# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 13-1122

___________________________ United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.
Jose M. Diaz

lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis

____________ Submitted: September 27, 2013 Filed: December 9, 2013

____________ Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.

____________ RILEY, Chief Judge.

A jury convicted Jose M. Diaz of c onspiracy to distribute and possess with intent to distribute cocaine in viol ation of 21 U.S.C. §§ 841(b)(1)(A) and 846. Diaz appeals his conviction and senten ce, arguing the district court 1 erred in (1) denying

1 The Honorable Rodney W. Si ppel, United States District Judge for the Eastern District of Missouri.Diaz’s motion to suppress, (2) refusing Diaz’s duress or coercion instruction, (3) denying Diaz’s motion for judgment of acquittal, and (4) denying Diaz safety valve relief at sentencing. We affirm. 2

I. BACKGROUND Diaz, a truck driver by trade, played a relatively minor role in a large drug trafficking conspiracy that began in 2007. The conspiracy involved smuggling cocaine from Mexico into the United States where it was distributed through a large network operating in severa l large cities. Between 2010 and 2011, law enforcement officers monitored calls among key conspirators, including Samuel Lopez and Esteban Vallejo.

In November 2010, Jose Arrendondo and Jesse Galacia arranged for a truck and driver to transport ten kilograms of cocaine from Lopez in Houst on, Texas, to Vallejo in Birmingham, Alabama. Galacia and Jaim e Avila hired Diaz. Diaz testified he was not involved in drug trafficking and had r eceived the job through an acquaintance who told Diaz he would be paid $700 to transport pipe to Louisiana. Diaz testified he was initially instructed to go to a gas station to pick up the semi-tractor and trailer on November 5, 2010, but when he arrived, Gal acia told him they would have to pick up the trailer at another location. Diaz and Galacia then drove the semi-tractor to the rear of a shopping center. When they stopped, tw o other vehicles parked next to them. Diaz testified that he asked why there was no trailer, and Galacia told him there had been “[a] change of plans.”

Diaz claims he told Galacia he could not do the transport because his son was sick, but Galacia responded “he coul dn’t let [Diaz] go; sorry, bro.” Diaz testified he was then escorted to a gas station where, as instructed, he used $500 cash the dealers gave him to pay for fuel for the semi-tractor beforeheading out on Highway 59

2 We have appellate juri sdiction under 28 U.S.C. § 1291.
-2-toward Alabama. According to Diaz, he “drove a ll night” “[v]ery afraid” he might be shot if he did not comply with the cons tant instructions he was receiving by phone.

At trial, Diaz’s co-conspirato rs told a different story. Arrendondo testified the co-conspirators hired a driver (Diaz) for $10,000—$1,000 per kilogram—to deliver the drugs to Alabama, and th e co-conspirators delivered th e cocaine to Diaz before the trip. Arrendondo testified Diaz was aware of the drugs and thatArrendondo had never known an “unwitting courier” in his twenty years of drug dealing.

Another co-conspirator, Jimmy Solis, te stified Galacia handed a red suitcase containing the drugs to Diaz in the semi-tract or. Solis further testified that Diaz drove alone in the semi-tractor and took a differentroute to Alabama than did the other coconspirators. Lopez testified he never saw anyone threaten Diaz and there were no weapons involved in this trip. During the trip, Lopez made seve ral calls to Vallejo that the police monitored. Lopez’s testimony about those calls indicated Diaz was aware of the illicit nature of the trip.

On November 6, 2010, at approximately 10:15 a.m., Solis, Lopez, and Galacia arrived in Solis’s truck at a Comfort Inn in Livingston, Alabama, where Vallejo had rented a room. Diaz followed in the semi -tractor at about 10:30 a.m. Solis and Galacia also rented rooms at the hotel. Based on information from Lopez’s monitored calls, law enforcement had the hotel unde r surveillance beginning at approximately 8:30 a.m. that morning. Shortly after Diaz arrived, Drug Enforcement Administration (DEA) Task Force Officer James Wigley, the officer monitoring the hotel, watched Diaz take the red suitcase from the truck into the hotel. Solis testified that Diaz took the suitcase to Galacia’s room where Solis opened the suitcase in front of Diaz and Galacia to make sure all ten kilos were ther e. Diaz, Galacia, and Solis then left the room to get lunch. At lunch, the men discussed Valle jo selling the cocaine and paying Diaz and Galacia so they could head back to Houston. Solis denied anyone had a gun or threatened Diaz at any time.

