UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANGEL CORDERO (19-3540); EDUARDO RIOS VELASQUEZ (19-3543), Defendants-Appellants.
Nos. 19-3540/3543
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
September 3, 2020
Before: ROGERS, KETHLEDGE, and NALBANDIAN, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 20a0292p.06. Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:17-cr-00342—Benita Y. Pearson, District Judge. Argued: August 5, 2020. Decided and Filed: September 3, 2020.
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COUNSEL
ARGUED: Joseph V. Pagano, Rocky River, Ohio, for Appellant in 19-3540. Richard P. Kutuchief, THE KFARM, Coventry Township, Ohio, for Appellant in 19-3543. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Joseph V. Pagano, Rocky River, Ohio, for Appellant in 19-3540. Richard P. Kutuchief, THE KFARM, Coventry Township, Ohio, for Appellant in 19-3543. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
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OPINION
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I. Factual and Procedural Background
In March of 2007, Angel Cordero was confined at the Fort Dix correctional facility in New Jersey, where he was serving a 40-year sentence. During his incarceration at Fort Dix, Cordero met Marc King, another inmate who lived in the same dorm. King was serving a sentence for his role in a long-running cell phone insurance fraud scheme. While out of prison on bond, King engaged in stock market manipulation fraud that added time to his sentence. King offered to help Cordero and other inmates at Fort Dix “fix” their credit ratings through identity theft. Contraband was rampant at Fort Dix, and King would routinely rent smartphones with internet access from other inmates in order to conduct his fraud. Cordero himself owned a small “flip phone” which he used to call and send text messages. In return for his services, King would receive monetary payment or, in the case of Cordero, assistance in marketing his skills to other prisoners.
King was eventually introduced (virtually) to Cordero’s friend and co-defendant Eduardo Velasquez. Cordero and Velasquez had spent eleven years together as cellmates in prison, and the two maintained a close bond. At the time, Velasquez was out of prison but still on probation in Lorain, Ohio. King began assisting Velasquez in fraudulently obtaining products from Home Depot and other hardware stores that were used for Velasquez’s landscaping business. The landscaping equipment was purchased with stolen credit cards that King bought off black-market websites. King was also able to secure a fake ID for Velasquez’s brother using a stolen social security number.
Cordero eventually asked King if he would be able to locate the address of a woman named Tyra Goines. Cordero said
During the same period, Velasquez also sought King’s assistance in rerouting a package being shipped from Puerto Rico to Ohio. Velasquez told King on the phone that “if we can reroute the stuff that I’ve got, we’ll be rich.” Velasquez also told King that, had he known earlier that King had the ability to reroute packages, they would have “been rich already.” King testified that he understood this to mean that the package contained drugs because Cordero had told him that Velasquez was a drug dealer and King had heard Velasquez make statements indicating his involvement in drug trafficking. Velasquez elaborated that by rerouting the package, he and King were going to “burn the supplier.” King thought this meant that Velasquez would avoid paying the supplier by reporting that the package never arrived, thereby allowing him to sell the drugs for a higher profit.
On June 29, 2017, King met with Government agents at Fort Dix and discussed both the murder and drug distribution plots. During the meeting, the Government promised King that, in exchange for his cooperation, he would not be prosecuted for his illegal activity while in prison and would receive consideration for a reduction in his sentence. However, the Government forbade King from engaging in any further illegal activity even as part of the investigation into Cordero and Velasquez. As part of its investigation, the Government subpoenaed Cordero’s phone records, which showed that Cordero and Velasquez had conducted 21 calls between June 29th and 30th.
The drug and murder schemes continued to progress after King met with the Government. Cordero told Velasquez that he wanted $1,500 in exchange for the information about Goines’ address, which was to be split evenly between Cordero and King. Velasquez responded that he would have to “[w]ait for [his] man to get back in town” in order to negotiate the price. King testified that Velasquez’s “man” was referred to as “Victor” and “the California guy,” and Victor was said to have owned the drugs that Goines purportedly ran off with. King further testified that he understood Victor to be paying Velasquez to murder Goines. Forty-eight hours later, Velasquez conducted a call during which King negotiated a price of $1,500 with Victor. Cordero and Velasquez also asked King to reroute1 a package containing surveillance
Enforcement Administration. Cordero gave King the tracking number, and King in turn covertly texted it to Spangenberg. That tracking number was eventually traced by postal inspectors to a package containing one kilogram of cocaine.
