U.S. v. HernandezU.S. v. Hernandez
Defendant-appellant Ralph Hernandez (Hernandez) appeals his conviction, following a jury trial, of one count of conspiracy to distribute marihuana and four counts of possession of marihuana with intent to distribute. He challenges the sufficiency of the evidence, complains of the denial of his request for a severance, claims a fatal variance between the indictment and the evidence, and contends that a witness was improperly allowed to assert her privilege against self-incrimination. He also challenges his sentence. We affirm.
In January 1989, the police in Plano, Texas began an investigation of a man named John Bass (Bass) on suspicion of drug trafficking. Their investigation entailed almost daily surveillance during the early months of 1989.
On the afternoon of April 4, 1989, Bass left his home and drove a pickup truck to the parking lot of a local Bennigan‘s restaurant. A short time later a woman arrived in a rented Ryder van. Bass got into the passenger side of the van and conversed with the driver, whom the police later determined to be Denise Pero (Pero). Soon thereafter a white Lincoln Continental pulled into the parking lot, and Bass went over to talk with the driver, later determined to be defendant-appellant Hernandez. Bass then got back into his pickup truck and drove away. Hernandez got into the van with Pero, and they drove to a Holiday Inn in McKinney, Texas, about fifteen miles north of Plano.
About ten minutes later, Bass arrived driving the pickup truck. Pero dropped Hernandez off at the Holiday Inn, and followed Bass further northward on the highway. About five miles away, they stopped at a service station, filled the vehicles with gas, and switched vehicles: Bass continued on in the Ryder van, and Pero drove back toward McKinney in Bass‘s pickup truck. Bass drove the van to a ranch near Trenton, Texas belonging to his brother-in-law Scott King (King), and pulled the van into King‘s garage. When Bass left King‘s house and drove the van back onto the highway, the police arrested him and took custody of the van. They detected a strong odor of raw marihuana in the van and found a partially
Bass cooperated with the government and provided information about his drug trafficking activities dating back to 1986.
On August 15, 1990, Hernandez and eight other persons, including Pero, were named in a 35-count indictment. Hernandez was named in five counts: (1) Count 1, charging all nine defendants with conspiring, from October 1986 to the date of the indictment, to distribute, and possess with intent to distribute, in excess of 1,000 kilograms of a substance containing a detectable amount of marihuana, in violation of
By the time of trial, Pero and several others named in the indictment had entered into plea agreements, and Hernandez was tried jointly with four codefendants. The district court denied his pretrial motion for a severance. Bass‘s trial testimony described the overall operations of the conspiracy. He testified that marihuana brought into the country in El Paso was brought by courier to him in Plano (a small town near Dallas). Bass utilized a number of locations, including the rural homes of King and of one Fred Harrington (Harrington), to inspect and weigh the marihuana, and to store it until it could be sold to various persons who distributed it in Ohio, Indiana, and Mississippi. Bass testified that in the spring of 1988 Pero called him and told him that she could bring some marihuana to Dallas, if he was interested in selling it. Bass was receptive, because he was experiencing difficulties with one of his regular suppliers, and he began to purchase marihuana regularly from Pero. He testified that on one occasion in September or October of 1988 she was accompanied by Hernandez, whom Pero said worked for the man who actually owned the marihuana and was there to ensure that all of the money was paid and returned safely to the owner. Hernandez helped load the marihuana into Bass‘s car on that occasion. Bass testified that
Bass stated that on the day of his arrest, April 4, 1989, he had met with Pero and Hernandez at the Bennigan‘s restaurant and told them to go to the Holiday Inn in McKinney. At the Holiday Inn he suggested to Pero that in order to avoid attracting attention, Hernandez remain there while the two of them drove the van containing the marihuana to King‘s ranch.
After the seventh day of the trial, at which point Bass was testifying for the government during its case-in-chief, Hernandez‘s four codefendants pleaded guilty. At the beginning of the court proceedings the next morning, the district court instructed the jury as follows:
“Ladies and gentlemen of the jury, you will notice that the Defendants, Fred Joseph Harrington, Brigitte Gaon Harrington, Stanley Diers and Morris Patterson are no longer present in Court.
The reason these Defendants are not [sic] longer present here in Court is because of a ruling made by this Court. The reasons for the Court‘s ruling are not your concern. The absence of these Defendants should not be considered by you as affecting in any way your determination of the guilt or innocence of the Defendant, Ralph Hernandez who remains in Court.”
A short time later, Hernandez unsuccessfully moved for a mistrial, arguing that notwithstanding the court‘s instruction, it was perfectly clear to the jury that the other defendants had pleaded guilty, and that it unfairly prejudiced his defense.
