COFFEY, Circuit Judge.
The appellant, Corey Nobles, and his father, Willie Townsend, were arrested at O'Hare International Airport in Chicago, Illinois, on March 21, 1992, and charged with possession with intent to distribute cocaine and cocaine base (crack cocaine). On May 13, 1992, a grand jury returned an indictment against Nobles and Townsend, charging each defendant with conspiring to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846, possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Nobles filed a motion to suppress which was denied. Subsequent to the hearing on the motion, the government discovered that one of the Drug Enforcement Agency (DEA) Task Force officers who testified at the hearing, Officer Granias, had made false representations in the past to the Circuit Court of Cook County in cases to obtain search warrants.
Prior to trial, the government moved to dismiss Count I of Nobles' indictment, the conspiracy to possess and distribute cocaine charge, and the district court granted the motion.
Nobles was sentenced to a term of 100 months incarceration, to be followed by five years supervised release, and ordered to pay a mandatory special assessment of $50. Nobles appeals the denial of his motion to suppress, his conviction and sentence. We AFFIRM.
I. FACTS
On March 20, 1992, Corey Nobles reserved two seats on the 11:44 p.m. American Airlines flight from Los Angeles International Airport (LAX) to Chicago, Illinois, making the reservations in his and his father's (Willie Townsend) names. Nobles and Townsend arrived at the airport just minutes before the scheduled departure time of the 11:44 p.m. flight, and when Nobles went to the ticket counter to pay for his tickets, with cash, he was informed that the flight was secured and ready for departure. He proceeded to purchase two tickets on the 12:40 a.m. American flight 580 to Dallas, with a connection to O'Hare, and paid for the tickets with $1,346 in cash.
At approximately 7:30 a.m. on March 21, Officer Pamela Triner, a Chicago Police Officer assigned to the DEA O'Hare Task Force, received a telephone call from a Deputy Sheriff from San Bernadino, California who had reviewed the American Airlines flight manifest
Triner stated that she and Granias watched passengers leaving the airplane, and while looking for two men traveling together, they observed two men, later identified as Nobles and Townsend, deplane. They were among the last passengers to leave the aircraft, but were the first pair of men to deplane together. The officers commenced surveillance of the pair. According to Triner, one man (Nobles) was carrying a black canvas bag with the word "Guess" printed thereon and the other man (Townsend) had no luggage.
As the two men walked in the direction of the main terminal, Triner informed the court that she observed Nobles walking several steps behind Townsend, with the black, canvas bag over his right shoulder. Nobles continuously patted the bag with his right hand and Officer Triner stated that she observed both men frequently "looking over both shoulders and looking at people passing by [them]." The two men stopped at the front of the concourse where it joins the main terminal, and "began looking all around them, looking back from the way they just came from." At this time, Triner and Granias approached Nobles and Townsend.
Triner stated that she and Granias walked up to the two men, immediately identified themselves as police officers, and engaged the pair in a conversation by asking Nobles and Townsend if they would answer a few questions. The officers were standing two to three feet away from the two men, and were not blocking their paths to the escalators or exits. Opiola, who was standing about twenty feet from them, testified that he saw Triner and Granias display their police identification and Triner observed that Nobles' hands began shaking as he looked at the officers' identification (badge).
Nobles and Townsend agreed to speak with the officers and Granias asked if the officers could see their plane tickets and
After Nobles and Townsend told the officers their names, Granias asked the men how long they had been in California, to which Townsend responded that he and his son
Triner testified that by this time Townsend appeared to be sweating profusely. When the officers asked him "what was wrong," (i.e., why was he perspiring so much) Townsend replied he had too many Long Island Iced Teas, an alcoholic beverage. Triner observed that the terminal building was not warm, did not notice any alcohol on Townsend's breath, nor that he was slurring his speech, nor did any of his movements indicate that he was intoxicated.
Opiola testified that although he was unable to hear any of the exchange between the officers and the men, he noticed that Nobles and Townsend acted nervously during the conversation; they were "standing in place, but they were moving, constantly moving their bodies. They were looking at each other — it appeared to me that when a question was asked, before a question was answered, they would look at each other, and then an answer would be given."
Triner informed the court that Officer Granias asked Nobles if the bag he was carrying belonged to him. Nobles, again after looking over at his father, responded in the affirmative. Officer Granias next inquired of Nobles if he "had packed [the bag] himself," and "if anybody had given [him] any packages to carry that [he] didn't know the contents of." Nobles, who according to Triner was now breathing rapidly and whose hands were visibly shaking, glanced at his father before responding no. Granias repeated that Nobles and Townsend were not under arrest and were free to leave and asked them if he could ask a few more questions. Nobles and Townsend each agreed to continue speaking with the officers.