On July 7, 2017, King met again with Government agents, who this time equipped King with a recording device disguised as a credit card. The agents told King that he would wear the device for around four hours. King secretly recorded Cordero while the two engaged in a series of conversations, covering both the alleged murder-for-hire and drug-trafficking schemes. First, Cordero and King discussed the status of the Brickhouse Security package, with Cordero telling King how happy Velasquez would be when it arrived. The discussion next covered the status of the drug package. Cordero asked King, “[y]ou wanna check the post office?” Cordero recited the tracking number to King, who plugged it into the post office’s website. The check of the post office website revealed that the package never made it to Ohio and had been sent back to Puerto Rico. Cordero reassured King, however, stating, “don’t worry about the package. Once it gets back to Puerto Rico, they’ll retrieve it.” The audio captures Cordero’s instructing King to take a screenshot of the post office website that showed the package’s arrival in Puerto Rico. Cordero then told King to send the screenshot to Velasquez, along with a message that Cordero dictated.
To prompt Cordero about the murder plot, King pretended to be worried that he would not be paid because Velasquez would be afraid to act. Cordero denied that Velasquez was scared. Cordero then described what Velasquez planned to do: Velasquez would be paid by “his man,” presumably Victor, to find Goines’ address аnd would follow up with an offer to kill Goines for payment:
Cordero: Yeah, cause once he [Velasquez] finds that, he sees . . . he’s not going to give that information to him [Victor], he’s going to sell it to him
King: That’s what I’m saying . . . sell it for what, don’t, isn’t he the one that’s going to take the hit anyway? Isn’t he the one taking the hit?
Cordero: That’s what I’m saying, we got the bitch
King: I know, what I’m saying is, why the hell he sell it if he’s going to be the one taking the hit?
Cordero: That’s what I’m saying, he’s gonna, he’s gonna do that . . . OK
. . .
King: I don’t know . . . (Unintelligible) . . . I don’t know if this shit is real, if he’s gonna, no, I’m just saying, cause,
listen, the thing that’s confusing me, right, is, he gonna sell it to him and get paid for the hit Cordero: He’s gonna, he’s gonna, basically, once he got her: “I got her, what you wanna do?”
King: But . . .
Cordero: I got her address, I got everything, you want that, you want to pay for that, or you want to pay for the full service, basically…
King: (Laughing) Now, the full service would be…it is what it is
Cordero: Whatever they gonna, whatever he decides he wants
Soon after receiving Goines’ address from Cordero, Velasquez texted Cordero, telling Cordero that he had plugged Goines’ address into his phone’s GPS and had left to go scope out the residence. Cordero is then heard on tape saying, “[h]e see that bitch he might throw her in the trunk right now.” When asked about how much Velasquez would be paid to commit the murder, Cordero responded, “[d]epend on what he’s gonna do, he’s gonna bury the bitch in his backyard, I don’t know.” Cordero estimated Velasquez would receive more than $20,000, but then stated, “I don’t know what they gonna do to be honest.” Cordero also graphically described how he would commit the murder were he able to.
Hours after King finished recording Cordero on July 7th, law enforcement arrested Velasquez. In Velasquez’s phone was a text message sent that day to a contact identified only as “Leon.” The message contained Goines’ address, a picture of her car, and the words “happy birthday.” “Leon” responded with three emojis representing the proverb “hear no evil,” “see no evil,” and “speak no evil.” Investigators subsequently located a man by the name of Leon Stone in Lorain, Ohio who owned the property where Glenn Smith had been murdered. The “Leon Stone” that officers identified did not have a birthday on July 7th. Although investigators were not able to confirm that the “Leon” in Velasquez’s phone was Leon Stone, there were pictures of Leon Stone stored on the phone. The Government at trial argued that Leon Stone and “Victor” were in fact the same person and that Stone had hired Velasquez to murder Goines.
Also on July 7th, Cordero was placed in solitary confinement at Fort Dix. He was mistakenly released into general population, however, on July 11th. Upon his release, Cordero met with friend and fellow inmate Miguel Rosario, who was able to procure a cell phone for Cordero. While with Rosario, Cordero called Velasquez’s girlfriend and discovered that Velasquez had been arrested and charged, along with Cordero, with murder for hire. According to Rosario, Cordero immediately suspected that King, whom he referred to as “the kid” or “the hacker,” had been cooperating with law enforcement. Cordero then asked Rosario to murder King. When Rosario refused, Cordero offered to pay him for King’s death, but Rosario still refused. Cordero then said that he would kill King himself. Rosario also testified that Cordero mentioned a drug package that King had tried to reroute from Puerto Rico.
