UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN GILBERTO GUERRERO; APOLONIO PASTRANO, a/k/a Polo; ROBERTO ANTONIO DAVILA, a/k/a Robert Davila; FELIPE BENAVENTA GAMEZ, a/k/a Felipe Gamez; JAMES MENDIOLA, Defendants-Appellants.
No. 95-50140 No. 97-50401
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
October 22, 1997
Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:1
Appellants were convicted for conspiracy to possess with intent to distribute marijuana, as well as on substantive possession and distribution charges. We AFFIRM.
I.
Guerrero, Pastrano, Davila, Gamez, and Mendiola were charged, along with one other individual, with conspiracy to possess with intent to distribute marijuana, in violation of
While the appeal from these convictions was pending, Davila, Gamez, and Mendiola filed motions for a new trial and requested an evidentiary hearing based on newly-discovered information about Government witnesses at their trial. In mid-1997, the district court denied the motions without a hearing.
The Appellants contest their convictions and sentences on several grounds, including double jeopardy, evidentiary error, variance between the indictment and the proof at trial, and sentencing error. Finally, seeking a new trial, they charge that impeachment evidence was suppressed by the Government.
Although sentencing and the initial appeal from the convictions and sentences (No. 95-50140) dates from early 1995, oral argument was stayed in October 1996, pending the district court ruling on the new trial motion. The appeal from that ruling (No. 97-50401) was filed in mid-1997. In the interim, one issue raised in the initial appeal was resolved, as discussed below.
A.
Mendiola appeals the denial of his “Motion to Dismiss the Indictment and to Exclude the Admission of Certain Evidence Previously Used by the United States“. In a separate proceeding (No. SA-93-CR-191-1; No. 95-50177 in our court, the opinion for which was rendered the same day as this opinion), Mendiola was convicted shortly before the trial in this case of conspiring to manufacture and distribute marijuana. Prior to sentencing, some of Mendiola‘s property was seized in a civil forfeiture action against him (No. SA-93-CA-0496). Mendiola contends that both the prior criminal proceeding and the civil forfeiture action placed him in
1.
Mendiola raised the double jeopardy argument vis-a-vis the civil forfeiture action in his appeal from the prior criminal trial, and it is addressed by this court in our separate opinion in No. 95-50177 (as noted, rendered the same day as the opinion in this case). Briefly stated, in rem civil forfeitures are not “punishment” for purposes of double jeopardy analysis. United States v. Ursery, ___ U.S. ___, 116 S. Ct. 2135, 2147 (1996); United States v. Perez, 110 F.3d 265, 267 (5th Cir. 1997).
2.
Mendiola contends also that his prosecution and sentence in this case violates the
A double jeopardy claim is a question of law, reviewed de novo. United States v. Gonzales, 40 F.3d 735, 737 n.2 (5th Cir. 1994), cert. denied, 514 U.S. 1074 (1995). The Double Jeopardy Clause of the
Review of the elements of the charged offenses in the two cases reveals that they are not the “same offense” in the context of double jeopardy. Mendiola is charged in this case with three substantive charges of distribution on 10 and 17 December 1992, and 23 June 1993, and with conspiracy to possess with intent to distribute marijuana from July 1992 until 24 June 1993, in the Western and Southern Districts of Texas and in Mexico. In the other case he is charged with possession with intent to distribute on 24 June 1993, and with conspiracy to manufacture and distribute marijuana from 1 September 1992 until 24 June 1993 in the Western District of Texas. Mendiola is the only defendant common to both indictments. As the district court stated in denying Mendiola‘s motion as frivolous, the separately charged conspiracies “are two separate and distinct conspiracies involving different overt acts, different objects, different dates, different locations, and different co-conspirators.”
After a hearing, the district court found that, prior to the search, Guerrero signed a voluntary consent form, did not have any questions, and stated that he had “nothing to hide“; that there was no coercion and Guerrero was capable of making a voluntary choice and of understanding his rights; and that the search was terminated immediately when consent was withdrawn by him.