Triner also testified that Granias asked Nobles for permission to search his black bag inscribed "Guess." Nobles looked toward his father, dropped the bag from his shoulder and told the officer, "Go ahead." Opiola testified that he witnessed Nobles drop the bag from his shoulder and that neither of the officers touched the bag until it was on the floor. Officer Triner stated that she bent down to search the bag and in it, under some clothing, she found a large white plastic bag, which contained several clear packets of white powder, one she described as a clear packet with a "tan, rocky substance," and she also related that she discovered two packages sealed with blue duct tape. Officer Triner stated that at that time, based upon her experience, she believed that the clear bags contained cocaine and crack cocaine (cocaine base).
Triner informed the court that after the officers discovered the plastic and duct-taped packages within the white plastic bag in Nobles' luggage, and while they were still in the
Even though Nobles was in possession of the money and drugs the officers found, Triner and Opiola stated that Townsend attempted to assume all the responsibility and informed the officers that the money and drugs belonged to him, and stated that his son had no knowledge of the cocaine and crack cocaine in the bag. Opiola asked Nobles if he was aware of the contents in the bag he was carrying and at this time, "Nobles looked at Mr. Townsend, paused a few seconds, and [stated] `kinda.'"
During the suppression hearing, Nobles' version of the events that transpired at O'Hare differed from the testimony of Officers Opiola and Triner. Nobles testified that as he and Townsend were walking down the concourse in O'Hare, proceeding toward the main exit, Officer Granias "kind of rudely bumped into [Townsend].... from the left ... And he kind of just stopped [Townsend] in his footsteps or whatever. And he began talking fast, asking questions, ... [and] a lady came to my right, on my right side, and began asking me questions or whatever, and referring to the bag I was carrying." When Townsend stated that he was not in the mood to speak to the officers, at that time, Granias allegedly grabbed him, identified himself as a Chicago police officer, and told Townsend, "If you try to run, we have the right to shoot you in your back." Nobles explained that during the encounter, he kept looking at his father because Townsend had been drinking on the flight and Nobles wanted "to make sure he didn't misunderstand what the guy was saying and didn't try anything or whatever. And I was kind of paying attention, just making sure my father was all right."
Nobles next alleged that Officer Triner had a grip on the strap of his shoulder bag the entire time they were speaking, and that Triner asked the two men to step over to the right. Nobles testified that as he and his father moved, Triner pulled the bag off his shoulder and it fell to the floor. Agent Granias then allegedly repeated, "Remember, I have the right to shoot you in your back if you try to run." Nobles stated that at no time was he advised that he was free to leave, nor did he consent to the search of his bag. Nobles also informed the court that he was never advised that he did not have to answer the officers' questions, and he neither waived nor was read his Miranda rights upon arrest. Townsend refused to testify at the suppression hearing.
The district court denied Nobles' motion to suppress the evidence seized at O'Hare, based on Triner's, Opiola's, and Nobles' testimony. Thereafter, the case proceeded to trial, and the government presented the testimony of Officers Triner and Opiola, as well as the expert testimony of DEA Agent Kevin Lane, a ten year veteran of the DEA and the supervisor of the DEA Chicago Police Department Drug Task force, who testified generally concerning the nuances of the drug trade in America today.
The jury returned a verdict convicting Nobles of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (commission of the offense as a principal), but acquitting him of the count charging possession with intent to distribute cocaine base.
II. ISSUES
On appeal, Nobles alleges that: (1) the district court committed clear error when it denied his motion to suppress the cocaine, crack and money seized, determining that his encounter with the officers at O'Hare was consensual; (2) the trial judge abused his discretion when he allowed DEA Agent Lane to present expert testimony about drug trafficking in America; (3) the district judge abused his discretion when he read the jury the "conscious avoidance" instruction; (4) the evidence presented was insufficient to sustain his conviction beyond a reasonable doubt; (5) the trial court committed clear error when it determined that Nobles played more than a "minimal" role in this drug trafficking offense and did not qualify for a reduction in his offense level pursuant to U.S.S.G. § 3B1.2; and (6) the district judge committed clear error when he found that Nobles' representation of the facts surrounding his encounter with the police at O'Hare amounted to obstruction of justice and merited an enhancement in his offense level under U.S.S.G. § 3C1.1.
III. DISCUSSION
A. MOTION TO SUPPRESS
Nobles, relying on Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), argues that his entire encounter with the officers leading up to the search of his bag was unconstitutional because the officers did not have "specific and articulable facts" to justify stopping and questioning him and his father. He contends that Triner and Granias had no physical descriptions of the pair, nor did they have any other facts which could justify an inference that the two were involved in criminal activity. Nobles also asserts that the officers followed the first two African-American men who deplaned together, and stopped them merely because they were looking around the terminal. Thus, the drugs seized from his bag and the money found in his pockets should have been suppressed as the fruits of an illegal search and seizure.
The government responds that the entire encounter between the officers and Nobles and Townsend was consensual. The trial judge, agreeing with the government, ruled that the encounter in the airport was consensual, including the search of Nobles' bag.