Tyra Goines testified at trial. Goines told the jury that she knew Leon Stone to be a drug dealer but described him as a friend whom she had not seen in a couples of years. She could not think of why anyone, including Stone, would want her dead. Goines denied knowing Cordero or Velasquez, but admitted it was possible that she had seen Velasquez on Facebook. She also testified that she knew someone by the name of Glenn and remembered seeing the news of Glenn’s murder. She did not appear to know Glenn very well, however, claiming not to know his last name.
Second, the court permitted testimony relating to an uncharged conspiracy between Cordero and Velasquez that involved the sale of synthetic marijuana (“K2”) at Fort Dix. King, and to a lesser extent Rosаrio, testified that Velasquez would supply Cordero with K2 that was sprayed onto sheets of paper, which Cordero would sell for a substantial profit to other prisoners. The testimony showed that the K2 conspiracy occurred during the same time as the alleged cocaine conspiracy. The court ruled that the evidence of the K2 conspiracy was admissible to show the defendants’ intent to distribute cocaine. Furthermore, the court held, the K2 conspiracy was not more serious than the alleged cocaine conspiracy, and any prejudice was minimized by the use of cautionary instructions.
The district court gave substantially similar cautionary instructions both at the time the other-acts evidence was presented and at the conclusion of trial. One such instruction read as follows:
You have heard testimony that Defendants committed crimes or wrongs other than the ones charged in the Indictment. If you find that Defendant did these crimes or wrongs, you can consider the evidence only as it relates to the Government’s claim on Defendants’ intent, knowledge, or absence of mistake. You must not consider it for any other purpose.
Both defendants moved for judgment of acquittal at the close of the Government’s case pursuant to
The district court sentenced Cordero to a term of 120 months’ imprisonment on the murder-for-hire charge (the statutory maximum) and a term of 300 months’ imprisonment on the cocaine-conspiracy charge, to be served concurrently to each other but consecutively to Cordero’s existing 480-month term of imprisonment. In arriving at its sentence, the district court grouped the murder-for-hire and drug-distribution counts and calculated an offense level of 37 and a criminal history category of III, yielding an advisory Guidelines
As it did for Cordero, the court calculated an offense level of 37 for Velasquez, which Velasquez objected to at the sentencing hearing. Also over Velasquez’s objection, the court determined him to be a career offender under the Sentencing Guidelines, which increased Velasquez’s criminal history category from IV to VI and set the advisory Guidelines’ range at 360 months to life imprisonment. Velasquеz argued in particular that neither his murder-for-hire conviction nor his cocaine-conspiracy conviction qualified as a “crime of violence” or “controlled substance offense” under
II. Conspiracy to Commit Murder for Hire
There was sufficient evidence to convict Cordero and Velasquez on the charge of conspiracy to commit murder for hire under
The Government presented sufficient evidence that each defendant acted with the requisite intent to murder. First, the jailhouse informant, Marc King, testified that he was asked by Cordero to find Tyra Goines’ address because Velasquez and a fellow drug dealer wanted to kill Goines. When King expressed disbelief, Cordero called Velasquez, who confirmed that he would “tie her up and get rid of the bitch.” Cordero also stated to King during a secretly recorded conversation that Velasquez would receive a significant payout for murdering Goines. When asked by King exactly how much Velasquez would be paid, Cordero responded, “[d]epend on what he’s gonna do, he’s gonna bury the bitch in his backyard, I don’t know.” In addition, shortly after learning that Velasquez was travelling to scope out Goines’ residence, Cordero is heard on tape saying, “[h]e see that bitch he might throw her in the trunk right now.” If this evidence were not enough, Cordero proceeded to describe graphically how he would commit the murder were he not in prison:
Cordero: I would have done it correctly,
King: You don’t think he [Velasquez] gonna do it correctly?
Cordero: Not like how I would have done it.
King: So how would you do it then?
Cordero: Nah, he’s not gonna get caught, he’s gonna do it right, I just take it to another level, like I bring you verification that this is her, you know what I’m saying, what you want, her eyes? Her teeth? She got a tattoo
you want me to cut out and bring to you?
While Cordero writes off these comments as “mere speculation and grandiose statements,” the jury could have reasonably thought otherwise. Accordingly, the evidence was sufficient to demonstrate murderous intent on the part of Velasquez and Cordero.