Guerrero does not contest that he voluntarily consented to the search, rather that the evidence found in the home prior to the consent-withdrawal should be suppressed because the Officers removed the items from the home after consent was terminated. Other courts have held that evidence discovered during a lawful, consensual search is not suppressed retroactively when the consent is terminated. See, e.g., United States v. Guzman, 852 F.2d 1117, 1122 (9th Cir. 1988) (“evidence found before [consent] revocation
While we have found no cases in this circuit expressly standing for this proposition, see United States v. Ho, 94 F.3d 932, 935 n.3 (5th Cir. 1996) (finding it unnecessary to reach the Seventh Circuit‘s “discovery rule“), it is consistent with our holdings in this area. In Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977), we held that an IRS Agent‘s actions, pursuant to the voluntary consent of the taxpayer, were not rendered invalid when the taxpayer later withdrew his consent. We see no significant distinctions between the facts in Mason and those in the instant case.
C.
Appellants contend that the district court erred in admitting documentary and testimonial “drug ledger” evidence. Evidentiary rulings are reviewed for abuse of discretion; and, of course, even if that is found, “the error is not reversible unless the defendant was prejudiced“. United States v. Coleman, 78 F.3d 154, 156 (5th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 230 (1996); see
1.
Under
The Government produced evidence at trial linking the Appellants to the ledgers, including the following: the ledgers were found in Appellants’ residences; ledgers seized in Guerrero‘s and Pastrano‘s homes were identified by analysts, in part, to be in their handwriting; the names “Roberto” (Davila‘s first name) and “Polo” (Pastrano is known by this name) appear on a ledger seized at Guerrero‘s residence; Figueroa testified that Pastrano kept records in a black portfolio, in which ledgers were found; and ledgers seized at Guerrero‘s and Pastrano‘s residences had interrelated calculations on them. There was sufficient evidence of authorship.
Appellants contend that the court erred in admitting the ledgers because they were not authenticated or relevant because many of them had no dates and no reference to dollars, pounds, or marijuana. The evidence already described, as well as the testimony of several Government witnesses described below, was sufficient to show that the documents were what the Government purported them to be — drug ledgers. Therefore, we find that the district court did not abuse its discretion in finding that the ledgers were authenticated, relevant, and not unfairly prejudicial. See
3.
Appellants next claim that the district court erred by allowing the testimony of Government witnesses concerning the “drug ledgers“. As they concede, they failed, however, to object to these witnesses at trial; therefore, the standard of review is plain error. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert. denied, 513 U.S. 1196 (1995). To show plain error, Appellants must show (1) error by the district court; (2) that is obvious, clear, or readily apparent; and (3) affecting substantial rights. Id. And, even then, we “possess the discretion to decline to correct errors which do not ‘seriously affect the fairness, integrity, or public reputation of judicial
Several Agents testified that, in their opinion and based on their experience, various documents were drug ledgers. Appellants have failed to show clear or obvious error by the trial court in allowing such testimony. See id.
4.
Finally, Appellants maintain that the district court erred in admitting expert testimony by an FBI Agent concerning the “drug ledgers“. They objected to that testimony on the grounds that it was not accepted in the scientific community, was inadmissible under
In determining whether to admit expert testimony, the trial court is to focus on the validity of the scientific method and the ability of the testimony to assist the trier of fact.
D.
Guerrero contends that he was unfairly prejudiced by disclosures to the jury of his prior incarceration and his being incarcerated pending trial in the instant case.
1.