United States v. Eddy, 8 F.3d 577, 580 (7th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1663, 128 L.Ed.2d 379 (1994) (citations and quotations omitted). "The question of whether a particular encounter is voluntary is a factual one, dependant on the circumstances of each case." United States v. Maldonado, 38 F.3d 936, 939 (7th Cir.1994), cert. denied, ___ U.S. ___, 116 S.Ct. 205, ___ L.Ed.2d ___ (1995) (quotations omitted). This court will "not retry issues of fact or substitute our judgment with respect to such issues for that of the trial court." United States v. Adebayo, 985 F.2d 1333, 1337 (7th Cir.1993) (quotation omitted).
"It is well-established that the Fourth Amendment does not prohibit all searches and seizures, but only those that are `unreasonable.'" United States v. McCarthur, 6 F.3d 1270, 1275 (7th Cir.1993). This court has enunciated "three categories of police-citizen encounters and the Fourth Amendment requirements imposed on each of them:"
Id. (citations omitted). "With regard to the third category, the consensual encounter, the degree of suspicion that is required is zero." United States v. Withers, 972 F.2d 837, 841 (7th Cir.1992).
The Supreme Court has established an objective test to determine whether a person has been "seized" such that Fourth Amendment protections are triggered: "a person has been `seized' within the meaning of the Fourth Amendment ... only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quotation omitted). "The law is well established that if, in the totality of the circumstances, a reasonable person would not believe that his freedom of movement was restrained, or believe that he remains at liberty to disregard a police officer's request for information, a seizure has not occurred." Id. (quotation omitted).
Nobles mistakenly argues that Triner and Granias should have had "specific and articulable" facts to support an inference that he was in the process of committing a crime before they approached him at O'Hare, but this court has made it clear that "what has become known as a `Terry' stop differs from a brief consensual encounter, from which a reasonable person would feel free to walk away, since an officer need not have any level of suspicion for a consensual encounter." United States v. Soto-Lopez, 995 F.2d 694, 697 (7th Cir.1993) (citations omitted and emphasis added); see also United States v. Adebayo, 985 F.2d 1333, 1338 (7th Cir.1993), cert. denied sub nom., Davis v. United States, ___ U.S. ___, 113 S.Ct. 2947, 124 L.Ed.2d 695 (1993).
"Consent [encounters and] searches are valid only if the consent was freely and voluntarily given." Adebayo, 985 F.2d at 1340.
United States v. Robinson, 30 F.3d 774, 782 (7th Cir.1994). Other factors this court has
We have reviewed the record from the suppression hearing, and although Nobles gave a different version of the encounter at the airport, we defer to the district judge's determination that Officers Triner's and Opiola's account of the conversation in O'Hare was more credible than Nobles'. The court explicitly rejected Nobles' claims that Granias threatened to shoot him in the back should he walk away from the officers, and that Triner grabbed the bag from the defendant's shoulder and searched it without his consent.
We have stated on numerous occasions, that as the fact finder
Eddy, 8 F.3d at 582-83. We refuse to second-guess the trial judge on matters of credibility unless the defendant establishes that the testimony was "exceedingly improbable." Id. at 580. Nobles has offered nothing but his own self-serving assertions to contradict Triner's and Opiola's testimony.
Based on Triner's and Opiola's testimony, the district court made the following findings of fact: the encounter took place in a crowded airport; the officers displayed their identification, told the defendant several times he was not under arrest and advised him that he was free to leave; the officers did not block the defendant's path, step in between Nobles and his father, or move them to another area; and unarmed, in plain clothes, and without handcuffs, the officers did not act in a threatening manner, show any force, or touch either of the men. Furthermore, Officer Triner testified that the entire exchange took place in a "normal, friendly type conversation[al]" tone, and Opiola stated that it lasted but a short time. A reasonable person, who was engaging in a "normal" conversation with plainclothed, unarmed officers, in a crowded airport, whose path was not impeded, and who was specifically advised that he was free to leave and not under arrest, would feel that he was free to leave the scene, Chesternut, 486 U.S. at 573, 108 S.Ct. at 1979, and thus, given these facts, we hold that when Nobles agreed to answer the agents' questions, he was acting freely and voluntarily.
The trial court also found, in accordance with Officer Triner's testimony, that in response to Officer Granias's questioning, the defendant stated that the bag was his, he had packed it himself, and no one gave him anything to put in the bag of which he did not know the contents. When the officers requested permission to look in the bag, the defendant dropped it from his shoulder and stated, "Go ahead." Both Triner and Opiola testified that at no time before Nobles dropped his bag to the floor did either of the officers ever touch the bag. Thus, based on the record before us, including the district judge's credibility determination, we agree that Nobles voluntarily consented to the search of his bag, without threat or coercion.
We also note that on numerous occasions, this court has held that similar encounters between citizens and law enforcement officials were consensual, thus not subject to requirements of the Fourth Amendment. In United States v. Maldonado, the "encounter took place in the middle of a public train
We have also held that
McCarthur, 6 F.3d at 1276 (citing Florida v. Bostick, 501 U.S. 429, 437-39, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991)).