Defendants’ arguments to the contrary are unavailing. Velasquez contends that Cordero’s statements about murdering Goines do not establish murderous intent on the part of Velasquez. This argument ignores King’s testimony that he heard Velasquez state on the phone, “I’m going to tie her up and get rid of the bitch.” Moreover, Cordero’s statements shed light on Velasquez’s intent because the two men were close confidants and spoke with each other frequently. Velasquez also attempts to impugn King’s credibility, arguing that “[t]he claim of conspiracy to commit murder-for-hire, advanced by ‘the Fraudster’ informant is incredible and conjecture.” A trial witness’s credibility, however, is not relevant on review of a Rule 29 motion for judgment of acquittal. United States v. Gunter, 551 F.3d 472, 482 (6th Cir. 2009). It was the jury’s prerogative to believe what King had to say.
Both defendants contend that certain statements by Cordero create reasonable doubt about what exactly Velasquez planned to do beyond verifying Goines’ address. At one point, Cordero is recоrded as saying, “I don’t know what they gonna do, to be honest . . . .” At another point, Cordero tells King, “let them do what they do, we don’t need to know what they gonna do.” Read in the light most favorable to the Government, however, these statements indicate Cordero’s uncertainty regarding the method by which Velasquez will murder Goines and dispose of her body. In any event, other evidence in the record leaves no doubt that Cordero and Velasquez understood that Goines would be murdered. When determining if a conviction is supported by sufficient evidence, “[a]ll conflicts in the testimony are resolved in favor of the government, and every reasonable inference is drawn in its favor.” United States v. Vasquez, 560 F.3d 461, 469 (6th Cir. 2009).
This case is very different from United States v. Barnett, 197 F.3d 138 (5th Cir. 1999), relied upon by defendants. There, the Fifth Circuit reversed the defendant’s conviction for conspiracy to commit murder for hire. Id. at 147. The evidence in Barnett demonstrated that the defendant assisted his friends who he knew had been hired to perpetrate “some unlawful act” against the victim. Id. at 146. The evidence did not show, however, that the defendant “knew that the unlawful act was murder.” Id. That the defendant “was aware that some crime was afoot,” the Fifth Circuit said, was not sufficient to demonstrate he knowingly joined a conspiracy to murder. Id. at 147. In contrast to the facts in Barnett, Velasquez and Cordero repeatedly alluded to Goines’ murder and never suggested that she would suffer nonfatal injury.
There was also sufficient evidence presented at trial to meet the “pecuniary value” requirement of the murder-for-hire statute. The jury could have reasonably concluded that Velasquez had an agreement—or intended to form an agreement—with Victor to kill Goines for money. The jury heard testimony that Velasquez told Cordero on the phone that he would kill Goines. Velasquez does not argue—nor was there evidence indicating—that he had any personal stake in Goines’ murder. It was therefore logical for the jury to infer that Velasquez intended to perform the murder in exchange for money, particularly when
Defendants repeatedly assert that, although Victor may have agreed to pay Cordero—and perhaps Velasquez—for locating Goines, he did not agree to pay Velasquez to complete the murder. Sure enough, the record supports the possibility that the murder-for-hire plot was to take place in two stages—the first involving locating Goines’ address and the second involving Goines’ murder. Cordero told King, for instance, that Velasquez would sell “Victor” the information about where Goines lived and then negotiate separately regarding her murder:
Cordero: He’s gonna, he’s gonna, basically, once he got her: “I got her, what you wanna do?”
King: But…
Cordero: I got her address, I got everything, you want that, you want to pay for that, or you want to pay for the full service, basically . . .
King: (Laughing) Now, the full service would be . . . it is what it is
Cordero: Whatever they gonna, whatever he decides he wants
It is also true that while King heard firsthand from Victor regarding payment for Goines’ address, there was no similar direct evidence presented of an agreement between Velasquez and Victor regarding payment for Goines’ murder.
