UNITED STATES of America, Plaintiff-Appellee, v. Cristian Alejandro RODRIGUEZ-LOPEZ, a/k/a Alex, a/k/a Puma, a/k/a Compadre, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Luis Narcisco Barron, Defendant-Appellant.
Nos. 12-41177, 13-40559
United States Court of Appeals, Fifth Circuit
June 25, 2014
756 F.3d 422
We have not found a case from any jurisdiction that holds that a defendant can accept a plea bargain, take back his part of the bargain, insist upon a trial on the merits, and yet bind the prosecutor, and thus the Court, on the original promised recommendation of punishment after the prosecutor has lost all benefits of the bargain. To permit this situation would undercut the entire purpose and aim of the plea bargaining process.
656 F.2d at 171 (emphasis added).
Jordan has done no such thing. True, Jordan lodged a motion with the state court attempting to change his sentence. But, during the relevant events, Jordan never sought to hold the government to its burden of proof and thus take from the government its “benefits of the bargain.” His motion for sentence modification presented a purely legal argument (viz., that his sentence was ultra vires under Lanier), and one that was correct. After the Mississippi Supreme Court agreed with Jordan‘s legal argument but did not afford him the remedy he requested, Jordan still did not seek to hold the prosecutor to the government‘s burden of proof. Rather, he sought to reinstate the prior life sentence the prosecutor had already represented to the court was appropriate because of Jordan‘s individual circumstances, including his remorse and good behavior—circumstances that nobody contended had changed. It was the prosecutor, not Jordan, who abandoned the government‘s previous benefits of the bargain and insisted upon a trial on the merits. Hence, Deloney does not apply here, and to hold that it does is to extend the decision beyond its reach. Jordan‘s right to petition the courts for redress is precisely the sort of legal right that should be protected against retaliation by the due process clause as interpreted in Blackledge.
IV.
Jordan has shown sufficient merit to the prosecutorial vindictiveness claim to warrant his appeal being considered on the full merits. I respectfully dissent from the majority‘s denial of a certificate of appealability on this claim.
F. Clinton Broden, Broden & Mickelsen, Dallas, TX, Gena Blount Bunn, Esq., Holmes & Moore, P.L.L.C., Longview, TX, for Defendant-Appellant, Luis Narciso Barron.
Before DAVIS, ELROD, and COSTA*, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
A jury in the Eastern District of Texas convicted Cristian Alejandro Rodriguez-Lopez and Luis Narcisco Barron (collectively, “defendants“) of conspiring to distribute marijuana. The district court sentenced each defendant to a term of imprisonment. Rodriguez-Lopez argues on appeal that venue was improper in the Eastern District and that the evidence was insufficient to sustain the conviction. Rodriguez-Lopez also argues that the district court improperly calculated his offense level for sentencing purposes. Barron, in a separate appeal, argues that the evidence was insufficient and that the prosecutor made improper statements in closing arguments. Barron also challenges the calculation of his offense level. We consolidated the defendants’ separate appeals. We affirm Rodriguez-Lopez‘s conviction and sentence. We also affirm Barron‘s conviction. We vacate Barron‘s sentence, however, and remand for resentencing.
I.
This case arose out of two federal law enforcement investigations: one focused on illegal drug trafficking and the other on illegal firearms trafficking.1 The drug trafficking organization, headed by Nazario Cavazos, moved marijuana across the border between Mexico and the United States, near Laredo, Texas. Jose Arce, who was part of the organization and testified at trial, managed border crossings. Arce testified that from 2002 to 2006 he moved more than 100 tons of marijuana for the Cavazos organization, from Laredo to Dallas, Atlanta, New York, and other cities. Federico Garcia testified that from 2004 to 2006 he transported marijuana for the Cavazos organization by land through Texarkana, Texas, and Beaumont, Texas, in order to reach other cities in the interior of the United States.
Brothers Roberto and Erasmo Marquez ran a cell of the Cavazos organization in north Texas. Roberto Marquez communicated directly with Cavazos. The Marquez cell used three interrelated stash houses, on three nearby streets known as Charlestown, Jamestown, and Brookstown. In 2007 and 2008, Rodriguez-Lopez, also known as “Puma,” lived in, and was named on the lease for, the Brookstown house. According to two other individuals involved in the operation, Jesus Marquez (brother to Roberto and Erasmo) and Cesar Morales, Rodriguez-Lopez lived rent-free in exchange for his drug-distribution services. Jesus Marquez described the fundamentals of each house thus:
[The marijuana] comes in during the night, truck comes in, they open the garage and they unload, truck takes off, they weigh the marijuana, turn it into 50 pounds, taking off the wrapping around it, weigh it, turn it into 50, wrap it back up, and then they start choosing who is gonna get what to sell.
