              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 12a1200n.06

                                         No. 11-6477

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT

                                                                                FILED
UNITED STATES OF AMERICA,                                                    Nov 20, 2012
                                                                       DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,

              v.                                              On Appeal from the United
                                                              States District Court for the
VIKKI CASTEEL,                                                Western District of Tennessee

       Defendant-Appellant.


                                                          /

Before: GUY, SUTTON, and COOK, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.            Defendant Vikki Casteel was convicted after

a jury trial of conspiracy to possess with intent to distribute and distribution of a controlled

substance in violation of 21 U.S.C. § 846. On appeal Casteel argues: (1) that it was error

for the district judge to reject her guilty plea made pursuant to a Rule 11 plea agreement; (2)

that the court allowed improper testimony at trial that rose to the level of unfair prejudice;

and (3) that the evidence at trial was insufficient to support her conviction. Finding no error,

we affirm.

                                               I.

       Defendant was indicted as being part of a large marijuana distribution conspiracy.

Defendant faced a mandatory minimum sentence of 10 years of imprisonment. After initially
No. 11-6477                                                                                  2

pleading not guilty, the defendant sought to change her plea. During the change of plea

hearing, the district judge carefully followed the Rule 11 plea procedures. As part of the

colloquy, after reviewing the elements required to prove the conspiracy charge, the defendant

was asked to provide a factual basis for her guilty plea. Defendant responded by admitting

to transporting, receiving, and renting space in her garage for pallets of containers of liquid

asphalt in which marijuana had been concealed. The district judge then asked, “when did

you find out they were shipping marijuana in these [containers]?” Defendant answered, “The

day that I was arrested and they cut open the bottles in front of the – the DEA agents cut open

the bottles in front of me. . . .” The government gave a statement of the proofs it would offer

at trial.

        After that, however, defendant again denied any knowledge or participation in a drug

conspiracy. She explained, “it’s important that you understand that I would not have risked

that if I had known something was going on.” This prompted the district judge to again

inquire of Casteel when she had first become aware of any illegal activity. Casteel answered:

“I didn’t know until they had me sitting in a chair in the driveway behind the house and the

DEA agents were cutting the bottles open and pouring the liquid out on the ground and

[asking] do you know what those black blocks are?” Given this answer, the judge indicated

that it looked like a trial would be necessary but recessed the proceedings to give the

defendant a chance to confer with her attorney. When the court reconvened the judge asked

the defendant what she wanted to do and her attorney replied: “It appears that we will have

a trial setting.”
No. 11-6477                                                                                  3

       Rule 11 requires that “[b]efore entering judgment on a guilty plea, the court must

determine that there is a factual basis for the plea.” F ED. R. C RIM. P. 11(b)(3). “‘The

purpose of this requirement is to ensure the accuracy of the plea through some evidence that

a defendant actually committed the offense.’” United States v. Tunning, 69 F.3d 107, 111

(6th Cir. 1995) (citation omitted). Knowledge of the conspiracy was an essential element of

the offense. See United States v. Warman, 578 F.3d 320, 332 (6th Cir. 2009). Here, Casteel

consistently and repeatedly denied any knowledge of the conspiracy, much less an intent to

join it. Under these circumstances, the district judge’s rejection of the plea was not an abuse

of discretion.

                                              II.

       We elect to address next the claim that the evidence was insufficient to support a

conviction. We do so because were we to conclude that the evidence, including that objected

to, was insufficient to support a conviction, it would not be necessary to consider the

evidentiary issues raised. In reviewing this claim, the relevant inquiry is whether “viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979). Applying this standard, our conclusion is that the

evidence was more than sufficient to support the jury’s verdict. No detailed review of the

evidence is necessary to reach this conclusion.

       We start with the fact that two of defendant’s coconspirators, Tim Bailey and

Armando Prado, had entered pleas and were cooperating witnesses for the government.
No. 11-6477                                                                                 4

Prado was the person who recruited the defendant to be part of the conspiracy by assisting

in the transportation of multiple loads of marijuana. He had personal knowledge of her

involvement including not only picking up and delivering loads of marijuana, but also

knowingly storing some of the marijuana at her residence. Bailey testified to picking up a

load of marijuana at defendant’s residence in her presence. The testimony of these two

witnesses alone would support the defendant’s conviction.

       There was considerable other evidence implicating defendant, however, which we

discuss in connection with the third issue defendant raises on appeal.

                                             III.

       The principal source of supply in this conspiracy was Miguel Munoz, who was the

subject of extensive and protracted wiretap surveillance involving Munoz discussing the

operation of the conspiracy with other members. Many of these calls were played for the jury

after the government and the defense had stipulated to the accuracy of both the recordings

of the calls and the English language transcripts of the calls that were in Spanish. DEA

Agent Rod Waller was the witness through whom these calls and transcripts were introduced.

Some of the calls included the use of code words and Waller, over objections, was allowed

to offer an explanation of these code words.

       Part of the code word explanations referred to a female member of the conspiracy who

was referred to as “Pelitos” or “Tia.” Although these words certainly did not identify the

defendant, or any other specific person for that matter, federal agents, on several occasions,

saw her carry out the tasks that were being assigned to “Pelitos” or “Tia” during intercepted
No. 11-6477                                                                                  5

phone calls. For example, several calls related to a female renting a cargo van for Munoz to

be used for transporting marijuana. After one such call, defendant was observed being

picked up by Munoz and dropped off at an Enterprise car rental agency where she rented,

signed for, and drove away in a cargo van. A few days later, defendant was observed in a

McDonald’s restaurant with the van parked outside. Prado was parked in a nearby vehicle.

Intercepted calls between Prado and Munoz revealed that they were awaiting the arrival of

a third party who would have some narcotics. In the meantime the defendant had returned

home in the van, but shortly later drove back to a Kroger store that was near the McDonald’s.

The intercepted phone calls had discussed that the female would be sent to the Kroger shortly

before defendant left for that destination.

       After arriving at the Kroger store, defendant went inside and a few minutes later an

unidentified male drove the van away. The male was followed to a warehouse where he was

observed loading items into the van. He then returned to the Kroger’s, left the van there, and

a few minutes later the defendant came out of the store and drove the van home. Once home,

defendant was shortly joined by Munoz and Prado.

       The record is replete with several other similar and equally incriminating events

involving the defendant. The only issue for our review is whether the court erred in allowing

Waller to give his opinion that the “Pelitos” or “Tia” referred to was a reference to the

defendant. Given the precise symmetry between what “Pelitos” or “Tia” was instructed to

do and the surveilled actions of the defendant carrying out these assignments, there is little

doubt that Waller had a proper foundation for opining as he did. Federal Rule of Evidence
No. 11-6477                                                                                   6

701 provides for the admission of lay opinion testimony if it is rationally based on the

perception of the witness. The support offered by Waller in support of his opinion certainly

meets this criterion. Additionally, the judge cautioned the jury that this was only the

“opinion” of Waller and it was their call as to whether the defendant was the one being

referred to in the surveilled calls.

          We find no abuse of discretion by the district judge in allowing Waller to testify as

he did.

          AFFIRMED.