The officers' seizure and search of Nobles's bag was virtually identical to the facts presented in Adebayo, a case in which the defendant made the same allegation as Nobles: that DEA agents grabbed his bag (briefcase) and searched it without his consent. 985 F.2d at 1340. In Adebayo, we also held, relying on the trial judge's assessment of the credibility of the law enforcement officers' testimony, that contrary to the defendant's claims, the search was consensual because:
Id.
The district judge made a credibility determination and found the officers' testimony more worthy of belief than Nobles' testimony. We refuse to second-guess the trial court on matters of credibility, and from our review, we accept the court's determination that the arresting officers engaged in a purely consensual encounter with the defendant Nobles and his father, and that the ensuing conversation was not a Terry stop in which the officers needed "specific and articulable facts" to justify questioning the defendant and his father. Terry, 392 U.S. at 21, 88 S.Ct. at 1880. We hold that the district court did not commit clear error when it ruled that the money and drugs seized from Nobles at O'Hare were the fruits of a legal search and seizure.
B. EXPERT TESTIMONY
Nobles contends that he was prejudiced by the admission of the expert testimony of DEA Agent Lane because his testimony was largely unrelated to the issue of whether or not the defendant knowingly possessed the cocaine and cocaine base in his bag. The defendant further maintains that when Lane referred to people who "use and sell drugs" as "defendants," he created the prejudicial inference that because Nobles was the "defendant" in the case, he must have been guilty. The government responds that Lane imparted general information to the jury concerning the drug trade in the United States, including the pricing, processing, purity, transportation, distribution, and sale of narcotics, and that because the average juror would have no knowledge of these details, the testimony assisted the panel in evaluating the evidence before them, and was thus, not unfairly prejudicial.
The defendant offered no objection to Lane's qualification as an expert or the substance of his testimony, and the district court admitted the evidence. Nobles'
Federal Rule of Evidence 702 "permit[s] the admission of the opinion testimony of a witness qualified by the court as an expert if the witness' specialized knowledge will assist the trier of fact to understand the evidence in the case." United States v. Briscoe, 896 F.2d 1476, 1497 (7th Cir.), cert. denied sub nom., Usman v. United States, 498 U.S. 863, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990). "[T]he operations of drug dealers are generally an appropriate subject for expert testimony." United States v. Rollins, 862 F.2d 1282, 1292 (7th Cir.1988), cert. denied sub nom., Slaughter v. United States, 490 U.S. 1074, 109 S.Ct. 2084, 104 L.Ed.2d 648 (1989). "[B]ecause the clandestine nature of narcotics trafficking is likely to be outside the knowledge of the average layman, law enforcement officers may testify as experts in order to assist the jury in understanding these transactions." United States v. Sanchez-Galvez, 33 F.3d 829, 832 (7th Cir.1994).
Agent Lane had been employed as a Special Agent with the DEA for ten years, he was a team leader for six Chicago Police Department officers whose function was to investigate drug-related homicides, testified that he had worked in "thousands" of drug cases during his career, and had received several commendations for his investigative work from both the Illinois State Police and the DEA. Thus, he "had knowledge of a particular area ... that ... came from experience, education, and training; all acceptable bases of expertise under Rule 702." United States v. Stevenson, 6 F.3d 1262, 1267 (7th Cir.1993).
Lane informed the jury that Los Angeles was a source city for narcotics in the United States. He also testified that cash was the preferred method of payment for illegal narcotics because drug traffickers "certainly would be apprehensive to be involved with money orders and the use of checks and banks, due to the nature of what the business is and thereby leaving a paper trail to further enhance the possibility for detection by law enforcement."
The agent further explained that the 774.9 grams of 94% pure cocaine that Nobles was carrying in his bag, when processed for retail sale, would result in approximately 3 kilograms of 24% pure cocaine, which would sell for roughly $300,000 on the street, and would be enough to provide over 24,000 individual doses of cocaine. Lane opined that this large quantity of cocaine could only have been intended for distribution, and not for personal use. Agent Lane also testified that those involved in dispensing large quantities of drugs, commonly carried electronic pagers, such as the one Nobles possessed, which
Additionally, Lane explained to the jury the importance of the role of drug couriers:
Thus, it is clear that Lane's testimony established the following facts: (1) that Nobles was travelling from a drug source city (Los Angeles); (2) he possessed close to $15,000 in cash, the preferred payment method for drug transactions, without a plausible explanation for such possession; (3) the defendant carried the equivalent of three kilos of cocaine ($300,000); (4) pagers (such as Nobles') are a tool of the drug trade; and (5) couriers are crucial to the success of a drug trafficking operation. Lane's testimony was relevant to the jury's determination of Nobles' guilt or innocence of the charges he faced because each of these facts enumerated above, aided the prosecution in demonstrating that Nobles had knowledge that he was involved in drug trafficking activity, and that he also had an intention to distribute the cocaine.