Jesus Marquez also testified that Rodriguez-Lopez, who was married to the Marquez brothers’ niece, was Roberto Marquez‘s “right hand” man. Accordingly, Rodriguez-Lopez would get his choice of marijuana to sell. As a man of high status, Rodriguez-Lopez also had the ability within the cell to “tell other people what to do.” Rodriguez-Lopez kept a rusty Berretta handgun for protection, given the danger associated with such large quantities of marijuana. After Rodriguez-Lopez and the others had distributed the marijuana, a man known as “Commandante” would collect the profits, on Cavazos‘s behalf, from each of the stash houses.
Twice federal agents seized Cavazos organization trucks that were carrying marijuana, once in 2005 in Tyler, Texas, and once in 2006 in Dallas. On June 11, 2008, federal agents executed search warrants at each of the Dallas stash houses. Rodriguez-Lopez was at home at the Brookstown house, where the agents recovered: drug ledgers (including one ledger entitled “Notas de Puma“), a receipt for plastic wrapping, packaging materials, a small amount of marijuana, digital scales, over $47,000 in cash, a money counter, two firearms (including a rusty Berretta), and body armor. At the Jamestown house, the agents seized: drug ledgers, 1,000 pounds of marijuana, packaging materials, other narcotics paraphernalia, two firearms, and over $247,000 in cash. And at the Charlestown house, the agents found: drug ledgers, 35 pounds of marijuana, digital scales, one firearm, Roberto Marquez‘s passport, and over $1,000,000 in cash.
The drug ledgers at each house contained information about the Marquez cell‘s inventory. Rodriguez-Lopez‘s personal accounts in the ledgers for the three houses reflected more than 5,000 pounds of inventory; the separate “Notas de Puma” ledger reflected another 2,000 pounds. An FBI forensics specialist examined the ledgers and testified that between September 28, 2007, and May 7, 2008, the marijuana inventory for the Brookstown, Jamestown, and Charlestown houses amounted to approximately 138,000 pounds. The specialist also testified that the Brookstown house distributed to forty-seven different accounts from January 2004 to November 2007.
The United States linked Barron to the Cavazos organization through firearms transactions. As part of an investigation into the Mexican drug cartels’ supply of firearms, federal agents learned that Barron‘s cousin, Roberto Flores, was acting as a straw buyer for Barron. The agents convinced Flores to cooperate, and from 2006 until 2008 Flores helped gather evidence of Barron‘s firearms trafficking business by continuing to engage in firearms transactions on behalf of Barron—often while wearing a wire. The testimony at trial further revealed that, prior to Flores‘s cooperation, Oscar Gomez, one of Cavazos‘s closest lieutenants, approached Barron at Cavazos‘s request in 2005. Cavazos had given Barron‘s phone number to Gomez. Cavazos needed the firearms to protect his business—various Mexican drug cartels were at war. After Barron and Gomez agreed on a purchase price for military-style weapons, Cavazos signed off on the deal. Barron took the firearms to the border, and Cavazos‘s men then smuggled the firearms into Mexico. Barron and Gomez‘s relationship continued: On at least three subsequent occasions, following
Based on the foregoing, a grand jury returned a five-count indictment, naming twenty-three defendants. Pertinent here, Rodriguez-Lopez and Barron2 were named in Count One (conspiracy to distribute 1,000 kilograms or more of marijuana, in violation of
Only three defendants, including Rodriguez-Lopez and Barron, went to trial, where the above-described facts unfolded.4 When the United States rested, one defendant made a joint motion for acquittal, which was adopted by the other two:
We‘ll ask for a judgment of acquittal, a Rule 29 motion. The government, having the burden of proof, it‘s our opinion at this point hasn‘t put on any evidence beyond a reasonable doubt that should go to a jury that my client is involved in a conspiracy, that he has distributed drugs as charged in the indictment, Your Honor.
The district court denied the motions as to the marijuana conspiracy.
