UNITED STATES of America, Plaintiff-Appellee Cross-Appellant,
v.
Alfredo CEBALLOS and Alan Martinez-Guzman, Defendants-Appellants Cross-Appellees, and
Miguel A. Quintanilla, Leonel Moreno, Jr., Deneise A. Quintanilla, and Abelardo Lalo-Mendoza, Defendants-Appellants.
No. 01-3715.
No. 01-3716.
No. 01-3717.
No. 01-3718.
No. 01-4007.
No. 01-4008.
No. 01-4021.
No. 01-4095.
United States Court of Appeals, Seventh Circuit.
Argued June 3, 2002.
Decided August 27, 2002.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Bradley Blackington (argued), Office of the U.S. Atty., Indianapolis, IN, for United States.
Beverly K. Corn (argued), Evansville, IN, for Miguel A. Quintanilla.
David Shaw (argued), Evansville, IN, Edward W. Malavenda, Boco Raton, FL, for Leonel Moreno, Jr.
Dennis L. Brinkmeyer (argued), Evansville, IN, for Alfredo Ceballos.
David Shaw (argued), Barbara Coyle Williams, Olsen, Labhart, White & Hambridge, Evansville, IN, for Alan Martinez-Guzman.
David Shaw (argued), Steven L. Bohleber, Evansville, IN, for Abelardo Lalo-Mendoza.
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge.
This is a consolidated appeal of the convictions and sentences of six co-defendants who were tried by a jury and found guilty of drug conspiracy and money laundering pursuant to 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. §§ 1956(a)(1)(A)(i) and (h). The government also cross-appeals the sentences of two of the defendants, Alfredo Ceballos and Alan Martinez-Guzman. We affirm all of the defendants' convictions and sentences, except for Ceballos's and Martinez-Guzman's sentences, which we vacate and remand for re-sentencing.
I. History
In November 1999, DEA agents in southern Indiana began using an informant to make controlled sales of methamphetamine to an individual nicknamed "Cuate." The DEA monitored several purchases made by Cuate and eventually initiated surveillance on narcotics transactions perpetrated by other individuals, including defendants Martinez-Guzman and Lalo-Mendoza. As the monitored drug transactions in southern Indiana continued, DEA agents began utilizing wiretaps to record conversations between the informant and Cuate. Surveillance of these wiretaps led to an expanded investigation, implicating several more people.
On March 31, 2000, DEA agents in Evansville, Indiana received court authorization to intercept communications over two telephones and one pager belonging to Juan Manuel Mata and Lisa Caudill (the "Indiana wiretaps"). Based on numerous drug-related conversations intercepted by the Indiana wiretaps, the DEA seized one pound of methamphetamine. Subsequently, DEA agents in Dallas, Texas received court authorization to intercept communications over two telephones identified during surveillance of the Indiana wiretaps (the "Texas wiretaps"). The target telephone numbers of the Texas wiretaps belonged to defendants Miguel and Deneise Quintanilla, and during surveillance of these wiretaps, DEA agents intercepted many more drug-related conversations. Based upon evidence of drug-related conversations obtained from the Indiana and Texas wiretaps, the seizure of the methamphetamine, and the testimony of several cooperating witnesses, the government indicted sixteen people on drug conspiracy and money laundering charges. The six defendants proceeded to trial and were convicted as charged in the indictment. The district court then sentenced the defendants as follows:
Defendant Charge Sentence
Alfredo Ceballos Drug Conspiracy 360 months
Money Laundering 240 months, concurrent
Alan Martinez-Guzman Drug Conspiracy 268 months
Miguel Angel Quintanilla Drug Conspiracy Life
Money Laundering 240 months, concurrent
Leonel Moreno, Jr. Drug Conspiracy 360 months
Money Laundering 240 months, concurrent
Deneise Ann Quintanilla Drug Conspiracy Life
Abelardo Lalo-Mendoza Drug Conspiracy 204 months
II. Analysis
A. Joint Claims
1. Motion to Suppress
The defendants' first argument on appeal is that the district court erred in denying their motion to suppress evidence obtained from surveillance of the Indiana and Texas wiretaps. We will reverse a district court's decision to admit evidence obtained from wiretaps only if that decision was an abuse of discretion. See United States v. Adams,
The defendants first argue that the district court erred in denying their motion to suppress because, according to the defendants, the government failed to establish the necessity for wire surveillance. Federal law requires each wiretap application to contain a full and complete statement as to one of the following: (1) whether or not other investigative procedures have been tried and failed, (2) why other investigative procedures reasonably appear to be unlikely to succeed if tried, or (3) that other investigative procedures are too dangerous. See 18 U.S.C. § 2518(1)(c). We have previously held that "the government's burden of establishing its compliance with subsection 2518(1)(c) is not great" and should "be reviewed in a practical and commonsense fashion." United States v. Zambrana,
