Case Information
*1 Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
Reynaldo Macedo-Flores (Macedo) appeals his convictions for possession with intent to distribute 500 grams or more of cocaine and methamphetamines, obstruction of justice, and two counts of perjury. He challenges the district court’s denial of his requested sentencing entrapment jury instruction, the sufficiency of the evidence regarding the materiality of his false statement supporting the perjury convictions, and the district court’s admission of a lead police investigator’s lay opinion testimony regarding Macedo’s use of certain coded words. We AFFIRM.
I.
In January 2012, FBI Special Agent Miguel Torres (Agent Torres) and Dallаs Police Department Detective Byron Boston (Detective Boston) obtained information from a cooperating defendant in a related case identifying Macedo as an alternate source of supply for methamphetamine and cocaine. Detective Boston, working undercover, began buying drugs from Macedo in February 2012. Detective Boston continued to purchase drugs from, and negotiate large drug purchases with, Macedo until July 16, 2013, when Macedo was arrested. Throughout the investigation, Detective Boston wore wire taps and relied on pole cameras, which recorded audio and video footage of many of the trаnsactions between him and Macedo. After a few transactions with Macedo, Detective Boston indicated to Macedo that he wanted a half-kilogram of cocaine, and Macedo confirmed that he had access to that quantity and could deliver it.
In January 2013, when Detective Boston was still unable to determine Macedo’s source for methamphetamine, he ordered four ounces of methamphetamine ice from Macedo in order to discuss a large cocaine order. Macedo told Detective Boston that his uncle had a “brick” of cocaine (1 kilogram) for $31,000. Macedo also told Detective Boston that hе had a customer from San Angelo who purchased 32 ounces of methamphetamine weekly, stating that he was selling “life” quantities, meaning he would get a substantial prison sentence if caught with the quantities he was distributing. Based on this conversation and other information from the investigation, Detective Boston was able to obtain a warrant to tap Macedo’s phone.
Detective Boston continued to discuss transactions with Macedo, hoping their interactions would trigger conversations between Macedo and his supplier or suppliers. Detective Boston then inquired about purchasing a half- kilogram of cocaine, but Macedo refused and said he wаnted to sell an entire kilogram. Investigators began listening to calls between Macedo and Jose Madrigal (Macedo’s supplier for methamphetamine) and heard references to “la doña” and “la señora,” the Spanish terms for “lady.” For example, Macedo directed Madrigal to “drop the sweets”—referring to methamphetamine—“over there with the lady.” In another call recorded on June 21, 2013, after Detective Boston had purchased methamphetamine from Macedo, Macedo told Madrigal that he wanted to take out $100 to give to “the lady,” and Madrigal approved. Based on the fact that Macedo’s mother had assistеd in that transaction, [1] Detective Boston believed Macedo was asking to compensate Macedo’s mother.
During a transaction that occurred on April 24, 2013, Macedo instructed Detective Boston to retrieve the drugs from a particular residence. [2] When Detective Boston arrived at the residence, a Hispanic female, who introduced herself as Berta, exited the rear of the residence. Detective Boston later learned that Berta (Austreberta Macedo) was Macedo’s mother. Macedo’s mother motioned for Detective Boston to remain quiet while they entered a shed at the rear of the residence, where she retrieved the methamphetamine ice from a cabinet drawer in the front portion of the shed. After receiving the drugs, Detective Boston conducted a field test to make sure the drugs were not fake, and Macedo’s mother counted the money given in payment.
Macedo, Macedo’s mother, and eight other individuals were subsequently indicted for multiple drug-trafficking offenses. Macedo’s mother was tried individually in September 2013. During her trial, she called Macedo as a witness. Macedo admitted to being a drug dealer “under pressure” but denied that his mother was a drug dealer. He said that she never conspired with him to sell drugs and denied that he had ever told her that the рackage she delivered to Detective Boston on April 24, 2013, contained drugs. Macedo testified that he told his mother that he needed her to deliver a package to a man and receive money from him. Macedo also testified that when he referenced “the lady” in the intercepted phone calls, he was not referring to his mother. Instead, he claimed that “la doña” and “la señora” were coded references to the house where his mother lived. Macedo also claimed that a reference to “la señora” in a different call—in which he informed Madrigal that “la señora” would be waiting for him—was a coded reference to a drawer or a box in the detached shed where Madrigal could leave the drugs. He admitted, however, that when he spoke to Madrigal about taking $100 for “the lady,” he was referring to his mother.
II.