Pero also testified for the government at the trial. She
Pero testified that she and Hernandez continued to make periodic trips to Dallas to sell marihuana to Bass throughout 1988 and spring of 1989, and that on those occasions Bass and Hernandez met face-to-face, and Bass paid both of them for their marihuana. On a few occasions, King came to meet them instead of Bass. She and Hernandez always flew to Dallas, and a third person would drive the marihuana from El Paso to Dallas and deliver it to them. Pero testified that the driver was frequently Barragan‘s cousin Teresa Chavez (Chavez). On a few occasions, Pero and Hernandez went to Dallas simply to pick up from Bass money Bass owed to Barragan from a previous marihuana transaction. Credit card slips produced by the government earlier at trial established the dates of these
Pero testified that on April 4, 1989, she and Hernandez had come to Dallas to sell 300 pounds of marihuana belonging to Hernandez. She stated that at Hernandez‘s direction they went to a convenience store, where they met two men who had driven the Ryder van containing the marihuana from El Paso, and that Hernandez instructed her to drive the van to the Bennigan‘s in Plano to meet Bass.
At the beginning of Hernandez‘s defense, his attorney informed the court that he wished to call Chavez as a witness. Chavez had pleaded guilty to one count of interstate travel in aid of a racketeering enterprise (
The jury convicted Hernandez on all counts. The presentence report (PSR) on Hernandez calculated a base offense level of 28 and recommended a three-level upward adjustment under
Discussion
I. Sufficiency of the Evidence
Hernandez first challenges the sufficiency of the evidence. Because he failed to move for a judgment of acquittal at any stage of the trial, we review the sufficiency of the evidence only to determine whether affirmance of his conviction would result in a manifest miscarriage of justice. United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992).
For his conviction under Count 1 of the indictment, Hernandez argues that other than the testimony of Bass and Pero, who were testifying for the government in exchange for leniency, there was nothing to show that he was involved in a conspiracy to distribute marihuana; the police were only able to corroborate Bass and Pero‘s account with credit card receipts showing that Hernandez had travelled to Dallas, not with evidence independently showing that he had engaged in illegal activity.
There is no requirement that testimony by a co-conspirator
In the present case, the existence of plea agreements by Bass and Pero was fully disclosed to the jury during direct examination of those witnesses, and the jury was instructed that testimony from an alleged accomplice who has entered into a plea agreement “is always to be received with caution and weighed with great care,” and that “[y]ou should never convict a Defendant upon the unsupported testimony of an alleged accomplice unless you believe that testimony beyond a reasonable doubt.” The jury nonetheless credited Bass and Pero‘s version of events, a decision we will not disturb, because their testimony was far from incredible or insubstantial. Bass and Pero‘s testimony was more than sufficient to establish the requisite elements for a conspiracy conviction under
Hernandez challenges his convictions for the substantive
Hernandez has demonstrated no possibility of a manifest miscarriage of justice in affirmance of his convictions based on the evidence produced at trial. Indeed, the evidence was clearly more than sufficient to sustain the convictions under any standard.
II. Denial of Severance
Hernandez next argues that the joinder of his case with those of the codefendants was prejudicial, and that the district court therefore erred in denying his motion for severance, made pursuant to
Hernandez‘s general assertions of prejudice arising from the joinder with other co-conspirators fall well short of the required showing of specific and compelling prejudice. Although we have recognized the possibility of prejudice from a “spillover effect” if there is “a quantitative and qualitative disparity in the evidence among the co-defendants,” United States v. Rocha, 916 F.2d 219, 228 (5th Cir. 1990), cert. denied, 111 S.Ct. 2057 (1991), Hernandez has not demonstrated such a disparity. Indeed, he does not base his argument on any specific evidence admitted at trial that would have been inadmissible against him alone. Limited involvement in a conspiracy does not by itself entitle a defendant to severance. Id.; Fortna, 796 F.2d at 738. Although he claims that he was prejudiced by the mid-trial withdrawal of the other defendants, he again fails to specify how that prejudice arose, and
“In determining whether a Defendant was a member of an alleged conspiracy, however, you should consider only the evidence, if any, pertaining to his own acts and statements. He is not responsible for the acts or declarations of other alleged participants until it is established beyond a reasonable doubt first that a conspiracy existed, and second, that the Defendant was one of the members.”
Hernandez has failed to demonstrate how these precautions by the district court were ineffective to protect him against prejudice, and accordingly he has demonstrated no abuse of discretion in the district court‘s refusal to sever the cases initially or grant a mistrial after the guilty pleas of his codefendants.
III. Material Variance
At trial Hernandez requested an instruction clarifying the government‘s burden to prove the single conspiracy alleged in the
“In order to sustain its burden of proof for this charge, the government must show that the single conspiracy alleged in Count 1 of the indictment existed. Proof of separate or independent conspiracies is not sufficient.
. . . .
Even if the evidence in the case shows that Defendant was a member of some conspiracy, but that this conspiracy is not the single conspiracy charged in the indictment, you must acquit Defendant.
Unless the government proves the existence of the single conspiracy described in the indictment beyond a reasonable doubt, you must acquit Defendant.”
