[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 10348 Non

- Argument Calendar

________________________ D.C. Docket No. 1:14

- cr - 20503

- KMW

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus CLAUDE THELEMAQUE, a.k.a. Teleco, Defendant

- Appellant.

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

________________________ ( June 20, 2017 ) Before TJOFLAT , WILLIAM PRYOR, and JULIE CARNES , Circuit Judges. PER CURIAM:

Case: 16-10348 Date Filed: 06/20/2017 Page: 1 of 132 Defendant Cla ude Thelemaque (“Defendant”) appeals his conviction under 21 U.S.C. §§ 959(a)(2) and 963 for conspiring to distribute a controlled substance knowing that it will be unlawfully imported into the United States. Concluding that sufficient evidence supports t he jury ’s finding that Defendant knew the cocaine he helped to i mport to Haiti was to be imported in to the United States, we affirm Defendant’s conviction.
I. BACKGROUND A. Factual B ackground 1
Between 200 5 and 2012, Defendant was a major participant in a drug importation ring that imported cocaine from Columbia, transported the drugs
t hrough Haiti, then sent the drugs to the United States to be sold. A corrupt commissioner and senior officer with the Haitia n National Police, Defendant was able to protect the drug ring from detection by law enforcement.
A Colombian named Carlos Acevedo

- Rincon helped to transport , via airplane , cocaine from Colombia and Venezuela to Haiti

. It was Acevedo

Rincon’s understand ing that these drugs were subsequently transported to the United States from Haiti. Acevedo

- Rincon often worked with Haitian national Rodolfe Jaar, who coordinated logistics on the ground in Haiti, including securing

1 The jury having convicted Defendant, we draw all reasonable inferences and credibility choices in the Government’s favor. See United States v. Calhoon , 97 F.3d 518, 523 (11th Cir. 1996). Case: 16-10348 Date Filed: 06/20/2017 Page: 2 of 133 aid from the Haitian police. When the delivery required the plane to land (as opposed to conducting an air drop), t he police secured the airstrip and provided security and assistance in unloading the cocaine from the plane.
K nown among some members of the conspiracy as “Teleco,” Defendant was one of the police officers who worked with Acevedo

- Rincon and Jaar. As the commander of the City of Leogane, Defendant had the entire town under his control , with about 60 officers under his supervision. Between 200 5 and 2012, th e conspirators brought twenty to thirty plane

- loads of cocaine into Haiti, with each load bringing between 420 and 450 kilograms of cocaine. In 2011, Acevedo

- Rincon, Jaar, Defendant, and others met in the Dominican Republic to plan an air drop of about 450 kilog rams of cocaine in Haiti. Acevedo

Rincon arranged for two other Colombians, Jairo Jaimes

- Penuela and Francisco Anchico

- Candelo, to be his representatives in Haiti and accept the shipment on his behalf. After this meeting, Defendant drove Jaimes

- Penuela a nd Anchico

- Candelo to a house in Haiti, where they awaited the delivery, along with Acevedo

- Rincon’s brother. Defendant owned the house, and the three guests made rental payments between $2000 and $2500 per month to Defendant, who visited the house severa l times. Defendant also provided the occupants with cash and cards in U.S. currency during their stay. The planned air drop , however , was delayed and ultimately cancelled. Case: 16-10348 Date Filed: 06/20/2017 Page: 3 of 134 Acevedo

- Rincon, Jaar, and Defendant planned another operation for February 201 2. This operation involved unloading a delivery of 420 kilograms of cocaine from the aircraft after it had landed on a remote airstrip. While this delivery was being planned, Ja ar began working with authorities. He noti fied them that on the night of Feb ruary 20, 2012, a plane carryin g cocaine from Venezuela would be land ing in south Haiti. Jaar specifically identified “Teleco” as the officer who was coordinating security for this delivery of drugs

. Though he had assisted in planning the shipment, Def endant absented himself from the country on the day of the shipment by visiting family in Florida, but he returned to Haiti the next day, on February 21st . Jaimes

- Penuela and Anchico

- Candelo met the plane at the landing strip, and the cocaine was unloaded and placed in a vehicle. The cocaine was then taken to the residence that Jaimes

Penuela and Anchico

- Candelo had previously rented from Defendant. Defendant later visited the house to discuss the delivery. Jaar kept 50 kilograms and Anchico

Candelo sold 100 kilograms before the cocaine was seized. On February 23, 2012, authorities searched the residence and a truck on the premises, wh ere they discovered the remaining 270 kilograms of cocaine a s well as a drug ledger with the name “Teleco” on it. Among the packages of cocaine seized was a package that was marked with a Yahoo! logo and a smiling face. Defendant was eventually arrested on November 13, 2014 , at the U nited States embassy

.

