FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 19, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-13325

Non-Argument Calendar

________________________

D. C. Docket No. 07-00037-CR-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN VILLEGAS-TELLO,

JOSE MARTIN OROZCO-CUELLAR,

Defendant-Appellant.

________________________

Appeals from the United States District Court

for the Southern District of Georgia

_________________________

(March 19, 2009)

Before BIRCH, HULL and FAY, Circuit Judges.

PER CURIAM:
Jose Martin Orozco-Cuellar and Martin Villegas-Tello appeal their

convictions, and Orozco-Cuellar appeals his sentence, for conspiracy to possess

with intent to distribute marijuana, in violation of 21 U.S.C. § 841. OrozcoCuellar and Villegas-Tello each argue that the district court erred in admitting postarrest statements by Orozco-Cuellar. Before trial, Orozco-Cuellar asserted in a

motion to suppress that the statements violated Miranda v. Arizona, 384 U.S. 436,

458-71, 86 S.Ct. 1602, 1619-26, 16 L.Ed.2d 694 (1966), as the arresting agents

lacked probable cause to arrest him and the statements were the product of

interrogation before he was made aware of his rights. Villegas-Tello asserted in a

motion in limine that the statements violated Bruton v. United States, 391 U.S.

123, 126, 88 S.Ct. 1620, 1622-23, 20 L.Ed.2d 476 (1968), as they suggested his

guilt and Orozco-Cuellar did not testify, and could not be cross-examined, at their

joint jury trial. Orozco-Cuellar and Villegas-Tello also argue that the government

failed to present sufficient evidence of their guilt. Orozco-Cuellar finally argues

that the district court erred in denying him a minor-role reduction, pursuant to

U.S.S.G. § 3B1.2. For the reasons set forth below, we affirm.

I. Background

Evidence Presented on Motion to Suppress and Motion in Limine

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Most of the evidence stems from an evidentiary hearing held on Orozco-Cuellar’s

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motion to suppress. 

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Customs and Border Patrol (“CBP”) officers discovered boxes of marijuana

inside a shipping container at the Port of Savannah. Immigration and Customs

Enforcement (“ICE”) agents arranged a controlled delivery. They delivered the

boxes to a local warehouse, and an unidentified man driving a U-Haul retrieved the

boxes. The man drove the U-Haul to a KMart store in Atlanta, parked, and went

into the store. A man, later identified as Villegas-Tello, got into the U-Haul and

drove north on Interstate-85 (“I-85”). A man later identified as co-indictee Isidro

Pulido-Tejedo followed closely in a van. The two stopped at a gas station, and

Villegas-Tello spoke with a man later identified as Orozco-Cuellar. Villegas-Tello

continued north on I-85, this time followed closely by both Pulido-Tejedo in the

van and Orozco-Cuellar in a sedan. The three drove in a “lead car - load car -

chase car” pattern frequently used by drug couriers. The ICE agents and other

police officers stopped them.

After being stopped, Orozco-Cuellar was instructed to exit his car, told that

he was being detained for the purposes of investigation, handcuffed, instructed to

enter a police patrol car, and transported one mile to a weigh station. Upon

arriving at the weigh station, ICE agent Jeremi Blankley asked if he could speak

with Orozco-Cuellar. When Orozco-Cuellar “emphatically” responded in the

affirmative, Blankley and another agent walked with Orozco-Cuellar to a nearby

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warehouse, outside the view of Villegas-Tello and Pulido-Tejedo. Blankley did

not inform Orozco-Cuellar why they were walking toward the warehouse. While

Blankley and the other agent flanked Orozco-Cuellar and carried holstered guns,

they did not physically lead him and he did not appear reluctant to go with them.

In the course of their walk, Orozco-Cuellar stated, “[T]he green’s not mine.”

When the ICE agent asked if “green” referred to marijuana, Orozco-Cuellar replied

affirmatively and indicated that Pulido-Tejedo told him that the U-Haul carried

marijuana.

Additional Evidence Presented at Joint Jury Trial

As part of ICE’s controlled delivery of the boxes, agent Blankley instructed

a transport company to deliver the boxes to the warehouse on January 16, 2007.

He and other ICE agents followed and surveilled the scene. A woman later

identified as co-indictee Eva Partida counted the boxes. The agents entered the

warehouse and had Partida and the manager of the warehouse contact the owner of

the boxes and instruct that he pick up the boxes immediately. The next day, a UHaul arrived at the warehouse and the boxes were retrieved.

