     Case: 13-40374   Document: 00512659781     Page: 1   Date Filed: 06/11/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                 No. 13-40374                           FILED
                                                                    June 11, 2014
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

                                           Plaintiff–Appellee,

v.

SAN JUANITA NOEMI MEDELES–CAB,

                                           Defendant–Appellant.


                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and DENNIS and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Defendant–Appellant San Juanita Noemi Medeles–Cab appeals her
conviction for possessing with the intent to distribute more than five kilograms
of cocaine. Medeles–Cab argues that the United States put on improper “drug
courier profile” evidence during her trial.     Medeles–Cab also argues that
knowledge of the type and quantity of drugs is an element of the offense of
conviction and that the United States failed to prove that element. Because
we disagree that the evidence at issue amounted to an improper drug courier
profile and because we recognize that Medeles–Cab’s knowledge argument is
foreclosed by our precedent, we AFFIRM.
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                                     No. 13-40374
                                            I.
       This case arose out of a drug seizure at a border patrol checkpoint near
Laredo, Texas. 1 Border Patrol agents first interacted with Medeles–Cab, a
Mexican citizen, when she arrived at the checkpoint in a Volkswagen GTI.
Three of Medeles–Cab’s children were also in the car. In her initial exchange
with the agents, Medeles–Cab presented a set of travel documents,
demonstrating her lawful presence in the country. 2 After a drug dog “alert[ed]
to the rear bumper” of the car in the course of a routine inspection, the agents
directed Medeles–Cab’s car to “secondary inspection.” The more thorough
secondary inspection revealed approximately ten kilograms of cocaine in a
hidden compartment in the rear of the car. Medeles–Cab was arrested and
eventually indicted for possessing with the intent to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and for
conspiring to do the same. Medeles–Cab went to trial.
       Medeles–Cab’s theory at trial was that she had no knowledge of the
drugs in the car. Medeles–Cab testified that she merely was headed to San
Marcos, Texas, to do some shopping and that, as a favor to a friend, she also
was planning to pick up some money in San Antonio, Texas. To establish that
Medeles–Cab knew that she was transporting drugs, the United States
presented evidence of Medeles–Cab’s on-scene statements as well as her
communications with others via cell phone, including text messages and call
records. In addition, through Agent Joseph Osborne of the Drug Enforcement
Agency, the United States put on evidence pertaining to the business of drug



       1We present the facts in the light most favorable to the conviction as we must. See
United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012).

       2Medeles–Cab presented a B1/B2 visa, which allows a non-citizen to enter the country
to shop and conduct business up to 25 miles inside the border, and an I-94 permit, which
allows a non-citizen to pass beyond 25 miles.
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                                 No. 13-40374
trafficking. After explaining that he had become familiar with the value of
cocaine “locally and elsewhere in the United States” as a result of his
experience with cocaine investigations, Agent Osborne testified that the
market price for a kilogram of cocaine is between $22,000 and $25,000 in
Laredo and between $25,000 and $28,000 in San Antonio. Agent Osborne also
testified thus:
      Q:    [I]n this particular case how many kilos are involved again?
      A:    Approximately ten kilos.
      Q:    Okay. So looking at the low end in Laredo, the approximate
            value would be how much?
      A:    [A]bout 220,000.
      Q:    Okay. And looking at the high end in Laredo at 10 kilos at
            25,000, what would be the approximate value?
      A:    [250,000].
            ....
      Q:    Okay. And so at the low end, again, sticking to the amount
            in this particular case, ten kilos, at the low end in San
            Antonio at 25,000 a kilo it would be what amount?
      A:    [250,000].
      Q:    And at the high of 28,000 per kilo, how much would that be?
      A:    [280,000].
      Q:    All right. Now what accounts for the increase between
            Laredo and San Antonio?
      A:    Well, as . . . the cocaine moves north from Mexico it actually
            increases from going—crossing the river there’s an increase
            in price and then again crossing the checkpoint there’s an
            increase in price. There’s money paid to the driver, money to
            the person who set it up, and then they share the profits and
            then they also kick some of the profits back to the person
            who sent them so that the difference in price should go up.
      Q:    And so as the drugs or in this particular case the cocaine goes
            further say from San Antonio what’s going to happen to the
            value of that particular load?
      A:    The farther it goes typically the more expensive it is. There’s
            more risk involved taking it further into the country and they
            have to pay somebody to take it so the price continues to go
            up.