In closing arguments, in an effort to demonstrate that he “g[o]t it” and that he was “all for backing the blue,” defense counsel for Barron commented that his “dad was an FBI agent” and that he had been “a state and federal prosecutor” and “an elected trial judge for four years.” The Assistant U.S. Attorney then argued on rebuttal, attempting to show motive and apparently partially responding to defense counsel‘s rhetoric: “Why does someone sell drugs? Why does someone sell firearms on an illegal market? Why does someone leave the U.S. Attorney‘s Office and lend their credibility to representing drug traffickers and firearms dealers?” Pursuant to an objection, the district court immediately instructed the jury to disregard that statement, explaining that the statement was “totally improper.” The district court informed the jury that Barron‘s defense counsel “ha[d] every right to represent a criminal defendant” and that “everyone has a right to a defense.”5
Approximately twelve days after the jury returned its verdict, Barron filed a motion for a new trial based on the prosecutor‘s comments on rebuttal. The district court denied the motion in a written order, concluding that Barron‘s substantial rights were not affected.
At Rodriguez-Lopez‘s sentencing hearing, the district court calculated Rodriguez-Lopez‘s base offense level to be 38. To arrive at that number, the district court found—over Rodriguez-Lopez‘s objection—that Rodriguez-Lopez was responsible for more than 30,000 kilograms (i.e., approximately more than 66,000 pounds) of marijuana. See
The district court later sentenced Barron. At the sentencing hearing, the district court concluded that Barron‘s base offense level was 32, finding that Barron was responsible for more than 1,000 kilograms but less than 3,000 kilograms (i.e., approximately between 2,000 and 7,000 pounds) of marijuana. See
II.
The defendants raise a number of issues on appeal, some of which overlap and some of which are entirely separate. We will address each defendant‘s case in turn, beginning with Rodriguez-Lopez.
A.
1.
Rodriguez-Lopez argues that venue was improper in the Eastern District of Texas. The United States Constitution enshrines a defendant‘s right to be tried in the district “wherein the crime shall have been committed.”
Here, in his motion for acquittal, Rodriguez-Lopez argued that the United States had not put on evidence to prove his guilt beyond a reasonable doubt; he did not mention venue. This motion was therefore too vague to put the district court and the United States on notice of a venue challenge. See Carbajal, 290 F.3d at 288-89 n. 19 (holding that merely arguing that the United States did not sufficiently prove the defendant‘s guilt was inadequate to put the district court or the United States on notice that the defendant was challenging venue). We consider the challenge waived.
Even assuming arguendo that Rodriguez-Lopez did not waive his challenge, we conclude that venue was proper in the Eastern District of Texas. The United States must prove venue by a preponderance of the evidence. United States v. Thomas, 690 F.3d 358, 368 (5th Cir. 2012). Rodriguez-Lopez appears to be under the mistaken assumption that, because his actions took place in Dallas (in the Northern District of Texas), the Northern District of Texas is the only place in which venue would be proper. On the contrary, “[v]enue is proper in conspiracy offenses in any district where the agreement was formed or an overt act occurred.” Winship, 724 F.2d at 1125. Venue may be proper in districts in which conspirators “have never set foot.” Id. (citing Hyde v. United States, 225 U.S. 347 (1912), and United States v. DeLeon, 641 F.2d 330, 336 (5th Cir. 1981)). A conspirator is liable for “all acts committed by [co-conspirators] in furtherance of the conspiracy, including those acts committed without his knowledge before he joined the conspiracy.” United States v. Marionneaux, 514 F.2d 1244, 1250 (5th Cir. 1975), abrogated on other grounds by United States v. Lane, 474 U.S. 438 (1986). The United States’ evidence reflected that co-conspirator Garcia hauled drugs through Beaumont and Texarkana and that federal agents seized one of the Cavazos organization‘s cargo trucks in Tyler. All three cities are in the Eastern District of Texas. See United States v. Garcia Mendoza, 587 F.3d 682, 687 (5th Cir. 2009) (“[O]ne co-conspirator‘s travel through a judicial district in furtherance of the crime alleged establishes venue as to all co-conspirators.“). Therefore, a rational jury could conclude by a preponderance of the evidence that venue was proper in the Eastern District of Texas.
2.