-3-At approximately 10:30 p.m., Diaz left the hotel room alone to go across the street to Burger King. DE A Special Agent Patrick Wilson and three other plainclothes officers contacted Diaz outsi de the Burger King drive-through window, asking if Diaz would cooperate with their i nvestigation. Diaz told the officers he took a red suitcase into the hotel, identifying the two rooms o ccupied by Solis and Galacia. Diaz did not say what was in the suitcase, nor did he admit to any illegal activity. Diaz also did not tell the officers he had been threatened to deliver the suitcase and admitted on crossexamination that he never sa w any weapons and did not a ttempt to contact the police during his trip.

After a brief discussion, Agent Wilson to ld Diaz the officers were going to the hotel and asked Diaz if he wanted to sit in one of the unmarked police vehicles, out of sight of anyone leaving the hotel. Diaz agreed to do so. Agent Wilson testified the officers did not have their weapons drawn and never threatened Diaz or forced him to enter the police vehicle, where he re mained uncuffed for approximately twenty minutes. The police vehicle was locked from the inside, but there is no evidence the officers would not have let Diaz out of the vehicle if he so requested.

After Agent Wilson spoke with Diaz, Officer Wigley performed a knock-andtalk at Galacia’s room. When Officer Wigl ey asked for consent to search the room, Galacia pointed to the red suitcase and sa id, “What you’re looking for is over there.” Officer Wigley seized the suitcase and the te n kilograms of cocaine inside and arrested Galacia. Agent Wilson then gave Diaz his phone number and explained that Diaz might be able to get a reward for provi ding further information regarding illegal activity. At Diaz’s request, the officers then drove Diaz to another location to be dropped off so he would not be seen leaving the police vehicle. Diaz returned to the hotel and drove the semi-tractor back to Houston.

On June 2, 2011, a grand jury indicted Diaz for conspiracy to distribute and possess with intent to distribute cocaine. Diaz moved to suppress his statements and

-4-the cocaine, which the district court denied. At trial, Diaz submitted a proposed jury instruction on the affirmative defense of duress or coercion. After argument on the record, the district court determined the evidence did not support the instruction and refused to give it. At the close of the government’s case, Diaz moved for judgment of acquittal on the grounds that the governmentoffered no evidence to show when the cocaine was placed in the red suitcase. Th e district court denied the motion. At sentencing, Diaz asked the district court to apply the safety valve provision, presumably under 18 U.S.C. § 3553(f) and United States Sentencing Guidelines (U.S.S.G.) § 5C1.2(a), but the district cour t determined Diaz did not qualify for safety valve relief. Diaz appeals his conviction and sentence.

II. DISCUSSION A. Motion to Suppress Diaz argues the district court erred in denying his motion to suppress evidence and statements because Diaz “was in cust ody when he was interrogated and he was never apprised of his” ri ghts under Miranda v. Arizona , 384 U.S. 436 (1966). “We review de novo the district court’s legal determin ation about whethe r a defendant was in custody, and we review the court’s factual findings for clear error.” United States v. Vinton , 631 F.3d 476, 481 (8th Cir. 2011).