Macedo was charged in a superseding indictment with one count of conspiracy to possess with intent to distribute more than 500 grams of cocaine, one count of conspiracy to possess with intent to distribute more than 500 grams of methamphetamine, one count of obstruction of justice, and two counts of perjury. The obstruction of justice and two perjury counts arose out of Macedo’s testimony during his mother’s trial. The indictment alleged that “[i]t was a material matter to [her] trial to determine whether or not [Macedo’s mother] had knowingly participated in the conspiracy to distribute methamphetamine and aided and abetted the possession of methamphetamine with intent to distribute.” The first count of perjury alleged that Macedo testified falsely when he stated that he directed his mother to give him the proceeds of the April 24, 2013, drug sale, and he gave them to Madrigal. The second count of perjury alleged that Macedo testified falsely when he claimed that, by using the terms “la doña” and “la señora,” he was referring to inanimate objects and not his mother.
At Macedo’s trial, Detective Boston recounted the investigation into the drug conspiracy and the several transactions he participated in as part of that investigation. During direct examination, Detective Boston explained that a primary goal of the investigation was to identify the highest-level sources possible. On cross-examination, Macedo’s attorney inquired about when investigators learned about Macedo’s direct sources and when they developed sufficient evidence to bring a case against him. He also questioned Detective Boston to point out that Detective Boston set the quantities transacted. Detective Boston then confirmed that, although he believed that he had reached the highest source on the cocaine side of the investigation on July 2, 2013, he contacted Macedo another time to purchase cocaine. However, Detective Boston also testified that he continued transacting cocaine purchases from Macedo because although he had found one source, he had learned that Macedo had another source of supply for cocaine when his uncle, one of Macedo’s cocaine suppliers, had none for sale.
The Government introduced several intercepted phone calls, and Agent Torres, the supervisor of the entire investigation, noted that Macedo referred to his mother as “la doña” or “la señora,” Spanish terms that typically mean an older, respected woman. Macedo objected on the basis of “speculation” when Agent Torres asked how he knew the term “la doña” was not code for something other than a woman. The court conditionally overruled the objection, and Agent Torres explained that, based on the information learned during the investigation, he believed Macedo was referring to his mother. When asked to explain his understanding of what Macedo meant when he asked Madrigal to take out $100 to give to “the lady,” Agent Torres explained that he believed Macedo was talking about giving money to his mother. This explanation was also made over a speculation objection.
Agent Torres also testified about recorded conversations between Macedo and his sister, Reyna, while Macedo was in pretrial detention. Reyna implored Macedo to do whatever he could to help their mother and to “make your statements” to help her. She told Macedo that “[y]ou have to say that it’s all yours.”
Jose Madrigal also testified at Macedo’s trial. Among other things, Madrigal confirmed that he delivered the methamphetamine for the April 24, 2013, sale to Macedo’s mother and picked up the рroceeds from her. He also listened to recorded calls and testified that he understood Macedo to be referring to his mother when he used the terms “la doña” or “la señora.” Madrigal also confirmed that he understood Macedo to be talking about his mother when he asked whether he could take $100 from the drug proceeds.
Prior to trial, Macedo requested that the jury be instructed on “sentencing entrapment.” He sought the following instruction:
Defendant Reynaldo Macedo-Flores also argues that he was specifically entrapped as to the quantity of the drugs involved in the government’s alleged conspiracy. You must decide whether Defendant Macedo-Flores had the intent to distribute the charged quantity of the controlled substance, which the conspiracy counts is at least 500 grams of cocaine and 500 grams of methamphetamine. You must also decide whether the government inflated the quantity of drugs to make Macedo-Flores’s punishment more severe. Finally, if you find that Defendant Macedo-Flores was specifically entrapped as to the quantity of drugs involved, you must decide what quantity (and specific count in the indictment) was not a result of that entrapment.
During the jury charge conference at trial, Macedo argued that he was entitled to his requested sentencing entrapment instruction, relying on unpublished Ninth Circuit precedent recognizing the defense. See United States v. Allen , 242 F. App’x 425 (9th Cir. 2007). According to Macedo’s attorney, Allen recognized that sentencing entrapment was a viable defense where a defendant proves that either: (a) the Government improperly influenced the amount of drugs involved in the conspiracy, or (b) the Government led the defendant to sell more drugs than he was predisposed to sell. Macedo’s counsel acknowledged that “I don’t think we can argue that second prong, Mr. Macedo was predisposed to sell those quantities.” He added, however, that “we do think we have ample evidence in the record that the Government inflated the amount of drugs that . . . Mr. Macedo is responsible for.” He contended that certain sales were transacted “for no reason or purpose” and that “the only reason [the Government transacted additional amounts] was to jack up [Macedo’s] potential sentence and to jack up, I guess, the threshold.” After “wrestling” with the issue and considering relevant authority, the court declined to give the requested instruction.
