             Case: 19-10560    Date Filed: 01/31/2020   Page: 1 of 10


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-10560
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:18-cr-20518-JEM-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

EUGENE HILTON RUSSELL,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                (January 31, 2020)

Before WILLIAM PRYOR, MARTIN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      In November 2018, a jury found Eugene Russell guilty of importation of five

or more kilograms of cocaine, in violation of 21 U.S.C. § 952(a), and possession
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with intent to distribute five or more kilograms of cocaine, in violation of 21

U.S.C. § 841(a)(1). Russell raises two issues on appeal. First, he argues that the

district court abused its discretion by allowing Noble Harrison to testify as an

expert at trial. Second, he argues that the evidence presented at trial was

insufficient to prove that he knowingly possessed the cocaine that was found on his

boat. After careful review, we affirm.

                                          I.

      In June 2018, a federal grand jury charged Russell with importation of five

kilograms or more of cocaine, 21 U.S.C. § 952(a), and possession with intent to

distribute five kilograms or more of cocaine, 21 U.S.C. § 841(a)(1).

      At trial, the government called Felipe Ortiz Cintron, a Customs and Border

Protection (“CBP”) agent. Agent Ortiz Cintron testified that, on June 2, 2018, he

was on an aerial border security patrol near Bimini, Bahamas, when he spotted a

cuddy cabin boat stopped dead in the water. As Agent Ortiz Cintron watched,

another boat approached from the east and met the cuddy cabin boat. Agent Ortiz

Cintron considered this unusual, so his patrol plane approached to get a clearer

view. Agent Ortiz Cintron observed that each boat was occupied by one person

and the second boat appeared to be fueling the cuddy cabin boat. When the vessels

separated, the cuddy cabin boat headed west towards the United States and the

other boat headed east.


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      Russell was the driver and sole occupant of the cuddy cabin boat. CBP

continued to track Russell’s boat as it made its way from Bimini towards Florida.

Once the boat entered U.S. territorial waters near Miami Beach, two CBP boats

approached to conduct a border inspection. The CBP vessels were clearly marked

and the officers on board were wearing law enforcement uniforms. As the CBP

vessels approached Russell’s boat, they turned on their blue lights. Russell

changed course and briefly attempted to evade the CBP vessels before stopping.

      Agents searched the boat. On board was a cooler containing fish that were

frozen together, as though they had been “frozen in a freezer . . . not caught and

then put on ice on a hot, sunny day.” Agents also found a fishing rod, but it

“wasn’t equipped with fishing tackle or a hook of any kind.” Other than the

fishing rod, there was no other indication that the boat was a fishing vessel.

Agents inspected the cooler and noticed that it smelled strongly of epoxy or glue

and had “horizonal cuts,” which “did not look like they were supposed to be

there.” Upon further examination, they discovered approximately 12 kilograms of

cocaine hidden in the lining of the cooler, with a street value between $264,000

and $360,000.

      Over Russell’s objection, the district court permitted the government to call

Harrison, a special agent with the Drug Enforcement Administration (“DEA”), as

an expert witness. Agent Harrison had worked as a DEA special agent for


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approximately 24 years, where he acquired extensive experience in drug

investigations “from the street level to international . . . drug trafficking.” He

testified that drugs from South America are typically shipped to the Caribbean,

where they are broken down into smaller shipments and sent to the United States in

smaller vessels. He said that it is common for drug-trafficking organizations to

arrange for ship-to-ship transfers of drugs, after which the vessel receiving the

drugs will often take them to a final destination point or transfer them to another

vessel. These drugs are normally concealed to avoid detection, including in

coolers or inside dead fish.

      Agent Harrison also testified that drug smugglers are often held responsible

for anything that happens to the drugs in their possession. In Agent Harrison’s

opinion, “unwitting drug smugglers” who do not know they are transporting drugs

are “extremely rare.” Agent Harrison testified that he had seen unwitting

smugglers perhaps once or twice in his career in law enforcement, but he had not

personally seen a case in which a smuggler gave $300,000 of cocaine to someone

without first alerting them that they had that amount of contraband in their

possession.

