Case Information
*4 Before BOWMAN, Chief Judge, McMILLIAN, and MURPHY, Circuit Judges. [1]
___________
MURPHY, Circuit Judge.
Alberto Reyna Alaniz, Alejandro Alaniz, Alberto Alaniz, Jr., Nick Cuevas, and Lonnie Henry were all convicted of conspiracy to possess with intent to distribute marijuana, 21 U.S.C. § 846. In addition Alejandro Alaniz, Alberto Alaniz, Jr., and Lonnie Henry were convicted of criminal forfeiture, 21 U.S.C. § 853; Alberto Alaniz, Jr. was convicted of distribution of marijuana, 21 U.S.C. § 841; and Alberto Reyna Alaniz and Alejandro Alaniz were convicted of aiding аnd abetting the distribution of marijuana, 21 U.S.C. § 841. They appeal their convictions and the sentences imposed by the district court. We affirm. [2]
I.
Evidence at trial indicated that in late 1993 appellants were engaged in the business of distributing marijuana. Under the supervision of Alberto Reyna Alaniz (Alberto) and the day to day direction of Alejandro Alaniz (Alejandro) marijuana was obtained, packaged, and distributed for sale. Marijuana was purchased from suppliers in Mexico and transported by couriers affiliated with the conspiracy from various points in south Texas to appellants and their affiliates in Kansas City, Missouri. Once the marijuana arrived in Kansas City it was stored at several safe houses around the city where it was weighed and repackaged for distribution under the supervision of Alberto, Alejandro, and Alberto Alaniz, Jr. (Alberto, Jr.). Thе marijuana was then sold on the *5 street through a system of distributors including Lonnie Henry, Bryan Jones, and others.
The conspiracy handled a large amount of marijuana during its operation. Between October 1993 and September 1994 over 1,000 pounds of marijuana was transported to Kansas City from Fort Worth and an additional 600 pounds from Houston. Another 1,500 to 2,000 pounds was distributed between February and July 1995.
Nick Cuevas put Alejandro in cоntact with a supplier of methamphetamine, and the conspirators began to market it as well, using many of the same shipping channels and procedures developed for marijuana. One of the couriers, Roel Cantu, was stopped by law enforcement agents at the Kansas City airport who discovered he was carrying methamphetamine.
The conspiracy began to unravel when Shаron Hughes decided to cooperate with government officials. Sharon Hughes was the widow of T.B. Hughes who had owed Alberto money for drugs, and she was selling marijuana to pay off his debts. She allowed her phone conversations with members of the conspiracy to be recorded and wore a recording device on her person. The investigation continued and expanded until sufficient evidencе was developed, and the members of the conspiracy were arrested.
Lonnie Henry and Nick Cuevas pled guilty to the charges against them, and the three members of the Alaniz family went to trial and were found guilty on all counts. Alberto was sentenced to 250 months for conspiracy with a concurrent term of 120 months for aiding and abetting. Alejandro received a life sentence on the conspiracy сount and concurrent terms of 120 months on two aiding and abetting counts. Alberto, Jr. was sentenced to 240 months on the conspiracy count with a concurrent term of 120 months on the distribution count. Henry was sentenced to 76 months, and Cuevas to 168 months.
II.
The Alaniz defendants attack their convictions on a variety of grounds, some of which they all join in and others which are raised singly. These grounds include sufficiency of the evidencе, improper forfeiture, evidentiary rulings by the district court, and restrictions placed on cross examination and the time for closing argument. [3]
A.
Alberto, Jr. argues that there was insufficient evidence to support his conviction
for conspiracy to possess with intent to distribute marijuana. The conviction should be
upheld unless the evidence viewed in the light most favorable to the verdict could not
support a finding that he entered into an agreement with one or more individuals to
possess marijuana with the intent to distribute it. U.S. v. Bascope-Zurita, 68 F.3d
1057, 1060 (8th Cir. 1995). He does not dispute that a conspiracy existed between
October 1993 and September 1995, but he claims that he was not a knowing participant.