The admission of extrinsic acts evidence is reviewed for abuse of discretion. United States v. McCarty, 36 F.3d 1349, 1353 (5th Cir. 1994). Such evidence is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Guerrero‘s main contention concerns the following testimony by Moises Perez, a confidential informant:
The problem was, he said to me, that the gentleman from Laredo, Mr. Juan [Guerrero], is a person who‘s already about fifty-seven years of age or older and has a lot of experience, and he doesn‘t want to [meet with a person he does not know] because it has happened to him other times because he has already been in the federal penitentiary, and he doesn‘t want any strange person, any unknown person, to go over there without him knowing him or some other person because he doesn‘t want to lose the place, the stash place where he has the marijuana.
(emphasis added). This testimony was prompted by a question about why there was a problem with a particular drug deal, not to show conformity with an extrinsic act.
Guerrero contends that he is entitled to a remand for an on-the-record articulation of the Beechum test. Guerrero‘s brief misleadingly states that Perez‘s testimony was “admitted over objection“. The record reflects that counsel made hearsay and relevance objections prior to the testimony in which the witness mentioned Guerrero‘s incarceration, but did not object when the witness actually testified. At no point did Guerrero request a Rule 404(b) finding at trial, and he is not entitled to a remand for such a finding now. See United States v. Robinson, 700 F.2d 205, 212-14 (5th Cir. 1983) (requiring “in Rule 404(b) cases an on-the-record articulation by the trial court of Beechum‘s probative value/prejudice inquiry when requested by a party“) (emphasis added).
One of Guerrero‘s contentions concerns the following question during voir dire:
Does the fact that some of the Defendants in this case are in custody awaiting trial cause anyone to believe that because they are in custody they are more likely to be guilty than innocent?
Guerrero asserts that this question deprived him of a fair trial under the
E.
Guerrero, Pastrano, Davila, and Gamez contend that there was a fatal variance between the indictment, which charged a single conspiracy, and the proof at trial, which they claim demonstrated as many as five conspiracies.2 To prevail on this issue, these Appellants must show a variance between the indictment and the proof at trial that affects their “substantial rights“. UnitedStates v. Puig-Infante, 19 F.3d 929, 935-36 (5th Cir.), cert. denied, 513 U.S. 864 (1994). Because we find that there was no variance between the indictment and the proof at trial, we do not reach whether these Appellants’ substantial rights were prejudiced.
The Government contends that this variance issue should be reviewed only for plain error because these Appellants did not request a multiple conspiracy jury instruction at trial and did not object to the jury instruction given by the court. However, these Appellants are not appealing error in the jury charge, rather that there was a fatal variance between indictment and proof. See, e.g., United States v. Gaytan, 74 F.3d 545, 552-53 (5th Cir.) (separately considering fatal variance claim and omission of multiple conspiracy instruction), cert. denied, ___ U.S. ___, 117 S. Ct. 77 (1996). These Appellants have preserved this issue for appeal because of their numerous, specific objections at trial that evidence of multiple conspiracies varied from the indictment.
The following factors are considered in determining whether a single conspiracy has been proven: (1) the existence of a common goal or purpose; (2) the nature of the scheme; and (3) overlapping participants in various dealings. United States v. Morris, 46 F.3d 410, 415 (5th Cir.), cert. denied, 515 U.S. 1150 (1995). In analyzing these factors, the court “must affirm the jury‘s finding that the [G]overnment proved a single conspiracy unless the evidence and all reasonable inferences, examined in the light most
Our court has defined “common goal” broadly. United States v. Richerson, 833 F.2d 1147, 1153 (5th Cir. 1987). The common goal of the conspiracy at issue was to have a steady supply of marijuana to sell at a profit. These Appellants contend that the evidence produced by the Government at trial showed different suppliers, purchasers, and co-conspirators. However, the evidence allows the inference that suppliers, including Guerrero, sold to middlemen, including Pastrano, Davila, and Gamez, who then sold to others for a profit. Testimony at trial identified Mendiola as a “broker” who would call Figueroa when he knew that others wanted to buy marijuana.
The second factor in determining whether there was a variance is the nature of the scheme. As stated in United States v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982):
[w]here the activities of one aspect of the scheme are necessary or advantageous to the success of another aspect of the scheme or to the overall success of the venture, where there are several parts inherent in a larger common plan, ... the existence of a single conspiracy will be inferred.
