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Bekric v. United States

United States District Court, E.D. Missouri, Southeastern Division

February 9, 2017

ESAD BEKRIC, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This 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 disposition.

         I. Procedural History

         On 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.

         On 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.

         Bekric's 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.

         II. Evidence Presented at Trial

         On 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.

         Corporal 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.

         On 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.

         Bekric 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.

         Bekric 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.

         Corporal 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.

         Corporal 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.

         Bekric 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.

         Corporal 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 ...


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