In this case, the government's application for the Indiana wiretaps stated that it had tried ordinary investigative procedures such as the use of informants and undercover agents, the use of telephone records and pen registers, and the use of physical surveillance, but that those procedures had been insufficient to obtain the evidence necessary to establish the full extent of the drug conspiracy and would continue to be insufficient in the future. In addition, DEA Special Agent Daniel Schmidt's affidavit provided factual bases for this assertion. For example, it stated that informants and undercover agents had been and would continue to be unable to establish contact with middle to upper-level members of the conspiracy and thus their use could not "furnish information which would fully identify all members of this ongoing criminal conspiracy or which would define the roles of these conspirators sufficiently for prosecution." Specifically, these confidential and undercover sources could not establish how the narcotics were being shipped to Indiana. In addition, the application stated that the use of telephone records and pen registers could not identify the participants in the telephone conversations or the nature or substance of those conversations. Moreover, the application stated that in Special Agent Schmidt's experience, physical surveillance would likely alert the subjects to the investigation. The application for the Texas wiretaps included all of the above information and was supported by an affidavit from DEA Special Agent C. Mark Styron. In addition, the Texas application stated that additional wiretaps were needed in Texas to identify some of the people discussed during conversations intercepted by the Indiana wiretaps, including people that may have supplied Miguel Quintanilla with narcotics in Texas.
As the above facts illustrate, the Indiana and Texas applications provided the requisite "full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried...." 18 U.S.C. § 2518(1)(c). Specifically, the applications outlined numerous factual bases for the government's claim that the wiretaps were necessary to establish the full extent of the drug conspiracy. For example, as in Zambrana, the applications explained that informants and undercover agents had been and would continue to be unable to infiltrate the conspiracy. Further, the applications explained that telephone records and pen registers could not identify each subject's role in the conspiracy because they could not reveal the participants in nor the substance of the conversations. Finally, as in Adams, the applications explained that physical surveillance would likely alert the subjects to the investigation. Therefore, we hold that the district court did not abuse its discretion in admitting evidence obtained from the wiretaps.
The defendants next contend that the applications for the Indiana and Texas wiretaps contained bad-faith misrepresentations and therefore the district court erred in denying their motion to suppress. Each application to obtain a wiretap must inform the issuing court of all previous applications for interception of wire, oral, or electronic communications involving any of the same persons specified in the pending application. See 18 U.S.C. § 2518(1)(e). However, a violation of the wiretap statute is not grounds for suppression unless the defendant can establish bad faith or prejudice. See United States v. Matthews,
In the present case, the Indiana and Texas applications failed to disclose that Miguel and Deneise Quintanilla had been the targets of previous wiretap applications in Texas. However, the government agents applying for the wiretaps testified at the suppression hearing that they made three separate searches of the DEA and FBI databases and that each search failed to disclose the prior applications. In addition, Agent Styron testified that subsequent to the Texas application, he performed another search of the DEA and FBI databases and discovered that the prior applications concerning Miguel and Deneise Quintanilla had been under the names "Miquel Quintanilla" and "Deneise Scrimshire" (her maiden name). Upon learning this information, the government filed a motion with the authorizing court in Texas to amend its application for the Texas wiretap, which the court granted. The defendants offered nothing to contradict this evidence showing that the omission was inadvertent other than their conjecture that the agents must have known about the prior applications, and conjecture is insufficient to warrant relief. See United States v. Westmoreland,
Finally, the defendants argue that the government did not obtain the proper approval for authorization of the Texas wiretap. Federal law provides that "any Deputy Assistant Attorney General ... specifically designated by the Attorney General may authorize an application to a Federal judge of competent jurisdiction for ... an order authorizing or approving the interception of wire or oral communications. ..." 18 U.S.C. § 2516(1). Further, in Order 1950-95, dated February 13, 1995, then Attorney General Janet Reno "specifically designate[d] ... any acting Deputy Assistant Attorney General ... to exercise the power conferred by section 2516(1)...." The Texas application contained authorization from Mary Lee Warren, Deputy Assistant Attorney General. The defendants apparently concede that Mary Lee Warren signed the authorization, but argue that "[t]he record is silent regarding who she is and what authority she might possess." The defendants' assertions are incorrect. The grant of authority clearly identifies Mary Lee Warren as a Deputy Assistant Attorney General and therefore she had authority pursuant to § 2516(a) and Order 1950-95 to authorize the Texas wiretaps.
