Petition for certiorari filed at, 09/02/2015
Appeals from the United States District Court for the Northern District of Texas.
For United States of America, Plaintiff - Appellee: Brian W. McKay, Esq., Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX.
For Reynaldo Macedo-Flores, Defendant - Appellant: Kevin Joel Page, Gabriel Reyes, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Dallas, TX.
Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.
CARL E. STEWART, Chief
Reynaldo Macedo-Flores (Macedo) appeals his convictions for possession with intent to distribute 500 grams or more of cocaine and methamphetamines, obstruction of justice, and two counts of perjury. He challenges the district court's denial of his requested sentencing entrapment jury instruction, the sufficiency of the evidence regarding the materiality of his false statement supporting the perjury convictions, and the district court's admission of a lead police investigator's lay opinion testimony regarding Macedo's use of certain coded words. We AFFIRM.
In January 2012, FBI Special Agent Miguel Torres (Agent Torres) and Dallas Police Department Detective Byron Boston (Detective Boston) obtained information from a cooperating defendant in a related case identifying Macedo as an alternate source of supply for methamphetamine and cocaine. Detective Boston, working undercover, began buying drugs from Macedo in February 2012. Detective Boston continued to purchase drugs from, and negotiate large drug purchases with, Macedo until July 16, 2013, when Macedo was arrested. Throughout the investigation, Detective Boston wore wire taps and relied on pole cameras, which recorded audio and video footage of many of the transactions between him and Macedo. After a few transactions with Macedo, Detective Boston indicated to Macedo that he wanted a half-kilogram of cocaine, and Macedo confirmed that he had access to that quantity and could deliver it.
In January 2013, when Detective Boston was still unable to determine Macedo's source for methamphetamine, he ordered four ounces of methamphetamine ice from Macedo in order to discuss a large cocaine order. Macedo told Detective Boston that
his uncle had a " brick" of cocaine (1 kilogram) for $31,000. Macedo also told Detective Boston that he had a customer from San Angelo who purchased 32 ounces of methamphetamine weekly, stating that he was selling " life" quantities, meaning he would get a substantial prison sentence if caught with the quantities he was distributing. Based on this conversation and other information from the investigation, Detective Boston was able to obtain a warrant to tap Macedo's phone.
Detective Boston continued to discuss transactions with Macedo, hoping their interactions would trigger conversations between Macedo and his supplier or suppliers. Detective Boston then inquired about purchasing a half-kilogram of cocaine, but Macedo refused and said he wanted to sell an entire kilogram. Investigators began listening to calls between Macedo and Jose Madrigal (Macedo's supplier for methamphetamine) and heard references to " la doña" and " la señora," the Spanish terms for " lady." For example, Macedo directed Madrigal to " drop the sweets" --referring to methamphetamine--" over there with the lady." In another call recorded on June 21, 2013, after Detective Boston had purchased methamphetamine from Macedo, Macedo told Madrigal that he wanted to take out $100 to give to " the lady," and Madrigal approved. Based on the fact that Macedo's mother had assisted in that transaction, Detective Boston believed Macedo was asking to compensate Macedo's mother.
During a transaction that occurred on April 24, 2013, Macedo instructed Detective Boston to retrieve the drugs from a particular residence. When Detective Boston arrived at the residence, a Hispanic female, who introduced herself as Berta, exited the rear of the residence. Detective Boston later learned that Berta (Austreberta Macedo) was Macedo's mother. Macedo's mother motioned for Detective Boston to remain quiet while they entered a shed at the rear of the residence, where she retrieved the methamphetamine ice from a cabinet drawer in the front portion of the shed. After receiving the drugs, Detective Boston conducted a field test to make sure the drugs were not fake, and Macedo's mother counted the money given in payment.
Macedo, Macedo's mother, and eight other individuals were subsequently indicted for multiple drug-trafficking offenses. Macedo's mother was tried individually in September 2013. During her trial, she called Macedo No. 14-10361 as a witness. Macedo admitted to being a drug dealer " under pressure" but denied that his mother was a drug dealer. He said that she never conspired with him to sell drugs and denied that he had ever told her that the package she delivered to Detective Boston on April 24, 2013, contained drugs. Macedo testified that he told his mother that he needed her to deliver a package to a man and receive money from him. Macedo also testified that when he referenced " the lady" in the intercepted phone calls, he was not referring to his mother. Instead, he claimed that " la doña" and " la señora" were coded references to the house where his mother lived. Macedo also claimed that a reference to " la señora" in a different call--in which he informed Madrigal that " la señora" would be waiting for him--was a coded reference to a drawer or a box in the detached shed where Madrigal
could leave the drugs. He admitted, however, that when he spoke to Madrigal about taking $100 for " the lady," he was referring to his mother.
Macedo was charged in a superseding indictment with one count of conspiracy to possess with intent to distribute more than 500 grams of cocaine, one count of conspiracy to possess with intent to distribute more than 500 grams of methamphetamine, one count of obstruction of justice, and two counts of perjury. The obstruction of justice and two perjury counts arose out of Macedo's testimony during his mother's trial. The indictment alleged that " [i]t was a material matter to [her] trial to determine whether or not [Macedo's mother] had knowingly participated in the conspiracy to distribute methamphetamine and aided and abetted the possession of methamphetamine with intent to distribute." The first count of perjury alleged that Macedo testified falsely when he stated that he directed his mother to give him the proceeds of the April 24, 2013, drug sale, and he gave them to Madrigal. The second count of perjury alleged that Macedo testified falsely when he claimed that, by using the terms " la doña" and " la señora," he was referring to inanimate objects and not his mother.
At Macedo's trial, Detective Boston recounted the investigation into the drug conspiracy and the several transactions he participated in as part of that investigation. During direct examination, Detective Boston explained that a primary goal of the investigation was to identify the highest-level sources possible. On cross-examination, Macedo's attorney inquired about when investigators learned about Macedo's direct sources and when they developed sufficient evidence to bring a case against him. He also questioned Detective Boston to point out that Detective Boston set the quantities transacted. Detective Boston then confirmed that, although he believed that he had reached the highest source on the cocaine side of the investigation on July 2, 2013, he contacted Macedo another time to purchase cocaine. However, Detective Boston also testified that he continued transacting cocaine purchases from Macedo because although he had found one source, he had learned that Macedo had another source of supply for cocaine when his uncle, one of Macedo's cocaine suppliers, had none for sale.
The Government introduced several intercepted phone calls, and Agent Torres, the supervisor of the entire investigation, noted that Macedo referred to his mother as " la doña" or " la señora," Spanish terms that typically mean an older, respected woman. Macedo objected on the basis of " speculation" when Agent Torres asked how he knew the term " la doña" was not code for something other than a woman. The court conditionally overruled the objection, and Agent Torres explained that, based on the information learned during the investigation, he believed Macedo was referring to his mother. When asked to explain his understanding of what Macedo meant when he asked Madrigal to take out $100 to give to " the lady," Agent Torres ...