Before we conclude this discussion, we note that Agent Lane's passing reference to people who "use and sell drugs" as "defendants," merely referred to defendants who become informants for the DEA in order to receive recommendations for lesser sentences, and was not prejudicial when examined in context of Lane's entire statement:
We do not agree that Agent Lane's statement implied that all defendants in drug cases are necessarily guilty of the crimes with which they are charged, nor was it prejudicial to Nobles when read in its totality.
Additionally, at the close of the trial, the judge instructed the jury that:
"Jurors are presumed to follow ... [all] instructions" from the court, Doe v. Johnson, 52 F.3d 1448, 1458 (7th Cir.1995) (quotation omitted), and we "rely on our belief that juries heed [their] instructions." United States v. Davis, 15 F.3d 1393, 1402 (7th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 250, 130 L.Ed.2d 171 (1994). The judge's instruction about the presumption of innocence compensated for the remotely possible speculative prejudicial impact the defendant might have suffered from Lane's fleeting reference to drug traffickers as "defendants." We are convinced that the district court did not commit error when it admitted Agent Lane's testimony as an expert in the field of drug trafficking methods and prices.
C. CONSCIOUS AVOIDANCE INSTRUCTION11
Nobles argues that the district judge abused his discretion when he read the jury the following "conscious avoidance" instruction for there was insufficient evidence to support an inference that he consciously avoided acquiring knowledge of his father's drug trafficking activities:
Nobles continues that the effect of the instruction was to give the jury the impression that they could convict him for negligently failing to realize that his father was involved in drug trafficking, rather than requiring them to find that he "knowingly" possessed cocaine with the intent to distribute.
The government responds that the instruction was proper because in light of: Nobles' display of nervous behavior during his encounter with the officers (constantly moving around, looking at his father before responding to questions, rapid breathing and visible shaking); the fact that Nobles was carrying $14,928 in cash; purchased tickets and boarded the airplane at the very last minute with $1346 in cash; was transporting over $300,000 of cocaine; and stated that he "kinda" knew what was in his bag, there was sufficient evidence to support an inference that the defendant was consciously avoiding knowledge of his father's drug trafficking activity. The trial court found that if Nobles was insistent in pursuing his argument that he had no knowledge of the drugs in his bag, his possession of such a large amount of cash and a pager, as well as the fact that he purchased his airline ticket with cash, and "kinda" was aware of the contents of his bag, supported an inference that he remained consciously ignorant of the cocaine and crack he was transporting.
"We review a district judge's decision to give the [conscious avoidance] instruction for an abuse of discretion." United States v. Walker, 25 F.3d 540, 546 (7th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994) (citations omitted). "The instruction should be given only when it addresses an issue reasonably raised by the evidence." United States v. Stone, 987 F.2d 469, 471 (7th Cir.1993). Additionally,
United States v. Gonzalez, 933 F.2d 417, 434 (7th Cir.1991) (citations and quotations omitted).
"While we have warned that this instruction should be given only when it addresses an issue reasonably raised by the evidence, an ostrich instruction is appropriate when the defendant claims a lack of guilty knowledge and there are facts and evidence that support an inference of deliberate ignorance." Id. (quotations omitted); see also United States v. Kladouris, 964 F.2d 658, 668 (7th Cir.1992). "Essentially, the ostrich instruction states that a person cannot avoid the `knowingly' requirement of a crime by consciously avoiding the truth about a particular transaction and then claim their actions arose through ignorance, accident or mistake." Walker, 25 F.3d at 545 (citations omitted). "It is well settled that wilful blindness or conscious avoidance is the legal equivalent to knowledge." United States v. Rodriguez, 53 F.3d 1439, 1447 (7th Cir.1995); see also United States v. Giovannetti, 919 F.2d 1223, 1228 (7th Cir.1990) ("A deliberate effort to avoid guilty knowledge is all the guilty knowledge the law requires").
Nobles submitted the following instruction which the judge read to the jury: "The defendant's theory of defense is that he did not knowingly possess the drugs charged in the indictment; that both the money and drugs belonged to his father." Thus, Nobles "claim[ed] a lack of guilty knowledge" about the crime, in spite of his statement to Officers Opiola and Triner that he "kinda" knew what was in his bag. Walker, 25 F.3d at 546.
Nobles' nervous behavior at the airport, as testified to by Officers Triner and Opiola, indicated that he strongly suspected he was involved in some sort of wrongdoing. Further, Townsend was employed by a construction company and the record fails to reflect any legitimate business reason why he or his son would be in possession of nearly $15,000 in cash. That amount of money is large even for one who claimed to be on vacation. Nobles also purchased plane tickets at the last minute with $1,346 in cash. Under all the facts and circumstances contained in this record, it is almost inconceivable that Nobles would not have been suspicious of his father's access to so much money.
