                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 23, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 11-3343
          v.                                              (D. Kansas)
 EDILBERTO FIGUEROA-CRUZ,                     (D.C. No. 6:11-CR-10049-MLB-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, MCKAY, and TYMKOVICH, Circuit Judges.


      Defendant Edilberto Figueroa-Cruz appeals his conviction of possession

with intent to distribute more than 500 grams of cocaine. See 21 U.S.C.

§ 841(a)(1). The cocaine was found hidden in a speaker box in the trunk of a car

that he had been driving on the highway. He presents three arguments on appeal:

(1) there was insufficient evidence that he knew of the cocaine in the car; (2)

statements by the passenger in the car were inadmissible hearsay; and (3) the

district court should not have admitted the arresting officer’s testimony about



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
what indicators of criminal activity he observed before searching the car.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.    BACKGROUND

      On March 16, 2011, Kansas Highway Patrol officer Jason Duffey was

patrolling on eastbound I-70 about 50 miles east of the Colorado border when he

saw a Nissan Maxima approaching quickly behind him. His rear-facing radar

clocked the car at 76 miles per hour in a 70-miles-per-hour zone. Duffey could

see the passenger’s head moving back and forth, suggesting that he was

conversing with the driver. The Nissan moved into the passing lane but then

braked hard and was going only 65 miles per hour when it passed Duffey. As the

car passed, the passenger’s eyes were closed and his head was turned to the side,

as if he were sleeping.

      Duffey briefly followed the Nissan and then engaged his emergency lights

without turning on his siren. The passenger instantly sat up and the car pulled

over. Duffey approached the car on the driver’s side, where Defendant was

sitting. The window was rolled down. Duffey explained to Defendant why he

had stopped the car and asked for his driver’s license. Defendant, whose hands

were “shaking violently,” R., Vol. 3 at 58, produced what appeared to be a

Mexican driver’s license, although it had a San Jose, California, address. At

Duffey’s request, Defendant also removed a California identification card from

his wallet, telling Duffey that it had “expired,” id. at 61. Because Defendant’s

                                        -2-
hands were shaking so hard, Duffey asked if he was all right. Defendant laughed

and said that he was just nervous. Duffey noticed a cell phone in Defendant’s lap

and two cell phones in the center console, one of which was a Boost Mobile

phone.

      Duffey asked Defendant where he and the passenger were going.

Defendant responded that they were traveling to Kansas City. When Duffey

asked what was going on there, the passenger, Abraham Moreno-Ceron, said that

they were going to look for work. Duffey inquired whether Defendant owned the

car. Again, Moreno-Ceron answered, saying that the vehicle belonged to him

(Moreno-Ceron) and that he had just bought it. Duffey requested the car’s

paperwork and Moreno-Ceron’s identification. Moreno-Ceron handed over the

documents. The 1996 Nissan had been registered two days before in Oregon (the

car had Oregon license plates). The registered owner was someone named

Lorenzo Ramos Oveth. Moreno-Ceron explained that a friend, whose name he

did not know, had registered the car for him because he could not afford the fee at

the time.

      Duffey asked the car’s two occupants what they did for work. Moreno-

Ceron responded that they were unemployed. When Duffey asked where in

Kansas City they were going, Moreno-Ceron said that he did not know and that

they would find out when they got there. Moreno-Ceron was shaking, and was

breathing very deeply and rapidly.

                                        -3-
      Duffey returned to his car to examine the documents, but was unable to

validate any of the information. He returned to the driver’s window and told

Defendant that he was just giving him a warning for speeding. Defendant thanked

him, but his hands continued to shake. As Duffey returned to his patrol car, he

heard the driver’s door open. He turned around to see that Defendant was getting

out of the car. Defendant explained, “We’re just switching.” Id. at 72. At that

point, Duffey asked if he could search the vehicle. Moreno-Ceron consented.

      In the trunk, Duffey saw two duffle bags, a blanket, and a large speaker

box. The box was very clean, indicating that it had not been there long. Unlike

the usual box, it was not covered by carpet, so Duffey could see a seam that went

around the back of the box. It was screwed to a back plate. Duffey unscrewed

the back plate and found cocaine in two packages inside.

      Defendant and Moreno-Ceron were indicted in the United States District

Court for the District of Kansas. Defendant was tried separately, convicted by the

jury, and sentenced to 66 months’ imprisonment. As we address Defendant’s

issues on appeal, we will include additional information concerning the trial.

