UNITED STATES OF AMERICA, APPELLEE v. LUZ IRENE FAJARDO CAMPOS, ALSO KNOWN AS LA COMADRE, ALSO KNOWN AS JENNY CAMPOS, ALSO KNOWN AS JENNY AVILES, ALSO KNOWN AS JENCA, APPELLANT
No. 21-3051
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 16, 2025 Decided May 23, 2025
Tony Axam Jr., Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender.
Allaya Lloyd, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Kaitlin Sahni, Acting Deputy Chief, and Imani Hutty, Trial Attorney. Jonathan R. Hornok, Attorney, U.S. Department of Justice, entered an appearance.
Before: SRINIVASAN, Chief Judge, KATSAS, Circuit Judge, and ROGERS, Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge ROGERS.
ROGERS, Senior Circuit
Appellant seeks reversal on multiple grounds, including for lack of proper venue under
I.
By indictment filed in the District of Columbia on August 30, 2016, as amended January 16, 2019, appellant was charged under
Challenging her prosecution in the District of Columbia for lack of proper venue, appellant maintains the government never alleged or proved any nexus between the District of Columbia and the charged conspiracy. Cor. Appellant Br. 7-10. The evidence presented by the government to prove the violation of Section 959, she states, consisted primarily of methamphetamine transactions in Arizona and Mississippi and related government drug seizures whereas the “vast majority of the evidence consisted of discrete conversations that occurred in Mexico about transactions wholly outside the United States
“The Constitution twice safeguards the defendant‘s venue right” in
Appellant did not file a pretrial motion to challenge venue, and in moving for a judgment of аcquittal at the close of the government‘s evidence appellant did not specify a venue objection. Neither the government nor the district court had an opportunity to address appellant‘s concern and even if a venue error may not bar retrial, Smith v. United States, 599 U.S. 236, 253-54 (2023), retrials are not without costs, Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Appellant responds that the concern about proper venue “was not apparent to [her] until the close of evidence,” noting the extensive nature of the charged conspiracy. Cor. Reply Br. 3-4. Yet in moving for a judgment of acquittal at the close of the government‘s evidence, appellant did not identify any concern about venue.
The court need not decide whether an untimely
Section 3238 provides:
The trial of all offenses begun or committed . . . out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia. (Emphasis added.)
The italicized text indicates Section 3238 applies here. Recounting the history of Section 3238, known colloquially as the “‘high seas’ venue statute” and originating in the
Section 959(c) provided during the period of the charged conspiracy: “Any person who violates this section shall be tried in the United States district court at the point of entry where such person enters the United States, or in the United States District Court for the District of Columbia.”
In United States v. Thompson, 921 F.3d 263, 265, 266 n.1, 267 (D.C. Cir. 2019), the court held that the crime of conspiracy under
To the extent appellant objects that venue does not lie in the District of Columbia because part of the conspiracy was committed in Arizona and in Mississippi and no part was committed in the District of Columbia, her reasoning is flawеd. At common law, the crime of conspiracy takes place upon the formation of the conspiracy agreement; no overt act is required. Whitfield v. United States, 543 U.S. 209, 213-14 (2005); Appellee Br. 24. Consistent with that rule, a Section 963 conspiracy is complete at the moment of the agreement. United States v. Mejia, 448 F.3d 436, 445 (D.C. Cir. 2006). Appellant‘s reliance on United States v. Cobar, Crim. No. 05-451, 2006 WL 3289267, at *5 (D.D.C. Nov. 9, 2006), is misplaced because Section 3238 did not support venue in the District of Columbia where one defendant had formed a conspiracy abroad while another had been first indicted within the United States. Here, neither party disputes that the charged conspiracy began outside the United States, and appellant was not charged in any other district. Appellant‘s objection that Section 3238 can provide no basis for venue in the District of Columbia because the government failed to prove where the conspiracy began is forfeited, having been raised only in the reply brief. Cor. Reply Br. 9; see Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008). In any event, overt acts by co-conspirators in one district do not necessarily render venue improper in another district or in the District of Columbia. See Miller, 808 F.3d at 619-20 & n.10 (applying two-part test of United States v. Rodriguez-Moreno, 526 U.S. 275 (1999), and citing cases from the Third, Fourth, and Fifth Circuits).