Case: 16-10348 Date Filed: 06/20/2017 Page: 4 of 135 B. Procedural History At the time of this incident, 21 U.S. C. § 959(a)(2) (2012) made it unlawful for any person to manufacture or distribute a controlled substance “knowing that such substance

. . . will be unlawfully imported into the United States.” 2 Section 963 prohibits individuals from conspiring to violate § 959(a). 21 U.S.C. § 963. Defendant was indicted under § 963 for conspiring to violate § 959(a)(2). Prior to trial, the Government filed a motion in limine to admit testimony about drug package s seized in the United States that b ore the same Yahoo !/smiling face logo as the drugs seized in Haiti, as well as expert testimony regarding methods of producing and packing cocaine, shipping routes for the transport of illegal drugs , and the significance of markings on cocaine packaging. Defendant challeng ed this evidence as irrelevant and unfairly prejudicial. The court granted the Government’s motion to admit the evidence. At trial, a DEA chemist, one of the Government’s expert witnesses, testified that at least five packages of cocaine seized in a Se ptember 2012 raid in Chicago exhibited the same Yahoo!/smiling face logo as the packag es seized in Haiti. Another expert witness, DEA Agent Noble Harrison , testified about several
matters , including how narcotics are smuggled into the United States and th e

2 Section 959(a) was amended in 2016 to prohibit manufacturing or distributing illegal drugs “intending, knowing, or having reasonable cause to believe ” that the drugs will be unlawfully imported into the United States. Transnational Drug Trafficking Act of 2015, Pub. L. No. 114

- 154, § 2, 130 Stat. 387 (2016) (emphasis added)

.

Case: 16-10348 Date Filed: 06/20/2017 Page: 5 of 136 significance of markings on packages of cocaine. According to Agent Harrison, Hai ti is a “transshipment” country and serves as a stopover point as drug traffickers take drugs from the “source” country , where the drugs are made , to the “consumption country , ” where the drugs are consumed. Agent Harrison noted that drugs passing through Haiti are most likely bound for the United States, a consumption country, especially if the loads are larger. It is rare , though not unheard of, for drugs destined to Europe from South America to pass through Haiti. Agent Harrison further testified that the markings found on cocaine packaging, like the Yahoo!/smiling face logo, act either as a “stamp of quality control,” signifying the drug’s orig in, or show that the drugs are attributable to a particular group or individual who did not produce the drug but purchased it and further distributed it. At the close of the Government’s case, Defendant moved for a judgment of acquittal, argu ing that a reasonable person could not find him guilty of conspiring to possess with intent to distribute knowing that the drugs would be imported to the United States. Defense counsel focused on the possibility that the drugs were not actually bound for the United States. The court denied the motion, noting that several witnesses had testified that they conspired with Defendant to bring cocaine from Haiti to the United States. The jury ultimately found Defendant guilty, and the court sentenced him to 19 2 months’ imprisonment and 5 years of supervised

Case: 16-10348 Date Filed: 06/20/2017 Page: 6 of 137 release. Defendant appeals the denial of his judgment of acquittal and his conviction, arguing primarily that the evidence was insufficient to prove that he knew the cocaine being exported from Haiti was de stined for the United States and also arguing that the court erred by permitting Agent Harrison’s testimony.
II. DISCUSSION A. Sufficiency of Evidence Concerning Defendant’s Knowledge Defendant argues that the district court erred in denying his mot ion for acquittal because there wa s no evidence that Defendant had actual knowledge that the drugs were to be shipped to the United States. A court’s denial of a motion for acquittal based on sufficiency of evidence grounds is reviewed de novo , “consider[ ing] the evidence in the light most favorable to the Government [and] drawing all reasonable inferences and credibility choices in the Government's favor.” United States v. Browne , 505 F.3d 1229, 1253 (11th Cir. 2007). 3 Accordingly, sufficient evidence “ requires only that a guilty verdict be reasonable, not inevitable, based on the evidence presented at trial,” and if it is, we must affirm. Id. In short, we look to whether “substantial evidence” supports the verdict. United States v. Starrett , 55 F.3d 1525, 1541 (11th Cir. 1995).

