

12

1219, 1221 (finding no probability of tampering and thus no

error in admission of evidence based on stipulation and

“corroborative circumstances contained in the record” where

“middle link” officer in chain of custody was unavailable to

testify due to heart attack); United States v. Cardenas, 864 F.2d

1528, 1532 (10th Cir. 1989) (“The fact that [middle link in chain

of custody] was not available to testify is not determinative of

the admissibility of the cocaine since the whereabouts of the

cocaine was accounted for from its original seizure . . . until it

was offered as evidence at trial.”).

We conclude that the district court did not abuse its

discretion in admitting the list. Even if admitting the list was

error, however, it was harmless in light of its limited importance

and the strength of the other evidence against Mejia. See

Kotteakos v. United States, 328 U.S. 750, 765 (1946); cf. United

States v. Warren, 42 F.3d 647, 656 (D.C. Cir. 1994)

(erroneously excluded statement harmless error where

“cumulative of other evidence heard by the jury” and “evidence

of [defendant’s] guilt was strong”).

The Firearm Permit Evidence. The district court admitted

over Mejia’s objection a firearm permit found in Mejia’s wallet

as well as testimony that the police also seized a firearm permit

from Morales and two handguns from Bran’s driver. The

government is correct that “this circuit has frequently recognized

that guns and drugs go together in drug trafficking,” United

States v. McLendon, 378 F.3d 1109, 1113 (D.C. Cir. 2004), and

that evidence of seized guns is admissible to show a defendant’s

participation in the drug trade, see United States v. Jenkins, 928

F.2d 1175, 1180 (D.C. Cir. 1991) (“Weapons are, in short, ‘tools

of the trade’ and the government introduced the bullets found in

Jenkins’ bedroom to prove that she was engaged in the trade.”

(quoting United States v. Payne, 805 F.2d 1062, 1065 (D.C. Cir.

1986))).

13

But the probative value of a firearm permit possessed by a

former police officer seems to us to be nil. Likewise, the

probative value of testimony as to firearms carried by Bran’s

driver—who was not charged as a member of the

conspiracy—also seems negligible. In spite of the limited

probative value, we need not decide whether the district court

“grave[ly]” abused its discretion in admitting this evidence over

Mejia’s Rule 403 objection, see United States v. Douglas, 482

F.3d 591, 596 (D.C. Cir. 2007), because, even assuming error,

we find it to be harmless. Mejia does not identify any unfair

prejudice associated with the admission of the permits or the

testimony about the driver’s guns. The jury was made aware of

the undisputed fact that Mejia did not possess a gun at any of the

meetings. Under these circumstances, and especially given his

confession and the other strong evidence discussed above, we

cannot say that the introduction of the gun evidence affected his

substantial rights. See Kotteakos, 328 U.S. at 764-65; cf.

Warren, 42 F.3d at 656.

Other Evidentiary Rulings. We quickly dispense with

Mejia’s other assertions of error in evidentiary rulings. First, he

maintains that the government erroneously failed to correct the

false denial of its main witness, Cortez. This contention (which

we review de novo, see United States v. O’Keefe, 128 F.3d 885,

893-94 (5th Cir. 1997)), stems from another court’s finding in an

unrelated case that Cortez was “not entirely truthful.” See

Appellant’s Br. at 31. Cortez had been cross-examined about

that court’s finding at co-defendant Bran’s trial and had denied

any knowledge of it. When again asked during cross-

examination at Mejia’s trial whether he was “aware of a federal

judge ever making a finding that you were not entirely truthful,”

Cortez replied unequivocally: “I have never read or heard any

judge, federal judge for that matter, ever saying that I haven’t

been truthful in any of the cases I have testified on behalf of the

United States Government. . . . Or read about any judge

14

doubting my truthfulness. I have never seen that before.” Trial

Tr., Feb. 29, 2008 (A.M.) at 63; see generally id. at 54-63.

