Submitted: Sept. 27, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Craig Joseph Concannon of Saint Louis, MO, for Defendant-Appellant.
Dean R. Hoag, AUSA, Saint Louis, MO, for Plaintiff-Appellee.
Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
RILEY, Chief Judge.
A jury convicted Jose M. Diaz of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. Diaz appeals his conviction and sentence, arguing the district court  erred in (1) denying Diaz's motion to suppress, (2) refusing Diaz's duress or coercion instruction, (3) denying Diaz's motion for judgment of acquittal, and (4) denying Diaz safety valve relief at sentencing. We affirm.
Diaz, a truck driver by trade, played a relatively minor role in a large drug trafficking conspiracy that began in 2007. The conspiracy involved smuggling cocaine from Mexico into the United States where it was distributed through a large network operating in several large cities. Between 2010 and 2011, law enforcement officers monitored calls among key conspirators, including Samuel Lopez and Esteban Vallejo.
In November 2010, Jose Arrendondo and Jesse Galacia arranged for a truck and driver to transport ten kilograms of cocaine from Lopez in Houston, Texas, to Vallejo in Birmingham, Alabama. Galacia and Jaime Avila hired Diaz. Diaz testified he was not involved in drug trafficking and had received the job through an acquaintance who told Diaz he would be paid $700 to transport pipe to Louisiana. Diaz testified he was initially instructed to go to a gas station to pick up the semi-tractor and trailer on November 5, 2010, but when he arrived, Galacia told him they would have to pick up the trailer at another location. Diaz and Galacia then drove the semi-tractor to the rear of a shopping center. When they stopped, two other vehicles parked next to them. Diaz testified that he asked why there was no trailer, and Galacia told him there had been " [a] change of plans."
Diaz claims he told Galacia he could not do the transport because his son was sick, but Galacia responded " he couldn't let [Diaz] go; sorry, bro." Diaz testified he was then escorted to a gas station where, as instructed, he used $500 cash the dealers gave him to pay for fuel for the semi-tractor before heading out on Highway 59 toward Alabama. According to Diaz, he " drove all night" " [v]ery afraid" he might be shot if he did not comply with the constant instructions he was receiving by phone.
At trial, Diaz's co-conspirators told a different story. Arrendondo testified the co-conspirators hired a driver (Diaz) for $10,000— $1,000 per kilogram— to deliver the drugs to Alabama, and the co-conspirators delivered the cocaine to Diaz before the trip. Arrendondo testified Diaz was aware of the drugs and that Arrendondo had never known an " unwitting courier" in his twenty years of drug dealing.
Another co-conspirator, Jimmy Solis, testified Galacia handed a red suitcase containing the drugs to Diaz in the semi-tractor. Solis further testified that Diaz drove alone in the semi-tractor and took a different route to Alabama than did the other coconspirators. Lopez testified he never saw anyone threaten Diaz and there were no weapons involved in this trip. During the trip, Lopez made several calls to Vallejo that the police monitored. Lopez's testimony about those calls indicated Diaz was aware of the illicit nature of the trip.
On November 6, 2010, at approximately 10:15 a.m., Solis, Lopez, and Galacia arrived in Solis's truck at a Comfort Inn in Livingston, Alabama, where Vallejo had rented a room. Diaz followed in the semi-tractor at about 10:30 a.m. Solis and Galacia also rented rooms at the hotel. Based on information from Lopez's monitored calls, law enforcement had the hotel under surveillance beginning at approximately 8:30 a.m. that morning. Shortly after Diaz arrived, Drug Enforcement Administration (DEA) Task Force Officer James Wigley, the officer monitoring the hotel, watched Diaz take the red suitcase from the truck into the hotel. Solis testified that Diaz took the suitcase to Galacia's room where Solis opened the suitcase in front of Diaz and Galacia to make sure all ten kilos were there. Diaz, Galacia, and Solis then left the room to get lunch. At lunch, the men discussed Vallejo selling the cocaine and paying Diaz and Galacia so they could head back to Houston. Solis denied anyone had a gun or threatened Diaz at any time.
At approximately 10:30 p.m., Diaz left the hotel room alone to go across the street to Burger King. DEA Special Agent Patrick Wilson and three other plainclothes officers contacted Diaz outside the Burger King drive-through window, asking if Diaz would cooperate with their investigation. Diaz told the officers he took a red suitcase into the hotel, identifying the two rooms occupied by Solis and Galacia. Diaz did not say what was in the suitcase, nor did he admit to any illegal activity. Diaz also did not tell the officers he had been threatened to ...