United States v. Perez, 489 F.2d 51, 62 (5th Cir. 1973) (single conspiracy exists if it “will
Again, the Government has produced sufficient evidence for the jury to find beyond a reasonable doubt that the success of the conspiracy depended on the continued participation of the defendants. They operated in different roles in the conspiracy in order to accomplish the common goal: to maintain a steady supply of marijuana to sell at a profit. The existence of other sources of supply and other purchasers does not necessarily create new conspiracies, as asserted by these Appellants; in the light of the other evidence presented, contact with these other individuals serves the goal of maintaining a constant supply of marijuana for sale. See United States v. Morris, 46 F.3d at 416.
The third factor in determining the existence of a single conspiracy is the overlapping of participants in the conspiracy. It is well-established that “[t]here is no requirement that every member must participate in every transaction to find a single conspiracy“. Richerson, 833 F.2d at 1154. The Government produced significant evidence demonstrating the interdependence between the defendants, including the following: Pastrano, Davila, Gamez, and Mendiola acquired marijuana from Metroplex on consignment; Guerrero supplied marijuana for Pastrano and Davila; on one occasion, Mendiola received a book bag containing $15,000 from a confidential informant, and Davila was observed placing in a vehicle two bags of
These Appellants could have objected to the single conspiracy jury instruction or to request a multiple conspiracy jury instruction; as noted, they did not do so. The jury, following its instructions, found Appellants guilty of the charged single conspiracy. The evidence was such that a reasonable juror could find a single conspiracy beyond a reasonable doubt.
F.
Guerrero contends that the evidence was not sufficient to allow a rational juror to convict him of the conspiracy charge. The standard of review for a sufficiency of evidence challenge is more than well-established: viewing the evidence in the light most favorable to the verdict, and accepting all of the jury‘s reasonable inferences and findings of credibility, the evidence is sufficient if a rational trier of fact could have found that it established guilt beyond a reasonable doubt. E.g., United States v. Montoya-Ortiz, 7 F.3d 1171, 1173 (5th Cir. 1993).
The Government produced a wide array of evidence showing the existence of a conspiracy, of which Guerrero was a voluntary participant, to obtain a steady supply of marijuana for sale. Unindicted co-conspirator Figueroa testified that Guerrero “was a supplier for Pastrano and Robert Davila“; and that “when he got the marijuana from Mr. Guerrero, Mr. Pastrano or Robert Davila would hand [money] to Mr. Guerrero“. Figueroa testified that Guerrero played a specific role in the transfer of drugs through Metroplex:
Q: ... What was out at Metroplex on the 22nd?
A: Was that on a Monday?
Q: Yes, sir.
A: There was [sic] 400 pounds of marijuana stored at Metroplex.
Q: Whose marijuana was that at the time?
A: That came from Juan Guerrero to Polo Pastrano.
At trial, defense counsel attempted to show that Figueroa‘s testimony was not credible because he is a cocaine addict, a five time convicted felon, and testified pursuant to a plea agreement. “It is well established that a conspiracy conviction may be based upon the uncorroborated testimony of a co-conspirator, even when that testimony is from one who has made a plea bargain with the [G]overnment, provided that the testimony is not incredible or otherwise insubstantial on its face.” United States v. Gadison, 8 F.3d 186, 190 (5th Cir. 1993). “To be considered incredible as a matter of law, a witness’ testimony must assert facts that the witness physically could not have observed or events that could not have occurred under the laws of nature.” Id. (internal quotation marks, brackets, and citation omitted). Figueroa‘s testimony, tested thoroughly during cross-examination, was not incredible.