II.   ANALYSIS

      A.     Sufficiency of the Evidence

      We review de novo the sufficiency of the evidence of guilt. See United

States v. Vigil, 523 F.3d 1258, 1262 (10th Cir. 2008). “We ask whether a

reasonable jury could find a defendant guilty beyond a reasonable doubt, viewing

                                        -4-
the evidence in the light most favorable to the government and drawing

reasonable inferences therefrom.” Id.

      The gist of Defendant’s argument on the sufficiency of the evidence is that

there is insufficient evidence that he knew of the cocaine in the Nissan. We

disagree. To begin with, “[t]his court has held that it is permissible to infer that

the driver of a vehicle has knowledge of the contraband found within it.” United

States v. Cota-Meza, 367 F.3d 1218, 1224 (10th Cir. 2004); see United States v.

Pulido-Jacobo, 377 F.3d 1124, 1130 (10th Cir. 2004) (jury could infer that

codefendants, who shared responsibility for driving vehicle containing contraband

hidden in the gasoline tank, had knowledge of the contraband).

      Most probative of Defendant’s guilty knowledge, however, was the

incredible explanation of the mission of the vehicle’s occupants. See United

States v. Isaac-Sigala, 448 F.3d 1206, 1212 (10th Cir. 2006) (jury can infer

defendant’s guilty knowledge from his false exculpatory statements); United

States v. Hernandez-Rodriguez, 57 F.3d 895, 899 (10th Cir. 1995) (defendant’s

improbable story about how he and codefendant obtained vehicle from “good

Samaritan” strangers supported jury conviction of importation of marijuana

hidden under car seat (internal quotation marks omitted)). Defendant’s

documents identify him as a resident of San Jose, California. He is said to be out

of work, but for some reason he joins a fellow who purchased the Nissan in

Oregon two days earlier to travel across country to Kansas City to find

                                          -5-
employment—without any knowledge of where in the city they will actually find

it. And the car’s owner, the passenger at the time of the stop, does not even have

the car registered in his own name, having let a friend, whose name he cannot

recall, register it because the owner (who just bought the car) cannot afford the

registration fee. True, most of this story came from Moreno-Ceron, not

Defendant. But Defendant heard every word. And even though Defendant

apparently spoke Spanish as his primary language, he displayed sufficient

knowledge of English in his conversation with Duffey that the jury could believe

that he well understood what Moreno-Ceron was saying. The jury could then (1)

ask why Defendant would be silent as Moreno-Ceron gave his absurd answers and

(2) infer that Defendant feared that truthful answers would be incriminating.

      Further, Defendant displayed exceptional nervousness. See United States v.

Cui Qin Zhang, 458 F.3d 1126, 1128 (10th Cir. 2006) (nervous behavior is proper

consideration in finding defendant guilty of possessing cocaine in trunk of car);

United States v. Lazcano-Villalobos, 175 F.3d 838, 844 (10th Cir. 1999) (“At the

check point, [the defendant’s] hand shook, evidencing his nervousness and

knowledge of the hidden cocaine [in the vehicle].”). And the two occupants of

the car had three cell phones, one of which was a Boost Mobile phone. Duffey

testified that multiple cell phones, particularly if one is a Boost Mobile phone

(which is difficult to trace and can be easily discarded), are indicative of drug

trafficking. Although there are certainly legitimate reasons to have a cell phone,

                                          -6-
three phones would seem a bit of a luxury for two out-of-work job hunters. See

United States v. Burkley, 513 F.3d 1183, 1189 (10th Cir. 2008) (multiple cell

phones supported inference that defendant was guilty of drug offense).

      In our view, it was eminently reasonable for the jury to find Defendant

guilty of the charged offense.

      B.     Admission of Moreno-Ceron’s Statements

      Defendant argues that Duffey’s testimony about what Moreno-Ceron told

him was inadmissible hearsay. The statements, however, were not admitted for a

hearsay purpose. “‘Hearsay’ means a statement that: (1) the declarant does not

make while testifying at the current trial or hearing; and (2) a party offers in

evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid.

801(c) (emphasis added).

      Moreno-Ceron’s statements were not hearsay because they were not offered

for their truth. The government’s theory was that Defendant and Moreno-Ceron

were driving east on I-70 to deliver cocaine to someone, not to look for work in

Kansas City. The statements were offered as a false cover story, indicating

consciousness of guilt. See United States v. Lewis, 594 F.3d 1270, 1284 (10th

Cir. 2010) (statements offered as false are not hearsay). Therefore, the court did

not err in admitting them.

