United States v. Merise

414 F. App'x 131
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 23, 2011
Docket10-2033
StatusUnpublished

This text of 414 F. App'x 131 (United States v. Merise) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Merise, 414 F. App'x 131 (10th Cir. 2011).

Opinion

ORDER AND JUDGMENT **

WILLIAM J. HOLLOWAY, JR„ Circuit Judge.

Defendant-Appellant Perón Merise was indicted on one count of knowingly and intentionally possessing with intent to distribute 100 kilograms or more of marijuana in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(B), and for aiding and abetting in violation of Title 18, United States Code, Section 2. Merise’s case proceeded to trial on September 9, 2009. At the conclusion of the government’s case, Merise moved for a directed verdict which the district court denied. On September 11, 2009, Merise was found guilty by a federal jury. On September 15, 2009, Merise filed a motion for judgment of acquittal which the district court denied on October 9, 2009. On February 8, 2010, the district court sentenced Merise to 60 months of imprisonment and 4 years of supervised release. On February 16, 2010, the district court entered its final judgment and on the same day, Merise timely filed his notice to appeal his conviction and sentence. We exercise jurisdiction pursuant to Title 28, United States Code, Section 1291.

I. FACTS

A. Merise’s Arrest

Merise was the owner and operator of Lucky Star Transport. He owned a single tractor rig which he used to haul a refrigerated trailer that he was in the process of purchasing from Extreme Express. On December 13, 2008, a total of 277 kilograms of marijuana was found in Merise’s trailer during an inspection at the port of entry in Lordsburg, New Mexico.

Officer Christopher Alvarez of the New Mexico Department of Public Safety testified that while he was working at the Lordsburg port of entry on December 13, 2008, Merise’s truck entered the port of entry around 4:25 p.m. that day. R. Vol. 3 at 33. Officer Alvarez testified that Merise was driving the truck and that no other passengers occupied the truck with him. Id. at 54. Officer Alvarez asked for Merise’s logbook and bills of lading and testified that he noticed inconsistencies between them. Id. at 33-34. For example, the bills of lading showed that on December 11, 2008, Merise picked up loads in three different places. Id. at 35. Merise’s logbook, however, showed that he had been in the sleeper berth of his truck during that time period. Id.

Officer Alvarez then advised Merise that he would inspect Merise’s cargo and asked Merise to open his trailer. Id. at 36. Merise unlocked the padlock that secured the trailer door. Id. at 38. When Merise opened the trailer door, Officer Alvarez testified that one of the pallets was leaning over to the side, which is “a big problem with load securement.” Id.; R. Vol. VI, Ex. 6. Officer Alvarez asked Merise to “just stand by right here” and then “crawl[ed] the rest of the load,” sliding on top of the boxes in Merise’s trailer to verify them and to make sure that no *133 other pallets were leaning. R. Vol. 3 at 36, 39. At the front of the trailer, Officer Alvarez noticed that there was a pallet that “was tooken [sic] apart.” Id. at 40. Underneath that pallet were boxes that had “no type of markings or nothing on them.” Id. Officer Alvarez then testified as follows:

I try to open up one of the boxes to see if it’s frozen food, seafood. And I couldn’t open them with my hands, it was glued pretty tight. So I poked it with my knife, and I hit a bundle, and I couldn’t tell what it was. So I kept — I stuck my knife in it a little bit more, and then I could smell the odor of marijuana.

Id. Officer Alvarez then “crawled back and exited the rear of the trailer” and placed Merise under arrest. Id. at 42.

Officer Alvarez testified that after Merise was placed under arrest, he called his supervisors to tell them what he found. Id. at 49. He and two other officers removed the unmarked white boxes from the trailer by picking them up and sliding them across the tops of the other boxes in the trailer. Id. at 41, 51. One of the officers who helped remove the boxes of contraband, Officer Benjamin Strain, testified that in order to remove the boxes of contraband, he had to break down the pallet on top of the boxes by tearing apart the plastic and moving the boxes to the side in order to get to the boxes of contraband. Id. at 68 (testifying concerning R. Vol. VI, Ex. 9a). Officer Strain testified that the boxes of contraband “weren’t professionally wrapped,” because “the material that was wrapped around it was a little bit looser than ... [the] legitimate load.” Id. at 69 (testifying concerning R. Vol. VI, Ex. 9b). Officer Strain further testified that the boxes of contraband were “probably twice as large” as the boxes containing the legitimate load. Id. at 69-70.

Agent Darren Rhoden of the Drug Enforcement Administration testified that a total of seven white, unmarked boxes containing contraband were recovered from the trailer. Id. at 198-99. Agent Rhoden testified that each box measured about two-and-a-half feet by two-and-a-half feet by three feet and weighed approximately eighty-five pounds. Id. at 198. Agent Rhoden further testified that the drive between Los Angeles and Lordsburg takes ten hours, without stops or breaks. Id. at 202.

Items that were collected and inventoried from Merise’s truck included his logbooks, receipts, other miscellaneous papers, and $3,100 cash. Id. at 191. A receipt dated December 11, 2008 from L.A. Cold Storage documented a fifteen dollar cash purchase of shrink wrap. R. Vol. VI, Ex. 13. A weigh station receipt from Los Angeles dated December 12, 2008 is timestamped around 4:00 p.m., and indicates that at that time, Merise’s truck weighed 75,400 pounds. Id., Ex. 22. A receipt from Ehrenberg, Arizona on December 12, 2008 is time stamped 11:38 p.m. Id., Ex. 15. A receipt from Danny’s — A Big Rig Resort in Phoenix, Arizona dated December 13, 2008 is time stamped 11:13 a.m. Id., Ex. 20.

B. Witness Testimony

The government introduced testimony from six witnesses from the cold storage and brokerage companies with which Merise transacted business. Richard Cutchin, a manager for broker H&M Bay, testified that Merise was hired by H&M Bay to pick up frozen food items in the Los Ange-les area and to transport them to the east coast where he had six deliveries to make. R. Vol. 3 at 11, 24-25; R. Vol. VI, Ex. 16. Merise was scheduled to pick up frozen food items from Glacier Cold Storage, two locations of Preferred Freezer Services *134 (one on Bandini Boulevard, “PFS-Bandi-ni,” and one on Washington Boulevard, “PFS-Washington”), 1 and L.A. Cold Storage. R. Vol. 3 at 30.

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Bluebook (online)
414 F. App'x 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-merise-ca10-2011.