As the U-Haul drove north on I-85, ICE agents followed. After making the

driver switch at Kmart, the U-Haul and van left I-85 and stopped at a gas station to

re-fuel the U-Haul. At the very next exit, the U-Haul and van again left I-85 and

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stopped at another gas station. Villegas-Tello exited the U-Haul and approached

Orozco-Cuellar, who was re-fueling his sedan. The two spoke briefly. VillegasTello returned to the U-Haul. Orozco-Cuellar walked over toward Pulido-Tejedo

in the van and they spoke briefly. Orozco-Cuellar then “blocked traffic” while the

U-Haul backed out of the gas station parking lot. The three then drove “in tandem”

north on I-85. Orozco-Cuellar led, Villegas-Tello followed in the U-Haul, and

Pulido-Tejedo brought up the rear in the van. Each vehicle remained one or two

car lengths from the one in front. They changed lanes together, and sometimes the

van would “block traffic” so that the U-Haul could change lanes. They increased

speed and reduced speed at the same times and to the same extent. They traveled

in this manner for approximately 40 miles. This manner of driving frequently was

used by drug couriers.

The agents and other police officers stopped the three vehicles. Upon being

arrested, Orozco-Cuellar stated “emphatically,” “[T]he green’s not mine. The

green’s not mine.” Blankley asked, “Green? What green?” Orozco-Cuellar

responded, “[T]he green’s not mine.” Blankley asked, “The marijuana?” OrozcoCuellar responded, “[Y]es, it’s not mine.” Blankley asked, “[W]hose is it?”

Orozco-Cuellar responded, “[I]t’s the young guy, the young guy is who told me

what was in it,” and pointed to Pulido-Tejedo. Also upon their arrests, police

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officers seized the mens’ cellular telephones. The phones were direct connect,

“walkie-talkie” types, which were commonly used by drug dealers. The agents

reviewed the call logs for each phone, which listed the last call made, and noted

that Orozco-Cuellar’s phone connected with Pulido-Tejedo’s phone approximately

a half hour before the stop. They also reviewed the telephone records for each

phone and noted that Pulido-Tejedo’s phone was issued in the name “John Wayne”

at an address in Gaffney, South Carolina, on January 11, 2007; Orozco-Cuellar’s

phone was issued in the name “John Wayne” at 403 North Limestone Street in

Gaffney, South Carolina, on January 16, 2007; and Villegas-Tello’s phone was

issued in the name “DeeTee” at 403 North Limestone Street in Gaffney, South

Carolina.

Before the federal grand jury that ultimately indicted Orozco-Cuellar and

Villegas-Tello, Villegas-Tello had testified that he and Pulido-Tejedo traveled

from South Carolina to Atlanta to retrieve furniture for a person he met at a party.

They met Orozco-Cuellar at the gas station so that Orozco-Cuellar could give

Villegas-Tello money, as Villegas-Tello did not have enough money to buy gas for

the return trip.

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II. Discussion

A. Post-arrest Statements

Probable Cause & Miranda

We review the district court’s denial of a motion to suppress evidence as a

mixed question of law and fact. United States v. Steed, 548 F.3d 961, 966 (11th

Cir. 2008). Specifically, we review the district court’s findings of fact for clear

error and it s application of the law to those facts de novo. Id.

“Probable cause to arrest exists when law enforcement officials have facts

and circumstances within their knowledge sufficient to warrant a reasonable belief

that the suspect had committed or was committing a crime.” United States v.

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Gonzalez, 969 F.2d 999, 1002 (11th Cir. 1992). In determining if such a

reasonable belief exists, appellate courts must review the totality of the

circumstances. Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 2329, 76

L.Ed.2d 527 (1983). Indeed, we have held that, “[w]hile presence alone is not

 As an initial matter, we need not separately address Orozco-Cuellar’s argument that the 2

ICE agents lacked reasonable suspicion to stop him. Pursuant to Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer may stop a person for the purposes of

investigation if he has “a reasonable, articulable suspicion based on objective facts that the

person has engaged in, or is about to engage in, criminal activity.” We have held that

“reasonable suspicion” is a less demanding standard than “probable cause.” United States v.

Lindsay, 482 F.3d 1285, 1290 (11th Cir.), cert. denied, 128 S.Ct. 438 (Oct. 15, 2007). Because

the facts known by the ICE agents before stopping the three vehicles were sufficient to establish

probable cause, as discussed below, they must also have been sufficient to establish a reasonable

suspicion. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868; Lindsay, 482 F.3d at 1290.