      C.     Duffey’s Testimony




                                         -7-
      During direct examination, the prosecutor asked Duffey what indicators he

had before the search that Defendant and Moreno-Ceron were engaged in criminal

activity. Duffey testified as follows:

             The first indicator that I had noticed was the elevated level of
      nervousness prior to stopping the vehicle. It’s unusual to see driver
      and passenger conversing and then as they pass me, the passenger
      acts like he’s going to sleep, or that he went to sleep, or that he is
      asleep. That was very unusual to me.
             The second indicator I observed was the hands shaking of
      Mr. [Figueroa-]Cruz. And when I had asked him if he was alright he
      stated that he was just nervous; however, he could not give me a
      reason as to why he was nervous.
             The passenger also had a high level of nervousness. When he
      handed me the documents to the vehicle and his driver’s license, his
      hands were also shaking and his breathing was very deep and rapid.
      I observed multiple cellular phones in the vehicle, one of which
      being a boost mobile phone. Drug couriers often use multiple
      cellular phones when trafficking narcotics and especially boost
      mobile phones due to the fact that they’re virtually untraceable and if
      encountered by us they can discard them easily and not be detected.
             In talking to the passenger, they had stated that they were
      going to Kansas City to look for work; however, they didn’t know
      where they were going in Kansas City. They stated they were just
      going to look. And I can’t—I couldn’t believe that somebody would
      invest that time and money to purchase a car and travel to Kansas
      City and not have anything lined up without first looking on the
      internet or making any phone calls or anything of that nature.
             The passenger had stated that the vehicle was his. And then it
      was registered through the—the Notice of Transaction registered to
      Lorenzo Ramos Oveth, which [sic] wasn’t present. I had asked the
      passenger about that. He had stated that a friend had registered it for
      him because he couldn’t afford to register it at the time. I asked him
      what his friend’s name was and he stated that he didn’t know.

R., Vol. 3 at 73–75. Defendant contends that this testimony was not admissible

because (1) it violated Fed. R. Evid. 704(b), which prohibits testimony that the


                                         -8-
defendant had the requisite mens rea; and (2) any relevance of the testimony was

substantially outweighed by the danger of unfair prejudice, see Fed. R. Evid. 402,

403.

       Defendant’s sole objection to this testimony at trial was, “This isn’t a

motion to determine whether there was probable cause.” R., Vol. 3 at 73. This

was certainly not adequate to present an objection under Rule 704(b); and we

think it was inadequate to alert the court why the evidence was irrelevant or

unfairly prejudicial. We therefore review for plain error. See United States v.

Garza, 566 F.3d 1194, 1200 (10th Cir. 2009). Consequently, to obtain relief,

Defendant “must show ‘(1) [an] error, (2) that is plain, and (3) that affects

substantial rights. If all three conditions are met, [this] court may then exercise

its discretion to notice [the] forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.’” Id.

(quoting Johnson v. United States, 520 U.S. 461, 467 (1997) (brackets, citation,

and internal quotation marks omitted)). “Because all four requirements must be

met, the failure of any one will foreclose relief and the others need not be

addressed.” United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012).

             i.     Rule 704(b)

       Under the language of Fed. R. Evid. 704(a) in effect at the time of

Defendant’s trial, “[T]estimony in the form of an opinion or inference otherwise

admissible is not objectionable because it embraces an ultimate issue to be

                                           -9-
decided by the trier of fact.” Fed. R. Evid. 704(a) (2011) (amended Dec. 1,

2011). But Rule 704(b) provides an exception:

      No expert witness testifying with respect to the mental state or
      condition of a defendant in a criminal case may state an opinion or
      inference as to whether the defendant did or did not have the mental
      state or condition constituting an element of the crime charged or of
      a defense thereto. Such ultimate issues are matters for the trier of
      fact alone.

Id. 704(b) (2011) (amended Dec. 1, 2011). The rule is limited in scope. “Rule

704(b) only prevents experts from expressly stating the final conclusion or

inference as to a defendant’s actual mental state. The rule does not prevent the

expert from testifying to facts or opinions from which the jury could conclude or

infer the defendant had the requisite mental state.” United States v. Richard, 969

F.2d 849, 854–855 (10th Cir. 1992). By this standard, Duffey’s testimony was

not improper. He merely stated facts from which a jury could infer that

Defendant knew of the cocaine in the trunk. The first requirement of the plain-

error test—the existence of error—is not satisfied.