2. Expert Testimony
The defendants next contend that the district court improperly admitted the expert testimony of Agents Michael Kress and Styron. Before trial, the government filed an "Amended Notice Regarding Expert Witnesses," detailing the agents' knowledge and experience that qualified them as experts on drug code language. In addition, the Notice outlined the drug code language used during approximately forty intercepted phone conversations about which the agents would testify. In response, the defendants filed a motion in limine, objecting that some of the pronouns outlined in the government's Notice did not constitute drug code language. Further, the defendants objected to the qualification of Agents Kress and Styron as expert witnesses.
The district court denied the defendants' motion, and at trial, over twenty recordings of intercepted phone conversations were played before the jury and admitted into evidence.1 After each recording was played, either Agent Kress or Agent Styron testified as an expert witness about the content of the conversations, including interpreting code language used to facilitate the drug conspiracy. For example, the agents testified that some of the defendants' words such as "tickets" and "cars" were code words for narcotics. Further, the agents testified that words such as "one" and "two" referred to certain quantities of methamphetamine. Finally, the agents testified that in several of the intercepted phone conversations, the defendants used simple pronouns as code language. For instance, during one phone call, Ceballos told Miguel Quintanilla that "it had come up short," and Agent Kress testified that "it" referred to a shipment of narcotics that Ceballos had received.
The defendants' first argument on appeal with respect to this testimony is that the district court erred in qualifying Agents Kress and Styron as experts. Federal Rule of Evidence 702 permits the admission of expert testimony when the specialized knowledge of the witness will aid the trier of fact in understanding the evidence or determining a fact in issue. See United States v. Hubbard,
In Allen, the district court qualified a DEA agent as an expert in drug trafficking primarily because the agent had received education and training in the field of narcotics trafficking. See
In this case, Agent Kress had worked for the DEA for approximately ten years and had investigated numerous drug-trafficking cases involving organizations from six Latin American countries. In addition, during these drug investigations, he reviewed in excess of 50,000 intercepted telephone conversations involving drug traffickers and interpreted the drug code language therein. Agent Styron had worked for the DEA for approximately thirteen years, had participated in over fifty investigations, and had testified as an expert witness on drug code language in several drug-trafficking cases. Thus, like in Allen, the district court properly qualified the agents as experts and did not abuse its discretion in admitting their testimony.
The defendants argue that Agents Kress and Styron did not qualify as experts because the agents based their testimony on English translations of Spanish conversations and neither spoke fluent Spanish. We can find no legal authority for the proposition that the agents' lack of fluency in the Spanish language should prohibit them from interpreting drug code language obtained from English translations of Spanish conversations. Instead, this court and other circuits have previously permitted agents to rely upon English translations to interpret drug code language, see, e.g., United States v. Hughes,
Next, the defendants assert that the district court improperly allowed Agent Kress and Agent Styron to testify regarding the defendants' use of simple pronouns during the intercepted phone conversations. We have previously held that expert testimony concerning narcotics code words is permissible because this language is not within the common understanding of most jurors. See United States v. Rollins,
Ceballos: Oh, man, one more thing ... that guy owes me, man.
Quintanilla: How's that?
Ceballos: Yeah, man. I don't know how, man, there was some missing from both.
Quintanilla: But I, I prepared them here, man.