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                                 No. 13-40374
Medeles–Cab did not object to this testimony. Later, in closing argument, the
prosecutor argued the following to the jury:
      She’s going to deliver a load of cocaine—14 bundles, ten kilos.
      That’s the other thing that was going on here. I’m sure she was
      going to do some shopping. Hey, take advantage of it. You’re
      already there. Go shopping. She was going to get paid. You can
      surmise that too. You’re delivering ten kilos of cocaine you’re going
      to get paid a pretty good amount of money. I’m sure she’s going to
      have a lot of money to shop.
Medeles–Cab did not object to this argument.
      The district court denied Medeles–Cab’s motion for acquittal. Particular
to this appeal, the district court gave the following jury instruction regarding
the knowledge element of the possession offense: “The government must prove
beyond a reasonable doubt that the defendant knew she was possessing a
controlled substance, but need not prove the defendant knew which particular
controlled substance was involved.” The jury convicted Medeles–Cab on the
possession count and acquitted her on the conspiracy count. The district court
sentenced Medeles–Cab to the statutory minimum of 120 months in prison.
      On appeal, Medeles–Cab characterizes Agent Osborne’s testimony as an
improper drug courier profile, specifically seizing on two phrases—“There’s
money paid to the driver” and “they have to pay somebody to take it so the
price continues to go up.” Conceding that plain error review applies, Medeles–
Cab argues that the admission of that testimony requires reversal of her
conviction. In addition, Medeles–Cab argues that the prosecutor’s remarks
exacerbated the impropriety of the drug courier profile.      Medeles–Cab also
argues that the prosecutor’s remarks were improper in their own right because
they were not supported by the evidence.
      In a separate point of error, Medeles–Cab argues that, under § 841, the
United States must prove that the defendant has knowledge of the type and