3 The Government argues that Defendant did not raise precisely enough before the district court the argument that the Government did not introduce sufficient evidence on the element of knowledge, and so this argument should be reviewed under a plain error standard. We need not resolve this question because even under a de novo stand ard, we conclude that sufficient evidence supports Defendant’s conviction.

Case: 16-10348 Date Filed: 06/20/2017 Page: 7 of 138 Admittedly, no witness testified to hearing Defendant say the words, “I know the drugs are heading to the United States,” but the knowledge requirement under § 959(a)(2) can be shown through circumstantial evidence. United States v. Martinez , 47 6 F.3d 961, 968 (D.C. Cir. 2007)

. 4 The Government points to several pieces of circumstantial evidence that, when viewed cumulatively, provide substantial evidence from which a reasonable jury could conclude that Defendant knew the c ocaine he was conspiring to distribute was bound for the United States. See Martinez , 476 F.3d at 968

– 70; Bollinger , 796 F.2d at 1405. Defendant had worked closely with three co

- conspirators who testified to their own awareness that the cocaine was going to the United States. Specifically, Acevedo

- Rincon and Anchico

- Candelo acknowledged their understanding that the cocaine brought into Haiti , and safeguarded by Defendant, w as enroute to the United States. Jaimes

- Penuela testified that he believed the co caine shipments were bound for the United States, and he had never heard of the shipments going to Europe. That the people Defendant was working closely with knew the destination of the cocaine is a fact that suggests that Defendant , himself, would likewi se be in

4 In the closely analog ous situation of prosecutions under 21 U.S.C. § 952, which prohibits knowingly importing controlled substances into the United States, this Court has held that the knowledge requirement can be met through circumstantial evidence. United States v. Leavitt , 878 F.2d 1329, 1336

– 37 (11th Cir. 1989); United States v. Bollinger , 796 F.2d 1394, 1405 (11th Cir. 1986); United States v. Bascaro , 742 F.2d 1335, 1360 (11th Cir. 1984) abrogated on other grounds by United States v. Lewis , 492 F.3d 1219 (11th Cir. 2007). Indeed, the D.C. Circuit in Martinez cited Bollinger and Bascaro in support of its holding that circumstantial evidence can lead to a conviction under § 959(a)(2). Martinez , 476 F.3d at 969

– 70.

Case: 16-10348 Date Filed: 06/20/2017 Page: 8 of 139 the know on this very important aspect of the conspiracy. Bollinger , 796 F.2d at 1405 (“All the people with whom [the defendant] had extensive dealings . .

. knew that the cocaine was to be imported into the United States.”)

. That Defendant p layed a leading role in the smuggling ope ration further bolsters an inference that he would be expected to know the destination of the drugs from which he was profiting

. Defendant was Jaar’s “right

- hand man,” and, in addition to organizing security at the airstrip to allow the plane to land clandestinely and to be unload ed , he was present at meetings where the shipments were arranged . Further, it was his house that was used by co

- conspirator s as both a meeting place and as a stash house for the cocaine until it could be sent on its way

. E xpert testimony about the role of Haiti in drug importation enterprises corroborated the testimony of the co

- conspirators . Specifically, this exp ert
t estimony established that the domestic market for cocaine consumption in Haiti is small and that cocaine can fetch up to four times as much in the United States as it can in Haiti. For that reason, Haiti is not the stopping point for a large shipment of cocaine, which instead is intended to be sent to a market where it can command a high price. The United States i s such a market , and Haiti is known as a “transshipment” country for drugs bound for the United States from South America . Indeed, the quantity of drugs involved in this conspiracy suggested that the export was heading to a high

- demand destination like the United States.

Case: 16-10348 Date Filed: 06/20/2017 Page: 9 of 1310 Although the expert could not state dispositively that drugs are never sent to Europe from Haiti , he testified tha t such shipments were rare

. Furthermore, cash payments in furtherance of the conspiracy were made in American dollars, not in the local Haitian currency n or in Euros , which further suggests that the drugs were being purchased in the United States

. In short, we conclude that the Government produced sufficient evidence to prove that during the seven year period of time from 2005

