United States of America v. Elizabeth Lopez

St. Louis, MO - Criminal defense lawyer represented defendant charged with possession of methamphetamine with the intent to distribute and conspiracy to distribute methamphetamine.

Following his drug arrest in August 2015, Joshua Navrkal opted to cooperate

with law enforcement and revealed his methamphetamine source. At law

enforcement's request, Navrkal called a phone number stored as "Omaha Mexican

Lady” on his phone. After a very brief conversation, he told the officers that his

suppliers were on their way. Navrkal subsequently received confirmatory text

messages from that number. He told the officers that the drug delivery soon was to

take place at a residence in Sioux City, Iowa. Law enforcement arrived at the house,

surveilled the scene, and observed an SUV with Nebraska plates arriving at the house.

Officers arrested the car's driver and the female passenger. A drug-detection dog

alerted to the presence of drugs. At that point, the passenger— Lopez—informed the

officers that she had one ounce of methamphetamine in her bra. Law enforcement

seized the drugs from Lopez. Officers found no other drugs or drug paraphernalia.

Laboratory analyses showed that Lopez carried 26.1 grams of 100 percent pure

methamphetamine at the time of her arrest. Lopez claimed that she carried the

methamphetamine for personal use only.

The government subsequently charged Lopez with two counts: (1) conspiracy

to distribute methamphetamine and (2) possession of methamphetamine with intent

to distribute. The case proceeded to a jury trial. Prior to trial, the district court

proposed a set of jury instructions, which included an instruction permitting the jury

to find an "intent to distribute” based on drug purity. Lopez objected, arguing that

purity alone does not suggest an intent to distribute, since some recreational users may

seek pure methamphetamine. The court then modified the instruction to say that the

jurors "may, but are not required, to infer an 'intent to distribute' from . . . drug purity,

if it suggests that the drugs were intended to be 'cut' or diluted before distribution,

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rather than used in a 'pure' form, and the defendant was aware of such purity.”

Instructions to the Jury at 13, United States v. Lopez, No. 5:15-cr-04051-MWB-1

(N.D. Iowa May 24, 2016), ECF No. 73-1.

At trial, Navrkal and his once girlfriend and co-conspirator, Tonya

Cole–Cabrera, testified for the government. They both identified Lopez as their direct

source of methamphetamine. Navrkal testified that Lopez delivered the drugs to him

or Cole–Cabrera approximately 8 to 12 times in 2015, at one- to two-ounce quantities

each time. Lopez, Navrkal, and Cole–Cabrera communicated either by phone calls or

through text messages. To obtain methamphetamine, Navrkal or Cole–Cabrera would

either call or text Lopez. They would then meet up at a location in Sioux City.

Cole–Cabrera corroborated Navrkal's testimony. Cole–Cabrera also testified about a

series of text messages with Lopez in which they discussed wire transfers of money

for Cole-Cabrera's drug debt to Lopez.

The major contested issue at trial was whether the drugs were intended for

distribution or for personal use. Expert witnesses testified for both parties. Lopez's

expert, a substance abuse counselor, testified that "[w]hen someone's on a

methamphetamine binge,” she's "heard people use up to seven and a half grams” of

drugs per day. Transcript of Trial, Vol. 2, at 385, United States v. Lopez, No. 5:15-cr04051-MWB-1 (N.D. Iowa May 26, 2016), ECF No. 87. A Drug Enforcement

Administration (DEA) agent testified for the government. The following exchange

occurred:

[Prosecutor]: So the quantities of use—how has quantities for users been

affected by the purity?

[Agent]: Well, you can't do—you could—if you do a gram of crystal

meth, that's a lot. If you do a gram of methamphetamine that's been cut

5 or 6 times so the purity is 10 percent or less, a gram of that is not the

same as a gram of crystal meth. So you could do the cut

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methamphetamine or the diluted form much more often than you could

the crystal meth because the purity is a lot lower, so it's going to process

through your body faster, and it's not going to—it's not going to

overload your body as if you would do the same amount of the pure

crystal meth.