The jury convicted Macedo on all counts. At sentencing, the court determined that Macedo’s Guidelines range was a life term, but it varied downward to 300 months. In doing so, the court specifically addressed Macedo’s objection based on the sentenсing enhancement:
I believe that based upon the evidence presented at the trial, the law enforcement methods used in this case were legitimate and in an attempt to determine the scope of the conspiracy, find other conspirators and other sources of supplies, and that it was appropriate to do so.
The court considered the Guidelines but stated that its chosen non-guidelines sentence was appropriate after considering the 18 U.S.C. § 3553(a) factors. Therefore, the court remarked that it was the same sentence it would have imposed even if it was incorrect on any of the Guidelines objections Macеdo filed.
Macedo now makes three challenges to his conviction and sentence. We address each challenge in turn.
III.
A. First, Macedo argues that the evidence warranted a sentencing entrapment defense jury instruction as to both drug trafficking counts because a “reasonable jury could have determined that [the undercover agent’s] cocaine purchases in and after March 2013 were undertaken to inflate” the drug quantity. Because this circuit does not recognize such a defense nor does Macedo prove true entrapment, we AFFIRM the district court’s denial to instruct the jury on sentencing entrapment.
We review the district court’s refusal to give a requested jury instruction
for an abuse of discretion.
United States v. Jones
,
As noted by both parties, this court has never recognized sentencing
entrapment as a defense,
[3]
but we have consistently noted that, were we to
accept the defense, it would only be cognizable in cases involving “true
entrapment,”
United States v. Tremelling,
43 F.3d 148, 152 (5th Cir. 1995)
(citation omitted), or whеre there is proof of “overbearing and outrageous
conduct” on the Government’s part.
Stephens
,
In order to establish the defense of true entrapment, “a defendant must
make a prima facie showing of (1) his lack of disposition to commit the offense
and (2) some governmental involvement and inducement more substantial
than simply providing an opportunity to commit the offense.”
Id
. at 444
(internal quotation marks and citation omitted);
see also United States v.
Bradfield
,
experience related to the crime, significant hesitation or unwillingness, or
attempts to return discussion to lawful conduct.”
United States v. Theagene
,
565 F.3d 911, 920 (5th Cir. 2009). Where a defendant “promptly avail[s]
himself of [a] criminal opportunity, it is unlikely that his entrapment defense
. . . [warrants] a jury instruction.”
Jacobson
,
Only after the defendant has made a prima facie showing of entrapment
by showing both elements—lack of predispositiоn and governmental
inducement—is the defendant entitled to an entrapment instruction by the
court.
See Stephens
, 717 F.3d at 444. If the defendant can make this prima
facie showing, he shifts the burden “to the government to prove beyond a
reasonable doubt that the defendant was disposed to commit the offense before
the government first approached him.”
Theagene
,
Macedo has failed to make a prima facie showing of true entrapment,
and as such, the district court did not abuse its discretion by denying his
requested jury instruction. First, Macedo has failed to prove that he was not
already predisposed to selling drugs prior to his interactions with Detective
Boston. In a similar case involving a pаid informant, this court held that a
defendant who “readily agreed to arrange a drug deal” and “demonstrated
knowledge of his role as a broker during the drug transaction” was not entitled
to an entrapment defense.
Chavez
,
Second, Macedo has also failed to show governmental involvement and
inducement more substantial than simply providing an opportunity to commit
the offense.
See Bradfield
,
In the instant case, unlike the defendants in
Bradfield
or
Jacobson
,
Macedo was not subject to the Government’s substantial inducement. To the
contrary, Detective Boston simply initiated routine drug deals with Macedo,
who, without hesitation, consummated several purchases in varying amounts.
Further, Detective Boston never coaxed or persuaded Macedo into these drug
deals; Macedo was a willing participant.
Cf. Bradfield
,
There is instead “a plethora of evidence” refuting Macedo’s arguments of government inducement, not only to sell the drugs but to sell the greater quantities. Cf . Bradfield , 113 F.3d at 521, 523–24. Macedo has not proven that the Government induced him to sell drugs generally, nor has he proven that the Government induced him to sell larger quantities of drugs than what he was already predisposed to sell. Thus, the district court did not abuse its discretion in denying Macedo’s requested sentence entrapment jury instruction.
B.
Second, Macedo argues that although the Government introduced adequate evidence of the falsity of his testimony during his mother’s trial, it made little or no effort to show its materiality. We disagrеe.
When weighing the sufficiency of the evidence, this court “reviews the
record to determine whether, considering the evidence and all reasonable
inferences in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.”
United States v. Vargas-Ocampo
,
Perjury is defined as “knowingly mak[ing] any false material
declaration” to any court or grand jury. 18 U.S.C. § 1623(a). The declaration
must be “material to the point in question.”
