United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on a motion under 28 U.S.C. §
2255 to vacate, set aside or correct sentence by Esad Bekric,
a person in federal custody. On November 21, 2013, Bekric was
found guilty by a jury of the offense of possession with
intent to distribute 50 kilograms or more of marijuana and,
on February 10, 2014, this Court sentenced Bekric to the
Bureau of Prisons for a term of 70 months, a sentence within
the sentencing guideline range. The judgment was later
amended to a sentence of 57 months. Bekric's § 2255
action, which is based on several allegations of ineffective
assistance of counsel, is fully briefed and ripe for
March 21, 2013, Bekric was charged in a one-count indictment
with Possession with Intent to Distribute Fifty Kilograms or
More of Marijuana, in violation of 21 U.S.C. §
841(a)(1). District Court Docket, 1:13 CR 39 SNLJ, (DCD) 1.
On September 12, 2013, the Government filed its Notice of
Intent to Use Rule 404(b) evidence detailing Bekric's
2012 arrest during which he was driving a tractor trailer
with 1, 970 pounds of marijuana concealed in the trailer. DCD
40. On October 1, 2013, Bekric filed a Motion in Limine to
exclude this evidence. DCD 43. On October 4, 2013, the
Government filed its response. DCD 44.
October 22, 2013, at the pretrial conference, this Court
denied the Motion in Limine, finding that there was
sufficient proof to show that Bekric knowingly possessed the
marijuana in Texas. DCD 47. This Court concluded that the
incident in Texas was very similar to the charged incident in
Missouri. TR., October 22, 2013 Pretrial Conference, p. 8.
first trial ended in a mistrial on October 24, 2013 when the
jury, upon being polled after returning a guilty verdict, was
found not to be unanimous. DCD 52. On November 5, 2013,
Bekric renewed his Motion in Limine to exclude the 2012
arrest. DCD 63. The Government again responded. DCD 64. On
November 8, 2013, this Court denied the Motion in Limine for
the same reasons stated at the pretrial hearing on October
22, 2013. DCD 67.
Evidence Presented at Trial
November 20 and 21, 2013, Bekric was tried on the same
indictment. The Government presented the testimony of
Missouri State Highway Patrol (MSHP) Corporal Jeremy Shane
Stewart, MSHP Trooper David Crank, DEA Special Agent Matthew
Scheitlin, and United States Border Patrol Agent Jaime Olmos.
Stewart testified that on March 3, 2013, the criminal
interdiction unit had established a ruse drug checkpoint at
Exit 27 of northbound interstate highway I-55. Two large
illuminated signs were placed before Exit 27. One sign cycled
the messages “Drug checkpoint” and “3/4
mile ahead.” The second sign stated “K-9 in use
ahead.” TR., Vol. I, p. 28; Government Exh. 2A, 2B, 3.
A police car with its lights on was positioned after the
exit. TR., Vol. I, p. 32. Exit 27 has no services of any
kind. TR., Vol. I, p. 28. The highway patrol troopers watched
the exit ramp to determine if anyone committed a traffic
violation when they exited to avoid the purported drug
checkpoint. TR., Vol. I, p. 28.
March 3, 2013, at approximately 7:55 p.m., Bekric left I-55
at Exit 27 driving a tractor-trailer. He failed to stop at
the stop sign at the top of the exit and made a right turn.
Bekric came to a stop in the middle of the road after his
headlights passed over Corporal Stewart's patrol car
which was parked on the road at the top of the ramp. TR.,
Vol. I, pp. 37-39. Corporal Stewart activated his emergency
lights and completed a U-turn to pull next to Bekric's
tractor trailer. TR., Vol. I, pp. 39-40. Corporal Stewart
exited his patrol car and Bekric approached him stating that
he had a problem with his “reefer, ” that is, the
refrigerator unit that cools the trailer portion of the
tractor trailer. TR., Vol. I, pp. 40-41.
was very nervous as he spoke to Corporal Stewart. His
breathing was labored and he was jittery. TR., Vol. I, pp.
41-42. He told Corporal Stewart that he was coming from
McAllen, Texas, an area which Corporal Stewart knew to be a
source area for narcotics. Bekric told Corporal Stewart that
the refrigeration unit was overheating. TR., Vol. I, p. 43.
Corporal Stewart permitted Bekric to add what appeared to be
water to the unit. TR., Vol. I, p. 44. Bekric told him that
the temperature was supposed to be 45 degrees. TR., Vol. I,
p. 44. Corporal Stewart observed that the unit showed that it
was 45 degrees. Later, Corporal Stewart reviewed the bill of
lading for the cargo of produce which said it was to be kept
at 45 degrees. The unit was making no noise that indicated
that there was a problem. TR., Vol. I, p. 45. Bekric
continued to appear nervous: hands shaking, breathing
labored, voice cracking. TR., Vol. I, pp. 43, 46.
told Corporal Stewart that the truck tractor and the trailer
belonged to him. He initially denied ever being in trouble
but then admitted he had been arrested in Texas in 2012 for
something found in his trailer. Bekric stated he did not know
what was found in the trailer. TR., Vol. I, p. 47.
Stewart had called for assistance from Trooper David Crank,
the canine officer. Trooper Crank deployed his drug detection
canine Edy. Edy alerted to the trailer indicating that the
odor of narcotics was present. Trooper Crank notified
Corporal Stewart and told him there was a positive alert.
TR., Vol. I, pp. 107-109. Corporal Stewart asked Bekric for
his permission to search the trailer and its contents. Bekric
agreed. TR., Vol. I, p. 48. Bekric provided the key to the
padlock on the trailer. TR., Vol. I, p. 48. Later Bekric told
Corporal Stewart that he was the only one who drove his
tractor truck or used his trailer and that he was the only
one with a key to the padlock. TR., Vol. I, pp. 61-62. Both
the truck and the trailer were registered to Bekric. TR.,
Vol. I, p. 66.
Stewart opened the truck and observed a load of produce.
Trooper Crank climbed over the load to the front portion of
the trailer. A plywood or particle board wall that was held
in place by a metal frame shielded the view of the white
plastic molding that covered the refrigeration unit. TR.,
Vol. I, p. 55. After climbing over the load to the front of
the trailer, Trooper Crank observed bundles of marijuana
concealed behind the white plastic molding that was over the
refrigeration unit. TR., Vol. I, pp. 110-111. He saw that
there were new screws and new screw holes on the panel which
indicated that the shield had been removed repeatedly. TR.,
Vol. I, pp. 114-115.
was arrested at the scene and advised of his Miranda rights.
TR., Vol. I, p. 49. He agreed to let Corporal Stewart examine
his cellular telephone. Corporal Stewart observed two photos
of the inside of a trailer with a false wall. Bekric told him
these were photos from his arrest in Texas in 2012. The false
wall was covered with either particle board or plywood. TR.,
Vol. I, pp. 62-64.
Stewart reviewed Bekric's trip logs and bill of lading.
Bekric picked up three loads of produce in Texas on March 1,
2013. The loads were to be refrigerated and taken to Southern
Illinois. However, the log book indicated that he sat in
south Texas for twenty hours after picking up the three
official loads before departing. TR., Vol. I, p. 92. In
Missouri, when Corporal Stewart opened the back of the
trailer to search, there was a seal on the back of the
trailer. TR., Vol. I, p. 92. Bekric told Corporal Stewart
that he had picked up the last load at Frontera. TR., Vol. I,
p. 94. According to the produce companies, Frontera was ...