UNITED STATES of America, Plaintiff-Appellee, v. Jose AVALOS, Defendant-Appellant.
No. 15-1695.
United States Court of Appeals, Eighth Circuit.
March 24, 2016.
817 F.3d 597
Submitted: Oct. 23, 2015.
John Higgins, argued, Omaha, NE, for Plaintiff-Appellee.
Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
Jose Avalos was convicted of possession with intent to distribute fifty grams or more of methamphеtamine, in violation of
I.
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 sеarching 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 Avаlos. 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 bеdroom belonged to Juan, because Juan asked the officers to retrieve a jacket and shoes from that room.
Based on the discovery of methamphetamine, investigators obtained and executed a sеarch 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, а 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 Avalos‘s name: tax forms, a birth certificate, a
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’ imрrisonment 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 mistriаl, 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 footlоng” 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 warnеd 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
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
The district court permissibly concluded that Investigator Andersen‘s testimony would be helpful to the jury in understanding the recorded phone calls. Without expert guidance, the references to “sandwiches” and “tiles” could have seemed nonsensical to a lay juror. Andersen‘s opinion was based on her personal experience and training applied to the facts of this case. Andersen never attempted to translate the code words used in the recorded calls and to give them specific meaning—although our precedent says that such testimony is permissible. E.g., Watson, 260 F.3d at 307. She opined more narrowly that several words and phrases were associated with code talk used for drugs and money, an opinion she based on her personal experience with informants, cell phone searches, and wiretaps. The district court properly admitted this testimony.
Avalos argues alternatively that the court should have excluded Andersen‘s testimony because its probative value was substantially outweighed by the danger of unfair prejudice. See
Avalos next argues that the government produced insufficient evidence to
There was also sufficient evidence to concludе that Avalos intended to distribute the methamphetamine. Investigators discovered 1.3 kilograms of methamphetamine and a bank deposit receipt for $8,000. A large quantity of drugs and money is sufficient to support an inference of intent to distribute. United States v. Orozco, 700 F.3d 1176, 1179 (8th Cir. 2012). Avalos‘s description of himself as a “kingpin” in a jailhouse telephone call likewise supported a finding that he was a large distributor of methamphetamine.
Avalos argues that his sentence of 360 months’ imprisonment is substantively unreasonable, because it is considerably longer than Juan‘s term of 168 months. Even assuming for the sake of analysis that sentence disparities among co-conspirators could demonstrate unreasonableness, cf. United States v. Fry, 792 F.3d 884, 892-93 (8th Cir. 2015), the district court had ample reason to treat the brothers differently. The advisory guideline sentence for Avalos was longer than for Juan, due primarily to an extensive criminal history that qualified him as a career offender and his refusal to accept responsibility for his criminal conduct. Both defendants were sentenced within the advisory guideline ranges, and we therefore presume that the sentences were reasonable. United States v. Williams, 791 F.3d 809, 811 (8th Cir. 2015); see Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). The district court did not abuse its discretion.
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The judgment of the district court is affirmed.