Several items seized during the search of Guerrero‘s residence were admitted into evidence, including: a small amount of marijuana; a scanner programmed to frequencies used by the Laredo Police Department, Texas Department of Public Safety, Border Patrol, and U.S. Customs Service; an envelope with a row of numbers that was identified by an IRS Agent as a “load sheet“, which is used to calculate the total drug shipment weight; and various
Moreover, the Government produced a taped conversation on 20 March 1993 in which Pastrano stated that “the ones from [New York] ... they want twelve cars, 1,200“, to which Guerrero replied, “Well, what I‘m going to send over to you, to begin with, are about four and a half” and “I‘m having difficulties here because I don‘t have money for the people that cross and all that“. Figueroa testified that the conversation was in code and explained that Pastrano was asking for 1200 pounds of marijuana, that Guerrero would only give 450 pounds, and that there were difficulties getting the marijuana across the border. In addition, Figueroa testified that he received the 450 pounds of marijuana on the following day. As discussed, it was for the jury to determine whether this testimony was credible.
In the light of such evidence, the jury was presented with more than a sufficient evidentiary basis for its verdict as to Guerrero.
Appellants challenge their sentences under numerous bases. The statutorily defined standard of review for guidelines-based sentences requires that they be upheld unless shown to have been imposed (1) in violation of law; (2) as a result of an incorrect application of the guidelines; or (3) unreasonably outside the range of the applicable guidelines. E.g., United States v. McKinney, 53 F.3d 664, 677 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 261 (1995).
1.
First, Appellants contend that the district court erred in determining the drug amount for sentencing, asserting that the court‘s determination was based on insufficient and unreliable evidence, that it failed to make specific findings, and that it failed to make a separate drug-quantity finding for statutory enhancement sentencing.
The base offense level for drug offenses may be based on drugs with which the defendant was directly involved, under
a.
Appellants contest the calculation of the quantity of drugs attributable to them on the basis that it was not reasonably foreseeable and was based on insufficient evidence. The sentencing court‘s factual determination of the drug quantity is reviewed only for clear error. United States v. Thomas, 870 F.2d 174, 176 (5th Cir. 1989). And, the court is afforded due deference in the application of the guidelines to the facts. United States v. Parks, 924 F.2d 68, 71 (5th Cir. 1991). During sentencing, a district court may consider any relevant evidence with “sufficient indicia of reliability to support its probable accuracy“.
As discussed, there is ample evidence demonstrating that Appellants were participants in an extensive drug distribution operation, including also the following: Figueroa testified that approximately 3000 pounds of marijuana were received at Metroplex
Appellants maintain that some of the evidence used for sentencing purposes was based on the unreliable testimony of Figueroa. As addressed, supra, his testimony did not rise to the level of being “incredible“. See United States v. Gadison, 8 F.3d at 190. In addition, much of his testimony was corroborated either by drug ledgers, surveillance, or recorded telephone conversations.
Appellants contend that the drug ledgers, which were relied upon by the district court in sentencing, were unreliable. They cite United States v. Mergerson, 4 F.3d 337 (5th Cir. 1993), cert. denied, 510 U.S. 1198 (1994), which found clear error in the district court‘s finding, based on various hand-written papers, that the defendant possessed an amount of drugs. However, in Mergerson, the papers were the sole evidence supporting the drug amount. Id. Here, the district court‘s basis for the amounts, as detailed above, is supported with substantial evidence.
b.
Pastrano, Gamez, and Mendiola assert that the district court erred by failing to make sufficient findings concerning the drug quantity attributable to them. “[T]he court must make either a
The district court made a separate drug quantity finding for each Appellant. It found specifically that the drug quantity attributed to Davila, Mendiola, and Pastrano was reasonably foreseeable from their jointly undertaken criminal activity. These findings satisfy Rule 32.
c.
Pastrano, Davila, Gamez, and Mendiola assert that the court erred by including “negotiated” drug amounts in the
We find that evidence of the amounts of marijuana actually possessed by the co-conspirators in the course of the conspiracy is a sufficient basis for the district court‘s quantity findings under
2.