Id
. Materiality under § 1623
requires only that the defendant’s statements had “a natural tendency to
influence, or [were] capable of influencing, the decision of the decisionmaking
bоdy to which it is addressed.”
United States v. Brown
,
Count Four of the superseding indictment charged Macedo with committing perjury during his mother’s trial. That count specifically alleged that Macedo’s mother’s intent—i.e., whether she knowingly participated in the conspiracy—was a material issue and that Macedo testified falsely when he said that he received the proceeds from a methamphetamine sale from his mother and gave it to his supplier. In truth, Macedo’s mother gave the money directly to Madrigal, the meth supplier, after her transaction with Detective Boston. Macedo concedes that the Government proved that this testimony in his mother’s trial was false. However, he argues that this evidence fails to support his perjury conviction because the Government did not instruct Macedo’s jury that the prior false testimony was material in his mother’s trial.
Macedo cites to
United States v. Damato
,
By contrast, when a defendant’s false statements related to whether he
“had knowledge of” certain aspects of the investigation and criminal activity
and the jury was aware of those issues, this court held that the false statements
were material.
Cuesta
,
The instant case is more analogous to
Cuesta
, as the jury in Macedo’s
trial was well aware that the primary issue in his mother’s trial was whether
she was a knowing participant in the drug conspiracy.
See id
. His false
testimony on the record—that his mother never conspired with him to sell
drugs and that he never told her that the package she delivered to Detective
Boston on April 24, 2013, contained drugs—did not just “hint at the
relationship” between his statements and the issues before his mother’s jury.
See Damato
,
As such, viewing the evidence in the light most favorable to the Government, there was sufficient evidence that Macedo’s false statements were material to the issue of his mother’s knowing participation in the drug conspiracy.
C.
Third, Macedo argues that the Government agent’s lay opinion testimony regarding the meaning of certain coded words should not have been admitted because the agent possessed no special fаmiliarity with the meaning of the recorded language nor was he was a participant in the recorded conversations at issue. We disagree.
We review the district court’s evidentiary rulings for abuse of discretion,
subject to a harmless error analysis.
United States v. Jackson
,
Lay opinion testimony is limited to the witness’s opinion and must be: “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701; see also United States v. Akins , 746 F.3d 590, 598–99 (5th Cir. 2014). Further, “[t]his Court has recognized that in the context of drug conspiracies, [d]rug traffickers’ jargon is . . . a fit subject for expert testimony. [However,] we have recognized that testimony about the meaning of drug code words can be within the proper ambit of a lay witness with extensive involvement in the underlying investigation.” Akins , 746 F.3d at 599 (5th Cir. 2014) (internal quotation marks and citation omitted, and alterations in original).
Several cases in this circuit have addressed similar factual scenarios
where an agent in a drug conspiracy investigation testified as to his
understanding of the meaning of slang or code words used in wiretapped
conversations.
See Akins
,
Similarly in
El–Mezain,
two agents were extensively involved in the
investigation of a conspiracy and testified to their understanding of the events
in that case.
Although Agent Torres’s experience as a law enforcement officer may
have allowed him to testify as an expert, our case law also allows him to testify
to his lay opinion regarding the meaning of code words used in an investigation
for which he is the lead investigatоr.
See Akin
, 746 F.3d at 598–600;
El-
Mezain
,
Attempting to distinguish this case, Macedo cites to
United States v.
Ebron
,
D.
Further, any error by the district court was harmless. Agent Torres’s testimony, like that of the agent in Akins , did not have a substantial and injurious effect on the jury’s verdict, as there was ample other testimony translating the terms as referring to an older, respected woman—more specifically, Macedo’s mother—from an FBI linguist, Detective Boston, Madrigal (a co-defendant), and even Macedo himself. See Akins , 746 F.3d at 599–600 (holding that the admission of an agent’s testimony was harmless in light of its consistency with testimony by other agents and a co-conspirator). Thus, the admissiоn of Agent Torres’s opinion was also harmless, and we AFFIRM.
IV.
We AFFIRM the district court.
Notes
[1] On April 24, 2013, Macedo negotiated the purchase of 4 ounces of methamphetamine with Detective Boston, but Macedo’s mother completed the transaction by retrieving the drugs out of a cabinet in a shed behind her house.
[2] This transaction was captured on video.
[3] Despite several sister circuits’ adoption of this defense, this circuit has yet to
explicitly recognize the defense of sentence entrapment.
See Stephens
,
[4] Macedo was the Government’s only contact in the conspiracy. In fact, when the Government saw an opportunity to bypass Macedo and possibly deal directly with his supplier, their effort to seize on that opportunity was unsuccessful.