Officers must provide Miranda warnings to suspects in custody because “the inherently coercive nature of custodial interrogation ‘blurs the line between voluntary and involuntary statements.’” J.D.B. v. North Carolina , 564 U.S. ___, ___, 131 S. Ct. 2394, 2401 (2011) (quoting Dickerson v. United States , 530 U.S. 428, 435 (2000)). “[W]hether a suspect is in ‘custody’ is an objective inquiry” that turns on two discrete questions: “‘first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the in terrogation and leave.’” Id. 564 U.S. at ___, 131 S. Ct. at 2402 (quoting Thompson v. Keohane , 516 U.S. 99, 112 (1995) (footnote omitted)); accordUnited States v. Perrin , 659 F.3d 718, 720 (8th Cir. 2011).

-5-We have identified six non-exclusive f actors for determining whether a suspect is in custody:

(1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the su spect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or , (6) whether the suspect was placed under arrest at the termination of the questioning.

United States v. Griffin , 922 F.2d 1343, 1349 (8th Cir. 1990) . “The critical inquiry is not whether the interview t ook place in a coercive or po lice dominated environment, but rather whether the defendant’s freedom to depart was restricted in any way.” United States v. Cowan , 674 F.3d 947, 957 (8th Cir. 2012) (quoting United States v. Martinez , 462 F.3d 903, 909 (8th Cir. 2006) (internal marks omitted)).

The district court did not err in findi ng Diaz was not in custody when he was interviewed by Agent Wilson and the other officers. On appeal, Diaz claims his freedom to depart was restricted because several armed law enforcement officers surrounded Diaz while he was alone in an unfamiliar setting, did not say “he was free to leave,” questioned him, a nd placed him in a locked vehi cle while they searched the hotel. The record does not support Diaz’ s characterization of the parking lot questioning.

Agent Wilson provided undisputed testim ony that he and three other officers approached Diaz near the Burger King drive-through window, with Agent Wilson taking the lead in questioning Diaz in Spanish while the other officers remained several feet behind Agent Wilson. The o fficers were armed, but their weapons were

-6-not visible to Diaz. Diaz, when approached by Agent Wils on, was not cornered by the officers and “could have gone right [to the road ] or left [to the hotel] or to the rear.” Agent Wilson asked Diaz if they could talk with him, and Diaz voluntarily agreed. Diaz followed behind the officers as they moved out of earshot of the Burger King drive-through for privacy. The interview o ccurred in a public, open location, and Diaz testified that the officers treated him “very well.” Diaz appeared calm and cooperative throughout the interview, and there is no evidence the officers ever surrounded Diaz, used coercive tactics, or restrained Diaz’ s freedom of movement in any way. The officers did not arrest Diaz at the close of the encounter and instead thanked Diaz, encouraged him to continue his coope ration, and “wished [him] a good trip.”

A reasonable person in Diaz’s position “woul d have felt at liberty to terminate the interrogation and leave,” Vinton , 631 F.3d at 481. Diaz thus was not in custody at the time of his statements to Agent Wilson. 3 The district court properly denied Diaz’s motion to suppress.

B. Jury Instruction Diaz next contends the district court erred in denying his request to submit a jury instruction explaining the affirmative defense of duress or coercion. Diaz claims his testimony that he transported the drugs because he was “[v]ery afraid” the drug dealers would “put a bullet into [him]” if he refused or tried to escape was sufficient evidence to support a duress or coercion instruction.

“A defendant is entitled to an instructi on as to any recognizeddefense for which there exists evidence sufficient for a reasonable jury to find in his favor.” United States v. Shinn , 681 F.3d 924, 929 (8th Cir. 2012) ( quoting Mathews v. United States ,

3 Diaz incorrectly claims he was “detai ned” in a patrol car following his statements to the officers. The record clearly establishe s that, for his own protection, Diaz voluntarily entered the vehicle after the officers finished questioning him.
-7-485 U.S. 58, 63 (1988) (internal marks omitted)). “We review the district court’s denial of a proffered legal defense de novo .” United States v. Young , 613 F.3d 735, 743 (8th Cir. 2010). To show he was entitled to a duress or coercion instruction, Diaz had to establish the following:

(1) he was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury; (2) that he had not recklessly or negligently placed himself in a situa tion in which it was probable that he would be forced to commit a criminal act; (3) that he had no reasonable, legal alternative to violating the law; and (4) that a direct causal relationship may be reasonably an ticipated between the commission of the criminal act and the avoida nce of the threatened harm.