Although the government “may not knowingly use . . . false

testimony[] to obtain a tainted conviction,” including testimony

that goes to the credibility of a witness, see Napue v. Illinois,

360 U.S. 264, 269-70 (1959), Cortez made no false statement for

the government to correct. There is no dispute that Cortez had

no direct knowledge of the credibility finding in Smith, see

Appellant’s Br. at 32, so that his knowledge of it could have

come only from his cross-examination in Bran’s trial. And

although Cortez denied having read or heard about the finding,

he did not deny that he had been earlier questioned about it. See

Trial Tr., Feb. 29, 2008 (A.M.) at 57 (“That question was asked

to me previously.”) Thus, we agree with the district court that,

in context, Cortez testified truthfully as to his lack of personal

knowledge. See June 20, 2008 Mem. and Order, Doc. No. 218

at 12 (rejecting Mejia’s new trial motion because “[a]lthough

Cortez’s answers may appear to be disingenuous at first glance

. . . [he] answered defense counsel’s questions in a truthful

manner since” he had no personal knowledge of other court’s

finding).

Citing Whitmore, 359 F.3d at 618, Mejia also contends the

district court abused its discretion in sua sponte curtailing his

cross-examination of Cortez regarding the same prior credibility

finding. In Whitmore we held that it was error to deny the

defendant the opportunity to cross-examine a witness regarding

the witness’s character for truthfulness. See 359 F.3d at 619-21.

But the error in that case was that the district court had

prohibited the entire line of cross-examination under Rule 403.

See Whitmore, 359 F.3d at 621 (“We . . . believe the district

court erred in excluding the entire line of cross-examination”

regarding prior untruthful testimony). Here, in contrast, after

hearing extensive arguments and expressly relying on Whitmore,

the court allowed Mejia to ask Cortez specific questions about

15

the Smith credibility finding. Whitmore contemplates this

precise procedure. 359 F.3d at 621 (district court should

respond to “unfair prejudice or undue delay” concern not by

excluding but by “limiting” cross-examination); see also Fed. R.

Evid. 608(b) (character for truthfulness or untruthfulness may be

inquired into on cross-examination if probative in “the discretion

of the court”).

Finally, Mejia complains that the district court erred in

qualifying Carrillo Garcia, a Guatemalan police officer with

fourteen years’ experience, as an expert in drug trafficking

because none of the cases Garcia participated in was prosecuted

in the United States. But Garcia was not qualified as an expert

in cocaine importation or prosecution in the United States but

rather “in the field of drug-trafficking and transportation

activities as they relate to Guatemala.” See Trial Tr., Feb. 29,

2008 (P.M.) at 45-46. Moreover, Garcia had, in fact, testified in

at least two U.S. prosecutions. See Trial Tr., Feb. 29, 2008

(P.M.) at 35 (Garcia testified a dozen times or more in

Guatemala and twice in the United States). Accordingly, Mejia

has not shown that the district court erred in qualifying Garcia

as an expert. See Haarhuis v. Kunnan Enters., Ltd., 177 F.3d

1007, 1015 (D.C. Cir. 1999) (“[T]he decision whether to qualify

an expert witness is within the broad latitude of the trial court

and is reviewed for abuse of discretion.”). And because Garcia

was properly qualified, Mejia’s two hearsay objections to

Garcia’s testimony are without merit. See Daubert v. Merrell

Dow Pharms., Inc., 509 U.S. 579, 592 (1993) (“[A]n expert is

permitted wide latitude to offer opinions, including those that

are not based on firsthand knowledge or observation.”).5

5

Mejia also challenges the admissibility of Agent Fraga’s notes

of his interview with Mejia, which notes were discussed during his

cross-examination and on redirect. But Agent Fraga’s notes were not

admitted into evidence.

16

B.

Mejia next objects that the trial court improperly instructed

the jury in two respects. Our review is de novo. See United

States v. Orenuga, 430 F.3d 1158, 1166 (D.C. Cir. 2005). First,

Mejia argues that the district court’s “reasonable doubt”

instruction lessened the government’s burden of proof and

improperly shifted that burden to him.6 But Mejia’s argument

is entirely foreclosed by United States v. Taylor, 997 F.2d 1551

(D.C. Cir. 1993), where we rejected a similar challenge based on

language drawn from the same pattern instruction,

characterizing the instruction as “not in error.” Id. at 1556.