– 2012 specified in the indictment , Defendant conspired to import cocaine into the United States.
B. Admissibility of Agent H arrison’s Expert Testimony Defendant also challenges the district court’s admission of Agent Harrison’s expert testimony about the significance of the markings on cocaine packaging and the similarity of markings found in Illinois and Haiti. Specifically, some packages seized in Haiti contained a marking showing a Yahoo! logo and a smiling face. Similarly, a package containing cocaine and showing the same marking had been found in Illinois during the same 2012 time period. The agent testified that cocaine packaging that is marked typically reflect s a “stamp of quality control” that signifies the product’s origin or inform s the sellers down the distribution chain of the identi t y of the group to whom the d rugs should be attributed. We review a district cou rt’s evidentiary rulings for an abuse of discretion. United States v. Green , 842 F.3d 1299, 1307 (11th Cir. 2016). The Federal Rules

Case: 16-10348 Date Filed: 06/20/2017 Page: 10 of 1311 of Evidence state , as a threshold matter , that all evidence that is relevant to the case is admissible, unless otherwise provided by law. Fed. R. Evid. 402. Evidence is relevant if it has any tendency to make a fact of consequence more or less probable tha n it would be without the evidence. Fed. R. Evid. 401. The district court may exclude evidence otherwise admissible i f its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Fed. R. Evid. 403. The Supreme Court has instructed that “unfair prejudice” “speaks to the capacity of some concededly relevant evidence to lure the fac tfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United
States , 519 U.S. 172, 180 (1997). While a district court has broad discretion to admit probative evidence, its discretion to exclude evide nce under Rule 403 is limited. United States v. Terzado

- Madruga , 897 F.2d 1099, 1117 (11th Cir. 1990). Rule 403 is an “extraordinary remedy” that should be invoked “sparingly” ; balancing should be struck in favor of admissibility, “look[ing] at the evide nce in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact.” United States v. Tinoco , 304 F.3d 1088, 1120 (11th Cir. 2002) (quoting United States v. Elkins , 885 F.2d 775, 784 (11th Cir. 1989) ). Defendant argues that Agent Harrison’s testimony about the markings was irrelevant and should not have been admitted under Rule 401

. He notes that t he

Case: 16-10348 Date Filed: 06/20/2017 Page: 11 of 1312 mere discovery of a Yahoo!

- labeled package of cocaine in Illinois, without more , does not necessarily mean that the cocaine originated from Defendant’s smuggling organization nor, even if it did, that Defendant’s group had not necessarily sent drugs marked with the same labeling to Europe or a place other than the United States. Accordingly, Defendant ar gues, Agent Harrison’s testimony was not relevant to show that the seized shipment was bound for the United States, or that Defendant knew that any shipments were bound for the United States. It is true that the contested evidence does not definitively establish either of the above two points and, in fact, the expert witness acknowledge d the same on

cross - examination. Yet, that the probative value of the evidence was low does not mean that it fail s the low threshold set out in Rule 401: e vidence is re levant if it has any tendency to make a fact of consequence more or less probable that it would be without the evidence. That during the same time period in Illinois, cocaine packaging had been found with the exact same type of marking as the cocaine pack ages seized at Defendant’s house is a fact that tends to make it more probable that the intended site of Defendant’s intended importation might also have been the United States.
E ven if this evidence was relevant under Rule 401 , Defendant argues that it s probative value was substantially outweighed by the danger of unfair prejudice , which he says made it inadmissible under Rule 403. Defendant argues that the

Case: 16-10348 Date Filed: 06/20/2017 Page: 12 of 1313 testimony asked the jury to draw the unsupported inference that the cocaine seized in Illinois a nd Haiti came from a common producer or distributor that shipped exclusively to the United States. Yet , Agent Harrison’s testimony did not demand this inference, as t he agent testified that he did not know whether the Yahoo!/smiling face logo was connecte d to any particular producer or distributor,

nor could he say definitively whether that logo had ever been found in Europe. Likewise, Agent Harrison never attempted to opine as to Defendant’s personal knowledge. Notably, Defendant does not challenge on appeal the admission of the logo evidence itself. It was th is evidence on which a jury could mo re likely draw the inference that Defendant opposes, not the agent’s rather unremarkable observation that a marking can serve as the brand of the group which has distributed the drugs

. Given that Agent Harrison’s expert testimony was relevant and it did not unfair ly prejudice Defendant, we conclude the district court did not abuse its discretion in admitting it

. III. CONCLUSION The district court did not ab use its discretion in admitting the challenged evidence and su fficient evidence exists to support Defendant’s conviction. Accordingly, Defendant’s conviction is AFFIRMED

.

Case: 16-10348 Date Filed: 06/20/2017 Page: 13 of 13