But even so, the absence of an agreement—or even an offer—to commit murder for hire does not foreclose a conviction under § 1958, provided there is a showing of intent on the part of the defendant. See United States v. Ransbottom, 914 F.2d 743, 746 (6th Cir. 1990); United States v. Dvorkin, 799 F.3d 867, 875-76 (7th Cir. 2015). Furthermore, Velasquez’s intent to commit the contract murder is sufficient for a conviction even if Victor himself had no intention of entering into such an agreement. In United States v. Dais, we noted that our earlier decision in Ransbottom “rejected the argument that § 1958(a) requires ‘participation by at least two persons.’” 559 F. App’x 438, 444 (6th Cir. 2014) (quoting Ransbottom, 914 F.2d at 745). Accordingly, even assuming the scope of Velasquez’s agreement with Victor included only locating Goines’ address, the jury could still have reasonably concluded that Victor intended to, in Cordero’s words, perform the “full service” afterwards and, moreover, that Cordero was aware of Velasquez’s intention. This conclusion is even easier to reach when considering the remaining circumstantial evidence, including Velasquez’s stated intent to murder Goines; his negotiations with Victor to locate Goines’ address for money; his purchase of advanced surveillance equipment; and Cordero’s statements about payment in exchange for murdering Goines.2
III. Conspiracy to Distribute Cocaine
The evidence was likewise sufficient for the jury to convict Cordero and Velasquez of conspiracy to distribute cocaine. To prove its case, the Government had to demonstrate beyond a reasonable doubt that (1) there existed an agreement to violate drug laws (in this case, an agreement to distribute cocaine in violation of
Cordero demonstrated both knowledge of and involvement in the scheme. Cordero received the tracking number from Velasquez and then proceeded to recite the tracking number to King while watching King type in the numbers on a smartphone. When King was unable to reroute the package, causing it to be sent back to Puerto Rico, Cordero informed King, “don’t worry about the package. Once it gets back to Puerto Rico, they’ll retrieve it.” Cordero instructed King to take a screenshot of the post office website showing the package’s arrival in Puerto Rico and to send it to Velasquez, along with a message that Cordero dictated. Significantly, during King and Cordero’s recorded conversation, Cordero brought up the status of the package on his own, asking King, “[y]ou wanna check the post office?” There was also testimony from King that Cordero boasted of his role in delivering a package containing three kilograms of cocaine, which King interpreted to be the package that Velasquez had sought to reroute. Finally, a friend and fellow inmate of Cordero’s, Miguel Rosario, testified that Cordero spoke of providing a tracking number to “the kid,” i.e., King, in order to reroute a package that contained “a lot of drugs.” A rationаl juror could find from this evidence the existence of a conspiracy between Velasquez and Cordero.
Contrary to defendants’ contention, King’s status as a government informant did not preclude the possibility of a conspiracy, notwithstanding the fact that much of the evidence consisted of one-on-one conversations between King and each of the defendants. While it is true that a person may not form a conspiracy solely with a government agent, it is settled law that a defendant’s conversations with a government agent may be used to establish the existence of a conspiracy between the defendant and other, non-government co-conspirators. United States v. Deitz, 577 F.3d 672, 681 (6th Cir. 2009) (collecting cases); see United States v. Nicholson, 716 F. App’x 400, 410 n.3 (6th Cir. 2017). King’s conversations with Cordero and Velasquez were thus relevant to the extent they shed light on the nature and scope of the conspiracy between Velasquez and Cordero. Moreover, that King might have played a vital role in the conspiracy does not diminish the criminal liability of Cordero and Velasquez as participants in the conspiracy. “The participation of a government agent in a conspiracy does not negate the existence of that conspiracy nor make it any the less a violation of the law.” United States v. Cordero, 668 F.2d 32, 43 (1st Cir. 1981).
Cordero next argues that, while he may have been aware of and facilitated an agreement between King and Velasquez to distribute cocaine, he never actually reached an agreement with Velasquez. But the agreement requirement is not so exacting. Caselaw makes clear that no formal agreement is necessary, and “[t]he existence of a conspiracy may be inferred from circumstantial evidence that can reasonably be interpreted as participation in the common plan.” United States v. Salgado, 250 F.3d 438, 447 (6th Cir. 2001). A rational jury could conclude that Cordero’s (1) relaying the tracking number to King, (2) supervision of King’s attempts to reroute the package, and (3) involvement in sending the package’s tracking information back to Velasquez constituted participation in Velasquez’s plan to reroute the package.
Further, the evidence belies defendants’ contention that they did not enter into an agreement to distribute cocaine because they did not know what was inside the package. As for Cordero, he was aware
There was equally strong evidence that Velasquez knew that the package contained drugs. As mentioned, the jury was aware of Velasquez’s reputation as a drug dealer. This, combined with Velasquez’s statements to King that “they’ll be rich” by rerouting “stuff” and “burning the supplier,” strongly suggested Velasquez’s intent to profit from selling drugs inside the package. Furthermore, the jury could reasonably infer that Cordero’s knowledge of the drug scheme—as revealed in his comment to Rosario—was gleaned from Velasquez, whom Cordero trusted and spoke with frequently.