United States v. Gamboa , 439 F.3d 796, 816 (8th Cir. 2006) (quoting United States v. Jankowski , 194 F.3d 878, 883 (8th Cir. 1999) (internal marks omitted)).

The district court correctly determined Di az failed to establish the first and third elements of a duress or coercion defense. With respect to Diaz’s claimed threat, the district court found insufficient evidence that a threat had been made at all, much less a threat of death or serious bodily injury. In reaching that finding, the district court noted none of the surveillance phone records suggested the other drug traffickers had to threaten or force Diaz to transport the drugs. Diaz said he feared being shot, but Lopez and Solis testified th e conspirators had no guns dur ing the trip, and no weapons were found when Diaz’s co-conspirators weresearched. The district court emphasized that Diaz was alone with a phone in the semi-tractor for ni ne hours from Houston, Texas, to Livingston, Alabam a, and never called the police or stopped to ask for help. Even after he arrived at th e hotel in Alabama, Diaz wa s often alone, yet never made any effort to seek help or explain his situation to anyone he encountered, including when he talked with Agent Wilson at the Burger King. In fact, the first time Diaz asserted that he acted under duress was at trial.

-8-Because Diaz had various opportunities to seek help over many hours and in many places, but elected not to do so, the district court correctly determined the facts in evidence did not warrant a duress or coercion instruction. See Gamboa , 439 F.3d at 816 (explaining the district court did not err in refusing a duress instruction where the defendant “failed to demonstrate . . . that he had a ‘well-grounded apprehension of death or serious bodily injury’ . . . or th at he had ‘no reasonabl e legal alternative to violating the law’” (quoting Jankowski , 194 F.3d at 883)).

C. Motion for Judgment of Acquittal Diaz next proposes the district court erred in denying his motion for judgment of acquittal. In Diaz’s view, his convicti on cannot stand because the case against him was based on his presence at a drug deal and “wild speculation.”

“We review de novo the denial of [Diaz’s] mo tion for judgment of acquittal.” United States v. Clark , 668 F.3d 568, 573 (8th Cir. 2012) (quoting United States v. Cook , 603 F.3d 434, 437 (8th Cir. 2010) (internal marks omitted)).

We apply the same standard of review to the district court’s ruling on a motion for judgment of acquittal as we do to a sufficiency of the evidence challenge. We view the evid ence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury’s verdict. We will reverse only if no reasonable jury could have found the defendant guilty.

Cook , 603 F.3d at 437 (internal citations omitte d). Diaz failed to satisfy this high standard.

Diaz analogizes his case to United States v. Pace , 922 F.2d 451 (8th Cir. 1990), and United States v. Hernandez , 301 F.3d 886 (8th Cir. 2002). In Pace , we reversed a criminal conviction because the governme nt failed to produce sufficient evidence

-9-the paid driver of a station wagon knowingly possessed 200 pounds of cocaine concealed in his passenger’s luggage in the back of the car. See Pace , 922 F.2d at 452. At trial, the driver and his passenge r both testified the driver was not aware of the cocaine. See id. at 453. In revers ing the driver’s conviction for possession, we noted there was no evidence the defendantexplored the car go area, opened his passenger’s luggage, or knew of the “cri minal nature of the trip.” Id. We determined “it [was] merely conjecture to conclude [the driver] knew what those packages contained.” Id. Similarly, in Hernandez , we affirmed the district court’s judgment of acquittal as to the girlfriend of a drug dealer where there was no evidence the defendant was aware of the drugs found in her home and no evidence linking her to the drugs or drug dealing. See Hernandez , 301 F.3d at 890-92.