Pastrano claims that the district court erred in increasing his base offense level by two levels under
Pastrano contends that the Government failed to establish that the weapons seized in his residence were connected to the offense. They were found in Pastrano‘s bedroom along with drug ledgers. Evidence at trial demonstrated that Pastrano was an active participant in an extensive drug distribution operation. This evidence does not demonstrate that it is clearly improbable that the guns were linked to the marijuana conspiracy, or that the district court was clearly erroneous in so finding.
Pastrano asserts also that the phrase “unless clearly improbable” from
3.
Pastrano claims next that the court erred by enhancing his base offense level by three levels for being a manager of criminal activity involving five or more participants.
The presentence report provided sufficient findings to support the inference that Pastrano was a manager, including: the existence of a large-scale drug distribution enterprise; Pastrano‘s role as supplier of marijuana from Guerrero; and Pastrano‘s role in obtaining, negotiating, and distributing marijuana.
Mendiola asserts that the court erred in assessing an increment in his sentence for multiple offenses under
Mendiola contends that
H.
Guerrero, Pastrano, Davila, and Gamez contend that they are prejudiced by an incomplete record on appeal. The Government‘s rebuttal closing argument was not recorded due to mechanical failure, and its Notice of Intent to Use Evidence Pursuant to Rule 404(b), which the docket sheet reflects was filed, is not in the record.
These Appellants, who have different counsel on appeal than at trial, cite United States v. Neal, 27 F.3d 1035, 1044 (5th Cir. 1994) (citation and internal quotation omitted) (emphasis added), cert. denied, 513 U.S. 1179 (1995), for the proposition that, when “a criminal defendant is represented on appeal by counsel other than the attorney at trial, the absence of a substantial and significant portion of the record, even absent any showing of specific prejudice or error, is sufficient to mandate reversal“.
The rebuttal closing argument and Rule 404(b) notice does not constitute a significant portion of the record, which consists of 27 volumes and a transcript of over 2400 pages, and does not omit any portions which prejudice these Appellants’ claims.3 Accordingly, the omission is harmless error. See United States v. Selva, 559 F.2d 1303, 1306 n.5 (5th Cir. 1977);
I.
Davila, Gamez, and Mendiola also challenge the denial of their new trial motion. How this issue arose is addressed in our opinion
As a result, Appellants moved for a new trial. And, as discussed, the motion was denied without a hearing.
1.
It is claimed that the nondisclosure of the impeachment evidence violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Brady rulings are reviewed de novo. United States v. Green, 46 F.3d 461, 464 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 2629 (1995). But see United States v. Krenning, 93 F.3d 1257, 1268 (5th Cir. 1996) (standard of review for denial of new trial motion is abuse of discretion). The applicable legal standards are addressed in our opinion in No. 95-50177.
As detailed supra, there is overwhelming independent evidence of Appellants’ guilt; therefore, no Brady violation. See Kyles v. Whitley, 514 U.S. 419, 435 (1995) (reversal of nondisclosure requires “reasonable probability” that “could reasonably be taken to put the whole case in such a different light as to undermine
2.
Along this line, Appellants contend also that the Government allowed false testimony. They must demonstrate: (1) that the testimony was false; (2) that the prosecution knew it was false; and (3) that the evidence was material. United States v. Scott, 48 F.3d 1389, 1394 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 264 (1995). For the reasons stated above, the testimony was not material to the outcome of the case.
3.
Finally, Davila maintains that the district court erred in not providing an FBI investigation file concerning the Agent, which the court reviewed in camera. We review for abuse of discretion. Cf. United States v. Neal, 27 F.3d at 1049 (discovery rule issues reviewed for abuse of discretion and reversed only if substantial rights prejudiced). The district court was within its discretion in refusing to provide the report after viewing it in camera.
For the foregoing reasons, the convictions and sentences (No. 95-50140), and denial of a new trial (No. 97-50401) are
AFFIRMED.