[Prosecutor]: Again, based on your training and experience, what is a

typical user quantity of crystal meth?

[Agent]: Of crystal meth? It depends on their level of experience with it

or if they're addicted or not. A first-time user would—a quarter gram,

one quarter of one gram, would be probably about right for first ti—for

beginners. The most I have ever heard of in speaking—and again, I

speak to defendants, users, family members consistently. And I always

have throughout my career. I did meet a guy that I arrested that claimed

he was doing—

[Lopez's Counsel]: Objection. Hearsay.

THE COURT: Overruled.

[Agent]: I did meet a subject that I had arrested, and just in general

conversation with him, I asked him how much his habit was per day, and

he stated that he was doing two grams of crystal meth per day and had

been doing so for approximately two years. And I believed him. His

body was wrecked. He was just a mess. And other than that, I—if you—I

don't think I've had anybody tell me they've used more than one gram

per day of crystal meth other than that subject.

Id. at 279–80.

The jury ultimately convicted Lopez on both counts. Lopez then moved for a

judgment of acquittal under Federal Rule of Criminal Procedure 29(c) or alternatively

for a new trial under Federal Rule of Criminal Procedure 33, premised on insufficient

evidence to convict and the government's failure to prove venue. Additionally, in her

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Rule 33 argument, Lopez renewed her hearsay objection to the DEA agent's testimony

regarding the identified methamphetamine user.

The district court denied the motion. The court concluded that "based [on] the

evidence presented at trial, the jury could have reasonably concluded that the

prosecution had established each of the elements of the charged offenses.” United

States v. Lopez, No. 5:15-cr-04051-MWB-1, slip op. at 3 (N.D. Iowa Aug. 15, 2016),

ECF No. 95. On the venue issue, the court noted that although "the prosecution failed

to introduce any evidence that Sioux City, where [the charged crimes took place], is

in the Northern District of Iowa,” it "met its burden” of establishing by a

preponderance of the evidence that at least part of the crime occurred in Sioux City,

Iowa. Id. at 3, 5. The district court then took judicial notice that Sioux City lies within

the geographic boundaries of the Northern District of Iowa. It then sentenced Lopez

to 120 months' imprisonment, the statutory minimum.

II. Discussion

On appeal, Lopez alleges four errors. First, she argues that the district court

erred in denying her motion for a new trial based on impermissible government

witness testimony. Second, she contends that the district court erred in giving a jury

instruction permitting an inference of intent to distribute methamphetamine based on

drug purity. Third, she argues that the government failed to establish venue and that

the district court erred in taking judicial notice of venue. Finally, she contests the

sufficiency of the evidence to sustain a conviction.

A. Witness Testimony

We first address Lopez's argument that the district court erred in denying her

Rule 33 motion for a new trial based on the DEA agent's testimony, claiming that it

was improper and that it substantially prejudiced her case. "Rule 33 motions are

disfavored and reviewed for a clear abuse of discretion, a rigorous standard.” United

States v. Rubashkin, 655 F.3d 849, 857 (8th Cir. 2011) (citation omitted). A district

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court's ruling on a motion for new trial will be reversed "only if the court clearly

abused its discretion such that a serious miscarriage of justice may have occurred.”

United States v. Ryder, 414 F.3d 908, 915 (8th Cir. 2005) (citation omitted).

1. Hearsay

Lopez contends that the DEA agent's statement was improper because it was

impermissible hearsay. "We review a district court's evidentiary rulings for abuse of

discretion.” United States v. Lomas, 826 F.3d 1097, 1105 (8th Cir.), cert. denied, 137

S. Ct. 315 (2016) (citing United States v. Burch, 809 F.3d 1041, 1045 (8th Cir. 2016)).

Evidentiary rulings are subject to harmless error analysis. United States v. Lupino, 301

F.3d 642, 645 (8th Cir. 2002) (citation omitted). "An evidentiary ruling is harmless

if the substantial rights of the defendant were unaffected, and the error had no, or only

a slight, influence on the verdict.” United States v. Worman, 622 F.3d 969, 976 (8th

Cir. 2010) (citation omitted).