Ceballos: It really bugs me, the same as the one before, you know, like the other time. I told you it had come up short, and I didn't deduct anything from you, man. The other time there was some missing, man.
Quintanilla: Let's see if I can replace some of what was missing ... but, no man, I checked them ... and they don't have a way of getting into it.
Ceballos: Yeah. No, no and if not ... nah, what do they want it for?
Quintanilla: I'm going to double check it this time, man.
Ceballos: Yeah, if you give me ... so I don't deduct any more. Add something, man.
Quintanilla: Alright. Anyway, I'll give you some back with the other one, man.
Agent Kress testified that in his opinion, Ceballos' use of the word "both" in his statement, "there was some missing from both" meant that Ceballos was expecting a two-pound shipment of methamphetamine, and that he had received less than this amount. Agent Kress went on to testify that the use of "it" and "them" throughout the rest of the conversation referred to shipments of methamphetamine that Quintanilla had prepared and packaged in Texas and had sent to Ceballos in Indiana. He based this opinion, in part, on the fact that there were no other nouns to which the pronouns "it" and "them" referred and therefore the pronouns were ambiguous.
In Rollins, a DEA agent testified about his interpretation of intercepted phone conversations between two alleged drug dealers. See id. In several instances, the drug dealers used the word "it" and other words, which the agent testified referred to cocaine. See id. We held that the use of the word "it" constituted drug code language in that case and as such was the proper subject of expert testimony. See id. Here, as in Rollins, we hold that the district court did not abuse its discretion in permitting Agent Kress and Agent Styron to offer expert testimony on the meaning of pronouns such as "it" and "them" because the pronouns were used in an ambiguous manner and because of the agents' vast experience with drug code language. Further, this testimony was helpful to the jurors because "[a]s a result of [the agents' expert] testimony, the jury was able to apply to the evidence alternative theories of which they ordinarily would not have been aware." United States v. Sanchez-Galvez,
3. Apprendi
The defendants' next argument is that their sentences should be reversed because § 841 unconstitutionally treats drug quantity as a sentencing factor, rather than as an element of the offense, in violation of the Fifth and Fourteenth Amendments as interpreted in Apprendi v. New Jersey,
B. Deneise Quintanilla
1. Admission of Evidence
Deneise's first argument is that the district court erred in admitting the transcripts of three intercepted phone conversations—Exhibits 154, 194, and 195. The district court admitted Exhibit 154 as an admission of a party-opponent under Federal Rule of Evidence 801(d)(2)(A) and admitted Exhibits 194 and 195, which involved the sale of methamphetamine in Texas, as statements in the furtherance of a conspiracy under Federal Rule of Evidence 802(d)(2)(E). We review the district court's admission of this evidence for an abuse of discretion. See United States v. Senffner,
Deneise does not quarrel with the district court's findings that Exhibits 154, 194, and 195 complied with the requirements for admissibility under the rules of evidence. Rather, she argues that these exhibits concerned a different conspiracy than the one charged in the indictment and therefore contends that she was prejudiced by their admission because evidence of one conspiracy cannot be admitted as evidence of a separate conspiracy. In order to succeed on this claim, Deneise must show that the evidence presented at trial was insufficient to support a finding of a single conspiracy and that she was prejudiced by the exhibits' admission. See United States v. Jones,
In Jones, the indictment charged a single conspiracy, and much of the government's evidence at trial concerned the defendant's activities with three individuals, whereby the conspirators would travel to Chicago, purchase crack, and return to Springfield to distribute the crack there. See
In the present case, Deneise argues that the indictment charged a conspiracy to distribute methamphetamine in southern Indiana and that the disputed exhibits, which regarded the ultimate distribution of methamphetamine in Texas, concerned a separate conspiracy and were therefore inadmissible. However, the indictment shows that the government charged Deneise with a conspiracy to distribute methamphetamine "in the Southern District of Indiana, Evansville Division, and elsewhere." (Emphasis added). To that end, the evidence at trial, viewed in the light most favorable to the government, established Deneise's involvement in the following conspiracy: Miguel obtained methamphetamine from an individual named Leonel Moreno and along with Deneise packaged the methamphetamine and sold it to people who would either distribute it on the street level in Texas or would take it to Indiana for further distribution. The Quintanillas would use couriers in Texas to take the methamphetamine to Ceballos and others in Indiana. For example, Terri Nichols testified that on one occasion, she went to the Quintanillas's house, saw Deneise packing methamphetamine in plastic wrap, purchased that methamphetamine from the Quintanillas, and took it to Indiana for further distribution. The disputed exhibits, on the other hand, concerned the part of the conspiracy whereby the Quintanillas would distribute methamphetamine in Texas. Because the activities described in Exhibits 154, 194, and 195 pertain to Deneise's involvement in the distribution of methamphetamine obtained from Moreno, they concern the same conspiracy that was charged in the indictment and that was shown by the government's other evidence at trial. As in Jones, we hold that there was only a single conspiracy in this case and that the district court did not err in admitting Exhibits 154, 194, and 195.2
2. Sentence Enhancement
Deneise next contends that the government's § 851(a) information was improperly served and therefore her sentence should not have been enhanced. Section 851(a)(1) provides:
No person ... shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.