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                                  No. 13-40374
quantity of drugs underlying the offense and that the United States failed to
satisfy that burden.
                                        II.
      We review Medeles–Cab’s challenge to Agent Osborne’s testimony and
the prosecutor’s closing argument for plain error.          See United States v.
Gonzalez–Rodriguez, 621 F.3d 354, 362–63 (5th Cir. 2010). The first step in
plain-error review requires us to determine if the error is “clear or obvious”
under current law. Id. at 363. An error is “clear or obvious” if “the trial judge
and prosecutor were derelict in countenancing it, even absent the defendant’s
timely assistance in detecting it.” Id. (internal quotation marks omitted).
Second, if the error is clear, we consider whether the error affected the
defendant’s substantial rights. Id. Under this second prong, the defendant
has the burden of demonstrating that the error was prejudicial, which requires
a showing that the error undermines confidence in the outcome of the trial. Id.
To clear the last hurdle of plain-error review, we must decide whether the error
seriously affected “the fairness, integrity, and public reputation of the judicial
proceeding.” Id.
      The crux of Medeles–Cab’s argument is that Agent Osborne “improperly
told, or at the very least suggested to, the jury that Ms. Medeles–Cab was
knowingly involved in . . . the transportation of drugs.” The United States, of
course, disagrees.     To settle this dispute, we begin with Federal Rule of
Evidence 704(b): “In a criminal case, an expert witness must not state an
opinion about whether the defendant did or did not have a mental state or
condition that constitutes an element of the crime charged . . . . Those matters
are for the trier of fact alone.” Two basic principles derive from this rule. First,
“a qualified narcotics agent typically may testify about the significance of
certain conduct or methods of operation unique to the drug business,” as long
as the testimony complies with Federal Rule of Evidence 403. Gonzalez–
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                                 No. 13-40374
Rodriguez, 621 F.3d at 363; see United States v. Gutierrez–Farias, 294 F.3d
657, 663 (5th Cir. 2002). Second, such testimony crosses the line into that
which Rules 704 and 403 prohibit “if it amounts to the ‘functional equivalent’
of an opinion that the defendant knew he was carrying drugs.” Gonzalez–
Rodriguez, 621 F.3d at 363 (quoting Gutierrez–Farias, 294 F.3d at 663). A so-
called “drug courier profile” is generally inadmissible “because of its potential
for including innocent citizens as profiled drug couriers.” United States v.
Morin, 627 F.3d 985, 995 (5th Cir. 2010) (internal quotation marks omitted).
      A drug courier profile is “‘a compilation of characteristics that aid law
enforcement officials in identifying persons who might be trafficking in illegal
narcotics.’” United States v. Sanchez–Hernandez, 507 F.3d 826, 831 (5th Cir.
2007) (quoting United States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992)).
In “pure profile evidence” cases, “law enforcement personnel seek to testify that
because a defendant’s conduct matches the profile of a drug courier, the
defendant must have known about the drugs he was transporting.” Gonzalez–
Rodriguez, 621 F.3d at 363. Repeatedly, we have held that “drug courier profile
evidence is ‘inadmissible to prove substantive guilt based on similarities
between defendants and a profile.’” Id. at 364 (quoting United States v. Brito,
136 F.3d 397, 412 (5th Cir. 1998)).        Whatever the profile’s benefits to
investigation and apprehension, in a federal prosecution, the fact that a
defendant fits a drug courier profile may not be used to establish her guilt.
Williams, 957 F.2d at 1242.      It is the evidence of the defendant’s actual
connection to drug trafficking that must form the basis of the conviction. Id.
As these principles suggest, a “fine but critical line” separates “testimony
concerning methods of operation unique to the drug business” and “testimony
comparing a defendant’s conduct to the generic profile of a drug courier.”
Gonzalez–Rodriguez, 621 F.3d at 364. “The former may permissibly help a jury
understand the significance and implications of other evidence presented at
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                                 No. 13-40374
trial. The latter may impermissibly suggest that an innocent civilian had
knowledge of drug activity.” Id. (citations omitted).
      Our cases demonstrate that inadmissible drug courier profile testimony
involves an agent drawing a direct connection between a drug courier
characteristic (or characteristics) and the defendant in order to establish the
defendant’s guilt. If, on the other hand, the agent merely testifies to certain
characteristics of drug trafficking, without drawing the connection, the
testimony is generally admissible. We encountered the former in Gutierrez–
Farias. There, the agent testified that, when seeking couriers, upper-level
managers of drug trafficking organizations often “approach individuals that
have knowledge [and are] involved in this kind of business.” 294 F.3d at 662.
The agent further explained that usually the courier is “a friend of a friend”
because the managers want people that “have a certain amount of trust and
responsibility.” Id. The agent thus drew the connection between carrying
drugs and having knowledge of those drugs. As we summed up the agent’s
testimony: “In most drug cases, the person hired to transport the drugs knows
the drugs are in the vehicle.”    Id. at 663 (emphasis added).      Because we
considered this to have crossed the line between a permissible analysis of the
facts and a “forbidden opinion on the ultimate legal issue,” we held that the
district court had abused its discretion in allowing the testimony. Id. (internal
quotation marks omitted).
      Certain portions of the testimony in Gonzalez–Rodriguez stand in
contrast. In Gonzalez–Rodriguez, where drugs were discovered in a vehicle
transporting grapefruit, there was no error with respect to the agent’s
testimony
      that most large quantity methamphetamine is produced in Mexico;
      that drug organizations use couriers to transport drugs to the
      United States for distribution; that drug organizations often
      transport drugs by hiding them in seemingly legitimate places;
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                                 No. 13-40374
      that couriers normally do not handle drugs; that a courier probably
      would not have been the person who hid the methamphetamine in
      the grapefruit; and that [the testifying agent] therefore was not
      surprised when he did not find [the defendant’s] fingerprints on
      the bundles of methamphetamine.
621 F.3d at 365. We explained that the testimony presented “relatively little
risk” that the defendant’s conviction was based on evidence “other than his
actual connection to the drug trafficking crime.” Id.     The testimony did not
amount to an opinion that the defendant was guilty because he fit a profile;
instead it permissibly addressed the “basic business model” for running large
quantities of drugs across the border. Id.
      Four discrete aspects of the agent’s testimony in Gonzalez–Rodriguez
constituted clear or obvious error, however, given the direct connection drawn
between drug courier characteristics and the defendant: (1) The agent testified
that “drug couriers generally have no criminal history,” which “suggested to
the jury that [the defendant] was a drug courier because he had no criminal
history.” Id. at 366. (2) The agent testified that “law enforcement officers look
for legitimate [cargo] to identify drug couriers,” which “suggested that [the
defendant] was a drug courier because he was transporting a legitimate load of
grapefruits.” Id. (3) The agent testified that the defendant “must have known
about the drugs because he falsified the [grapefruit carrier’s] log book.” Id.
The court declared that it was for the jury to determine whether the defendant
had falsified the log book and, if so, whether that suggested knowledge of the
drugs; it was plain error for the agent “to draw the connection.” Id. (4) The
agent testified that “the majority of people arrested at immigration
checkpoints are couriers,” which “implied that [the defendant] was a drug