"Federal Rule of Evidence 702 permits a district court to allow the testimony

of a witness whose knowledge, skill, training, experience or education will assist a

trier of fact in understanding an area involving specialized subject matter.” United

States v. Solorio–Tafolla, 324 F.3d 964, 966 (8th Cir. 2003) (quoting United States

v. Molina, 172 F.3d 1048, 1056 (8th Cir. 1999)). We have previously held that a

district court did not abuse its broad discretion in admitting under Rule 702 the expert

testimony of a police sergeant who testified in a prosecution for possession with intent

to distribute cocaine about "the amount of cocaine which would be for distribution

and not personal use.” United States v. Smith, 789 F.3d 923, 930 (8th Cir. 2015); see

also Solorio–Tafolla, 324 F.3d at 965.

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). Federal Rule of

Evidence 703 permits an expert to "rely on otherwise inadmissible hearsay evidence

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in forming his opinion if the facts and data upon which he relies are of a type

reasonably relied upon by experts in his field.” Arkwright Mut. Ins. Co. v. Gwinner

Oil, Inc., 125 F.3d 1176, 1182 (8th Cir. 1997) (citations omitted). "Only if an expert's

opinion is so fundamentally unsupported that it can offer no assistance to the jury

must such testimony be excluded.” Id. (quoting Hose v. Chi. Nw. Transp. Co., 70 F.3d

968, 974 (8th Cir. 1995)).

Here, the DEA agent relied on his 18-year experience interviewing addicts,

arrestees, and their family members to formulate his opinion. He testified that in the

past a methamphetamine user could use large quantities of drugs daily because of low

drug purity. However, more recently, illegal drugs entering the market are of such

high purity that it has become physically impossible even for seasoned addicts to

consume large amounts of methamphetamine. The agent noted that he knew of an

individual who had consumed two grams daily. He then proceeded to explain why he

found that person's statement believable. To the extent that the agent relied on any

out-of-court statements to form his opinion, the reliance was of the type reasonably

relied on by experts in the field. Indeed, Lopez's own expert witness depended on

exactly the same type of information—interviews with recovered users and

addicts—to base her opinion that a methamphetamine addict could use much higher

quantities on a "drug binge.”

The statements, however, were not hearsay. They were not offered to prove the

truth of the matter at issue—the quantity of methamphetamine consumed by the

unidentified drug user. Rather, the statements were offered to establish that the most

the agent had ever heard anyone claim to use daily was two grams, in contrast to

Lopez's expert, who heard that a single user can consume up to 7.5 grams of

methamphetamine daily. Lopez conceded this point at oral argument. The district

court correctly admitted the agent's testimony under Federal Rule of Evidence 702.

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Lopez next argues that even if the agent's testimony satisfies Rule 702, Rule

703 nevertheless prohibits its admission because the statement's prejudicial effect

outweighed its probative value; the agent added that he believed the drug user because

"[h]is body was wrecked” and "[h]e was just a mess.” Transcript of Trial, Vol. 2, at

280. Lopez's argument fails. Rule 703 applies only where the expert witness relies on

"otherwise inadmissible hearsay.” United States v. Martinez, 3 F.3d 1191, 1197 (8th

Cir. 1993). Because the agent's statement was not hearsay and was properly admitted

under Rule 702, the testimony is not governed by Rule 703. Finally, even if the

agent's statement was hearsay, in light of the overwhelming evidence of drug

sales—the co-conspirators' testimony, the text message exchanges, the seizure of a

large quantity of methamphetamine from Lopez in the absence of any "use”

paraphernalia—the admission of the statement had slight or no influence on the

outcome of the trial. See Worman, 622 F.3d at 976.

2. Confrontation Clause

Lopez argues for the first time on appeal that the agent's testimony also violated

her Sixth Amendment confrontation rights. "When a defendant fails to 'raise a

Confrontation Clause objection at trial, we review [the] claim for plain error.'” United

States v. Johnson, 688 F.3d 494, 504 (8th Cir. 2012) (quoting United States v.