As the Government correctly points out, the defendants’ knowledge that the package contained drugs, as opposed to cocaine in particular, was sufficient to establish the mens rea requirement for a conspiracy under
In arguing that they lacked knowledge of the package’s contents, defendants mistakenly equate their case with United States v. Sliwo, 620 F.3d 630 (6th Cir. 2010). There, this court reversed the defendant’s conviction for conspiracy to distribute marijuana because the evidence demonstrated at most that the defendant had knowingly engaged in a scheme “with some sort of criminal purpose,” but not one that involved violation of the drug laws. Id. at 636. The defendant in Sliwo had acted as a lookout while other defendants loaded marijuana onto a truck. Id. at 634. There was no evidence that Sliwo had seen the marijuana in the truck or had any discussions with the men who had seen the truck loaded. Id. We observed in Sliwo that the evidence “fail[ed] to demonstrate that Defendant knew that this conspiracy involved marijuana as opposed to stolen electronic equipment, counterfeit handbags, weapons, or any оther illegal object that could be transported in a van.” Id. at 636. In contrast to Sliwo, there is considerable circumstantial evidence linking the defendants not only to illegal activity but to drug trafficking in particular. For one, the evidence established that Velasquez was a drug dealer and that Cordero knew this; there was no evidence that Velasquez trafficked other types of contraband. For another, Cordero made statements to both King and Rosario about trafficking drugs through the mail.
In sum, the evidence was sufficient to convict defendants of conspiring to distribute cocaine under
V. Admissibility of Other-Acts Evidence
The trial court did nоt abuse its discretion in admitting other-acts evidence in this case. The evidence of Cordero’s attempt to kill King and of defendants’ scheme to distribute K2 was relevant for purposes other than to show character and was probative of material issues in the case. Furthermore, the probative value of this evidence was not outweighed by its prejudicial effect.
Cordero’s offering Rosario payment for King’s murder upon suspecting King’s cooperation with the government was admissible under
The consciousness-of-guilt evidence was furthermore probative of Cordero’s intent, knowledge, and lack of mistake, all of which are permissible purposes of other-acts evidence under
The issues of intent, knowledge, and absence of mistake were material in this case. In particular, the crime of murder for hire necessitates a showing of “intent that a murder be committed.”
The district court accurately and succinctly conveyed the permissible purposes of the
Finally, the district court did not abuse its discretion when it determined that the other-act evidence was not unfairly prejudicial under
Also without merit is defendants’ challenge to the admission of testimony showing a scheme by Velasquez and Cordero to sell K2 at Fort Dix. The K2 scheme was sufficiently related and close in time to the cocaine distribution scheme as to be probative of Cordero’s knowledge of and intent to join the conspiracy with Velasquez. The K2 evidence also served to rebut Cordero’s defense at trial that he was innocently assisting Velasquez in rerouting a package without knowledge that the package contained cocaine.
“This court has repeatedly recognized that prior drug-distribution evidence is admissible under
As to the second of these requirements, the evidence demonstrated that the K2 scheme was in effect while Cordero assisted Velasquez in rerouting the package. The contemporaneous nature of defendants’ two drug schemes strongly enhanced the probative value of the K2 evidence. We have stated that “relative temporal proximity increases a prior act’s probative value.” United States v. Asher, 910 F.3d 854, 861 (6th Cir. 2018). That Cordero was already running a drug distribution operation might well lead a juror to believe that Cordero was a knowing and voluntary participant in a second drug scheme.