      The parties stipulated at trial that Russell had been convicted on August 28,

2008, of conspiracy to import 100 kilograms or more of marijuana, importation of

100 kilograms or more of marijuana, and possession with intent to distribute 100


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kilograms or more of marijuana. They further stipulated that Russell transported

that marijuana by boat from the vicinity of Bimini, Bahamas, to South Florida.

      Following closing arguments, the district court instructed the jury that it was

not required to accept Agent Harrison’s testimony and that the jurors must “decide

for [themselves] whether to rely upon that opinion.” After deliberating, the jury

returned a verdict of guilty on both counts. The district court sentenced Russell to

300 months of imprisonment as to both counts, to run concurrently. Russell timely

appealed.

                                         II.

      We review a district court’s decision regarding the admissibility of expert

testimony and the reliability of an expert opinion for abuse of discretion. United

States v. Holt, 777 F.3d 1234, 1264 (11th Cir. 2015). We review the sufficiency of

evidence de novo, considering the evidence in the light most favorable to the

verdict and drawing all inferences and credibility choices in its favor. See United

States v. Capers, 708 F.3d 1286, 1296–97 (11th Cir. 2013).

                                        III.

      Russell argues that the district court abused its discretion by allowing Agent

Harrison to testify as an expert at trial. He claims that Agent Harrison’s testimony

violated Federal Rule of Evidence 704(b) by stating an opinion as to whether

Russell had the requisite knowledge of the cocaine secreted in the cooler on his


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boat. He also argues the district court “never conducted the requisite inquiry to

ensure that the basis for the proffered expertise was sound and properly applicable

to the facts of the case.” These arguments are without merit.

      Rule 704(b) bars an expert witness from stating an opinion about whether

the defendant “did or did not have a mental state or condition that constitutes an

element of the crime charged or of a defense.” Fed. R. Evid. 704(b); United States

v. Alvarez, 837 F.2d 1024, 1030–31 (11th Cir. 1988). But this rule “does not

require the exclusion of expert testimony that supports an obvious inference with

respect to the defendant's state of mind” so long as the witness does not expressly

state this inference and allows the jury to draw its own conclusions from the

testimony. United States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011) (per

curiam); see also United States v. Steed, 548 F.3d 961, 977 (11th Cir. 2008) (per

curiam).

      Agent Harrison’s testimony did not violate Rule 704(b). Harrison testified

that drug trafficking organizations typically hold the person who has actual or

constructive possession of narcotics responsible for their loss; that unwitting drug

smugglers are “extremely rare;” and that he had personally never seen a case in

which a smuggler gave someone $300,000 worth of cocaine without informing

them in advance what it was. In Alvarez, this Court held that expert testimony

from a DEA agent that “it would be unlikely crew members aboard a vessel


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carrying a large quantity of contraband would be unaware of its presence” still left

the jury to draw the inference as to whether the individual defendants were actually

aware of the presence of the contraband and so did not violate Rule 704(b). 837

F.2d at 1031. Similarly, Harrison provided information about the typical conduct

of drug smugglers that allowed, but did not require, the jury to draw the inference

that Russell was himself aware of the contraband aboard his vessel. This

testimony did not amount to an express statement as to Russell’s own state of mind

at the time of the offense and so did not violate Rule 704(b). See United States v.

Lozano, 711 F. App’x 934, 940 (11th Cir. 2017) (per curiam) (unpublished)

(holding that expert testimony that the “blind mule theory” has no factual basis did

not violate Rule 704(b) where the witness did not specifically state that the

defendant had knowledge of the drugs or was willfully blind to their presence).

       Russell waived his argument that the district court failed to engage in the

required inquiry in deciding whether to allow Agent Harrison’s testimony. As

such, we review the admission of this testimony for plain error. United States v.

Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). This requires a showing that the

error was “so conspicuous that the judge and prosecutor were derelict in

countenancing it” and that harm resulted. Id. (quotation marks omitted).