Tenerelli, 614 F.3d 764, 772 (8th Cir. 2010)). Under this standard of review,

there must be (1) error, (2) that is plain, and (3) that affects substantial

rights. If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.

United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc). As we explained

above, the agent's testimony was not hearsay. See supra Part II.A.1. "A statement that

is not hearsay raises no Confrontation Clause concerns.” Barrett v. Acevedo, 169 F.3d

1155, 1163 (8th Cir. 1999) (en banc) (citation omitted). Further, the Confrontation

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Clause concerns only statements that are testimonial in nature. Crawford v.

Washington, 541 U.S. 36, 68 (2004). Here, the agent testified that he gleaned

information "just in general conversation.” Transcript of Trial, Vol. 2, at 280.

Accordingly, we find no plain error.

B. Jury Instruction

Lopez next asserts that the district court erred in giving a jury instruction

permitting an inference of "intent to distribute” based on drug purity. She

acknowledges, however, that we continue to approve of such inferences. See United

States v. Shurn, 849 F.2d 1090, 1093 (8th Cir. 1988) ("The intent to distribute may be

proven by either direct or circumstantial evidence and may be inferred from such

things as the possession of a large quantity of a controlled substance, its high purity

level, the presence of paraphernalia used to aid in the distribution of drugs, large sums

of unexplained cash, and the presence of firearms.”).

"We review the district court's jury instructions for an abuse of discretion” and

"will reverse a jury verdict . . . when the errors misled the jury or had a probable effect

on the jury's verdict.” United States v. Pereyra–Gabino, 563 F.3d 322, 328 (8th Cir.

2009) (ellipsis in original) (quoting Slidell, Inc. v. Millennium Inorganic Chems., Inc.,

460 F.3d 1047, 1054 (8th Cir. 2006)). Here, the district court instructed the jury that

it may, if it chose, infer an intent to distribute if it finds that the methamphetamine was

intended to be cut or diluted. Nothing in the instruction conflicted with trial testimony.

Thus, the instruction did not likely mislead the jury or have a probable effect on its

ultimate verdict. Accordingly, we find no abuse of discretion in the court's instruction

to the jury.

C. Judicial Notice of Venue

Lopez next contends that the government failed to prove venue and that the

district court erred by: (1) taking judicial notice that Sioux City, Iowa, lies within the

geographic boundaries of the Northern District of Iowa, and (2) finding that the

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government successfully proved venue by a preponderance of the evidence. "We

review a district court's decision to take judicial notice for abuse of discretion.” Am.

Prairie Constr. Co. v. Hoich, 560 F.3d 780, 796 (8th Cir. 2009) (citation omitted). We

likewise review the district court's evidentiary rulings for abuse of discretion. United

States v. Worthey, 716 F.3d 1107, 1114 (8th Cir. 2013).

"In a criminal case, the question of venue is not merely a legal technicality but

a significant matter of public policy.” United States v. Black Cloud, 590 F.2d 270, 273

(8th Cir. 1979) (citing United States v. Johnson, 323 U.S. 273, 276 (1944)). "Proof

of venue is an essential element of the Government's case,” but "[u]nlike other

elements of a crime . . . , venue need only be proved by a preponderance of the

evidence.” United States v. Netz, 758 F.2d 1308, 1312 (8th Cir. 1985) (quoting United

States v. Massa, 686 F.2d 526, 527–28 (7th Cir. 1982)). In conspiracy cases, venue

is proper "in any district where any conspirator commits an overt act, even if other

conspirators were never physically present in that district.” United States v. Nguyen,

608 F.3d 368, 374 (8th Cir. 2010) (citation omitted). "Venue is ordinarily a question

of fact for the jury to decide.” United States v. Redfearn, 906 F.2d 352, 354 (8th Cir.

1990) (citations omitted).

