United States v. Jose Avalos

817 F.3d 597, 2016 WL 1161227, 2016 U.S. App. LEXIS 5488
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 24, 2016
Docket15-1695
StatusPublished
Cited by8 cases

This text of 817 F.3d 597 (United States v. Jose Avalos) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Jose Avalos, 817 F.3d 597, 2016 WL 1161227, 2016 U.S. App. LEXIS 5488 (8th Cir. 2016).

Opinion

COLLOTON, Circuit Judge.

Jose Avalos was convicted of possession with intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1). The district court 1 sentenced Avalos to 860 months’ imprisonment. Avalos appeals his conviction, arguing that the court improperly admitted expert testimony and that there was insufficient evidence to support a conviction. He also argues‘that his sentence is unreasonable. We affirm.

L

The drug charge against Jose Avalos arose from a search of an apartment in February 2013. At the time, police in Council Bluffs, Iowa, were searching for Juan Avalos, Jose’s brother, after Juan escaped from a halfway house. A probation officer notified police that Juan was staying with his brother in an apartment in Omaha, Nebraska.

Officer Travis Jarzynka arrived at the apartment and observed a man who matched Juan’s description exit the apartment complex, enter a vehicle, and drive away. Jarzynka stopped.the car, and the driver identified himself as Jose Avalos. Jose Avalos, whom we will call “Avalos,” told Jarzynka that Juan was at his apartment and provided a key to enter the apartment.

Jarzynka and other police officers returned to the apartment and arrested Juan. During a protective sweep of the two-bedroom apartment, officers discovered a handgun and small baggie of methamphetamine in the apartment’s northern bedroom. The officers suspected that this bedroom belonged to Juan, because Juari asked the officers to retrieve a jacket and shoes from that room.

Based on the discovery of methamphetamine, investigators obtained and executed a search warrant for the apartment. During the search, the investigators found that the southern bedroom also was occupied. In that bedroom’s walk-in closet, the investigators discovered 1,3 kilograms of methamphetamine, a handgun, ammunition, and two cell phones concealed in two speaker boxes. The methamphetamine had a street value of approximately $50,000 to $60,000. Police also found in the closet a digital scale, a bank deposit receipt for $8,000, and several documents in Jose Ava-los’s name: .tax forms, a birth certificate, a *600 high school-equivalency certifícate, and a rental agreement for the apartment. In the bedroom itself, investigators found a photo of Avalos, utility bill, checkbook, satellite-television installation receipt, and furniture delivery receipt. All of these documents bore Avalos’s name and the apartment’s address; a vehicle title and letters also discovered in the bedroom showed Avalos’s name but a different address.

A grand jury charged both Avalos brothers in March 2013 with possession with intent to distribute methamphetamine, and charged each brother separately with possession of a firearm as a previously convicted felon. Avalos remained a fugitive for over a year before turning himself into police custody on April 27, 2014.

In February 2014, while Avalos was still at large, the district court accepted Juan’s guilty pleas on both the drug and firearms charges. In his petition to plead guilty, Juan stated, “I had meth in my bedroom in a house I shared with my brother. The meth in my brother’s bedroom did not belong to me.” At Juan’s sentencing, after his brother was in custody, Juan recanted his plea petition and told the court that “all the dope [and] guns in the apartment were mine.” The district court sentenced Juan to concurrent sentences of 168 months’ imprisonment on the drug-trafficking conviction and 120 months’ imprisonment on the firearm conviction.

The government dismissed the firearms charge against Avalos and proceeded to trial on the drug-trafficking charge only. A first trial ended in a mistrial, but after a second trial, the jury found Avalos guilty. During trial, in addition to the evidence seized from the apartment, the government presented recordings of four calls made by Avalos on a jail telephone system. The prosecution focused on several unusual statements by Avalos. In one call, he mentioned “the square footage of tile [he] left behind,” that he owed a person “half a sandwich,” and that he would “give [someone] a footlong” and let that person “pay me the extra four bucks for that footlong.” He also identified several persons who owed him money. On the final call, Avalos told a woman that he had “stupid money coming in right now.” When the woman warned Avalos that he was incriminating himself, he replied, “I don’t give a f!|! * *. I’m the f* * *ing kingpin.... How about that for incrimination?”

Investigator Edith Andersen, an experienced narcotics officer with the Omaha Police Department, explained to the jury that drug dealers often use code words when talking about drugs or money. Investigator Andersen opined that several words used in the recorded calls, such as “tiles,” “sandwiches,” and “footlong,” were likely code words, because “it doesn’t add up if you were going to take it at face value.”

Juan Avalos testified as a defense witness at his brother’s trial. On direct examination, Juan testified that he took over the lease on the apartment after Jose Avalos moved out. He asserted that Jose was at the apartment on the day of the traffic stop only to collect rent. Juan further testified that the firearm and the drugs in the apartment all belonged to him. When confronted with his statement in the plea petition that the drugs in Jose’s room did not belong to him, Juan asserted that the statement was drafted by his attorney, and that he signed it only to obtain a shorter sentence. Explaining his recantation of the plea petition, Juan stated: “I didn’t want my brother to go to prison for my actions.”

The jury found Jose Avalos guilty. The district court calculated an advisory sentencing guideline range of 360 months’ to *601 life imprisonment, and sentenced Avalos to 360 months.

II.

Avalos appeals the district court’s admission of Investigator Andersen’s expert testimony, contending she did not “demonstrate how her methodology and principles were readily applied to the four jail phone calls,” as required by Federal Rule of Evidence 702. Andersen had never before heard Avalos speak in code, and Avalos therefore argues that her testimony was “pure conjecture.” We review the district court’s admission of expert testimony for abuse of discretion. United States v. Schwarck, 719 F.3d 921, 923 (8th Cir.2013).

Federal Rule of Evidence 702(a) permits the expert testimony of a witness whose “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” We have “recognized the operations of narcotics dealers as a proper field of expertise” and held that “government agents may. testify to the meaning of coded drug language.” United States v. Watson, 260 F.3d 301, 307 (3d Cir.2001).

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Cite This Page — Counsel Stack

Bluebook (online)
817 F.3d 597, 2016 WL 1161227, 2016 U.S. App. LEXIS 5488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jose-avalos-ca8-2016.