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United States v. Ozuna

April 6, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MODESTO OZUNA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 CR 757-John F. Grady, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED DECEMBER 10, 2008

Before POSNER, KANNE, and ROVNER, Circuit Judges.

On July 28, 2003, agents of the Drug Enforcement Agency stopped a tractor-trailer driven by Modesto Ozuna. After searching the trailer, allegedly pursuant to Ozuna's consent, the agents found 200 kilograms of cocaine. Ozuna was later arrested and indicted for possession with the intent to distribute more than five kilograms of cocaine. The district court initially suppressed the evidence from the search because the government had failed to prove by a preponderance of the evidence that Ozuna consented to the search. It later reopened the suppression hearing to consider the testimony of two handwriting experts regarding whether a signature on the consent form belonged to Ozuna. Based on this new evidence, the court vacated its prior order and found the evidence admissible. Ozuna appeals the district court's decision to reopen the suppression hearing and its reliance on the government's handwriting expert. He also appeals the district court's decision to exclude certain testimony he wished to present at trial. We now affirm.

I. BACKGROUND

In July 2003, Agent Michael Lumpkin of the Drug Enforcement Agency informed DEA agents in Chicago that two drug distributors, Claudio Aguilar and Mario Garcia, were orchestrating a drug exchange in the Chicago area using a tractor-trailer registered to "Ozuna's Express." On July 28, the Chicago agents pulled over Modesto Ozuna, who was driving a tractor-trailer bearing the name "Ozuna's Express." A search of the trailer, purportedly pursuant to Ozuna's consent, revealed 200 kilograms of cocaine hidden among a load of limes.

Ozuna was taken to a DEA office, where, according to agents, he admitted that he was transporting illegal drugs. Ozuna told the agents that he wished to cooperate against Aguilar, so he was allowed to return to Texas for that purpose. Ozuna was released but was arrested again in August 2004. He was subsequently indicted for possession with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1).

During the proceedings that followed, the government and Ozuna recited different versions of the events surrounding Ozuna's apprehension and arrest. Disagreement regarding these facts led to a number of evidentiary challenges that have become the subject of this appeal.

A. Ozuna's Motions to Suppress the Seized Cocaine

On January 12, 2005, Ozuna filed a motion to suppress the 200 kilograms of cocaine seized from his vehicle, arguing that he did not consent to the trailer's search.*fn1 On March 2, 2005, the court held a suppression hearing, at which DEA Special Agent Robert Glynn and Ozuna both testified as to their recollections of the search on July 28, 2003.

Glynn testified that, pursuant to information received from Lumpkin, he and other agents began surveillance of Aguilar and Garcia at O'Hare airport. Agents watched Aguilar and Garcia drive to a hotel, where they also saw Ozuna, who was driving a tractor-trailer. Based upon what they witnessed and information received from Agent Lumpkin, the agents stopped Ozuna's tractor-trailer.

Glynn and Task Force Officer William McKenna approached the driver's door of the vehicle. According to Glynn, he asked for Ozuna's consent to search the trailer, and Ozuna agreed. Ozuna told the agents that the trailer was locked, and Glynn permitted him to retrieve the key from the cab. Ozuna then unlocked the trailer door.

Glynn testified that he retrieved a DEA consent-to-search form from his car and read it to Ozuna. Ozuna signed the form, which Glynn and McKenna also signed as witnesses. The agents searched the trailer and discovered the cocaine. They then took Ozuna to the DEA office in Chicago.

Ozuna disputed much of Glynn's testimony. He stated that on July 28, he drove a tractor-trailer loaded with mangoes and limes from Texas to Chicago. He claimed that the agents cut him off while he was driving, pointed a weapon at his head, demanded that he exit the truck, and handcuffed him. Ozuna maintained that he never gave the agents consent to search the tractor-trailer, did not retrieve the keys from the tractor or unlock the trailer, and did not sign the consent-to-search form. He denied knowledge of the cocaine found in the trailer.

At the close of the suppression hearing, the district court granted Ozuna's motion to suppress. After ruling that the DEA was justified in stopping the tractor-trailer, the court held that the government had failed to prove by a preponderance of the evidence that Ozuna voluntarily consented to the search of the trailer. Upon comparing the signature on the consent form to Ozuna's known signatures, the court was not convinced that Ozuna had actually signed the form. It also expressed doubt regarding portions of Glynn's testimony, due to the serious risks the agents would have faced had the search occurred as Glynn described. Ultimately the court deter-mined that, although it was a close question, it was not persuaded by the greater weight of the evidence that the government's version of events was true, and it granted the motion.

Following the hearing, the government submitted the consent-to-search form for fingerprint and handwriting analysis. Ozuna's fingerprints were not on the form, but a handwriting expert concluded that the signature was Ozuna's. On March 14, 2005, the government filed a motion to reconsider or supplement the suppression hearing with additional testimony from its handwriting expert. The district court denied the motion to reconsider and requested a response from Ozuna regarding the motion to supplement the hearing. In response, Ozuna argued that the additional testimony would not relate to the issue of whether the search was consensual, and that if the hearing were reopened, it would be prejudicial to allow the testimony of the government's handwriting expert without appointing an impartial handwriting expert to conduct an independent review of the evidence. He later filed an additional objection to the govern-ment's use of expert handwriting testimony on the ground that it did not meet the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court granted Ozuna leave to hire an expert and conducted hearings to consider the testimony of both handwriting experts.

The defense expert, Ellen Schuetzner, explained that there were several inconsistencies and "voids" within the pen strokes that could indicate forgery. She had not, however, examined the document prior to its treatment for fingerprint analysis, and she noted that the chemical treatment or a faulty pen could also have resulted in these inconsistencies. After comparing and contrasting the questioned signature and known signatures, Schuetzner concluded that there were "indications" Ozuna may have signed the form, which she described as a "very weak opinion of authorship."

James Regent, the prosecution's expert, testified that he had concluded with his "highest degree of confidence" that Ozuna had signed the questioned document. He explained that the writing appeared natural, that he did not find evidence of simulation, and that all dissimilarities between the questioned and known signatures were within the expected range of variation.

On June 24, 2005, the court vacated its prior ruling and denied Ozuna's motion to suppress. The court explained that it gave little credence to Regent's conclusion that Ozuna had in fact signed the form. Instead, the court found the testimony of both witnesses useful in conducting its own evaluation of the signatures. After examining the questioned and known signatures, the court concluded by a preponderance of the evidence that Ozuna had signed the consent-to-search form. Based on this conclusion, the court found Ozuna's testimony to the contrary untruthful. Because of the court's adverse determination regarding Ozuna's credibility, it found, not-withstanding its previous reservations, that Glynn's testimony regarding the search was more likely true than not and held that Ozuna had consented to the search.

On January 12, 2006, Ozuna filed a motion to reconsider the denial of his motion to suppress. In this motion, Ozuna argued that he had new evidence that would support his testimony and discredit that of Agent Glynn. He also maintained that the court's reliance on handwriting testimony was improper. The court held another hearing to ...


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