United States v. Crayton

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 12, 2024
• Docket: 22-2118
• Status: Unpublished

Opinion

Appellate Case: 22-2118 Document: 010110982820 Date Filed: 01/12/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 12, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-2118 (D.C. No. 2:21-CR-00363-KG-1) CAESAR NATHANIAL CRAYTON, (D. N.M.) a/k/a Craig James Jones, a/k/a Ceasar Nathanial James Crayton,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * 0F0F0F0F

_________________________________

Before HARTZ, EBEL, and CARSON, Circuit Judges. _________________________________

I. INTRODUCTION

At 3:00 a.m. on August 16, 2020, Defendant Caesar Crayton entered the U.S.

Border Patrol (USBP) checkpoint on Interstate 10 near Las Cruces, New Mexico.

While asking Defendant routine questions, USBP Agent Brenden Hunt smelled

marijuana coming from Defendant’s vehicle. Hunt conducted a canine inspection,

during which the dog alerted, indicating that it smelled drugs in Defendant’s vehicle.

Hunt and other agents then searched the vehicle and found cocaine, marijuana,

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-2118 Document: 010110982820 Date Filed: 01/12/2024 Page: 2

48 g. of methamphetamine in five bags (weighing .36 g., 5.42 g., 6.84 g., 7.17 g., and

28.18 g.) within a larger bag, firearms, ammunition, almost $7,000 cash on

Defendant’s person, and 11 cell phones (seven without service, four with).

Defendant was indicted by a grand jury of the United States District Court for

the District of New Mexico on three counts: (1) possession with intent to distribute

five grams or more of methamphetamine, see 21 U.S.C. §§ 841(a)(1) and (b)(1)(B);

(2) being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1) and § 924; and

(3) carrying a firearm during and in relation to a drug trafficking crime and

possessing a firearm in furtherance of such crime, see 18 U.S.C. § 924(c)(1)(A)(i).

After the district court denied his motion to suppress, Defendant went to trial, during

which he unsuccessfully renewed his motion to suppress. Among the federal law-

enforcement agents who testified at trial was Drug Enforcement Administration

(DEA) Agent Charles Armour, who testified as an expert witness to, among other

things, the relevance of various evidence—namely, (1) the quantity and packaging of

methamphetamine and (2) the concurrent possession of a firearm, a large sum of

cash, and multiple cell phones—to whether the drug was possessed for personal use

or for distribution.

Defendant was convicted on all three counts. On appeal Defendant pursues

arguments (1) that the search of his vehicle was unconstitutional because he should

have been released to leave the checkpoint as soon as he answered the questions

regarding his citizenship and travel plans; and (2) that Agent Armour’s expert

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testimony improperly bolstered the government’s case and invaded the province of

the jury. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the convictions.

II. DISCUSSION

A. Motion to Suppress

“We review the district court’s denial of defendant’s motion to suppress for

clear error, considering the evidence in the light most favorable to the district court’s

ruling.” United States v. Benally, 146 F.3d 1232, 1240 (10th Cir. 1998) (internal

quotation marks omitted). “We are permitted to consider evidence introduced at the

suppression hearing, as well as any evidence properly presented at trial.” United

States v. Harris, 313 F.3d 1228, 1233 (10th Cir. 2002).

We begin our analysis of the propriety of the vehicle search by briefly

describing the authority of Border Patrol agents at proper fixed checkpoints, such as

the one in this case. To begin with, all vehicles can be stopped for inspection

regardless of whether there is reasonable suspicion to believe they are involved in

criminal activity. See United States v. Massie, 65 F.3d 843, 847 (10th Cir. 1995)

(“At a fixed checkpoint . . . border patrol agents may stop, briefly detain, and

question individuals without any individualized suspicion that the individuals are

engaged in criminal activity.”). The proper scope of the inspection follows from the

purpose of the checkpoint to detect unlawful immigration. “[A]gents may question

individuals . . . about their citizenship and immigration status and request

documentation.” Id. at 847–48. And they “may also make a cursory visual inspection

of a vehicle.” Id. at 848.

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Defendant’s challenge on appeal to the search of his vehicle is quite limited.

Several previous arguments were essentially conceded at oral argument in this court.

In district court he challenged the veracity of Agent Hunt’s testimony that he smelled

marijuana emanating from the vehicle, but the district court rejected the challenge.

Also, in his opening brief on appeal he contended that the officers needed a warrant

to search closed containers within his vehicle even if they had probable cause. But

Defendant no longer advanced those contentions at oral argument, and he would have

been wasting his time if he had. See United States v. Kimoana, 383 F.3d 1215, 1226

(10th Cir. 2004) (“We give special deference to [suppression-hearing] credibility

determinations, which can virtually never be clear error.” (internal quotation marks

omitted)); California v. Acevedo, 500 U.S. 565, 580 (1991) (officer with probable

cause to search a container within a vehicle need not obtain a warrant before

examining the contents). Nor has he questioned that Agent Hunt’s smelling marijuana

was sufficient for probable cause, as “the odor of marijuana by itself is sufficient to

establish probable cause.” United States v. Johnson, 630 F.3d 970, 974 (10th Cir.

2010).