True, we recognized that other “circuits have criticized

reasonable doubt instructions modeled on the Pattern

6

Over Mejia’s objection, the court defined “reasonable doubt” as

follows:

Proof beyond a reasonable doubt is proof that leaves you

firmly convinced of the Defendant’s guilt. There are very

few things in this world that we know with absolute

certainty, and in criminal cases, the law does not require

proof that overcomes every possible doubt.

If, based on your consideration of the evidence you are

firmly convinced that the Defendant is guilty of the crime

charged, you must find him guilty. If, on the other hand, you

think there is a real possibility that the Defendant is not

guilty, you must give him the benefit of the doubt and find

him not guilty.

Trial Tr., Mar. 5, 2008 (P.M.) at 32. The instruction is taken verbatim

from the Federal Judicial Center’s Pattern Criminal Jury Instruction 21

(Federal Judicial Ctr. 1988), which has been described as “clear,

straightforward, and accurate.” Victor v. Nebraska, 511 U.S. 1, 26-27

(1994) (Ginsburg, J. concurring in part and in judgment) (“This model

instruction surpasses others I have seen in stating the reasonable doubt

standard succinctly and comprehensibly.”).

17

Instruction” and noted “that the greatest wisdom may lie with

[other circuits’] instruction to leave to juries the task of

deliberating the meaning of reasonable doubt.” Id. at 1557-58.

But we also noted that none had in fact held the use of the

instruction to be reversible error and likewise declined to do so.

Id. at 1557.

Mejia acknowledges that Taylor “affirmed a conviction

involving the same instruction at issue here,” Appellant’s Br. at

14, but attempts to distinguish it in several ways. For example,

he asks us to attach significance to the fact that, unlike Taylor,

who had unsuccessfully requested an alternative “reasonable

doubt” instruction, Mejia requested that no charge be given. We

decline to do so. “[T]he Constitution neither prohibits trial

courts from defining reasonable doubt nor requires them to do

so as a matter of course,” Victor v. Nebraska, 511 U.S. 1, 5

(1994), and Mejia offers no reason why the Constitution would

apply differently simply because he preferred no instruction. He

also argues that the instruction invaded the jury’s province by

providing that the jurors “must find him guilty” if firmly

convinced of his guilt. Trial Tr., Mar. 5, 2008 (P.M.) at 32

(emphasis added); see Appellant’s Br. at 13. In contrast, the

Taylor instruction stated that it was the jury’s “duty to find him

guilty” if firmly convinced. Taylor, 997 F.2d at 1556 (emphasis

added). But we have already found neither iteration more

objectionable than the other. In United States v. Pierre, 974

F.2d 1355 (D.C. Cir. 1992), we affirmed the instruction that the

jury had a “duty” to return a guilty verdict if the government

proved the elements of the offense beyond a reasonable doubt.

Id. at 1357. We noted that, while an earlier case had reversed an

instruction that the jury “must” find a defendant guilty, the error

had resulted from the omission of the phrase “beyond a

reasonable doubt.” Id. (citing Billeci v. United States, 184 F.2d

394, 399 (D.C. Cir. 1950)). We did “not think it significant that

the district court used the word ‘must’” in Billeci. Id. In sum,

18

the instruction was “not in error because there is no reasonable

likelihood that the jury applied the challenged instruction in a

way that violates the Constitution.” Taylor, 997 F.2d at 1558.