In United States v. Gurr, 471 F.3d 144, 155 (D.C. Cir. 2006), the court held venue in the District of Columbia was proper under Section 3238 where Gurr “was not arrested or ‘first brought’ into the United States until after he had been indicted in the District of Columbia.” (citations omitted). Appellant, too, was not arrested or “first brought” into the United States until after she had been indicted in the District of Columbia on August 30, 2016. Because appellant has not shown venue for her trial was plainly erroneous, and thus unconstitutional for lack of proper venue, the court has no occasion to consider whether venue would have been proper under Section 959(c).
Finally, appellant‘s constitutional challenge to venue based on an asserted lack of any connection between her conspiracy offense and the District of Columbia fails. Because that offense was committed outside of the United States, Congress could provide for venue in the District of Columbia,
II.
Appellant contends the government failed to prove a single conspiracy as charged in the indictment because the evidence “showed numerous separate transactions and agreеments with diverse objectives,” such as distributing methamphetamine in the United States, manufacturing methamphetamine in Mexico, or distributing cocaine in Mexico and Latin America. Cor. Appellant Br. 15-16. Additionally, none of these transactions “involved overlapping participants working in integrated capacities toward a common goal.” Id. at 16. Further, appellant maintains, the variance between the indictment charging a “single, overarching methamphetamine and cocaine importation conspiracy and the evidence of multiple separate conspiracies presented at trial” was “fatally prejudicial.” Id. at 25. Appellant suggests a risk of a “spillover” effect of other crimes evidence frоm multiple separate transactions, id. at 28-33, and claims the failure of the jury instructions to address multiple conspiracies increased the likelihood of a non-unanimous verdict, id. at 33-37.
For purposes of determining whether there was a single conspiracy, the court must “ask whether the participants” (1) “shared a common goal,” (2) “were involved together in carrying out at least some parts of the plan,” and (3)
The government introduced evidence at trial that included: (1) the testimony of cooperating witnesses and a “confidential source” about appellant‘s central role in planning and coordinating the sale and transport of drugs and precursor chemicals, Trial Tr. 584-635 (Dec. 12, 2019); Trial Tr. 772-86, 827-41 (Dec. 13, 2019); (2) the testimony of law enforcement officers, including a DEA expert on the means and methods commonly used by drug traffickers to transport drugs, the street valuе, and the meaning of specialized terms used in speaking about the drugs and related plans with co-conspirators, Trial Tr. 1159, 1161-68, 1170-71, 1182-96 (Dec. 17, 2019); (3) “BlackBerry” messages between appellant and co-conspirators (identified by aliases) discussing drug purchases and transport, id. at 1182-96; (4) telephone calls between appellant and cooperating witnesses about drug transactions in Arizona and Mississippi, Trial Tr. 762-63, 783-86, 832-41 (Dec. 13, 2019); (5) emails: some with photographs and specifications for private aircraft to transport drugs from South America to Mexico; other emails regarding precursor chemicals used to manufacture methamphetamine; and emails with attached invoices and bills of lading for large amounts of precursor chemicаls, Trial Tr. 1070-80 (Dec. 16, 2019); and (6) photographs of drugs seized over multiple years of the conspiracy, Trial Tr. 730-31, 815-16 (Dec. 13, 2019), and of large quantities of drugs or precursor chemicals sent or received by appellant and the co-conspirators, Trial Tr. 1028, 1032, 1034-1036, 1074-75 (Dec. 16, 2019).
Juan Antonio Erbe-Fabela (“Fabela“) pulled it all together for the government. He testified that before becoming a “confidential source” for the DEA and adviser on drug trafficking to the Mexican Attorney General‘s Office, he “perform[ed] favors” for the Sinaloa Cartel, which was a “unification of several different drug trafficking groups” operating on the western side of Mexico. Trial Tr. 573-77 (Dec. 12, 2019). He confirmed that appellant was the “female face of the Sinaloa Cartel.” Id. at 658-59. Toward the end of 2011, appellant met with him about obtaining favors from the Mexican Attorney General for the Sinaloa Cartel, and by 2012 he and appellant were exchanging 20 to 30 BlackBerry messages a day and meeting in person “almost every day” she was in Mexico City. Id. at 581-86.
Fabela‘s testimony described appellant‘s central role in planning and coordinating conspirators in the sale and transport of drugs and precursor chemicals, her use of private pilots and purchase of an airplane to transport drugs, and ways she used to protect and move her drugs, including bribing officers at the Mexico City International Airport. His description of appellant‘s drug operations closely tracked the description by the DEA expert of the methods commonly used in drug trafficking such as using family members in
Fabela testified that appellant used commercial aircraft as well to transport an estimated 1,200 to 1,400 kilograms of cocaine through the Mexico City International Airport in a six-month period starting in 2013. Fabela also testified that appellant constructed a laboratory in Hermosillo, Mexico, to produce methamphetamine, where her children handled the day-to-day operations, and she arranged for precursor chemicals to methamphetamine to be transported through Mexicаn ports.