With respect to the first requirement, while the uncharged K2 scheme differed in several obvious ways from the charged
Furthermore, we have noted the absence of a common accomplice in cases where the prior drug trafficking conduct was deemed unrelated to the charged offense. In United States v. Bell, 516 F.3d 432 (6th Cir. 2008), we reversed the defendant’s conviction based on the improper admission of uncharged drug trafficking evidence. Id. at 444. In doing so, we required that prior drug distributions be “part of the same scheme or involve[] a similar modus operandi as the present offense.” Id. at 443. We identified Robison and Rodriguez as meeting that requirement because, in those cases, evidence of the defendant’s earlier drug trafficking conduct with a сoconspirator demonstrated present intent to distribute drugs with the same co-conspirator. Id. (citing Robison, 904 F.2d at 368; Rodriguez, 882 F.2d at 1064-65). Although Bell’s earlier convictions involved the same type of narcotics charges, the convictions were for offenses that occurred years earlier and were otherwise unconnected to the charges Bell was on trial for. Id. at 444. United States v. Zelinka, 862 F.2d 92, 99 (6th Cir. 1988), likewise recognized the probative value of other-act evidence involving the same accomplice. In Zelinka, we reversed the defendant’s drug trafficking conviction, reasoning that evidence of the defendant’s involvement in drug distribution sixteen months after the date of the charged offense “was remote from the period of the conspiracy and involved none of the other conspirators.” Id.
Other circuits have also permitted the admission of prior drug dealing evidence when it involved the same co-conspirator. In United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993), the Second Circuit concluded that “evidence that [the defendant] had previously engaged in narcotics trafficking with [his co-conspirator] is highly probative of [the defendant’s] intent to enter another drug conspiracy with the same co-conspirator, and to rebut [the defendant’s] defense of innocent association.” The First Circuit took a similar stance in United States v. Rodriguez, 215 F.3d 110 (1st Cir. 2000). There, the defendants were cоnvicted of conspiring with a man named Vega to import marijuana by ship. Id. at 114. The First Circuit affirmed the district court’s admission of testimony from Vega that he and the defendants, including one Santana, had previously sailed large quantities of marijuana and cocaine to the U.S. Id. at 115-16, 119. The court reasoned that “[b]y offering evidence of a second incident in which Santana was involved in a completed drug venture with some of the same
Aside from involving distribution of narcotics by the same co-conspirators, the K2 and cocaine schemes were related in that each was conducted from inside prison. Indeed, Cordero faced many of the same hurdles rerouting the drug package as he did coordinating the delivery and sale of K2. Each scheme required communication with Velasquez, who was outside of prison, which had to be done without detection by prison authorities. The evidence showed that Cordero used a hidden cell phone to accomplish this task. Cordero also had significant knowledge of the рrison economy, which he relied upon to advance each of the drug schemes at issue. For example, Cordero was able to sell K2 to others in the prison and rented contraband smartphones for King to use in rerouting the cocaine package. Finally, the payment system Cordero and Velasquez had established for the K2 scheme would be equally useful for divvying up the proceeds from the cocaine distribution scheme. In short, Cordero’s successful operation of a drug distribution scheme from within prison demonstrated his knowledge and skill to do so again. In the analogous case of United States v. Gessa, 971 F.2d 1257, 1262 (6th Cir. 1992) (en banc), we held that testimony describing the defendant’s previous use of a boat to import cocaine to Florida from the Bahamas “was probative of ‘intent, preparation, or plan,’ because the prior excursions were probative of defendant’s ability and opportunity to participate in an importation scheme.”
To be sure, the cocaine and K2 plots were dissimilar in certain ways. But to be admissible under
The probative value of the K2 evidence was not substantially outweighed by its prejudicial impact. As discussed, the K2 scheme was ongoing while Cordero worked with Velasquez to reroute the cocaine passage. Accordingly, the concern we have expressed that a defendant is “prejudice[d] . . . for something that happened in the distant past,” Myers, 123 F.3d at 363, is not present in this case. In addition, under
VI. Severance
The district court did not plainly err in failing to sever the trial in response to testimony about Cordero’s scheme to kill King. Velasquez argues that although he was not involved in Cordero’s attempt to kill King, he was nevertheless prejudiced by this testimony, and a separate trial was necessary to avoid that prejudice. Velasquez did not ask the district court for a separate trial and concedes that plain error review governs this claim on appeal. “Joint trials are favored in this circuit, and the spillovеr of evidence from one case to another does not require severance.” United States v. Dimora, 750 F.3d 619, 631 (6th Cir. 2014) (internal quotation marks and citations omitted). Further, juries are presumed to be “capable of sorting out the evidence and considering the case of each defendant separately.” United States v. Tocco, 200 F.3d 401, 413 (6th Cir. 2000) (quoting United States v. Harris, 9 F.3d 493, 501 (6th Cir. 1993)). Velasquez provides no basis for why that presumption should not hold in this case, and no such basis appears in the record. There were only two defendants and two charges, and unlike many cases involving requests for severance, the defendants were charged with the same offenses. Also, the cases against defendants arose from the same facts, and defendants presented similar defenses at trial. The district court did not plainly err in trying defendants together.