Additionally, Mejia contends that the district court deprived

him of due process of law when it instructed the jury: “You may

infer but are not required to infer that a person intends the

natural and probable consequences of acts knowingly done or

knowingly omitted.” Trial Tr., Mar. 5, 2008 (P.M.) at 48. The

Supreme Court has distinguished between language that creates

a “mandatory presumption” and language that allows a

permissive inference. See Francis v. Franklin, 471 U.S. 307,

311 (1985) (rejecting instruction that “[a] person of sound mind

and discretion is presumed to intend the natural and probable

consequences of his acts but the presumption may be rebutted”);

see also Sandstrom v. Montana, 442 U.S. 510 (1979). The

language here is permissive. Our sister circuits recognize the

same distinction, consistently upholding similar instructions in

specific intent crimes, including the crime of which Mejia was

convicted.7 See, e.g., United States v. Love, 767 F.2d 1052,

1059 (4th Cir. 1985); United States v. Cotton, 770 F.2d 940, 946

7

We have also upheld an instruction containing similar language

in a case involving a specific intent crime. See United States v.

Moore, 435 F.2d 113, 115-16 & n.2 (D.C. Cir. 1970) (“It may be

inferred that one intends the natural and probable consequences of his

act, but you are not required to so infer”). Although we found no plain

error in Moore, we did note that the challenged instruction “may be

misleading” in a specific intent case and that it “should not have” been

given. Id. at 116 & n.5. But the court’s principal concern was that the

instruction omitted the phrase “knowingly done or knowingly

omitted.” Id. Here, the instruction included the knowledge

component. See Trial Tr., Mar. 5, 2008 (P.M.) at 48 (“You may infer

but are not required to infer that a person intends the natural and

probable consequences of acts knowingly done or knowingly

omitted.”) (emphasis added).

19

(11th Cir. 1985). Mejia’s challenge to portions of the

instructions therefore fails.

C.

Mejia contends that the government’s closing argument

included several statements unsupported by the evidence.

Specifically, he objects to the government’s contentions that (1)

the co-conspirators needed Mejia because of his police

connections (even though another conspirator, Morales, was also

a retired Guatemalan police officer); (2) Mejia lived in

Guatemala City at the time of the conspiracy (when the only

record evidence was that he had lived there five or six years

earlier); (3) Guatemalan police were essentially powerless to

stop the gangs because Guatemala was emerging from a bloody

civil war (based on a lack of record evidence regarding the civil

war); and (4) DIPA was the Guatemalan “customs anti-narcotics

agency” and Mejia was willing to use his connections there

(based on a lack of supporting evidence).

A prosecutor errs in closing argument by making a

statement unsupported by evidence, misstating evidence or

misquoting testimony. See United States v. Watson, 171 F.3d

695, 699 (D.C. Cir. 1999). After “comparing the witness[es]’

testimony with the statements made by the prosecutor in closing

arguments,” id. at 700, we find no error as every statement was

permissibly based on record evidence. First, contrary to Mejia’s

suggestion, the prosecutor never argued that “Mejia was brought

into the conspiracy because he alone among the others had a law

enforcement background.” Appellant’s Br. at 23 (emphasis

added). Rather, the prosecutor’s argument was consistent with

the theory that the conspirators needed a) both Morales and

Mejia because of their police backgrounds and b) Mejia

specifically because of his extensive supervisory experience (of

which there was ample record evidence). See Trial Tr., Mar. 5,

2008 (P.M.) at 15 (Mejia spent fifteen years with the

20

Guatemalan police department “not only as a cop on the beat

apparently, but as a supervisor, as someone with a sufficiently

sophisticated position that he was planning major operations,

and that’s why . . . . they recruited him into the conspiracy”).