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                                      No. 13-40374
courier, and therefore knew he was carrying drugs, because he was arrested at
a checkpoint.” Id. at 366–67. 3
       Morin also provides examples of both permissible and impermissible
testimony in this context. The lion’s share of the testimony amounted to a
permissible explanation of the “conduct or methods of operation unique to the
drug business.” 627 F.3d at 995 (internal quotation marks omitted). The
testimony consisted of statements that: (1) most drugs coming into the country
illegally originate in Mexico; (2) the drugs are transported across the border in
secret compartments and are then moved northward; (3) most of the people
arrested for smuggling drugs across the border are “middlem[e]n,” driving the
drugs “from point A to point B”; (4) drug couriers generally do not handle the
bundles of drugs involved because drug trafficking organizations have a
division of labor; and (5) after the drugs are transported across the river they
are transferred to another individual to be transported to a stash house for
further distribution. 627 F.3d at 991–93. We concluded that these agents did
not offer direct testimony regarding the defendant’s knowledge of the drugs.
Id. at 995–96. Calling the third piece of testimony “close to crossing the line”
and “similar” to the statement in Gonzalez–Rodriguez that “the majority of
people arrested at immigration checkpoints are couriers,” we nevertheless
found no error because that testimony did not amount to a suggestion that the
defendant “was a middleman simply because he was arrested at a checkpoint.”
Id. at 996 (emphasis added).
       The impermissible testimony in Morin involved an agent providing her
interpretation of a video that depicted the defendant in a convenience store
parking lot. Id. at 993. The agent explained that the defendant was attaching


       3 Even though the admission of this testimony was clear or obvious error, we concluded
that it was not reversible error, as the defendant could not establish the prejudice prong of
plain-error review. Gonzalez–Rodriguez, 621 F.3d at 368.
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                                    No. 13-40374
an “already loaded” trailer of drugs to his vehicle, which was, in her estimation,
“fairly common of how a drug organization would work.” Id. We concluded
that this amounted to an opinion that the defendant was “probably part of a
drug organization” and knowingly received the drug-laden trailer from a drug
supplier. Id. at 998. This, we held, was unacceptable drug courier profile
testimony and therefore plain error. Id. 4
      We conclude that Agent Osborne’s testimony in this case fits comfortably
within that category of permissible testimony that includes explanations of
conduct or methods of operation unique to the drug business. The testimony
here is properly viewed as a part of Agent Osborne’s explanation of the
economics of trans-border drug trafficking. Indeed, Agent Osborne testified
that the farther goods must travel, the more expensive the goods become.
Agent Osborne also testified that someone gets paid for transporting the goods.
These are facts about the drug trafficking business, and we therefore consider
the testimony in this case to be similar to the permissible portions of testimony
in Gonzalez–Rodriguez and Morin. In other words, Agent Osborne testified
about a business model. The testimony does not compare to the testimony in
Gutierrez–Farias, where the agent effectively—and bluntly—testified that if
the defendant was driving the car, then the defendant had knowledge of the
drugs. Agent Osborne did no such thing.
      Moreover, Agent Osborne did not define the characteristics of a drug
courier and then link Medeles–Cab to those characteristics. In Gonzalez–
Rodriguez, the improper portions of testimony amounted to the following
conditional statement: if the defendant had no criminal history, if the
defendant was transporting legitimate cargo, and if the defendant was