The district court, however, may take judicial notice of facts. These facts may

be either adjudicative or legislative. "Adjudicative facts are 'facts that normally go to

the jury in a jury case. They relate to the parties, their activities, their properties, [and]

their businesses.'” Qualley v. Clo-Tex Int'l, Inc., 212 F.3d 1123, 1128 (8th Cir. 2000)

(quoting Fed. R. Evid. 201 advisory committee's note to subdivision (a)). Legislative

facts, on the other hand, "are established truths, facts or pronouncements that do not

change from case to case but apply universally.” United States v. Gould, 536 F.2d 216,

220 (8th Cir. 1976). Under Rule 201, when a court takes judicial notice of an

adjudicative fact in a criminal case, it "must instruct the jury that it may or may not

accept the noticed fact as conclusive.” See Fed. R. Evid. 201(f). Rule 201, however,

does not extend to legislative facts, and a district court "[is] not obligated to inform

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the jury that it could disregard the judicially noticed fact.” Gould, 536 F.2d at 221

(finding no error when the district court took judicial notice that cocaine is a

controlled substance).

Here, the government showed that Lopez brought methamphetamine to Sioux

City, where Navrkal and Cole–Cabrera then distributed the drugs. The district court

took judicial notice of a legislative fact—that Sioux City lies within the geographic

bounds of the Northern District of Iowa. Sioux City is definitely part of the Northern

District of Iowa. See 28 U.S.C. § 95(a)(3). Thus, we find no abuse of discretion and

hold that "venue as a jurisdictional fact is a proper subject for judicial notice.”

Government of Canal Zone v. Burjan, 596 F.2d 690, 693 (5th Cir. 1979) (citations

omitted); see also United States v. Kelly, 535 F.3d 1229, 1235–36 (10th Cir. 2008);

United States v. Greer, 440 F.3d 1267, 1272 (11th Cir. 2006); United States v.

Lavender, 602 F.2d 639, 641 (4th Cir. 1979); United States v. Prueitt, 540 F.2d 995,

1006 (9th Cir. 1976); United States v. Mendell, 447 F.2d 639, 641 (7th Cir. 1971);

United States v. Charlton, 372 F.2d 663, 665 (6th Cir. 1967).

Therefore, we also hold that the district court did not abuse its discretion in

finding that the government met its burden of proof for venue.

D. Sufficiency of the Evidence

Finally, Lopez argues that the district court erred in denying her motion for

judgment of acquittal based on insufficient evidence to convict. "We review de novo

the denial of a motion for judgment of acquittal based on the sufficiency of the

evidence.” United States v. Fang, 844 F.3d 775, 778 (8th Cir. 2016) (quoting United

States v. Griffith, 786 F.3d 1098, 1102 (8th Cir. 2015)). Evaluating the evidence in the

light most favorable to the verdict, we will reverse "only if 'no reasonable jury could

have found the defendant guilty beyond a reasonable doubt.'” Id. (quoting United

States v. Serrano–Lopez, 366 F.3d 628, 634 (8th Cir. 2004)). This standard is "very

strict.” United States v. Thunder, 745 F.3d 870, 875 (8th Cir. 2014) (citation omitted).

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"If the evidence rationally supports two conflicting hypotheses, the reviewing court

will not disturb the conviction.” United States v. Burks, 934 F.2d 148, 151 (8th Cir.

1991) (citation omitted).

Here, we find the evidence sufficient to support Lopez's conviction. Two of her

co-conspirators testified against her. They testified that she delivered

methamphetamine to them 8 to 12 times, totaling about one pound of 100 percent pure

methamphetamine in the span of one year. Text messages introduced by the

government corroborated the co-conspirator testimony. Additionally, law enforcement

arrested Lopez with nearly one ounce of methamphetamine on her person. Although

Lopez claimed the methamphetamine was for her personal use, the jury chose to

believe otherwise. See United States v. Mann, 701 F.3d 274, 298 (8th Cir. 2012)

("[W]itness credibility is for the jury to determine. 'It is the function of the jury, not

an appellate court, to resolve conflicts in testimony or judge the credibility of

witnesses.'” (quoting United States v. Harrison, 671 F.2d 1159, 1162 (8th Cir. 1982)

(per curiam))).

The district court committed no error in denying Lopez's motion for a judgment

of acquittal.

For the reasons stated above, we affirm the judgment of the district court.