Second, the only record evidence regarding Mejia’s

residence was the testimony of the sole defense witness,

Francisco De Leon, that Mejia had lived in Guatemala City five

or six years earlier, but “no longer lives there now.” Trial Tr.,

Mar. 5, 2008 (A.M.) at 36. Considering that Mejia was in

federal custody at the time of the witness’s testimony, this

statement is ambiguous and hardly stands for the proposition

that Mejia was no longer a Guatemala City resident when

arrested.8 Third, the prosecutor’s argument was not, contrary to

Mejia’s objection, about the relationship between Mejia and the

Guatemalan civil war but instead about the powerlessness of the

Guatemalan police, of which there was plenty of record

evidence. See, e.g., Trial Tr., Feb. 29, 2008 (A.M.) at 88

(“Guatemala has a very fragile law enforcement system, and it’s

very easy to bring large quantities of drugs into Guatemala

without really worrying about being caught.”). Last, we

disagree with Mejia’s complaints as to the lack of evidence that

DIPA was an anti-drug agency and that Mejia was willing to use

police connections, as the record sufficiently supports both

claims. See Trial Tr., Feb. 29, 2008 (P.M.) at 21 (DIPA’s “main

purpose . . . was to attack the narcotic activity at” Guatemala’s

seaports); see Meeting Tr., July 19, 2006 at 16 (Mejia’s

videotaped statements that DIPA’s “commands are ours,” and

“[w]hat we have to control is the structure” of DIPA).

8

Indeed, even on appeal, Mejia does not assert that the statement

was wrong, simply that “[t]here also was no evidence in the record

that Mejia lived in Guatemala City during the time of the offense.”

Appellant’s Br. at 25.

21

Mejia also challenges the prosecutor’s embellishment in

closing: “[W]e forget that the success of a drug trafficker is

based upon a human weakness called addiction” and that drug

dealers “make a lot of money by preying on that human

weakness.” Trial Tr., Mar. 5, 2008 (A.M.) at 71. We have held

that a more detailed comment was improper. See United States

v. Johnson, 231 F.3d 43, 47 (D.C. Cir. 2000) (prosecutor

“improperly suggested that the jury should convict the defendant

in order to protect others from drugs” by arguing that “[j]ustice

protects not only the person who is accused, but it also protects

persons like those . . . 400-plus individuals [whom] the crack

cocaine [was] intended for”). We believe the statement here was

harmless because it was isolated and the case was not close. See

United States v. Hemphill, 514 F.3d 1350, 1361-62 (D.C. Cir.

2008) (“A single misstatement in a lengthy argument . . . is

rarely a severe error.”); Johnson, 231 F.3d at 49-50 (despite lack

of specific curative instruction error harmless because, among

other reasons, “great weight of the evidence strongly supports

Johnson’s conviction”).

D.

Finally, Mejia challenges his sentence on multiple grounds.

We review the district court’s sentence for abuse of discretion,

first ensuring that the court committed no significant procedural

error and then ascertaining if the sentence is substantively

reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007);

United States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008).

Contrary to Mejia’s first argument, his sentence is

consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000),

which held that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Id. at 490. The jury convicted

Mejia of conspiring to import five kilograms or more of cocaine

22

into the United States in violation of 21 U.S.C. § 960(a). The

verdict triggered a statutory imprisonment range of ten years to

life, with ten years being the mandatory minimum. See 21

U.S.C. § 960(b)(1)(B)(ii). Mejia argues that because the jury

did not ascribe a specific amount of cocaine to Mejia personally,

the statutory maximum should have been twenty years under 21

U.S.C. § 960(b)(3). But the sentence he received—208 months,

or a little over seventeen years—is less than the statutory

maximum Mejia himself urges. See Settles, 530 F.3d at 923

(sentencing court not constitutionally barred from finding facts

by preponderance of evidence as long as “sentence does not

exceed the statutory maximum for the crime of conviction”

because “the Supreme Court has ‘never doubted the authority of

a judge to exercise broad discretion in imposing a sentence

within a statutory range’” (quoting United States v. Booker, 543

U.S. 220, 233 (2005))).

Second, we do not agree that Mejia’s sentence was

unreasonable based on the district court’s failure to grant a

number of the adjustments and departures Mejia requested—

including, most significantly, a multi-level adjustment for his

allegedly minor role in the offense. See U.S.S.G. § 3B1.2.

