United States v. Rogelio Benitez

628 F. App'x 1010
Court of Appeals for the Eleventh Circuit·Decided October 15, 2015·No. 15-10959·Unpublished

Opinion

PER CURIAM:

Rogelio Benitez appeals his convictions and sentence of 235 months of imprisonment for conspiring to possess with intent to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and conspiring to launder the proceeds of illegal drug trafficking activity, 18 U.S.C. § 1956(a)(1), (h). Benitez challenges the admission of testimony from Agent Michael Connolly of the Drug Enforcement Agency about code words used by Benitez and his coconspirators; the denial of his motion for a judgment of acquittal; and the amount of drugs attributed to him at sentencing. We affirm.

The district court did not abuse its discretion when it admitted Agent Connolly’s testimony as lay testimony under Federal Rule of Evidence 701. Like the federal agent who testified about the meaning of code words in United States v. Jayyousi, 657 F.3d 1085, 1102-04 (11th Cir.2011), Connolly’s testimony was “rationally based on [his] perception”; helpful to the jury; and “not based on scientific, technical, or other specialized knowledge,” as required in Rule 701. Connolly, the lead investigator of the conspiracy, testified that he interpreted the coded language used by Benitez and his coconspira-tors during telephone calls on April 2, 2011, and on April 21, 2011, by connecting particular phrases to specific actions that Connolly observed while surveilling the co-conspirators. Connolly’s interpretation of each conversation, which he accompanied with a description of and photographs showing the conspirators’ ensuing activities, helped the jury to understand that Benitez’s and his coconspirators’ use of particular numbers with the phrases “title to a truck” and “paint cans” related to the transfer of specific amounts of cash and methamphetamine. Connolly had experience investigating drug trafficking organizations, but,he did not base his opinion on that experience. Connolly interpreted the coded language based on his review of wiretap summaries, transcripts, and the intercepted calls; intelligence he gathered about the drug conspiracy; and his personal observation of the conspirators’ conduct. See Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1221 (11th Cir.2003); United States v. Novaton, 271 F.3d 968, 1008-09 (11th Cir.2001). Connolly’s testimony constituted a lay opinion admissible under Rule 701.

Substantial evidence supports Benitez’s convictions. We review this issue for a manifest miscarriage of justice because Benitez failed to renew his motion for a judgment of acquittal at the conclusion of the evidence. See United States v. House, 684 F.3d 1173, 1196 (11th Cir.2012). Viewed in the light most favorable to the prosecution, evidence of telephone calls between the conspirators, surveillance photo-

*1013 graphs, and testimony from Connolly, Agent Deverron Ramcheran, Agent Lamar Dyar, and a cooperating witness, Stephanie Espinoza, proved that Benitez conspired with Ivan Najero-Suazo, Domingo Najero-Suazo, and Alejandro Maldonado to distribute methamphetamine. See 21 U.S.C. § 846; United States v. Isnadin, 742 F.3d 1278, 1305 (11th Cir.), cert. denied, — U.S. -,-, 135 S.Ct. 161, 233, 190 L.Ed.2d 117 (2014). Benitez identified himself as the “right hand man” to Ivan and as a “silent investor” in the trafficking operation; associated with Ivan and retrieved a bag from him thought to contain $30,000 in drag proceeds; agreed to provide Domingo 2 kilograms of methamphetamine and later retrieved the identical amount of the drug from Maldonado after he complained that it was unmarketable; assisted Domingo in purchasing a tractor-trailer truck to transport methamphetamine; helped Ivan and Domingo unload a shipment of what was thought to be methamphetamine that had been packed inside boxes of fresh tomatoes; and drove a Ford pickup truck that Ivan and Domingo used to store 25 kilograms of methamphetamine in Espinoza’s garage and that contained a hidden compartment identical to one in a coconspirator’s track from which federal agents seized more than 9 kilograms of methamphetamine. Ample evidence also supported the jury’s finding that Benitez conspired to launder the proceeds of the drug trafficking operation. See 18 U.S.C. § 1956(h); United States v. Broughton, 689 F.3d 1260, 1280-81 (11th Gir.2012). The testimony of Agent James Cockrell, Officer Christopher Harrison, and Sergeant Charles Chapeau proved Benitez gave Angelica Chavarria, a currency courier for known brokers in Mexico, a duffle bag and suitcase inside which federal agents discovered $500,000 in cash. None of the evidence on any element of either conspiracy offense “is so tenuous that [Benitez’s] conviction[s] [are] shocking.” See House, 684 F.3d at 1196 (quoting United States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir.2006)).

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