What remains for our consideration is Defendant’s contention that the

evidence supporting the search (detection of the odor of marijuana) was obtained

during an unlawful detention because he should have been released after the stop’s

purpose was fulfilled by his answering Hunt’s questions about his citizenship and

travel plans. But the evidence does not support his argument. Hunt testified that he

detected the odor of marijuana when Defendant opened his window after Hunt went

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to the vehicle to question Defendant and to look to see if there were any other

occupants in the vehicle. In other words, he obtained probable cause to search the

vehicle while he was conducting a proper inspection. We therefore reject the

challenge to the search of the vehicle.

B. Expert Witness Testimony

On appeal Defendant challenges DEA Agent Armour’s testimony that the

evidence discovered in Defendant’s vehicle indicated that he possessed the

methamphetamine for distribution rather than for personal use. Defendant argues that

this testimony improperly bolstered the government’s case and invaded the province

of the jury by providing an expert opinion on the ultimate issue—whether he

intended to distribute the methamphetamine. We review for abuse of discretion the

district court’s admission of expert testimony, including the determination of whether

the testimony violated Federal Rule of Evidence 704(b) by expressing an opinion on

whether the defendant had a mental state constituting an element of the charged

offense. See United States v. Wood, 207 F.3d 1222, 1235–36 (10th Cir. 2000).

Agent Armour testified at trial that he (1) had been a DEA agent for about

eight years, after more than seven years with the Border Patrol; (2) had worked as an

undercover agent dozens of times and had participated in more than 100 drug

investigations, most of which involved methamphetamine; and (3) through his

training and by debriefing hundreds of individuals involved in unlawful drug

trafficking and listening to wiretapped conversations, he had learned the relationship

between firearms and drug trafficking and the relationship between the quantity and

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packaging of methamphetamine and whether it is possessed for personal use or for

distribution. Armour had no personal knowledge of Defendant and had not been

involved in the investigation of Defendant’s case.

Based on his expertise regarding drug trafficking, Armour concluded that the

evidence was “not consistent with someone who only possesses that

methamphetamine for personal use.” R. Vol. VII at 207. He based that conclusion on:

the amount of methamphetamine, the value of the methamphetamine, the way the methamphetamine was packaged. The fact that there was a fairly large sum of money seized, also. The fact that the defendant had four phones at the time of arrest. That’s very consistent with someone who’s involved in drug trafficking. And the fact that a firearm was seized in very close proximity to the methamphetamine.

Id. at 207–08. We are unpersuaded by Defendant’s argument that this testimony was

improperly admitted.

“[C]ourts have routinely upheld the admission of expert testimony from law

enforcement officers seeking to identify for the jury typical indicia of drug

trafficking activity.” United States v. Lovern, 590 F.3d 1095, 1102 (10th Cir. 2009)

(Gorsuch, J.). In particular, we have repeatedly upheld the admission of expert

testimony that the quantity of drugs and other circumstances indicate that the

possession of the drugs was for the purpose of distribution rather than personal use.

See United States v. Muldrow, 19 F.3d 1332, 1338 (10th Cir. 1994); see also United

States v. Draine, 26 F.4th 1178, 1191 (10th Cir. 2022). Defendant complains that the

expert testimony was improper in that it “bolstered” the case against him. Aplt. Br

at 23. But, of course, admissible testimony as a general rule will bolster the case of

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the party offering the testimony. The only question is whether the testimony is

admissible under the rules of evidence. And Defendant has failed to explain how

Armour’s expert testimony can be distinguished from similar expert testimony upheld

by this court.

One argument offered by Defendant is that Armour’s testimony violated

Federal Rule of Evidence 704(b), which provides: “In a criminal case, an expert

witness must not state an opinion about whether the defendant did or did not have a

mental state or condition that constitutes an element of the crime charged.” Fed. R.

Evid. 704(b). An intent to possess drugs for distribution would constitute such a

mental state. But Armour never expressed the opinion that Defendant had such a

mental state. His testimony was that in his experience such a mental state was

inconsistent with the quantity of drugs, the amount of cash, the presence of firearms

and multiple cell phones, etc. As we said in one recent opinion: “[A]n expert on

illegal drug activities may testify that the amount and packaging of drugs found in the

defendant’s possession by the police are consistent with the distribution of drugs for

street use rather than withholding the drugs for personal use.” Draine, 26 F.4th

at 1191 (internal quotation marks omitted). “What is proscribed is questioning that

produces responses suggesting some special knowledge of the defendant’s mental

processes.” Id. (internal quotation marks omitted). There was no such suggestion of

special knowledge here. In particular, Armour testified that he played no role in the

investigation of Defendant.

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Defendant also suggests that the testimony was inadmissible because Armour

was simply basing his expertise on anecdotes. This description of the source of the

officer’s expertise finds some support in the record. In explaining why users

generally do not buy large quantities of illicit drugs just for personal use, Armour

said, “[A] lot of times when users buy large quantities, they tend to run through it

faster than they would if they were buying smaller quantities. It’s anecdotal, but

similar to how you would see people with like a severe drinking problem.” R. Vol.

VII at 205. But what is expertise based on experience but a compilation of

experiencing individual incidents—that is, the compilation of anecdotes. We reject

this complaint about the expert testimony.

We hold that the district court did not abuse its discretion in admitting the

expert testimony.

III. CONCLUSION

We AFFIRM Defendant’s convictions and the judgment below.

Entered for the Court

Harris L Hartz Circuit Judge

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