Turning to the sufficiency of the evidence, we review the district court‘s denial of Rodriguez-Lopez‘s motion for acquittal de novo. United States v. Cervantes, 706 F.3d 603, 617 (5th Cir. 2013). We must affirm a conviction if, after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the
To establish Rodriguez-Lopez‘s guilt, the United States was required to prove that: (1) two or more persons agreed to distribute marijuana; (2) Rodriguez-Lopez knew of the existence of the agreement; and (3) Rodriguez-Lopez voluntarily participated in the conspiracy. See Cervantes, 706 F.3d at 617. Because the United States sought an enhanced penalty based on the amount of drugs (i.e., under
It is true, as Rodriguez-Lopez points out, that the United States “may not prove up a conspiracy merely by presenting evidence placing the defendant in a climate of activity that reeks of something foul.” United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000) (internal quotation marks omitted). But the evidence at trial reflected that Rodriguez-Lopez was involved actively in the “something foul” here; he was not an innocent bystander. To begin with, Rodriguez-Lopez lived in one of the primary stash houses. A rational jury could have believed Jesus Marquez and Cesar Morales and concluded that Rodriguez-Lopez lived in the house rent-free not out of the kindness of the Marquez brothers’ hearts but because he played a valuable role in the drug conspiracy. This role was memorialized in the drug ledgers, which reflected that Rodriguez-Lopez, or “Puma,” was personally responsible for moving at least 7,000 pounds of marijuana. Indeed, according to Jesus Marquez, Rodriguez-Lopez, as Roberto Marquez‘s “right hand” man, had his choice of marijuana to sell.7 The district court was correct to deny the motion for acquittal, and we therefore affirm the jury‘s verdict as to Rodriguez-Lopez, including its answer to the special interrogatory.
3.
Rodriguez-Lopez also challenges his sentence on the ground that the district court‘s finding that he was responsible for more than 30,000 kilograms of marijuana—more than the jury found in answering the special interrogatory—violated United States v. Booker, 543 U.S. 220 (2005). We review for plain error because Rodriguez-Lopez did not object on this ground. United States v. Arnold, 416 F.3d 349, 362 (5th Cir. 2005).
No error, plain or otherwise, under Booker and its progeny occurred here. The district court‘s finding that Rodriguez-Lopez was responsible for more than
B.
1.
We now turn to Barron‘s sufficiency challenge, which we review de novo, under Jackson, 443 U.S. 307. The United States argued at trial that Barron aided and abetted the Cavazos organization conspiracy, and the jury was instructed on that theory. To prove that Barron aided and abetted the conspiracy, the United States was required to prove that: (1) the offense of conspiracy occurred and (2) Barron associated himself with the venture, participated in it as something he wished to bring about, and sought by his action to make it succeed. United States v. McDowell, 498 F.3d 308, 313 (5th Cir. 2007); see also United States v. Segura, 122 Fed.Appx. 768, 777 (5th Cir. 2005) (upholding conviction for aiding and abetting a drug conspiracy).
Barron‘s guilt, as demonstrated at trial, was of a different sort than Rodriguez-Lopez‘s. The United States does not contend that Barron was moving, packaging, or selling marijuana for the Cavazos organization, and Barron frankly concedes that the United States “unquestionably proved the existence of a conspiracy to distribute marijuana.” Barron argues instead that the evidence of his knowledge of and participation in the conspiracy was insufficient. Barron relies heavily on the fact that the surveillance recordings (obtained via Flores) were devoid of any explicit mention of the Brookstown, Jamestown, or Charlestown houses or the Cavazos organization. Barron also observes that, according to Gomez‘s testimony, Gomez never told Barron that he was purchasing the firearms on behalf of the Cavazos organization.
We begin with Barron‘s knowledge of the conspiracy.8 Although Gomez did not testify that he invoked the Cavazos name in his dealings with Barron, a rational jury could infer that Barron was aware of Gomez‘s connection to the Cavazos organization. The evidence also demonstrated that Barron delivered the firearms to members of the Cavazos organization at the border, in accordance with his agreement with Gomez. Moreover, Barron knew that his firearms trafficking business was illegal, a fact that would allow a rational jury to conclude that Barron also knew that he was dealing with a similarly illicit organization.
Barron‘s association with and participation in the conspiracy is exemplified by the firearms transactions themselves.
The illegal nature of the firearms trafficking in which Barron was engaged also supports the jury‘s conclusion. Barron was not an unknowing seller who made a one-off sale. As we explained in United States v. Michelena-Orovio, 719 F.2d 738, 748-49 (5th Cir. 1983) (quoting United States v. Falcone, 311 U.S. 205 (1940) (evidence insufficient to support convictions of aiding and abetting a conspiracy to distill spirits where defendants knowingly supplied a large volume of sugar and yeast to illegal distillers)). But the unlawfulness of the goods themselves is “important in terms of both the seller‘s knowledge of the buyer‘s intended use, and the seller‘s intent to promote and cooperate in the illegal action.” Michelena-Orovio, 719 F.2d at 749. In light of the foregoing, and with more than sufficient evidence to establish that the overall scope of the conspiracy involved more than 1,000 kilograms of marijuana, we will not second guess the jury‘s determination that Barron was guilty of conspiring to distribute marijuana, including the finding on the special interrogatory.