Although the district judge (who also presided over the trials of

Bran and Morales) determined that “Mejia’s role was the least

of the three,” he permissibly and reasonably concluded that no

one in the conspiracy played a “minor” role. Sentencing Tr.,

Oct. 16, 2008 (A.M.) at 56-57, 70 (finding Mejia “was aware of

the full plan,” took “three trips to El Salvador for purposes of

meetings to further this conspiracy” and “was to have the

important role of a security function”). As for the discretionary

departures, because the judge plainly recognized his authority to

impose a below-Guidelines sentence—he gave one, after

all—his decision was in accord with United States v. Booker.

Insofar as Mejia contends that his sentence was substantively

unreasonable, see Gall, 552 U.S. at 51, we do not agree. Indeed,

23

it is hard to imagine how Mejia could make such a showing

given that his sentence is two years below the range we

ordinarily view as reasonable. See United States v. Dorcely, 454

F.3d 366, 376 (D.C. Cir. 2006) (“We agree with our sister

circuits that a sentence within a properly calculated Guidelines

range is entitled to a rebuttable presumption of

reasonableness.”); see also United States v. George, 403 F.3d

470, 473 (7th Cir. 2005) (“It is hard to conceive of below-range

sentences that would be unreasonably high.”).

Third, Mejia argues that his sentence resulted in an

unwarranted disparity between himself and co-defendant Bran,

in contravention of a statutory sentencing factor. See 18 U.S.C.

§ 3553(a)(6) (sentencing court must take account of “need to

avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct”).

It is true that Bran, who—the court determined—had played a

leadership role in the conspiracy, received only 144 months, a

sentence more than five years shorter than Mejia’s 208-month

sentence. See Sentencing Tr., Oct. 16, 2008 (A.M.) at 69-70

(“Mr. Bran was more of the leader than these two were.”). But

Morales—the third co-defendant, who, according to the district

court, played a role closer to Mejia’s than Bran’s—was

sentenced to 220 months, one year longer than Mejia.

We conclude that there was no error in the disparity

between Mejia and Bran, which disparity is entirely explained

by Bran’s three-level acceptance-of-responsibility reduction for

his having pleaded guilty after his jury hung, which lowered his

advisory Guidelines range to 168-210 months. See U.S.S.G.

§ 3E1.1 (defendant who “clearly demonstrates acceptance of

responsibility for his offense” is entitled to reduction); see, e.g.,

In re Sealed Case, 488 F.3d 1011, 1014 (D.C. Cir. 2007)

(affirming sentence based on plea agreement awarding

defendant three-level reduction for acceptance of responsibility

under § 3E1.1). Unlike Bran, Mejia never accepted

24

responsibility. See Trial Tr., Oct. 16, 2008 at 53 (A.M.) (Mejia

said, “[w]ith regard to the charges against me, I put my hand on

my heart and with all my—with all sincerity I can tell you . . .

that I am innocent. I am totally innocent”); Sentencing Tr., Oct.

16, 2008 (A.M.) at 70-71 (court found “Mejia obviously has

shown no remorse of any kind . . . and he says that he was not

aware that cocaine was involved, which I find to be

unbelievable, I do not accept that”). Under these circumstances,

Mejia’s harsher sentence was not an abuse of discretion.

Fourth, we reject Mejia’s claim of prosecutorial

vindictiveness. His claim is premised on the fact that the

sentence the government recommended following trial was

nearly twice the length of the plea offer he rejected before trial.

But there is nothing impermissible (or even unusual) with the

prosecutor recommending a longer sentence after trial than

before trial. Nor, as noted, is there anything out of the ordinary

with the defendant’s acceptance of responsibility factoring into

the sentencing calculus. See U.S.S.G. § 3E1.1; United States v.

Jones, 997 F.2d 1475, 1476 (D.C. Cir. 1993) (en banc); see also

Alabama v. Smith, 490 U.S. 794, 801-02 (1989) (no presumption

of vindictiveness for imposition of greater penalty by same

judge following trial than after earlier guilty plea (subsequently

withdrawn) because “after trial, the factors that may have

indicated leniency as consideration for the guilty plea are no

longer present”).

III.

For the foregoing reasons, Mejia’s conviction and sentence

are affirmed.

So ordered.