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enough to constitute probable cause, presence and additional factors that would

lead a prudent person to believe that an offense has been or is being committed is

sufficient.” United States v. Irurzun, 631 F.2d 60, 63 (5th Cir. 1980). Likewise,

we have held that appellate courts may consider the involved police officers’

experience, as “[c]onduct innocent in the eyes of the untrained may carry entirely

different ‘messages’ to the experienced or trained observer.” Gonzalez, 969 F.2d

at 1003-04. In so holding, we specifically referenced the defendants’ driving

patterns and noted that the patterns might have an innocent explanation but

nonetheless suggested the probability of criminal wrongdoing. Id.

After a defendant is properly arrested, Miranda requires that he be advised of

his right to remain silent and his right to counsel before he is interrogated.

Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. In United States v. Savell, 546 F.2d

43, 46 (5th Cir. 1977), our predecessor held that the Miranda rule “does not reach a

situation . . . where the statements were unsolicited, spontaneous and freely made

prior to any attempted interrogation.” The Supreme Court has defined

“interrogation” as “express questioning” initiated by police officers or its

“functional equivalent,” namely “any words or actions on the part of the police

(other than those normally attendant to arrest and custody) that the police should

know are reasonably likely to elicit an incriminating response from the suspect.”

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Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297

(1980).

While we have yet to address whether a police officer’s follow-up questions,

asked for the sake of clarification, to a defendant’s spontaneous statements

implicate Miranda, several of our sister circuits have held that Miranda also does

not reach this situation. See United States v. Rhodes, 779 F.2d 1019, 1032 (4th

Cir. 1985) (holding that a police officer did not initiate the conversation when the

police officer picked up the spiral notebook in the course of searching the

defendant’s home; the defendant stated, “You can’t take that”; the police officer

asked why not; and the defendant responded, “I can’t run my business without

that,” referring to his marijuana distribution activities; thus, the statement was

admissible); United States v. Gonzales, 121 F.3d 928, 939 (5th Cir. 1997) (holding

that the district court properly admitted the defendant’s answers to a police

officer’s question when the defendant spontaneously stated, after a police officer

had confiscated cocaine from his warehouse, “[W]e made you work for that shit,

you all thought you weren’t going to find it” and “[A]ll of that is mine”; the police

officer questioned to what he was referring; and the defendant stated that he had

been referring to “the coke and the gun”); Andersen v. Thieret, 903 F.2d 526, 532

(7th Cir. 1990) (holding that a police officer’s responsive question did not require

9
Miranda warnings before its utterance when the defendant spontaneously stated

upon being arrested, “I stabbed her”; the police officer asked, “Who?”; and the

defendant responded, “Cathy,” the name of the stabbing victim about whom the

police were investigating); Butzin v. Wood, 886 F.2d 1016, 1017-18 (8h Cir. 1989)

(holding that the defendant’s confession was not the product of interrogation when

he told a police officer that he had not been totally honest when making previous

statements, the police officer asked what he had not been honest about, and the

defendant stated that he had not accidentally bumped his wife, as previously

claimed, but had pushed her into the creek because he knew she could not swim

and he wanted her to die).

The district court did not err in denying Orozco-Cuellar’s motion to

suppress. See Steed, 548 F.3d at 966. First, given the totality of the

circumstances, the police officers had probable cause to believe that OrozcoCuellar probably was involved in the marijuana transportation and, therefore, to

arrest him. See Gonzalez, 969 F.2d at 1002; Gates, 462 U.S. at 233, 103 S.Ct. at

2329. Specifically, the police officers knew that Villegas-Tello was driving a UHaul that carried marijuana; Orozco-Cuellar had spoken to Villegas-Tello; and

Orozco-Cuellar, Villegas-Tello, and Pulido-Tejedo had then driven in what

appeared to be a pattern often used by drug couriers. See Irurzun, 631 F.2d at 63;

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Gonzalez, 969 F.2d at 1003-04. Although the driving pattern may have been

innocent, it nevertheless could have suggested criminal wrongdoing to the trained

eye. See Gonzalez, 969 F.2d at 1003-04.

Also, Orozco-Cuellar statements did not violate Miranda. Orozco-Cuellar’s

initial statement that the “green” was not his was not the product of interrogation.

See Innis, 446 U.S. at 301, 100 S.Ct. at 1689. Blankley had not asked OrozcoCuellar any express questions beyond those generally associated with an arrest.

