FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 6, 2012

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-10568 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 7:10-cr-00185-LSC-JEO-1

UNITED STATES OF AMERICA, 

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

JOSE ANTONIO HERRERA, 

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

 Appeal from the United States District Court

 for the Northern District of Alabama

 ________________________

 (January 6, 2012)

Before HULL, PRYOR and BLACK, Circuit Judges.

PER CURIAM:

Jose Antonio Herrera appeals his conviction and sentence of 210 months of
imprisonment for possession with intent to distribute five kilograms or more of

cocaine. 21 U.S.C. § 841(a)(1). Herrera argues about prosecutorial misconduct,

the sufficiency of the evidence, a jury instruction on deliberate ignorance, the

admission of testimony, and the denial of relief under the safety valve. We affirm.

Herrera argues that the government failed to disclose exculpatory evidence

in violation of his constitutional right to due process, Brady v. Maryland, 373 U.S.

83, 83 S. Ct. 1194 (1963), but we disagree. “A Brady violation . . . occur[s] if the

prosecution delays in transmitting evidence during a trial, but only if the defendant

can show prejudice.” United States v. Beale, 921 F.2d 1412, 1426 (11th Cir.

1991). Before Herrera’s first trial, a magistrate judge ordered the prosecution to

produce an agent’s notes of an interview of Herrera, and the prosecution complied

with that order before Herrera’s second trial. Fed. R. Crim. P. 16(a)(1)(B)(ii). The

magistrate judge’s order to produce the notes was in a footnote of an order that

neither party noticed before Herrera’s first trial. Herrera argues that, under Brady,

the evidence should have been produced sooner, but he fails to identify any

information in the notes that was “favorable” to him or “material to the

establishment of his guilt or innocence.” Beale, 921 F.2d at 1426. The district

court did not abuse its discretion when it denied Herrera’s motion to dismiss based

on the alleged Brady violation.

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Herrera argues that the government failed to prove that he knowingly

possessed or intended to distribute the 98.35 grams of cocaine found in a hidden

compartment of his tractor trailer truck, but the record supports his conviction. 

When Trooper Darrell Seymour stepped up to the window of Herrera’s truck to

conduct a commercial vehicle inspection, he noticed immediately what appeared

to be a hidden compartment in the bunk area that had been covered with carpet in

different color than the rest of the cab. Herrera’s conduct was inconsistent with

that of a commercial truck driver with two years experience: Herrera provided

loose sheets of paper when asked to produce his log book, and he was unable to

trigger his low air warning device without Seymour’s assistance. Herrera also

acted extremely nervous during the inspection. Herrera’s eyes opened “real wide”

and he had a “real shocked and surprised look” when Seymour asked Herrera to

produce safety articles for the truck that are stored typically in the bunk; upon

climbing inside the patrol car, Herrera laughed uncomfortably and asked if he

could “go out there and dig up a pine tree”; while inside the police vehicle,

Herrera scratched himself and coughed repeatedly; and, when questioned about

the tree, Herrera stated that he would remove the tree from the ground using his

hands in lieu of a shovel. After Seymour discovered the cocaine, Seymour told

Herrera that he was being arrested for “the dope,” and Herrera repeated, “the

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dope.” Later, Herrera told Seymour that he had “had a bad feeling about this trip.”

Less than two months earlier, Charles Engle of the Immigration and Customs

Enforcement agency had shown Herrera where a hidden compartment had been

added to the sleeping compartment in another truck he was driving for the same

trucking company. Although the compartment was empty, Engle explained to

Herrera that similar compartments were used to transport illegal drugs. Based on

Herrera’s encounters with law enforcement, the jury reasonably found that Herrera

had a “consciousness of guilt,” United States v. Leonard, 138 F.3d 906, 909 (11th

Cir. 1998), and the district court did not err by denying Herrera’s motion for a

judgment of acquittal. In the light of the evidence against Herrera, the district

court also did not abuse its discretion when it instructed the jury about both actual

knowledge and deliberate ignorance. See United States v. Arias, 984 F.2d 1139,

1143–44 (11th Cir. 1993). 

Herrera argues that the district court should have excluded Engle’s

testimony as unduly prejudicial, but Herrera’s argument fails. Evidence about

Herrera’s observation of another hidden compartment in another truck owned by

the same company and his notice of the purpose for such a compartment was

material and, as he concedes, not a prior bad act governed by Federal Rule of

Evidence 404(b). Engle’s testimony was probative and not unduly prejudicial. 

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Engle’s testimony established only that he informed Herrera about the presence

and purpose of a hidden compartment.

Herrera also argues that he was entitled to relief under the safety valve, but

we disagree. To qualify for relief under the safety valve, a “defendant has an

affirmative responsibility to truthfully disclose to the government all information

and evidence that he has about the offense and all relevant conduct.” United States

v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004) (internal quotation marks

omitted); 18 U.S.C. § 3553(f); United States Sentencing Guidelines Manual §

5C1.2(a) (Nov. 2010). In response to his presentence investigation report, Herrera

submitted a four-page statement in which he denied any knowledge about the

cocaine, and the district court discredited Herrera’s statement consistent with the

jury’s verdict. The district court did not err by denying Herrera’s request for relief

under the safety valve.

We AFFIRM Herrera’s conviction and sentence. 

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