Appeal from the United States District Court for the Central District of Illinois. No. 04 CR 40093-Joe Billy McDade, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before EASTERBROOK, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.
In the fall of 2004, Benjamin Ochoa-Zarate left California on an ill-fated cross-country drive with $1 million worth of methamphetamine concealed in a spare tire. A jury believed he knew the drugs were there and convicted him of conspiring to distribute the drugs. Ochoa-Zarate maintains that two events during his trial warrant a new trial. First, during his rebuttal closing argument, the prosecutor argued that as of the last day of trial, unlike his co-defendant who had pled guilty, Ochoa-Zarate had failed to take responsibility for his actions. We agree that a jury may have taken this comparison as a comment on Ochoa-Zarate's decision to exercise his right to go to trial. Next, Ochoa-Zarate takes issue with the prosecutor's question to the trooper who arrested Ochoa-Zarate that asked whether, based on his training and experience, it was uncommon to find drugs after persons had consented to search. This testimony is of questionable relevance and probably not the subject of lay testimony. Nonetheless, in light of the weight of the evidence of Ochoa-Zarate's guilt, we affirm his convictions.
Benjamin Ochoa-Zarate worked for a small bakery in Stockton, California. His cousin, Bryan Castaneda, owned the bakery with Roger Bailey. With the bakery not returning the profits he had hoped, Bailey decided to supplement his income by entering the illegal drug business. He contacted Jose Castaneda, his partner's brother, as Jose had served time in prison on drug charges. Sometime in the fall of 2004, Jose told Bailey he had a deal in the works and asked Bailey if he was interested in driving to New York. Bailey told him that he was.
Around that same time, Ochoa-Zarate drove to Mexico in a car he borrowed from Bryan Castaneda. Ochoa-Zarate returned on October 4, 2004. The next day, he, Jose, and Bailey left the bakery together and made several stops. First, Jose and Ochoa-Zarate deposited $600 into Ochoa-Zarate's bank account to pay for a rental vehicle. Next, Bailey drove the men to Hertz, and Ochoa-Zarate rented a minivan, listing himself and Bailey as drivers. Bailey had second thoughts later in the day, though, and told Jose he could not go through with the plan.
After obtaining a new cell phone and stopping by the bakery to tell Bryan Castaneda he was going on vacation, Ochoa-Zarate proceeded to drive east alone. By October 7, Ochoa-Zarate had made it to western Illinois, and it was there that Illinois State Trooper Clint Thulen pulled Ochoa-Zarate over for a traffic infraction. Ochoa-Zarate gave the trooper his California driver's license, an I-94 form indicating he had entered the United States from Mexico on October 4, and the rental agreement. The agreement stated that the minivan had been rented on October 5 and was due back in Stockton, California on October 12, 2004.
Ochoa-Zarate's conduct after the stop made Trooper Thulen suspicious. When asked where he was going, Ochoa-Zarate said he was heading to visit his sister in Chicago for about ten days. He was unable, however, to answer where in Chicago she lived. He also did not know his sister's telephone number and claimed that when he arrived in Chicago, he would call his brother in California to get the information. The trooper noticed that a ten-day stay in Chicago would make the rental overdue and that the small duffel bag of clothing in the minivan did not seem adequate for a ten-day stay. He also observed Ochoa-Zarate's hands and body shaking, even though he smiled broadly and acted jovial. Trooper Thulen returned Ochoa-Zarate's documents and said he was free to leave, and he then asked Ochoa-Zarate whether he was willing to answer more questions. Ochoa-Zarate agreed and signed a written consent authorizing search of the minivan.
With the help of a canine and a density meter, Trooper Thulen found six bags of methamphetamine and coffee grounds hidden inside the minivan's spare tire. The drugs had a street value of about $1 million. After being placed under arrest, Ochoa-Zarate complained of chest pains, and an ambulance took him to the hospital. Doctors determined he was not having a heart attack and discharged him to law enforcement agents. He then waived his Miranda rights.
In the later interview, Ochoa-Zarate asked the agents how much prison time he would receive, and he also said he did not know the drugs were in the minivan. He told the agents that when Bailey heard Ochoa-Zarate planned to visit friends in New York, Bailey suggested he save money by renting a vehicle for Bailey, dropping it off in Chicago, and then flying to New York from there. OchoaZarate said he was to call Bailey when he arrived in Chicago and that Bailey or one of Bailey's friends would pick him up and take him to the airport before driving the vehicle back to California.
The agents asked Ochoa-Zarate whom he planned to visit in New York, and Ochoa-Zarate responded that it was someone with the last name of "Barragan" but that he could not recall the person's first name. Later, toward the end of the interview, Ochoa-Zarate told the agents that he would be meeting "Javier Barragan," describing him as a pastor in New York whom he had met during a retreat in California. When asked for his address, OchoaZarate said he did not know the address but that he had the telephone number somewhere. He further explained that his plan was to fly to New York to surprise Barragan and then to stay there for two weeks to look for a job. He also said that his fingerprints might be on the minivan's spare tire because he had asked Bailey how to change the spare before leaving.
Ochoa-Zarate then told the agents that he wanted to cooperate. He gave them a telephone number that he said belonged to Bailey. When Ochoa-Zarate called the number, however, Jose Castenada-not Bailey-answered. Agents believed that Ochoa-Zarate was alerting Jose Castenada that he had been arrested, as he said that he had been stopped, he asked about Jose's mother's health out of context, and he responded to a question about his well-being by saying "until I can walk tall."
At trial, Bryan Castaneda testified that Ochoa-Zarate did not have a sister that lived in Chicago. Bailey testified that he had never discussed the spare tire with OchoaZarate and that he did not even know where it was located in the minivan. He also said that the two had never discussed the possibility that Ochoa-Zarate would drop off the vehicle in Chicago before flying to New York.
A jury found Ochoa-Zarate guilty of conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846 and possessing methamphetamine with the intent to distribute it in violation of 18 U.S.C. § 841(a)(1). The district court sentenced him to 144 months' imprisonment on each ...