The district court declined the requested instruction and overruled Hernandez‘s objection to its omission. The instructions given to the jury did not address the question of multiple conspiracies. Hernandez contends on appeal that the instructions permitted conviction despite a material variance between the single conspiracy alleged in the indictment and the multiple conspiracies he claims were shown by the evidence at trial.
We have held that a variance between the offense charged in the indictment and the proof relied upon at trial constitutes reversible error if it affects the substantial rights of the defendant. United States v. Lokey, 945 F.2d 825, 832 & n.1 (5th Cir. 1991); United States v. Guerra-Marez, 928 F.2d 665, 671 (5th Cir.), cert. denied, 112 S.Ct. 322 (1991). The concerns underlying our cases on variance are to ensure that the indictment notifies a defendant adequately to permit him to prepare his defense, and does not leave the defendant vulnerable to a later prosecution because of failure to define the offense with particularity. Lokey, 945
In the present case, several factors minimize the concern that transferred guilt contributed to the jury‘s guilty verdict for Hernandez. First, Hernandez‘s defense at trial was not directed to establishing the separateness of his dealings with Bass from any of Bass‘s other operations; the defense that Hernandez presented for the jury to accept or reject was that he had never had any knowing involvement in any marihuana or other drug trafficking and was not a part of any conspiracy. Second, because all of the other defendants had dropped out of the case before the government‘s case-in-chief was completed, there is strong reason to presume that the jury‘s attention was properly focused only on Hernandez‘s
Hernandez argues on appeal that the government proved only a series of component conspiracies between Bass and his various suppliers and distributors, but that no reasonable jury could have inferred a single agreement among the various codefendants. We disagree. Whether the evidence shows one or multiple conspiracies is a factual determination principally based on three factors: (1) the existence of a common goal or purpose, (2) the nature of the scheme, and (3) overlapping of participants in the various dealings. Guerra-Marez, 928 F.2d at 671; Richerson, 833 F.2d at 1153. Hernandez‘s protestation that he had no dealings with some of his codefendants, even if correct, is not dispositive: the overlapping of participants contemplated by the factors above may be fulfilled if a pivotal figure such as Bass directs and organizes the illegal activity and has extensive dealings with each of the parties. See Lokey, 945 F.2d at 833; United States v. DeVarona, 872 F.2d 114, 119 (5th Cir. 1989); Richerson, 833 F.2d at 1154.
Moreover, the consideration that this Court found decisive in Lokey, DeVarona, and Richerson—whether the activities of one aspect of the scheme were necessary to or advantageous to the success of other aspects or of the overall venture—is present in this case. As must have been obvious to Hernandez, Bass‘s willingness and ability to pay him cash for large quantities of marihuana in their frequent sales depended upon Bass‘s continued ability to steadily move the marihuana further along in the chain
That the evidence supported the existence of a single conspiracy, however, does not necessarily preclude the possibility that a jury could rationally have found multiple conspiracies to be present, and thus does not necessarily resolve the issue of the district court‘s refusal to give the requested jury instruction; a defendant is generally entitled to an instruction on any defensive theory for which the evidence is sufficient for a reasonable jury to rule in favor of the defendant on that theory. United States v. Stowell, 953 F.2d 188, 189 (5th Cir. 1991) (per curiam), cert. denied, 112 S.Ct. 1269 (1992); see also United States v. Erwin, 793 F.2d 656, 663 (5th Cir.), cert. denied, 107 S.Ct. 589 (1986). However, we are not convinced that the refusal here warrants reversal. For a refusal to give a requested jury instruction to constitute reversible error, the instruction (1) must have been substantially correct, (2) must not have been substantially covered in the charge given to the jury, and (3) must have concerned an
We conclude that because the evidence so strongly supported a
IV. Chavez‘s Invocation of the Fifth Amendment
Hernandez‘s fourth claim of error is that the district court erroneously permitted Chavez to invoke the Fifth Amendment, because, having entered a guilty plea, Chavez no longer enjoyed a privilege against self-incrimination.
It is well settled that a defendant‘s Sixth Amendment right of compulsory process to obtain witnesses in his favor must yield to a witness‘s Fifth Amendment privilege against self-incrimination. See, e.g., Roussell v. Jeane, 842 F.2d 1512, 1516 (5th Cir. 1988); United States v. Khan, 728 F.2d 676, 678 (5th Cir. 1984). The trial judge, moreover, “necessarily is accorded broad discretion in determining the merits of a claimed [Fifth Amendment] privilege.” United States v. Lyons, 703 F.2d 815, 818 (5th Cir. 1983).
V. Increase in Offense Level
Hernandez‘s final contention is that the district court erred in increasing his offense level by three levels based on the PSR‘s finding that he was a supervisor within the meaning of
Because we find all of Hernandez‘s contentions unavailing to establish reversible error, the judgment and sentence of the district court are
AFFIRMED.