Triner testified that Nobles informed Officer Granias that the bag he was carrying was his, that he had packed it himself, and it did not contain any packages of which he did not know the contents. The cocaine and crack were found in this same bag and when Officer Opiola, in Officer Triner's presence, asked Nobles if he was aware of the contents of his bag, Nobles looked at his father for a few seconds, and then responded "kinda."
Nobles argues that Officer Triner's testimony that she heard the "kinda" statement was not credible because during the following colloquy, which took place at trial, she contradicted herself about whether or not she heard Nobles make this statement:
When we examine this colloquy, it becomes clear that Nobles and his counsel are misreading Triner's testimony by quoting it out of context, rather than clarifying the full contents of her discussion of whether she heard Nobles state that he "kinda" knew what was in his bag. When the defense attorney asked Triner "you really didn't hear this `kind of' thing that you testified to, right," she answered "no," as in "no, that is not right." Once defense counsel stated "All right," Triner explicitly stated, "I did hear it. No. That's not right. Yes, I did hear it." In order to make sure that the defense attorney understood the substance of her testimony, Officer Triner reiterated that she did hear Nobles tell Opiola that he "kinda" knew what was in his bag. Nobles was convicted of possessing cocaine with the intent to distribute it; therefore the jury in all probability found Officer Triner's testimony to be consistent and credible and we refuse to second-guess the credibility determination of the jury as they had
Eddy, 8 F.3d at 582-83 (quotation omitted).
When considering the totality of the facts and circumstances surrounding Nobles' arrest, including his nervous behavior at the airport, the fact that he purchased his airline tickets at the last minute with cash, he carried no identification, he was in possession of 774.9 grams of 94% pure cocaine, cocaine base, valued at some $300,000, and close to $15,000 in cash, that he carried a pager, and stated that he "kinda" knew what was in his bag, we can only conclude that Nobles was either aware that he was carrying drugs or had a strong suspicion of wrongdoing and kept deliberately ignorant of the facts.
Additionally, Nobles "has not made any convincing argument that the jury's verdict probably would have been different had the district court not given the ostrich instruction." United States v. Allen, 10 F.3d 405, 416 (7th Cir.1993). In fact, during oral argument, Nobles' attorney stated that the word "kinda" indicated "a degree of knowledge, not a deliberate ignorance of the fact." If "kinda" indicates a degree of knowledge, then Nobles had knowledge of the drugs and the "evidence against [the defendant] was his own words.... [T]he ostrich instruction was not likely to deflect whatever force the jury chose to give those words." Id. Therefore, we hold that the judge did not abuse his discretion when he gave the jury the conscious avoidance instruction.
D. SUFFICIENCY OF THE EVIDENCE
Nobles' next contention is that the evidence received at trial was insufficient to prove his guilt of possession of cocaine with intent to distribute beyond a reasonable doubt. In support of the defendant's argument, he asserts that neither Opiola nor Triner were credible because their testimony was riddled with inconsistencies.
The government responds that the inconsistencies Nobles alleges in the officers' testimony were minor, at worst, and the jury, as the finder-of-fact, chose to believe Triner and Opiola, rather than the defendant. The government further asserts that the evidence against Nobles was more than sufficient to prove, beyond a reasonable doubt, that he knowingly possessed the cocaine with the intent to distribute.
"In challenging the sufficiency of the evidence to support [a] conviction, [the defendant] bears a heavy burden." United States v. Hill, 40 F.3d 164, 166 (7th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1385, 131 L.Ed.2d 238 (1995).
United States v. Hatchett, 31 F.3d 1411, 1416 (7th Cir.1994) (citations and quotations omitted).
United States v. Lakich, 23 F.3d 1203, 1210-11 (7th Cir.1994) (quotation omitted).
The evidence presented at trial established that Nobles fit the profile of a drug courier in that less than an hour before departure, he purchased two one-way airline tickets from Los Angeles, a drug source city, with $1346 in cash, and he carried an electronic pager. After departing from the plane and before the confrontation with the officers, Nobles and his father were continuously looking around and over their shoulders, as if to avoid detection, and while Nobles was speaking with the officers, he appeared to be less than calm for his hands were visibly shaking, he was breathing rapidly, was constantly moving around nervously, and looked at his father before answering any of the officers' questions.
The defendant had $14,928 in cash in his pockets and it is inconceivable and unbelievable that he was unaware that he was carrying this amount of money in his pockets. In addition to carrying the drugs with a street value of some $300,000, when queried by the officers concerning the contents of his bag, he stated that he packed it himself and that it did not contain any packages of which he did not know the contents. Officer Triner found cocaine and crack in the defendant's bag and when Officer Opiola specifically asked the defendant if he knew what was in his bag, Nobles responded "kinda." Finally, it is undisputed that these drugs could have been processed to produce approximately 24,000 individual doses of cocaine for street sale, an amount that the expert testimony of Agent Lane established could only have been intended for distribution. When we view this evidence in the light most favorable to the government, a reasonable jury could find, beyond a reasonable doubt, that Nobles knowingly possessed cocaine with the intent to distribute it. Hatchett, 31 F.3d at 1416.