In this case, the government filed its § 851(a) information on June 11, three days before trial. On June 12, during a pre-trial conference, the government also told Deneise's counsel that it had filed the information and had mailed a copy of the information to his office the previous day. However, Deneise's counsel did not receive the § 851(a) information until June 16, two days after trial had commenced. After the jury returned a guilty verdict against Deneise, the district court sentenced her to life imprisonment pursuant to § 851. On appeal, Deneise argues that the district court did not have jurisdiction to impose the enhanced sentence due to her prior convictions because the government failed to satisfy the procedural requirements of § 851(a). She argues that because § 851(a) is jurisdictional, the government must have actually delivered, and not just mailed, the information to her or her counsel before trial.
As an initial matter, some circuits, including ours, have previously called § 851(a)'s notice requirements "jurisdictional." See, e.g., United States v. Lawuary,
On the other hand, all of the courts that have offered analysis on the issue have held that § 851(a)'s notice requirements are not jurisdictional. See, e.g., United States v. Mooring,
We must, of course, address subject-matter jurisdiction in every case. Given the existing circuit split on the issue and our lack of analysis in previous decisions, we believe it appropriate to reexamine our position that § 851(a) is jurisdictional. In doing so, to the extent that there is Seventh Circuit precedent holding that § 851(a) is jurisdictional, we note that "drive-by jurisdictional rulings ... have no precedential effect." Steel Co. v. Citizens for a Better Env't,
We start by noting that jurisdictional problems generally fall into two broad categories. See Lawuary,
The second category of jurisdictional problems "includes rules that cannot be waived by the parties, and which are loosely called `jurisdictional' because they have this feature in common with the genuine jurisdictional limits." Lawuary,
This second category of jurisdictional problems reflects the "chameleon-like quality of the term `jurisdiction'" and the fact that judges and legislators sometimes use the term jurisdiction to erroneously refer to a court's authority to issue a specific type of remedy, rather than to the court's subject-matter jurisdiction. Prou,
The Supreme Court's recent opinion in United States v. Cotton, ___ U.S. ___,
Section 851(a) affects the length of sentences and, similar to the statute at issue in Steel Co., § 851(a), merely affects district courts' power to impose penalties after substantive violations have occurred. Therefore, § 851(a) has nothing to do with subject-matter jurisdiction, as the Supreme Court has defined that term in Cotton. In sum, today we hold that § 851(a)'s procedural requirements are not jurisdictional, and our prior cases holding otherwise are expressly overruled on that issue.4
We now turn to the question of whether the government's service of its information satisfied § 851(a) in this case. Section 851(a) requires the government to serve its information before trial. Federal Rule of Criminal Procedure 49(b) governs the service of papers in criminal cases and states that "[s]ervice upon the attorney or upon a party shall be made in the manner provided in civil actions." The relevant civil rule, Federal Rule of Civil Procedure 5(b), provides that "[s]ervice ... is made by ... [m]ailing a copy to the last known address of the person served" and that "[s]ervice by mail is complete on mailing." In United States v. Novaton,
Moreover, the government advised Deneise's counsel before trial that it would seek an enhanced sentence due to Deneise's prior convictions if she rejected its plea offer. Further, the government identified the specific convictions upon which it would rely for the enhancement at that same time. After Deneise rejected the plea three days before trial, the government filed its § 851(a) information and mailed a copy to defense counsel. In addition, during a pretrial conference two days before trial, the government told defense counsel that it had filed the information the preceding day and had mailed a copy to him. In her appellate brief, Deneise conceded that her attorney communicated this information to her before trial. Thus, Deneise had actual knowledge of the enhancement before trial, which supports our conclusion that the district court properly enhanced Deneise's sentence. See United States v. Tringali,
C. Alfredo Ceballos
