United States v. Avery Lans

CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 2, 2024
Docket22-14095
StatusUnpublished

This text of United States v. Avery Lans (United States v. Avery Lans) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Avery Lans, (11th Cir. 2024).

Opinion

USCA11 Case: 22-14095 Document: 37-1 Date Filed: 01/02/2024 Page: 1 of 22

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-14095 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus AVERY LANS,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:22-cr-00092-RBD-DCI-2 ____________________ USCA11 Case: 22-14095 Document: 37-1 Date Filed: 01/02/2024 Page: 2 of 22

2 Opinion of the Court 22-14095

Before JORDAN, LUCK, and LAGOA, Circuit Judges. PER CURIAM: Avery Lans challenges his conviction and sentence for con- spiracy to distribute cocaine. Lans makes several arguments on ap- peal. First, he argues that there was insufficient evidence for his conviction because the government failed to prove Lans knew he was involved in a conspiracy to distribute cocaine, or alternatively, that the government only showed a buyer-seller relationship. Sec- ond, Lans argues that the district court should not have admitted evidence obtained from his cell phone or from a storage unit be- cause the evidence was irrelevant or, alternatively, more prejudi- cial than probative. Third, Lans argues that the district court plainly erred when it gave a deliberate ignorance instruction to the jury because the government’s theory of the case was that Lans had actual knowledge. Finally, Lans argues that his sentence was pro- cedurally unreasonable because the district court clearly erred in calculating his guideline range. For the following reasons, we affirm. I. A grand jury charged Lans, along with co-conspirator Wayne Stout, with one count of conspiracy to distribute and pos- sess with intent to distribute five kilograms or more of cocaine, in violation of 18 U.S.C. §§ 846 and 841(b)(1)(A). Lans pled not guilty. USCA11 Case: 22-14095 Document: 37-1 Date Filed: 01/02/2024 Page: 3 of 22

22-14095 Opinion of the Court 3

Prior to trial, the district court ordered the parties to file jointly proposed jury instructions and to indicate if any proposed instruction was in dispute. The government filed a document ti- tled, “JOINTLY PROPOSED JURY INSTRUCTIONS,” which stated that “[a]lthough the United States is filing this document, both parties have reviewed its contents prior to its filing” and that “[a]ll instructions are jointly proposed, other than Government Proposed Instruction #6.” “Government Proposed Instruction #6” is not relevant to this appeal. The government’s document also contained “Jointly Proposed Instruction 12,” which was an in- struction on when a defendant’s deliberate ignorance can establish that the defendant acted knowingly. The government also submitted an exhibit list before trial, which included several exhibits “to be received in evidence by agreement without objection.” These agreed-upon exhibits—ex- hibits 29 to 34—included a set of photos, and both the court and the government’s counsel referred to them as “joint exhibits.” At the start of trial, the district court received the agreed upon exhibits into evidence and were admitted without objection. Lans, however, opposed another exhibit—exhibit 46— which depicted text conversations allegedly between Lans and his son, Olicity McMillan-Lans. Lans argued that this evidence was ir- relevant, that its potential prejudice outweighed any relevance, and that it should be excluded under Federal Rule of Evidence 404(b) because it was evidence of bad acts by someone other than the de- fendant. The government argued that this evidence was relevant USCA11 Case: 22-14095 Document: 37-1 Date Filed: 01/02/2024 Page: 4 of 22

4 Opinion of the Court 22-14095

because it would show that (1) McMillan-Lans, who had also been charged with cocaine trafficking, connected Lans with Stout, (2) that Lans and McMillan-Lans talked about cocaine trafficking “con- stantly,” and that (3) McMillan-Lans sent Lans the address where he met Stout on the day of Lans’s arrest. The district court over- ruled Lans’s objection, explaining that because Lans entered a plea of not guilty, he put at issue whether he had the knowledge and intent to engage in a cocaine trafficking conspiracy and that the text messages were relevant to those issues. Turning to the government’s trial witnesses, the govern- ment first called Carolina Martinez, a federal Homeland Security Investigations (“HSI”) agent, who testified to the following. The government was surveilling Stout as part of a money laundering investigation. On June 1, 2022, Stout rented a bronze car and drove from Miami, Florida, to Orlando, Florida. When he arrived in the Orlando area, Stout went to a storage unit—which agents later dis- covered was rented in his name—where he retrieved a duffel bag. After leaving the storage unit, Stout went to an Orlando-area res- taurant. A silver car pulled into the restaurant’s parking lot and left after “a very brief amount of time.” Martinez followed the silver car, which she said was driving in an unusual pattern, i.e., in a way as if someone was trying to see if they were being followed and trying to evade any followers. Martinez identified Lans as the driver of the silver car. The government next called Jean Saint-Louis, a Miami-area police detective serving on a federal HSI task force, who testified USCA11 Case: 22-14095 Document: 37-1 Date Filed: 01/02/2024 Page: 5 of 22

22-14095 Opinion of the Court 5

to the following. Saint-Louis was part of the team surveilling Stout on June 1. He observed that, when the silver car pulled into the parking lot, Stout grabbed the duffel bag from his car and handed it to Lans, who took the bag and placed it in the passenger seat of the silver car. The entire interaction between Stout and Lans lasted about thirty seconds. During cross-examination, Saint-Louis testi- fied that no one on the team saw Lans open the duffel bag. Next, the government called Pedro Villa, another Miami- area detective with the task force, who testified to the following. Villa was part of the June 1 surveillance team and observed Stout as he traveled from the car rental place in Miami to the Orlando storage facility. Villa saw coolers in the storage unit and suspected there may be narcotics involved because, in his experience, narcot- ics importers who bring drugs into the country by boat sometimes use coolers to blend in with fishermen. While Villa followed Stout to the restaurant, he did not observe what happened in the parking lot. From there, Villa followed the silver car driven by Lans. At a red light, Lans appeared to spot Villa in the car’s mirrors and, after that, began to drive fast—up to 90 miles per hour. Villa then pur- sued, activating his car’s lights and siren. While driving, Lans dropped the duffel bag out the passenger-side window, and his car was stopped seconds later. During Villa’s testimony, the govern- ment presented photos showing the duffel bag on the side of the road, with one photo showing the bag was slightly unzipped when it was found. According to Villa, the bag contained 5 kilograms, or about $135,000 worth, of cocaine wrapped in distinctive packaging, and Villa stated that groups marked their cocaine to distinguish it USCA11 Case: 22-14095 Document: 37-1 Date Filed: 01/02/2024 Page: 6 of 22

6 Opinion of the Court 22-14095

from other organizations. Villa said that the amount of drugs found in the bag was for distribution, not consumption. The government then called Robert Palombo, a HSI agent, who testified as follows.

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United States v. Avery Lans, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-avery-lans-ca11-2024.