      In deciding whether to admit expert testimony, trial courts must consider

whether (1) the expert is qualified to testify competently regarding the matters he


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intends to address; (2) the method by which he reaches his conclusions is

sufficiently reliable; and (3) the testimony assists the trier of fact in understanding

the evidence or determining a fact in issue. United States v. Frazier, 387 F.3d

1244, 1260 (11th Cir. 2004) (en banc) (quotation marks omitted). Even if the

district court did not adequately weigh these questions at trial, the error was

harmless. On appeal, Russell does not challenge Agent Harrison’s qualifications,

the reliability of the bases for his conclusions, or whether his testimony assisted the

jury. Rather, he argues only that the testimony violated Rule 704(b). As already

discussed, it does not. And the record reflects that Agent Harrison was qualified as

an expert in the operations of drug trafficking organizations. The record also

leaves us with no reason to doubt the reliability of his conclusions or that his

testimony assisted the jury. We therefore find no plain error resulted from the

district court’s inquiry into Agent Harrison’s expert testimony.

                                          IV.

      Russell argues that the government failed to prove beyond a reasonable

doubt that he knowingly possessed the cocaine hidden in the lining of the cooler on

his boat. He argues that the government’s evidence showing knowledge of the

cocaine was purely circumstantial and required speculation.

      We consider the evidence underlying a conviction to be sufficient if a

reasonable trier of fact, drawing all inferences in favor of the verdict, could


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determine that the evidence established the defendant’s guilt beyond a reasonable

doubt. United States v. Jiminez, 564 F.3d 1280, 1284–85 (11th Cir. 2009). To

sustain a conviction for importation of a controlled substance under 21 U.S.C.

§ 952(a), the government must prove beyond a reasonable doubt that the defendant

had knowledge that he was importing a controlled substance. See United States v.

Peart, 888 F.2d 101, 104 & n.2 (11th Cir. 1989) (per curiam). To sustain a

conviction for possession of a controlled substance with intent to distribute under

21 U.S.C. § 841(a)(1), the government must prove that the defendant knowingly

possessed a controlled substance and intended to distribute it. See United States v.

Poole, 878 F.2d 1389, 1391 (11th Cir. 1989) (per curiam). This can be proven by

either direct or circumstantial evidence. Poole, 878 F.2d at 1391–92. Factors

tending to show knowing possession of drugs include the “size of the vessel and

quantity of drugs on board; suspicious behavior of the crew; absence of equipment

or supplies necessary to the intended use of the vessels; and other factors.”

Alvarez, 837 F.2d at 1028.

      A reasonable jury, drawing all inferences in favor of the government, could

find that the circumstantial evidence presented at trial was sufficient to prove

beyond a reasonable doubt that Russell had knowledge of the cocaine in the cooler.

Russell was observed in a brief rendezvous with another vessel in an area known

for drug trafficking. After their meeting, the boats headed in opposite directions,


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with Russell piloting his boat towards Florida. On board his boat was a fishing rod

with no hooks and frozen fish, which a reasonable jury could infer were intended

to serve as a cover for illegal activity. And hidden in the cooler was cocaine with a

street value of between $264,000 and $360,000. Based on the expert testimony of

Agent Harrison, a reasonable jury could conclude that it was unlikely that a drug

smuggling operation would place such a large quantity of cocaine on the vessel

without Russell’s knowledge. And a reasonable jury could also have concluded

that Russell’s prior convictions for importing over 100 kilograms of marijuana by

boat from Bimini to Florida strongly undercut any argument that the presence of

the cocaine was accidental or coincidental. See Fed. R. Evid. 404(b)(2) (stating

that evidence of past offenses is admissible to show “plan, knowledge, . . . absence

of mistake, or lack of accident.”). Taken together, this circumstantial evidence was

sufficient for a reasonable jury to conclude that the government proved beyond a

reasonable doubt that Russell had knowledge of the cocaine in his possession.



      AFFIRMED.




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