More particularly, the jury could reasonably find beyond a reasonable doubt:
1. Appellant, much like the “higher ups” in the drug distribution network in Lopesierra-Gutierrez, 708 F.3d at 207, was the “main conspirator” who organized, brokered, and coordinated the charged drug trafficking operations and “work[ed] with all the participants” for the purpose of importing drugs for profit through her drug distribution network. Fabela testified that appellant, as the female face of a major drug cartel, organized the importation of cocaine from South and Central America into Mexico by bribing the federal police in Mexico and hiring pilots of private planes to transport the drugs. Trial Tr. 599-612 (Dec. 12, 2019). In BlackBerry messages appellant told Fabela to contaсt officials “in a command position of the government at the airport to get permission” to import cocaine. Id. at 601. Appellant began branding her cocaine with her alias, “Jenca.” Trial Tr. 1022-23 (Dec. 16, 2019); Trial Tr. 1183 (Dec. 17, 2019). Fabela also testified that appellant “buil[t]” the methamphetamine laboratory in Mexico, Trial Tr. 626-33 (Dec. 12, 2019), and BlackBerry messages with one of her children indicated her role in pricing the drug and in buying and coordinating delivery of chemicals to manufacture it, Trial Tr. 1041-43 (Dec. 16, 2019); Trial Tr. 1130 (Dec. 17, 2019). Fabela confirmed as well that appellant had “comment[ed]” about “sending her drugs to the United States,” and told him that she had distribution offices in Chicago, Philadelphia, Atlanta, and Miami. Trial Tr. 635 (Dec. 12, 2019). BlackBerry messages showed appеllant contacted persons using aliases (“Pak-Man,” “Jaen,” “Doroteo,” “ArleeS,” and “.tony (260001EE)“) about sending drugs into the United States including in Boston, Houston, Dallas, and New York, and to Canada.
From this evidence the jury could reasonably find that the drug transactions involved cocaine and methamphetamine, and that the individuals involved “had an interest in furthering the distribution of [the drugs]” for profit through appellant‘s drug trafficking operations, which, in turn, showed that they “shared a common goal with the other participants.” United States v. Portela, 167 F.3d 687, 695 (1st Cir. 1999). Although some of the drugs appellant distributed were not bound for the United States, that alone “fails to demonstrate the existence of multiple conspiracies.” Lopesierra-Gutierrez, 708 F.3d at 207.
2. There was overlap among the co-conspirators. Appellant participated either directly or indirectly in the transactions about which Fabela and other witnesses testified and she discussed in BlackBerry messages. See United States v. Mathis, 216 F.3d 18, 23-24 (D.C. Cir. 2000). Some participants may not have known each other, Cor. Appellant Br. 17, but “there is no requirement that each conspirator know the identity of every other conspirator” provided they know of the larger conspiracy and need for other participants. United States v. Jenkins, 928 F.2d 1175, 1178 (D.C. Cir. 1991). Indeed,
3. Appellant and the co-conspirators were interdependent because “each defendant‘s actions ‘facilitate the endeavors of other alleged co-conspirators or facilitate the venture as a whole.‘” United States ex rel. Miller v. Bill Harbert Int‘l Constr., Inc., 608 F.3d 871, 900 (D.C. Cir. 2010) (internal citation omitted). Interdependence exists where there is “evidence that [a defendant] engaged in an interlocking web of drug transactions geared toward the common purpose of possession and distribution of narcotics for profit with other key players.” United States v. McGill, 815 F.3d 846, 929 (D.C. Cir. 2016). When, as here, “there is advanced planning among the alleged co-conspirators to deal in wholesale quantities of drugs obviously not intended for personal use,” participants in the transactions “may be presumed to know that they are part of a broader conspiracy.” United States v. Medina, 944 F.2d 60, 65-66 (2d Cir. 1991); see United States v. Dickey, 736 F.2d 571, 582-83 (10th Cir. 1984). The duration and regularity of dealings, as here, also distinguishes a conspiracy from ad hoc buyer-seller transactions by supporting the inference that co-conspirators knew they were part of a larger distribution network. See McGill, 815 F.3d at 929; United States v. Baugham, 449 F.3d 167, 171-72 (D.C. Cir. 2006); United States v. Edwards, 945 F.2d 1387, 1393 (7th Cir. 1991).