Diaz’s reliance on Pace and Hernandez is misplaced. As we have said before, “this is not a case in which the government could not prove, even by inference, that the defendant was anything mo re than present in the vehicle or physically proximate to the contraband.” United States v. Johnson , 18 F.3d 641, 648 (8th Cir. 1994). The government presented strong direct and ci rcumstantial evidence that Diaz knowingly took part in the conspiracy as a drug cour ier. Diaz’s co-conspirators testified Diaz was aware of the drugs, agreed to deliver them for $10,000, helped load the suitcase into the semi-tractor, transported the drugs from Houston to Livingston, brought the drugs into the room where they later were seized, and waited at the hotel all day with his co-conspirators, not only to be paid fo r delivering the drugs, but to carry the rest of the cash back to Houston. “[I]t was the jury’s prerogative to believe” the testimony of Diaz’s co-conspirators, particularly wh en the surveillance evidence corroborated much of that testimony. United States v. Listman , 636 F.3d 425, 430 (8th Cir. 2011).

Diaz himself testified he delivered th e red suitcase from Houston to the hotel in Livingston, but claimed he did so under duress and without knowing the suitcase held any drugs. Diaz’s claim of deathly fear and duress resulting from the drug dealers is materially inconsistent with hi s alternative claim that he was completely

-10-ignorant of the drugs. As noted by the district court in denying Diaz’s motion, the jury was not obligated to credit Di az’s testimony—either version. See United States v. Long Feather , 299 F.3d 915, 917 (8th Cir. 2002). Th e district court did not err in denying Diaz’s motion for judgment of acquittal.

D. Safety Valve Lastly, Diaz maintains the district cour t erred when it declined to award him safety valve relief and to redu ce his offense level. The sa fety valve permits a district court to sentence a defendant below a statutory mandatory minimum if:

(1) the defendant does not have more than one criminal history point; (2) the defendant did not use violen ce or possess a firearm in connection with the offense; (3) the offense di d not result in death or in serious bodily injury; (4) the defendant was not found to be an organizer, leader, manager, or supervisor of others or to have engaged in a continuing criminal enterprise; and (5) the defe ndant has truthfully provided to the Government all information and ev idence the defendant has concerning the offense.

United States v. Sanchez-Gonzalez , 643 F.3d 626, 629-30 (8th Cir. 2011) (referring to 18 U.S.C. § 3553(f)). The only issue pres ented here is whether Diaz truthfully provided the government with “all information and evidence [Diaz] had concerning the offense.” Id. at 630.

Diaz “has the burden to prove he qualifie s for this relief, and we review for clear error the district court’s findings about the completeness and truthfulness of [Diaz]’s provision of information.” United States v. Aguilera , 625 F.3d 482, 488 (8th Cir. 2010). We also review “the ultimate denial of safety valve relief for clear error.” United States v. Hinojosa , 728 F.3d 787, 790 (8th Cir. 2013).

Diaz did not separately proffer his knowledge to the government and relies solely on his trial testimony to support safe ty valve relief. We do not address the

-11-appropriateness of such an unusual procedure. 4 The district court concluded Diaz failed to provide completely and truthfully all of the evidence a nd information he had concerning the offense because his testimony was internally inc onsistent and did not “hold together under a very simple common-sense analysis.” Based on Diaz’s statements before and during trial, we find the district court did not commit clear error or otherwise abuse its discretion in denying safety va lve relief. See SanchezGonzalez , 643 F.3d at 630.

III. CONCLUSION We affirm Diaz’s conviction and sentence.

______________________________

4 A defendant seeking safety valve relief or dinarily engages in a proffer with the government before sentencing, and our court reviews the district court’s determination of whether the proffer satisfied the de fendant’s obligation to provide truthful information to the government. See , e.g. , United States v. Garcia , 675 F.3d 1091, 1093-95 (8th Cir. 2012). Diaz argues his cont ested trial testimony alone could satisfy § 3553(f)(5). Because the district court did not confront this unusual procedure and did not otherwise commit clear error in denying safety valve relief, we need not address whether safety valve re lief requires a defendant to e ngage in a proffer with the government before sentencing.
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