Once the existence of an agreement is established, however, only slight evidence linking
a member to the conspiracy is rеquired. U.S. v. Jenkins,
Several participants in the conspiracy testified about the involvement of Alberto, Jr.. Sharon Hughes testified that beginning in the summer of 1994, Alberto, Jr. obtained marijuana from one of the safehouses and from her late husband. William *7 Turner testified that Alberto, Jr. solicited him to purchase marijuana and began selling to him on a regular basis beginning in late 1994. He also testified that when a dispute about payment arosе, Alejandro and Alberto came with Alberto, Jr. to see him and threaten him with violence but that they eventually reached an agreement for him to pay off the debt. Bryan Jones testified that Alberto, Jr. was a primary distributor for the conspiracy, that he helped weigh and package the drugs for resale, and that he distributed an average of fifty pounds of marijuana per week. Cybil Hudson testified that Alberto, Jr. stored bоth marijuana and methamphetamine at the safehouses involved in the conspiracy, that he transported and distributed both drugs for the conspiracy, and that she once saw him separating a shipment of over 1,000 pounds of marijuana into quantities suitable for storage and distribution. This was sufficient evidence for the jury to find that Alberto, Jr., knowingly participated in the conspiracy to possess and distribute marijuana, and his conviction should be affirmed. Bascope-Zurita, 68 F.3d at 1060.
Alberto, Jr., also claims that the prosecution impermissibly varied from the
conspiracy charged in the indictment by introducing evidence of a separate conspiracy
to distribute methamphetamine. Since no objection was raised to the failure to give a
jury instruction on multiple conspiracies, we review only for plain error. Fed. R. Crim.
P. 52(b); Slaughter, 128 F.3d at 629. The evidence at trial indicated that
methamphetamine was distributed by the same individuals involved in the marijuana
conspiracy through the same channels and procedures. It was part of the activities of
the conspirators who primarily distributed marijuana. Rather than being a distinct and
separate conspiracy, the methamphetamine transactions were part of the operation of
the marijuana conspiracy, U.S. v. Slaughter,
Another claim of insufficiency raised by Alberto, Jr., is that evidence was lacking to link the $2000 federal agents seized from him to the criminal activities of the conspiracy. The money was found in a ski jacket in a closet at one of the safehouses *8 affiliated with the conspiracy and was folded in a mаnner consistent with drug trafficking. The closet also contained a letter addressed to Alberto, Jr. who was living at the safehouse at the time and had used it as a base to distribute drugs. Based on this evidence the jury could reasonably find that the money resulted from the criminal conspiracy, and the judgment of forfeiture should be affirmed. U.S. v. Wojcik, 60 F.3d 431, 434 (8th Cir. 1995).
B.
Both Alejandro and Alberto, Jr. object that evidence of their earlier drug convictions and of uncharged methamphetamine violations was improperly admitted. The government introduced certified copies of judgments of conviction against Alejandro for conspiracy with intent to distribute cocaine and against Alberto, Jr. for felony possession of marijuana. Evidence was also introduced that both men used the machinery of the conspiracy to deal methamphetamine contemporaneously with the marijuana distribution. The prosecutor provided notice of intent to use this evidence prior to trial.
Alejandro argues that evidence of his 1989 conspiracy conviction should not have
been introduced because it involved cocaine, it was too remote in time, and its
admission violated Rule 403. Alejandro’s prior conspiracy conviction involved the sale
and transport of both cocaine and marijuana in south Texas. This earlier activity in
moving drugs for sale through shipment points in Texas was sufficiently similar to the
present conspiracy to be probative of plan and intent under Rule 404(b). Fed. R. Evid.
404(b); U.S. v. Johnson,
The prior conviction offered against Alberto, Jr. was a 1993 conviction for felony
possession of marijuana, not fоr distribution. Alberto, Jr. placed his intent in issue by
arguing that he was not a knowing and intentional participant in the conspiracy so the
conviction was offered for a permissible purpose under Rule 404(b). The court
instructed the jury that this evidence was applicable only on the issue of intent and not
to demonstrate participation in the charged conspiracy. Any error in admission of the
evidence of felony possession was harmless because of the strength of the rest of the
case against Alberto, Jr. U.S. v. Mejia-Uribe,
C.