      4 As in Gonzalez–Rodriguez, although we concluded that the error was plain, we did
not reverse. Morin, 627 F.3d at 1000.
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                                       No. 13-40374
arrested at checkpoint, then the defendant had knowledge of the drugs. Agent
Osborne, however, described the economic reality that the drugs increase in
price as a result of transportation costs. Agent Osborne did not testify that
Medeles–Cab was paid for the act of driving the car, and he did not imply that,
if she was paid, then she must have had knowledge of the cocaine. In fact,
Agent Osborne did not testify that payment in these situations always
establishes knowledge.         The jury was free to construe Agent Osborne’s
testimony as providing an alternative explanation to why Medeles–Cab was
driving to San Antonio—i.e., to deliver drugs for money, not simply to go
shopping and do a favor for a friend. But Agent Osborne left it for the jury to
draw the connection between Medeles–Cab being paid for driving the car and
her knowledge of the cocaine. 5          There is thus “relatively little risk” that
Medeles–Cab’s conviction was based on Agent Osborne’s explanation rather
than her “actual connection to the drug trafficking crime.” See Gonzalez–
Rodriguez, 621 F.3d at 365. Accordingly, the district court did not err—much
less plainly err—in admitting this testimony.
       The prosecutor’s closing argument does not alter our conclusion. “A
prosecutor is confined in closing argument to discussing properly admitted
evidence and any reasonable inferences or conclusions that can be drawn from
that evidence.” United States v. Mendoza, 522 F.3d 482, 491 (5th Cir. 2008).
The prosecutor here discussed the reasonable inference that—in light of the
amount of cocaine, the value of the cocaine, and her actual transportation of


       5  Furthermore, Agent Osborne did not testify that a specific act performed by
Medeles–Cab indicated to him that she had knowledge of the drugs. Cf. Morin, 627 F.3d at
998 (finding error where agent testified that in her opinion the defendant’s act of hitching a
trailer at a convenience store indicated that the defendant was probably part of a drug
organization); Gonzalez–Rodriguez, 621 F.3d at 366 (finding error where agent testified that
the defendant’s act of falsifying the carrier’s log book indicated that the defendant knew
about the drugs in the vehicle).

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                                  No. 13-40374
the cocaine—Medeles–Cab was going to get paid. In fact, the prosecutor made
it clear that these remarks were inferences, telling the jury, “You can surmise
that.” There was no error here.
                                      III.
      We review Medeles–Cab’s sufficiency challenge de novo. United States
v. Chon, 713 F.3d 812, 818 (2013). Medeles–Cab argues that the evidence was
insufficient to establish that she knew the type and quantity of drugs in her
possession. Medeles–Cab argues that, under § 841, the United States must
prove, and the jury must find, beyond a reasonable doubt that the defendant
has such knowledge. As Medeles–Cab concedes, however, this argument is
foreclosed by United States v. Betancourt, 586 F.3d 303 (5th Cir. 2009). In
Betancourt, we held that the knowledge element in § 841(a)(1) does not apply
to the type and quantity of drugs listed in § 841(b)(1). Betancourt, 586 F.3d at
308–09. The district court therefore did not err in denying Medeles–Cab’s
motion for acquittal. Moreover, to the extent that Medeles–Cab challenges the
propriety of the jury instructions regarding the knowledge element of the
possession count, we see no error. The district court instructed the jury in
accordance with Betancourt.
      AFFIRMED.




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