             ii.   Relevance

      Defendant argues that much of Duffey’s “indicators” testimony was

inadmissible because any relevance was outweighed by the danger of unfair

prejudice. See Fed. R. Evid. 403 (irrelevant evidence is inadmissible); id. 403

(relevant evidence may be excluded if “its probative value is substantially

outweighed by a danger of . . . unfair prejudice.”) To assess this argument, we


                                        -10-
must consider testimony by Duffey earlier in the trial—testimony not challenged

on appeal. Near the outset of his testimony, Duffey was asked to discuss the

“types of things” he looks for during traffic stops to “indicate . . . that a crime is

being committed or about to be committed.” R., Vol. 3 at 47. The direct

examination continued as follows:

      [Duffey:] We look generally at the demeanor of the occupants, the
      driver, if there is a passenger. We see the level of nervousness,
      whether it’s more so than what a normal traffic stop would consist
      of. We look at travel plans. We look at—

      [Prosecutor:] Let me back you up just a minute. When you say
      travel plans, what do you mean?

      [Duffey:] Just in general we ask—we try to ask where are you
      headed to, where are you coming from, things of that nature. Just
      through general conversation, try to see what they have to say about
      their travel plans.

      [Prosecutor:] Well, if somebody says, for example, I’m going to St.
      Louis to see my grandmother, what would that tell you about and
      how would that fit into this continuum of an interdiction stop and
      whether or not you believe a crime is being committed?

      [Duffey:] Just by if they’re going to see their grandmother, there
      would be followup questions after that that would help corroborate
      their story.

      [Prosecutor:] Such as?

      [Duffey:] When was the last time you were in St. Louis to see your
      grandmother? What part of St. Louis does your grandmother live in?
      Things of that nature. Are you originally from St. Louis?

      [Prosecutor:] And, for example, if the person said I don’t know
      where my grandmother lives, would that mean something in
      particular to you?

                                          -11-
[Duffey:] That would be a red flag, yes.

[Prosecutor:] Does the ownership of the car or non-ownership of the
car figure in to your study or what you’ve learned in making
interdiction stops?

[Duffey:] Yes, it does. Through training and experience, third party
vehicles have been notorious for being part of a crime.

[Prosecutor:] Does it make any difference in the interdiction world
as to the presence of or number of cell phones?

[Duffey:] Yes.

[Prosecutor:] Why is that?

[Duffey:] Generally, multiple cellular phones in the vehicle.
Narcotics dealers often use multiple cellular phones and especially
boost mobile phones because of the fact they know they are virtually
untraceable and can be easily discarded if encountered by law
enforcement.

[Prosecutor:] Does the presence of a valid driver’s license or the
absence of a valid driver’s license figure into this continuum of
interdiction stops and you beginning to wonder about the existence of
a crime?

[Duffey:] Yes.

[Prosecutor:] And how is that?

[Duffey:] If they have a valid driver’s license, that just indicates that
someone had found a valid driver to transport the narcotics in this
vehicle. I f they don’t have a valid driver’s license, that’s just
something else that we have to factor in or rule out.

[Prosecutor:] For example, if someone has a valid driver’s license,
for the Ladies and Gentleman, what do you do when you do a stop if
someone has a valid driver’s license?


                                   -12-
      [Duffey:] As far as?

      [Prosecutor:] Well, let me rephrase it. If I’m stopped and you ask
      for my driver’s license; is that correct?

      [Duffey:] Yes.

      [Prosecutor:] And you would do that to assure I could drive, I take
      it?

      [Duffey:] Yes.

      [Prosecutor:] Do you do anything else with that driver’s license?

      [Duffey:] That driver’s license is run through our dispatch. We run
      the driver’s license number to ensure validity and to check for any
      wants or warrants on the subject.

      [Prosecutor:] So that if someone gave you an invalid driver’s
      license, you couldn’t check on their past, could you?

      [Duffey:] That’s true. That’s correct.

R., Vol. 3 at 47–50.

      Thus, much of the challenged “indicators” testimony merely repeated

factual observations by Duffey and previous expressions of opinion regarding

drug traffickers. Essentially what was added amounted to argument, applying the

opinions to the facts of the case. In our view, such argument should be reserved

for the prosecutor; but even if this component of Duffey’s testimony was

improper, Defendant fails to show prejudice. The prosecutor (properly) argued

the same points in closing; and most or all of them would have been obvious to

the jurors in any event. Because Defendant has not shown the third requirement


                                       -13-
for plain-error relief—that admission of the evidence “affect[ed] [Defendant’s]

substantial rights,” Garza, 566 F.3d at 1200 (internal quotation marks

omitted)—we decline to reverse on this ground.

III.   CONCLUSION

       We AFFIRM the judgment of the district court.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




                                       -14-