Before trial, Ceballos moved to suppress his oral confession, arguing that it was not voluntary. At the suppression hearing, the following facts were adduced: DEA agents arrested Ceballos and his wife Lisa Ceballos at their home pursuant to a search warrant. Major Dennis Holt of the Vincennes Police Department and DEA Task Force then took Ceballos into the bedroom, while his wife and the remaining agents stayed in the living room. Major Holt read Ceballos his Miranda rights in English, and Ceballos indicated that he understood and could speak English and that he wanted to give a statement.6 Major Holt falsely informed Ceballos that the DEA had arrested Miguel Quintanilla in Dallas and that he had implicated Ceballos in several drug transactions, and Ceballos then spoke with Major Holt for approximately forty-five minutes, answering a series of questions. Major Holt testified that Ceballos spoke in English throughout the interview, albeit mostly in broken sentences. Nevertheless, he stated that Ceballos could speak English well and could understand the questions posed to him. After the interview with Major Holt, Officer Neftali Padilla read Ceballos his Miranda rights in Spanish. Ceballos again indicated that he understood his rights and that he wanted to talk to the police. Shortly thereafter, Ceballos was taken to a police station in Evansville, Indiana, where Agent Kress read him his Miranda rights in English. For a third time, Ceballos indicated that he understood his rights and he then spoke with Agent Kress for about thirty to forty-five minutes.
Ceballos moved to suppress his two statements, arguing that they were not voluntary, but the district court denied Ceballos's motion and admitted his statements into evidence. We review the voluntariness of a confession de novo, and in doing so will accept the district court's findings of fact absent clear error. See United States v. Sablotny,
In this case, the totality of the circumstances militates in favor of the conclusion that Ceballos' confession was voluntary. He was read his Miranda rights three times, in both English and Spanish. In each instance, he indicated that he understood his rights but still wished to give a statement. In addition, he was twenty-four years old and there is no evidence that he had a diminished mental capacity. See Weidner v. Thieret,
Further, "coercive police activity is a necessary predicate to the finding that a confession is not voluntary." United States v. Dillon,
D. Miguel Quintanilla
1. Motion to Dismiss
On the day trial commenced, Miguel filed a motion to dismiss due to an alleged Sixth Amendment violation based on the performance of his initial attorney, Scott Danks. The district court ultimately denied Miguel's motion to dismiss, which we review for an abuse of discretion. See United States v. Alanis,
For Miguel to prevail on his claim, he must establish that Danks's performance was deficient and that the deficient performance prejudiced him. See Strickland v. Washington,
In United States v. Goudy,
2. Enhanced Sentence
At the time of Miguel's conviction, he had three prior felony drug convictions. Before trial, the government filed a timely information pursuant to § 851 based upon these convictions, and accordingly, at sentencing, the district court found that Miguel faced a mandatory sentence of life imprisonment due to the drug quantity and his prior felony convictions. On appeal, Miguel contends that based on Apprendi,
E. Cross-Appeal
The government cross-appeals the district court's refusal to enhance Ceballos's and Martinez-Guzman's sentences pursuant to Sentencing Guideline § 3B1.4, which provides for a two-level increase if the defendant used a person less than eighteen years of age to commit the offense. In this case, the district court found that Ceballos and Martinez-Guzman used Jorge Hernandez-Martinez, a person less than eighteen years of age, to commit an offense. However, the district court also found that § 3B1.4 did not apply because neither Ceballos nor Martinez-Guzman used Hernandez-Martinez to shield themselves from prosecution and accordingly did not enhance their sentences pursuant to that Guideline.10 We review the district court's interpretation of the Sentencing Guidelines de novo. See United States v. Mayberry,
We begin by noting that the plain language of § 3B1.4 states that "[i]f the defendant used or attempted to use a person less than eighteen years of age to commit the offense ... increase by 2 levels." The Application Notes to § 3B1.4 further state that using a minor includes "directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting" the minor. In this case, the district found that Ceballos and Martinez-Guzman used a minor by "directing" Hernandez-Martinez's actions. For example, during controlled purchases with undercover DEA agents, Ceballos and Martinez-Guzman told Hernandez-Martinez to quote certain prices to the agents. Ceballos and Martinez-Guzman do not argue that Hernandez-Martinez's involvement did not constitute "use" under § 3B1.4, as indeed they cannot. See, e.g., United States v. Vivit,