See id.. Blankley and the other agent involved also had done nothing functionally

equivalent to express questioning. Asking if an arrestee wished to talk and then

walking with the arrestee away from the area, without holding him or otherwise

forcing him to walk, does not appear to be the sort of action reasonably likely to

elicit an incriminating response from the arrestee. See id. Likewise, OrozcoCuellar’s statement in response to Blankley’s questions that “green” meant

marijuana and that the “young one,” or Pulido-Tejedo, had told him that the

marijuana was in the U-haul was not the product of interrogation. Neither

Blankley’s question regarding what “green” meant nor his question regarding to

whom the marijuana belonged appeared to be intended to elicit an incriminating

response. See Innis, 446 U.S. at 301, 100 S.Ct. at 1689. Rather, these questions

appear to have been asked for the sole purpose of clarifying Orozco-Cuellar’s

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statements. We agree with our sister circuits on this point. See Rhodes, 779 F.2d

at 1032; Gonzales, 121 F.3d at 939; Andersen, 903 F.2d at 532; Butzin, 886 F.2d at

1017-18.

Bruton

We review the district court’s denial of a motion in limine for abuse of

discretion. Cabello v. Fernandez-Larios, 402 F.3d 1148, 1161 (11th Cir. 2005). In

Bruton, the Supreme Court held that the Confrontation Clause was violated by the

admission of a codefendant’s confession that inculpated the defendant at their joint

trial, despite a curative instruction given to the jury. 391 U.S. at 126, 88 S.Ct. at

1622-23. We have clarified that Bruton applies to only those inculpatory

statements made by a non-testifying codefendant. United States v. Arias, 984 F.2d

1139, 1142 (11th Cir. 1993). The Supreme Court, however, has held that no

Bruton problem exists when the statement in question is “not incriminating on its

face, and [becomes] so only when linked with evidence later introduced at trial”

and has suggested that a non-testifying codefendant’s statement may be admitted

without violating the Confrontation Clause if it does not directly incriminate the

defendant, but the jury must draw inferences to connect the statement to the

defendant. Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 1707, 95

L.Ed.2d 176 (1987).

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The district court did not abuse its discretion in denying his motion in

limine. See Fernandez-Larios, 402 F.3d at 1161. Orozco-Cuellar’s statement that

Pulido-Tejedo told him that the U-Haul carried marijuana only directly implicated

Orozco-Cuellar and Pulido-Tejedo. It was not incriminating on its face as to

Villegas-Tello. See Richardson, 481 U.S. at 208, 107 S.Ct. at 1707. Rather, any

incriminatory effect it had as to Villegas-Tello rested on the jury making some

inference that, if Pulido-Tejedo told Orozco-Cuellar that the U-Haul carried

marijuana, Villegas-Tello also must have known as much. See id..

B. Sufficiency of the Evidence

We review the sufficiency of the evidence de novo. United States v. Harris,

20 F.3d 445, 452 (11th Cir.1994). In doing so, we review the evidence in the light

most favorable to the government and make all reasonable inferences and

credibility choices in the government’s favor. Id.

To sustain a verdict of guilt the evidence need not exclude every

reasonable hypothesis of innocence or be wholly inconsistent with

every conclusion except that of guilt, as long as a reasonable

factfinder choosing from among reasonable constructions of the

evidence could find that the evidence establishes guilt beyond a

reasonable doubt.

United States v. Sepulveda, 115 F.3d 882, 888 (11th Cir.1997). Therefore, we will

reverse only if no reasonable trier of fact could have found guilt beyond a

reasonable doubt. United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004).

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Also, “[t]he jury [is] free to disbelieve [a defendant’s] statements and to take them

as substantive evidence to the contrary.” United States v. Ellisor, 522 F.3d 1255,

1272 (11th Cir. 2008).

To convict a defendant of conspiracy to possess with intent to distribute

drugs, the government must prove that (1) an illegal agreement existed to possess

with the intent to distribute marijuana; (2) the defendant knew of the agreement

and its “essential nature”; and (3) the defendant knowingly and voluntarily joined

the agreement. United States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002).

Where the government’s proof of these elements is based on circumstantial

evidence, “reasonable inferences, and not mere speculation, must support the jury’s

verdict.” Id.

Regarding the knowing participation element, in United States v. Sullivan,

763 F.2d 1215, 1218 (11th Cir. 1985), we held that “[m]ere presence is insufficient

to establish knowing participation in a conspiracy, as is mere association with

conspirators.” (internal citations omitted). In that case, in which the defendant was

convicted of conspiracy to possess with intent to distribute marijuana, the evidence

against the defendant was as follows. See id. at 1219. Police officers saw the

defendant in a hotel parking lot near a red van. A codefendant arrived in a blue

van and approached the defendant. They then approached two other men, and the

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four “walked around the parking lot for about five minutes.” The defendant and

codefendant then walked to the blue van, removed a small bag, and entered the

hotel. A police officer arrested the parties. At the time of the arrest, the defendant

was with his codefendant, who was carrying a small bag containing a gun. The

police officers also knew that the alleged conspirators were going to the hotel

parking lot to meet the men who were meant to distribute the marijuana, but did

not know who the drivers were expected to be. Id. We concluded that this

evidence was “totally insufficient,” as there was no evidence that the defendant

knew that the alleged conspirators were planning to transport marijuana or that the

blue van would be used to do so or that he knew of the existence of the pistol. Id.