The Alaniz defendants argue that the district court erred in restricting their cross
examination of several prosecution witnesses. They say that they were improperly
prevented from asking Roel Cantu about an incident during his work as a jailer in Texas
when he allegedly “turned his head” to allow several inmates to beat another. The
district court did not err in excluding this inquiry into a specific instance of conduct.
Fed. R. Evid. 608(b). They also complain that they were unable to question Bryan
Jones and William Turner, Jr. about the quantity of drugs mentioned in their plea
*10
agreements. These quantities were lower than thе amounts they testified about at trial,
and defense counsel wanted to impeach their testimony. The court excluded the
questions on the basis that “it’s not uncommon to compromise coming into plea
agreements and I think it would mislead the jury.” Both Jones and Turner were cross
examined extensively on the fact that they had entered plea agreements and would
receive favorable sentenсing recommendations for their cooperation. The district court
did not abuse its discretion in limiting the questioning in light of the entire record. U.S.
v. Brown,
Alberto argues that he was unfairly limited to twelve minutes for his closing
argument which prevented fully pointing out the deficiencies in the testimony of the
government witnesses. When the court asked how much time was needed for closings,
the government requested thirty minutes, Alberto, Jr. and Alejandrо each requested ten
minutes, and counsel for Alberto initially requested thirty minutes but amended it to
twenty. Counsel said “I would like to have my client feel I’m doing something and I
don’t think twenty minutes is that far out of line.” The court allowed thirty-six minutes
for each side, leaving up to sixteen minutes for Alberto. The record demonstrates that
the several defendants divided the burden of discrediting the government’s case during
closing argument by attacking differеnt points. The equal time period granted the
government to build its case and the defendants to contest it was sufficient opportunity
to explore the evidence important to resolution of the issues. The district court did not
abuse its discretion in setting the time for closing argument based on its assessment of
the complexity of issues and evidence involved. U.S. v. Bednar,
III.
All appellants except Alberto Reynа Alaniz raise challenges to their sentences. Alberto, Jr. attacks the increase in his sentencing range because of his prior drug convictions, Alejandro contends that the court did not make adequate sentencing findings, Henry objects to the denial of an acceptance of responsibility reduction, and Cuevas alleges he was sentenced on an incorrect drug quantity and should have reсeived reductions for a minor or minimal role and for acceptance of responsibility.
Alberto, Jr. attacks the increase of his sentencing range under 21 U.S.C. §
841(b)(1)(A) which provides for more serious penalties when a drug offender has prior
convictions involving controlled substances. He asserts that the government did not
make an adequate showing to trigger the enhancement and that the statute is ambiguous
so the rule of lenity prevents him from receiving a higher sentence under it. Under the
statutory scheme the government may file an information to establish prior drug
convictions if the defendant “either waived or was afforded prosecution by indictment
for the offense for which such increased punishment may be imposed.” 21 U.S.C. §
851(a)(2). Alberto, Jr. argues that the statute is unclear whether the opportunity for
prosecution by indiсtment must be available for the prior offenses or for the charge for
which he is currently being sentenced. He asserts that the government has not
established that his prior convictions were pursuant to indictment. We have previously
ruled that § 851 is not ambiguous and that prosecution by indictment need only be
available for the current offense. U.S. v. Trevino-Rodriguez ,
Alejandro Alaniz argues that the district court did not make sufficient findings to
support the quantity of drugs on which it based his sentence and the enhancements
imposed for role in the offense, U.S.S.G. § 3B1.1(b), obstruction of justice, U.S.S.G.