The district court, however, found that § 3B1.4 contains an additional requirement that the defendants must have intended to shield themselves from prosecution. The plain language of § 3B1.4 does not support this interpretation, and absent a clear manifestation of contrary intent, we give effect to the plain language of the Sentencing Guidelines. See United States v. McClain,
We have never ruled on the precise issue at hand — whether the government must prove that the defendant intended to use the minor to shield himself from prosecution in order to invoke § 3B1.4. However, several decisions are instructive. For example, in United States v. Smith,
Based on the plain language and purpose of § 3B1.4, our prior interpretation of the federal statute addressing the use of minors by drug traffickers, and the Ninth and Eleventh Circuits' interpretation of § 3B1.4, we hold that the government is not required to prove that the defendants intended to use the minor to shield themselves from prosecution in order for § 3B1.4 to apply. Accordingly, the district court erred in not enhancing Ceballos's and Martinez-Guzman's sentences, which we must vacate and remand for re-sentencing.
III. Conclusion
For the foregoing reasons, we AFFIRM the convictions and sentences of all of the defendants, except for the sentences of Ceballos and Martinez-Guzman, which are VACATED and REMANDED for re-sentencing consistent with this opinion.
Notes:
Notes
Most of the conversations were in Spanish, but the jury was provided with transcripts of English translations
The admission of Miguel's statements in Exhibits 194 and 195 also does not violate the Confrontation Clause of the Sixth Amendment, which does not apply to statements admitted under Rule 801(d)(2)(E)See United States v. Stephenson,
In fact, Cevallos only says:
Assuming that a failure by the Government strictly to comply with § 851(a)(1)'s requirement of service of the information of a previous conviction does deprive the District Court of jurisdiction to impose an enhanced sentence ... the uncontroverted evidence more than supports the District Judge's implied finding that petitioner's counsel was in fact served with a copy of the information of previous conviction prior to the guilty plea proceeding and petitioner was so advised by his counsel.
This opinion was circulated among all judges of this court in regular active service pursuant to Circuit Rule 40(e). No judge favored a rehearing en banc on the question of the jurisdictional nature of § 851(a)
The court in that case also stated that service of a § 851(a) information before trial was a jurisdictional requirementSee id. at 1015. However, this characterization did not affect the outcome of that case because the court found that the government had satisfied § 851(a). See id. at 1016. Thus, that court's jurisdictional characterization, which conflicts with our holding today that § 851(a) is not jurisdictional, is irrelevant to the analysis of whether the government satisfied § 851(a).
Major Holt testified that he believed that Ceballos could speak English because he had heard Ceballos speaking English during one of the intercepted phone conversations and because he was married to a woman whose only language was English
Ceballos also complains about Major Holt's statement that Ceballos might lose custody of his children if his wife remained incarcerated. However, this statement occurredafter Ceballos had given his two statements, and therefore did not constitute psychological intimidation that coerced Ceballos into confessing.
The district court granted the motion in limine regarding the conversation with Miguel's daughter, but denied the other motions
Miguel argues that he need not establish prejudice because Danks was "totally absent from his case," and the Supreme Court has held that a defendant can establish a "constitutional error without any showing of prejudice when counsel was ... totally absent ... during a critical stage of the proceedings."United States v. Cronic,
Specifically, the district court stated that "this particular adjustment is addressed to an individual who has a minor commit a crime or substantially participate in the role in a crime to shield the adult from prosecution because of the fact that the juvenile will not be prosecuted to the extent that an adult will be prosecuted."