Nobles posits that neither Officer Triner nor Officer Opiola were credible. We addressed Nobles' attack on Triner's credibility in Section III.C., supra, and we need not reiterate the discussion. Nobles posits that Opiola was not credible because when he described Nobles' and Townsend's demeanor while they were being questioned at O'Hare, Opiola stated that the two men were "[c]ool and casual. They were answering questions. They — shuffling around a little bit. They appeared to be a little nervous. They weren't cocky or mad. It seemed like they were answering questions real nice and polite." Nobles maintains that describing him and his father as both "cool and casual," and "nervous," is contradictory, and therefore, Opiola's testimony should not be considered credible. We disagree with counsel's interpretation of the meaning of Opiola's description of the men, as an individual can be easily described as acting "cool and casual" and still display nervousness.
We examined a similar detail in Eddy, where "the [defendant] argued that the agents undermined their credibility by contradicting themselves" about whether one of them made "small talk" with the defendant while his bags were being searched. 8 F.3d at 581. We found the detail about small talk to be a "minor discrepancy," id., as is Opiola's description of Nobles and Townsend. We are confident that Nobles and his father were doing their utmost to appear confident and relaxed, as if they had nothing to hide, but in truth and in fact, the two men were caught "red handed." They were transporting the equivalent of three kilos of street quality cocaine, were looking around to see if they were being followed, and began sweating and breathing rapidly upon questioning from the officers, they had no identification, and allegedly no airline tickets. Under these circumstances, a trained officer, such as Officer Opiola, could certainly see through the facade and observe that the two men were truly nervous, in spite of their best efforts to appear otherwise.
Nobles also argues that his acquittal on the charge of possessing cocaine base with the intent to distribute is further proof of the insufficiency of the evidence because the evidence
Id.
Therefore, "there is nothing but speculation to support the defendant's assumption," id., that the split verdict is an indication that the evidence against him was insufficient to establish his guilt of possessing cocaine with the intent to distribute. We note that it is not unusual for a jury to convict on one charge, and acquit on another, if they want to give the defendant a break for whatever reason, or they also might feel that the punishment for one crime is appropriately severe for both offenses. We refuse to venture a hypothesis as to why the jury split the verdict,
Id. (quoting United States v. Powell, 469 U.S. 57, 66, 105 S.Ct. 471, [477] 83 L.Ed.2d 461 (1984)). As the court explained:
Id. (quoting Powell, 469 U.S. at 66-67, 105 S.Ct. at 477-78).
Whatever their reasons for acquittal on the possession of cocaine base charge, we will defer to the jury's "collective judgment," and will not overturn their verdict based on Nobles' "pure speculation" into their reasons for returning a split verdict. Id. The government presented sufficient evidence to support Nobles' conviction beyond a reasonable doubt, and we refuse to reweigh the jury's determination of the witnesses' credibility nor will we question the wisdom of their verdict.
E. SENTENCING
1. Minimal Participant
Nobles argues that he was entitled to a four level reduction in his base offense level pursuant to U.S.S.G. § 3B1.2(a)
"We review the district court's sentencing determinations under two standards. [ (1) ] We will not reverse factual
"When a defendant requests a decrease in his offense level, he has the burden of demonstrating that he is eligible for the reduction by a preponderance of the evidence." United States v. Soto, 48 F.3d 1415, 1423 (7th Cir.1995) (citation omitted). The Applications Notes for § 3B1.2 provide:
(emphasis added).
"The controlling standard for an offense level reduction under [§ 3B1.2] is whether the defendant was substantially less culpable than the conspiracy's other participants." Id. (emphasis added). "[T]he fact that one plays a much lesser role than another does not mean that one is a [minimal] participant." United States v. Kerr, 13 F.3d 203, 206 (7th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1629, 128 L.Ed.2d 353 (1994). When it appears that although one person was the "driving force" in a criminal scheme, yet the defendant still had "an integral role assisting him" in the enterprise, the defendant will not receive a reduction in his offense level pursuant to U.S.S.G. § 3B1.2(a). United States v. Bolin, 35 F.3d 306, 310 (7th Cir.1994).
"The Commentary to Section 3B1.2 of the Guidelines notes that a role as a courier may be sufficiently minor or minimal to permit an adjustment under this section of the Guidelines where only a single transaction occurs." United States v. Osborne, 931 F.2d 1139, 1157 (7th Cir.1991) (emphasis in original). However, we are mindful of the fact that "[a] defendant's status as a courier does not necessarily mean that he is less culpable that other participants in a drug operation." Id. at 1158.
Id. "Very clearly, the courier performs an important conveyance and/or transportation function in a drug conspiracy and is a necessary culpable member who helps insure the success of the overall conspiratorial drug distribution scheme." Id. at 1159.