VII. Cordero’s Sentence
The district court properly applied § 2E1.4 of the Guidelines in calculating the offense level for Cordero’s murder-for-hire conviction. Section 2E1.4 is the Guideline specifically indexed to the murder-for-hire statute,
In arguing that the district court wrongly applied the Guidelines, Cordero does not challenge the district court’s specific determinations that Cordero’s underlying conduct was conspiracy to commit murder or that his conduct involved the offer or the receipt of anything of pecuniary value for undertaking the murder. Rather, Cordero asserts that
[b]ecause a conviction of murder for hire already involves the provision or offer of something of pecuniary value, applying a 4 level offense enhancement for that exact same conduct pursuant to USSG §2A1.5 is redundant and improper. It is purporting to “enhance” the base level offense by using the identical conduct that is necessarily contemplated in applying the base offense level of 32 found in USSG §2E1.4.
As Cordero acknowledges, he is swimming upstream with this argument. Although we have not yet weighed in on the question of which Guideline applies in these circumstances, other circuits have unanimously approved the use of
Moreover, at least two of these circuits have directly rejected the superfluity argument Cordero raises here. See Lisyansky, 806 F.3d at 710; United States v. Smith, 755 F.3d 645, 647 (8th Cir. 2014). The reasoning in these opinions is persuasive and aligns with that of our earlier decision in Ransbottom. Section 1958 “does not require that the offer have been made or accepted before the statute is violated,” Smith, 755 F.3d at 647; accord Ransbottom, 914 F.2d at 746, nor does it require the formation of a conspiracy, Lisyansky, 806 F.3d at 710; Ransbottom, 914 F.2d at 746. Accordingly, there will be occasions when the unlawful conduct under § 1958 does not involve conspiracy, solicitation, or the offer or receipt of anything of pecuniary value, in which case the base offense level of 32 in § 2E1.4 would apply. Lisyansky, 806 F.3d at 710; Smith, 755 F.3d at 647. Applying the plain language in § 2E1.4 thus does not render that Guideline a nullity, as Cordero contends.
VIII. Velasquez’s Sentence
The Government concedes that the district court erred in classifying Velasquez as a career offender. A limited remand is accordingly warranted. To be subject to the heightened penalties as a career offender under the Sentencing Guidelines, the government must show that “(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance оffense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”
The Government acknowledges that a violation of § 1958 is not a “crime of violence” as used in the Sentencing Guidelines. To be considered a “crime of violence,” Velasquez’s murder-for-hire conviction must have “as an element the use, attempted use, or threatened use of physical force against the person of another.” See
The Government and Velasquez also correctly agree that our decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam), invalidated the district court’s determination that conspiracy to distribute cocaine qualifies as a “controlled substance offense” under the career offender Guideline. In Havis, issued shortly after Velasquez was sentenced, we held that “[t]he Guidelines’ definition of ‘controlled substance offense’ does not include attempt crimes.” Id. at 387. The statement to the contrary in the Application Note to § 4B1.2 did not matter: “the Sentencing Commission has no power to add attempt crimes to the list of offenses in § 4B1.2(b) through commentary.” Id. at 384. “Although the specific facts of Havis involved an attempt crime, its reasoning applies with equal force to other inchoate crimes not listed in the text of § 4B1.2(b).” United States v. Butler, 812 F. App’x 311, 314 (6th Cir. 2020). Accordingly, we have acknowledged that, in light of Havis, conspiracy to distribute controlled substances is not a “controlled substances offense” under
In addition to arguing that he was wrongly classified as a career offender, Velasquez takes issue with the district court’s calculation of the offense level for his murder-for-hire conviction. Velasquez contends, аs did Cordero, that the base offense level of 32 in
Velasquez also asserts that the district court erred by not factoring in the three-level reduction for inchoate crimes under
If a conspiracy, decrease by 3 levels, unless the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.
The probation office in its presentence report, which was adopted by the district court, acknowledged that conspiracy to commit murder for hire is covered by
level reduction, where the legal arguments are not adequately presented. We therefore remand for the district court to consider the issue anew in recalculating Velasquez’s offense level.
IX. Conclusion
For the reasons set forth above, we reverse the judgment of the district court with respect to Velasquez’s sentence and remand the case for resentencing. We affirm the judgment of the district court in all other respects.