The government‘s evidence - including BlackBerry messages about large shipments of drugs and emails with attached invoices and bills of lading for wholesale quantities of precursor chemicals - showed multiple agreements to purchase large quantities of chemicals to manufacture methamphetamine, and agreements between appellant and persons using aliases (“tapino” and “Doroteo“) for sale, purchase, and transport of large quantities of drugs, including cocaine, to be imported into the United States and elsewhere. From this evidence the jury reasonably could find that “the [participants] knew or must have known that others unknown to them were sharing in so large a project . . . [even if] they did not know” their identities or roles. Blumenthal v. United States, 332 U.S. 539, 558 (1947).
Appellant counters that the government “attempted to prove a chain conspiracy,” Cor. Appellant Br. 26, but alleged appellant “was at the center of a single conspiracy that resembled a hub with many spokes of a wheel” without showing a “rim” enclosing the “spokes,” id. at 16. The hub-and-spoke metaphor does not apply to all conspiracies, including drug conspiracies, Tarantino, 846 F.2d at 1392, and the court need not decide whether the government alleged appellant headed a chain or hub-and-spoke conspiracy. The jury found appellant was responsible for 5 kilograms or more of cocaine and 500 grams or more of methamphetamine, as specified in the indictment. A special verdict form (Dec. 18, 2019) showed the jury found appellant guilty of a “[c]onspiracy to distribute cocaine, intending or knowing that it would be imported into the United States” and guilty of a “[c]onspiracy to distribute and/or manufacture methamphetamine, intending or knowing” the same. “[W]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” Griffin v. United States, 502 U.S. 46, 56-57 (1991) (quoting Turner v. United States, 396 U.S. 398, 420 (1970)). Here, the government presented evidence from which the jury could reasonably find beyond a reasonable doubt the key elements of a single conspiracy - by reason of evidence of a common goal, overlap of participants, and interdependence.
III.
To succeed on an ineffective assistance of counsel claim under the
Appellant contends that trial counsel‘s failure to request instructions requiring the jury to determine whether the government proved the single conspiracy charged in the indictment rather than multiple conspiracies seriously prejudiced her. Cor. Appellant Br. 39. “The question is whether an аttorney‘s representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011). Defense counsel argued to the jury that appellant was a “mother and a grandmother” who willingly came to the United States for trial because she knew she was innocent. Trial Tr. 548 (Dec. 11, 2019). Counsel attacked the credibility of the government‘s cooperating witnesses by emphasizing that they had “a history of criminality and a history of lying.” Id. at 544. Counsel also argued to the jury that the government had failed to connect appellant with any conspiracy because there was no evidence such as photographs or video showing appellant ever met with any of the “cooperators.” Trial Tr. 1325 (Dec. 18, 2019).
Under the circumstances, the record clearly demonstrates that “[d]efense counsel reasonably could have concluded that the strength of [appellant‘s] claim to innocence would have been dissipated by arguing to the jury that [appellant] was part of a conspiracy to distribute [drugs], but . . . was not part of the conspiracy charged in the indictment.” United States v. Driver, 798 F.2d 248, 255 (7th Cir. 1986). Appellant‘s position that “[t]here was no strategic reason for counsel‘s failure,” Cor. Appellant Br. 41, is mistaken. Consequently, because counsel‘s failure to request instructions did not fall “below an objective standard of reasonableness,” appellant has not met the first prong under Strickland and her
IV.
Appellant challenges her sentence on the grounds that the district court erred in applying the Sentencing Guidelines by: (1) holding her responsible for 3,000 kilograms
The court reviews legal questions de novo, United States v. Cook, 594 F.3d 883, 886 (D.C. Cir. 2010), and the court reviews a timely objection to sentencing decisions for abuse of discretion, United States v. Iracks, 106 F.4th 61, 66 (D.C. Cir. 2024); see Holguin-Hernandez v. United States, 589 U.S. 169, 173 (2020). “That review, while deferential, looks for ‘significant procedural error,’ ‘clearly erronеous’ factual findings, or a sentence that is substantively unreasonable.” United States v. Gonzalez-Valencia, 133 F.4th 1072, 1076 (D.C. Cir. 2025) (internal citation omitted). Where no objection is raised at sentencing, court review is confined to plain error, and it will vacate a sentence “only if it impinges upon the defendant‘s substantial rights in a way that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” United States v. Mack, 841 F.3d 514, 525, 526 (D.C. Cir. 2016) (internal quotations and citations omitted). “An error is plain if the district court contravened an opinion by this circuit or the Supreme Court on the issue, or some other absolutely clear legal norm.” Gonzalez-Valencia, 133 F.4th at 1077 (internal quotations and citations omitted). “In the special context of sentencing,” this court has long acknowledged that the plain error prejudice requirement is “less exacting than it is in the context of trial errors.” United States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994). Virtually the same standards of review apply to review of an order of forfeiture. United States v. Bikundi, 926 F.3d 761, 792 (D.C. Cir. 2019); United States v. Wheeler, 753 F.3d 200, 210 (D.C. Cir. 2014).