Nobles was arrested while carrying approximately 774.9 grams of 94% pure cocaine, which would have sold for approximately $300,000 on the street, 231.7 grams of 83% pure cocaine base, and nearly $15,000 in cash. He told Officer Opiola that he "kinda" knew that the drugs were in his bag, and it strains the limits of credulity to believe that Nobles was not aware of all the cash in his pockets. Furthermore, the quantity of cocaine and crack in Nobles' bag clearly demonstrates
Townsend attempted to take the full responsibility for the drugs in his son's bag, and it is not unreasonable for a father to attempt to take the rap and save his son from a term of incarceration. "Judges in the federal system, whether they are in the trial or appellate system, do not operate in a vacuum, shielded from knowledge of drug operations in the real world." Hatchett, 31 F.3d at 1420. Townsend's and Nobles' selfserving assertion that the defendant was only acting as an uninformed courier for a single, small drug transaction, falls far short of convincing us that the district judge committed clear error when he determined that Nobles played a major role in this drug trafficking offense.
2. Obstruction of Justice
Nobles also asserts that the trial court erred in enhancing his base offense level for obstruction of justice because of his testimony at the pre-trial suppression hearing, pursuant to U.S.S.G. § 3C1.1.
The government responds that the district court's finding that Nobles testified untruthfully was a credibility determination which should not be reversed on appeal. At the sentencing hearing, the court gave the following reasons for its decision:
"The Supreme Court has held that a sentencing court may enhance a defendant's sentence under U.S.S.G. § 3C1.1 if the court finds that the defendant committed perjury." United States v. Woody, 55 F.3d 1257, 1273 (7th Cir.1995) (citing United States v. Dunnigan, 507 U.S. 87, ___, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993)). "However, the sentencing court must make a specific finding that a defendant committed perjury prior to imposing this enhancement." Id.
Dunnigan, 507 U.S. at ___, 113 S.Ct. at 1117.
"[T]he Court noted that a testifying witness commits perjury if while under oath he gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than a result of confusion, mistake, or faulty memory." Dillard, 43 F.3d at 308-09 (citing Dunnigan, 507 U.S. at ___, 113 S.Ct. at 1116). "In Dunnigan, the Court held that the sentencing court's findings that `the defendant was untruthful at trial with respect to material matters ... that were designed to substantially affect the outcome of the case' were adequate." Woody, 55 F.3d at 1273 (quoting Dunnigan, 507 U.S. at ___, 113 S.Ct. at 1117). The commentary to U.S.S.G. § 3C1.1 defines "material information" as information which, "if believed, would tend to influence or affect the issue under determination." Comment, Note 5.
At the suppression hearing, the defendant testified that the encounter with the DEA agents was not consensual, that the agents grabbed his bag off his shoulder, and threatened to shoot him if he tried to leave. This testimony is in stark contrast to the DEA agents' testimony that the conversation was consensual and as we have stated, see Section III.B., supra, we decline to reweigh the credibility decisions made by the district judge. Nobles' account of the encounter is certainly "material information" because it was directly relevant to the determination of the legality of the meeting between Nobles and the officers. The sentencing judge stated that he believed that the defendant "created facts that didn't exist and did that in a knowing fashion." Thus, the court explicitly made a finding that Nobles willfully testified falsely about a material matter before the court and this finding sufficiently encompassed the "factual predicates" of perjury as required by Dunnigan. 507 U.S. at ___ 113 S.Ct. at 1116; see also United States v. Emenogha, 1 F.3d 473, 485 (7th Cir.1993), cert. denied sub nom., ___ U.S. ___, 114 S.Ct. 901, 127 L.Ed.2d 92 (1994) (upholding district court's finding of obstruction of justice based upon the court's determination that defendant had perjured himself by testifying at a pretrial hearing on a suppression motion that he had been threatened by law enforcement officers).
Nobles also argues that the government failed to demonstrate it was significantly obstructed in the investigation or prosecution of the offense. However, Seventh Circuit case law is quite clear that "as a general rule, actual prejudice to the government is not required for an obstruction enhancement because § 3C1.1 calls for an enhancement not only when the defendant has actually obstructed justice but also when the defendant `attempted to obstruct or impede' the administration of justice." Francis, 39 F.3d at 812 (citing United States v. Stevenson, 6 F.3d 1262, 1269 (7th Cir.1993); United States v. Caicedo, 937 F.2d 1227, 1234 (7th Cir. 1990); United States v. Gaddy, 909 F.2d 196, 199 (7th Cir.1990); and United States v. Patterson, 890 F.2d 69, 72 (8th Cir.1989)). Thus, Nobles' ultimate lack of success in obstructing justice will not relieve his responsibility for his attempt to do so, and we hold that the district judge did not err when he enhanced Nobles' offense level for obstruction of justice, pursuant to U.S.S.G. § 3C1.1.
AFFIRMED.
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