2.
Barron argues that his conviction should be vacated because his right to a fair trial was compromised by the prosecutor‘s improper remarks during closing arguments. We review the district court‘s denial of Barron‘s motion for a new trial for abuse of discretion. United States v. Wyly, 193 F.3d 289, 298 (5th Cir. 1999). We apply a two-step analysis to claims of prosecutorial misconduct: First, we assess whether the prosecutor made an improper remark. If so, we determine whether the defendant was prejudiced—a “high bar.” United States v. Davis, 609 F.3d 663, 677 (5th Cir. 2010) (internal quotation marks omitted). The prejudice prong turns on whether the prosecutor‘s remarks “cast serious doubt on the correctness of the jury‘s verdict.” Id. (internal quotation marks omitted). We look to three factors in deciding whether the improper remarks “cast serious doubt“: “(1) the magnitude of the prejudicial effect of the prosecutor‘s remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.” Id. (internal quotation marks omitted).
We agree with Barron that the prosecutor‘s comments were improper. We have repeatedly chastised federal prosecutors for making improper remarks in closing arguments—for example, for “bolstering” federal agents’ credibility in closing arguments, see United States v. Aguilar, 645 F.3d 319, 324 (5th Cir. 2011) (“The prosecutor in this case, in a rapid series of comments, referred to the agents’ positions as government agents, then said it would be alarming if they were lying, they were just doing their jobs, and they strive to be ethical.“); for attacking the character
Having concluded that the remarks were improper, we must determine whether Barron was prejudiced by them. Mindful that a prosecutor‘s improper remark “carries with it the imprimatur of the Government and may induce the jury to trust the Government‘s judgment rather than its own view of the evidence,” United States v. Young, 470 U.S. 1, 18-19 (1985), we nevertheless conclude that vacating Barron‘s conviction is not warranted. We emphasize that here the district court was quick to admonish the misconduct, not only immediately sustaining defense counsel‘s objection but also verbally instructing the jury as to why the remarks were improper. The district court‘s prompt actions and curative instructions, we conclude, were therefore effective. In addition, we have already explained the strength of the evidence against Barron, a factor weighing against Barron‘s entitlement to a new trial. Accordingly, although we strongly condemn the prosecutor‘s remarks, we conclude that those remarks did not “cast serious doubt” on the verdict. See Davis, 609 F.3d at 677. The district court did not abuse its discretion in denying Barron‘s motion for a new trial.9
3.
Barron argues that the district court erred in setting his base offense level at 32 and in applying a three-level enhancement for his managerial or supervisory role in the drug conspiracy. We review the district court‘s interpretation and application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Miller, 607 F.3d 144, 147 (5th Cir. 2010). Both the determina-
Under
The three-level enhancement at issue here applies “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.”
The district court provided the following reasoning in support of its decision to apply the enhancement:
He was found guilty of the drug conspiracy. He‘s supplying guns to those who conspired with him to distribute marijuana. And if he supplied them—let‘s see, he recruited Roberto Flores to purchase firearms, then Flores turns around and recruits other people, and there are recorded conversations where Mr. Barron is talking about the people Flores recruited and how to pay the straw buyers, and that the straw buyers shouldn‘t buy too many guns at once because somebody would become suspicious.
....
The point is, he is paying Flores to recruit people to buy guns, and that assists the drug-trafficking organization.
Along similar lines, the United States argues on appeal that Barron‘s role in the Cavazos organization was significant because he “recruited Flores and others to get firearms and directed their activity.” As defense counsel pointed out at the sentencing hearing, however, there was no evidence that Barron was using Flores or
III.
We therefore AFFIRM Rodriguez-Lopez‘s conviction and sentence on Count One. We also AFFIRM Barron‘s conviction on Count One. We VACATE Barron‘s sentence on Count One and REMAND for resentencing.
Christy CARTY, Individually and as Next Friend for Bryce Carty, Justice Carty and Maddy Carty, Minors and as Representative of the Estate of Jimmy Carty Jr, Deceased, Plaintiff-Appellee, v. STATE OFFICE OF RISK MANAGEMENT, Intervenor Plaintiff-Appellant, v. Texas Department of Public Safety, Defendant.
No. 12-40750.
United States Court of Appeals, Fifth Circuit.
July 1, 2014.