(1) Appellant did not object to the drug weight calculation in the presentence report or to the district court‘s base offense level determination, which was governed by the quantity of drugs attributed to appellant. Cor. Appellant Br. 48-51. In view of the trial evidence, appellant‘s counsel chose not to object. Sent. Tr. 9 (July 27, 2021). Appellant‘s drug weight quantity objection is waived. United States v. Laslie, 716 F.3d 612, 615 (D.C. Cir. 2013).
(2) Appellant maintains enhancement under
The Guideline refers to a private plane “used to import . . . the controlled substance.” Three circuit courts of appeals have concluded application of this enhancement does not require proof of conviction of the substantive offense of the conspiracy, United States v. Flores, 945 F.3d 687, 722-26 (2d Cir. 2019); United States v. Rendon, 354 F.3d 1320, 1329-30 (11th Cir. 2003); United States v. Rodriguez, 215 F.3d 110, 124 (1st Cir. 2000), and the Eleventh Circuit concluded the Guideline does not require a private plane be used on the last leg of a drug‘s journey, see United States v. Iacullo, 140 F. App‘x 94, 102 (11th Cir. 2005). Only the Ninth Circuit has focused on the past tense “used to import” to conclude this enhancement only applied when a private plane was used
during the last leg of the journey to bring the drugs across the border into the United States. United States v. Joelson, 7 F.3d 174, 179-80 (9th Cir. 1993), cert. denied, 510 U.S. 1019 (1993), and the Second and the Eleventh Circuits have rejected that approach, Flores, 945 F.3d at 722, 726-27; Iacullo, 140 F. App‘x at 102. The Sentencing Commission amended the existing Guidelines, as relevant, to “clarif[y] and simplif[y] the guideline provisions dealing with attempts and conspiracies in drug cases.” Guidelines Appendix C, Vol. I, Amendment 447, at 324 (eff. Nov. 1, 1992).
The Second Circuit rejected the Ninth Circuit‘s interpretation of the Guideline and understood the Sentencing Commission to make no substantive change in Amendment 447. Flores, 945 F.3d at 725. That circuit‘s thorough analysis offers persuasive reason to conclude that the district court did not err by failing to limit application of the enhancement to the last leg of the drugs’ journey into the United States. Even assuming error, the error was harmless. The district court stated, on the record at sentencing, that appellant‘s offense level would still be 43 or above and her sentence would be life imprisonment even without one or two of the sentencing enhancements. Sent. Tr. 45. The government points out, moreover, a court may apply a two-level increase under
(3) The district court did not clearly err in applying a bribery enhancement under
(4) Neither did the district court clearly err in applying the drug-premises enhancement under
(5) Nor did the district court clearly err in applying a leadership role enhancement under
Finally, appellant contends that the order requiring forfeiture of $18,000,000 must be reversed as a matter of law. Cor. Appellant Br. 63-66. She maintains that she is being held accountable for drug proceeds she never “actually acquired,” and that the district court clearly erred in concluding she obtained $18,000,000 from the drug conspiracy during the six-month period in 2013 on which the district court relied. Id. at 64-66. At sentencing appellant objected to forfeiture “on principle” because she did not have the money. Sent. Tr. 81. On appeal, she objects that she had not “actually acquired” the money forfeited. Cor. Appellant Br. 64-66.
A person convicted of conspiracy under
The district court found that appellant obtained $18,000,000 “directly and some part indirectly” from persons under her control based on the volume of cocaine brought through the Mexico City International Airport in suitcases. Sent. Tr. 82. Fabela testified that appellant had the Mexican federal police “working with her,” had Fabela “accompany her bodyguard” at the airport so that “everything turned out
Accordingly, the court affirms the judgment of conviction.