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FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10568
JAN 6, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Plaintiff-Appellee,
versus
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
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
Herreras 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 Herreras 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,
114344 (11th Cir. 1993).
Herrera argues that the district court should have excluded Engles
testimony as unduly prejudicial, but Herreras argument fails. Evidence about
Herreras 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). Engles testimony was probative and not unduly prejudicial.
4
Engles 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 Herreras statement consistent with the
jurys verdict. The district court did not err by denying Herreras request for relief
under the safety valve.
We AFFIRM Herreras conviction and sentence.