§ 3C1.1, and use of a firearm in the offense, U.S.S.G. § 2D1.1(b)(1). The district court
must mаke sentencing findings sufficient to permit meaningful appellate review. U.S.
v. Fetlow, 21 F.3d 243, 248 (8th Cir. 1994). Here the district court relied on the
evidence produced at trial and the sentencing hearing to overrule Alejandro’s objections
to the presentence report and to adopt its findings. This included evidence that in
March 1995 Alejandro assumed the leadership role in the conspiracy previously held
by Alberto Alаniz, that he threatened to kill Roel Cantu if he cooperated with
prosecutors or refused to “take the rap” himself, that Alejandro kept a gun with him
during drug transactions at his house, and that certain amounts of marijuana were
regularly shipped and handled by Alejandro and his co-conspirators. The district
court’s statement that the quantity determinations and sentence enhancements were
based on the trial testimony and evidence presented at the sentencing hearing provide
a sufficient basis for adequate appellate review. Fetlow,
Lonnie Henry contends that the district court erred in denying him a three level reduction for аcceptance of responsibility. Henry pled guilty to conspiracy to possess with intent to distribute marijuana and agreed to testify for the government in the trial of the Alaniz family members. At the time of trial Henry was in custody, and his wife gave his attorney a suit for him to wear to testify. A courtroom deputy discovered a package of marijuana in the suit, and the government chose not to call Henry. He denies knowing that the marijuana was there and argues that there was no evidence linking him to it. We need not consider his claims of error because his sentence of seventy-six months was less than the applicable guideline range of seventy-seven to ninety-six months if he had been granted the acceptance of responsibility. U.S. v. Williams, 97 F.3d 240, 243 (8th Cir. 1996).
The district court found Nick Cuevas responsible for 710 grams of
methamphetamine for sentencing purposes, but he says there was no evidence linking
him to these drugs and there were not sufficient findings. Considerable evidence linked
Cuevas to the 710 grams that were found on Roel Cantu in the Kansas City airport.
There was evidence at his sentencing hearing that Cuevas had facilitated the acquisition
of the methamphetamine by giving Alejandro Alaniz the name of a supplier and giving
Cantu directions on how tо contact him. There was also a taped conversation in which
Cuevas asked Cantu if he had contacted the supplier. Testimony by Bryan Jones
indicated that Cuevas occasionally supplied him with methamphetamine and that Cuevas
had access to kilogram quantities. Michael Regan testified that Cuevas had delivered
the 710 grams of methamphetamine which Cantu had when he was arrested.
Furthermore, Cuevas could be sentenced as a participant in a joint criminal activity for
any acts that he aided, abetted, or procured, U.S.S.G. § 1B1.3(a)(1)(A), or any acts by
other members of the enterprise that were in its furtherance and reasonably foreseeable
to him. U.S.S.G. § 1B1.3(a)(1)(B); U.S. v. Strange,
Cuevas argues also that he should have received sentence reductions for minimal
or minor role in the conspiracy and acceptance of responsibility. Cuevas bore the
burden of demonstrating his eligibility for the reductions, and we review thеir denial for
clear error. U.S. v. Raymer, 2 F.3d 286, 288 (8th Cir. 1993). The evidence at
sentencing showed that Cuevas was important in expanding the conspiracy to include
the distribution of methamphetamine. He was not “plainly among the least culpable”
or without knowledge of the scope and activities of the conspiracy. U.S.S.G. § 3B1.2,
commentary. Because his involvement was not an isolated unsubstantial instance,
Cuevas is not entitled to a reduction simply because his culpability was less than some
*14
others involved in the conspiracy. Raymer,
IV.
After consideration of the claimed errors raised on appeal and a thorough review of the record, we affirm the judgments of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
Notes
[1] The Honorable Pasco M. Bowman became Chief Judge of the United States Court of Appeals for the Eighth Circuit on April 18, 1998.
[2] The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Wеstern District of Missouri.
[3] Other grounds are raised in supplemental pro se briefs submitted by Alberto and
Alejandro. They complain the district court should have held a hearing about a brief
courthouse encounter between a juror and a government witness and the prosecutor’s
closing argument. Pro se submissions by parties represented by counsel are ordinarily
not considered. U.S. v. Marx, 991 F.2d 1369, 1375 (8th Cir. 1993). Moreover,
objections to these points were not raised at trial and no plain error has been shown.
Fed. R. Crim. P. 52(b); U.S. v. Olano,