Sufficient evidence supports both Orozco-Cuellar and Villegas-Tello’s

convictions. See Harris, 20 F.3d at 452. Though the evidence against OrozcoCuellar and Villegas-Tello is not plentiful, it is not so scant as to suggest that no

reasonable jury could have found them guilty beyond a reasonable doubt. See

Sepulveda, 115 F.3d at 888; Gunn, 369 F.3d at 1234. The jury did not need to

speculate, but could reasonably infer from the evidence that Orozco-Cuellar and

Villegas-Tello (1) knew of the conspiracy, as they purchased phones, seemingly

together, and traveled to the site where the marijuana was to be retrieved; and

(2) voluntarily joined the conspiracy, as Villegas-Tello drove the U-Haul and

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Orozco-Cuellar participated in the lead car - load car - chase car driving pattern.

See Charles, 313 F.3d at 1284. The jury also could have inferred from the facts

that the parties used phones and drove in a pattern commonly used by drug dealers

and couriers that Villegas-Tello knew he was retrieving marijuana rather than, say,

stolen furniture. See id.

Also, although the evidence could support a conclusion of innocence, and

Villegas-Tello testified to a specific construction suggesting innocence, the jury

was free to reject Villegas-Tello’s story and choose the construction suggesting

guilt. See Sepulveda, 115 F.3d at 888; Ellisor, 522 F.3d at 1272.

C. Minor-Role Reduction

We review the district court’s finding concerning the defendant’s role in the

offense for clear error. United States v. DeVaron, 175 F.3d 930, 937 (11th Cir.

1999) (en banc). The defendant bears the burden of proving that he deserves a

mitigating-role reduction by a preponderance of the evidence. United States v.

Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002).

According to U.S.S.G. § 3B1.2, a district court may decrease a defendant’s

offense level by two levels if it finds the defendant was a “minor participant” in the

criminal activity. A “minor participant” is a defendant “who is less culpable than

most other participants, but whose role could not be described as minimal.” Id. at

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comment. (n.5).

We have established a two-pronged approach for determining whether a

minor-role reduction is warranted. DeVaron, 175 F.3d at 940. First,“[o]nly if the

defendant can establish that [he] played a relatively minor role in the conduct for

which [he] has already been held accountable-not a minor role in any larger

criminal conspiracy-should the district court grant a downward adjustment for

minor role in the offense.” Id. at 944. We explained that the purpose behind this

downward adjustment is to curtail the risk that, “given the relatively broad

definition of relevant conduct under [U.S.S.G.] § 1B1.3, some defendants may be

held accountable for conduct that is much broader than their specific acts.” Id. at

941.

Second,“the district court may also measure the defendant’s culpability in

comparison to that of other participants in the relevant conduct.” Id. at 940, 944.

We outlined two limiting principles that control this comparison: “First, the district

court should look to other participants only to the extent that they are identifiable

or discernable from the evidence. This is a fact-intensive inquiry. Second, the

district court may consider only those participants who were involved in the

relevant conduct attributed to the defendant.” Id. at 944. We also explained that

the defendant must be less culpable than most other participants in his relative

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conduct and recognized the possibility that no participant played a minor role. Id.

The district court did not clearly err in denying Orozco-Cuellar a minor-role

reduction. See DeVaron, 175 F.3d at 937. The conduct for which Orozco-Cuellar

was held accountable was conspiring to possess with intent to distribute marijuana.

Each of his co-indictees also was held accountable for this conduct. Regarding the

mandatory first prong, the evidence presented at trial demonstrated that OrozcoCuellar’s role within the conspiracy was helping to transport the marijuana from

Atlanta to South Carolina. See DeVaron, 175 F.3d at 940. Given that there was no

evidence that he was meant to help distribute the marijuana, he may have been held

accountable for conduct that was much broader than his actual conduct. See id. at

941.

However, regarding the second prong, it appears that two of his co-indictees,

Villegas-Tello and Pulido-Tejedo, performed the same role as Orozco-Cuellar and

the other of his co-indictees, Partida, performed the similarly limited role of

meeting and counting the boxes at the warehouse. See DeVaron, 175 F.3d at 940,

944. Given that Orozco-Cuellar performed the same or similar role within the

conspiracy as his codefendants, he was not less culpable than most other

participants in his relative conduct. See id. at 944.

AFFIRMED.

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