UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAMES MENDIOLA; ELSA MENDIOLA; JOSE L. CRUZ, Defendants-Appellants.
Nos. 95-50177, 97-50393 and 97-50407
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
October 21, 1997
Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.
Appeal from the United States District Court for the Western District of Texas (SA-93-CR-191)
James and Elsa Mendiola were convicted for conspiracy to manufacture and distribute marijuana; and, together with Jose Luis Cruz, for possession of marijuana with intent to distribute. We AFFIRM Nos. 95-50177 and 97-50407; DISMISS No. 97-50393.
I.
Between September 1992 and mid-1993, James Mendiola, Jerry Wolf and Francisco Figueroa (later, a key Government witness)
The Mendiolas, Cruz, and Wolf were charged with conspiracy to manufacture marijuana with intent to distribute, in violation of
In mid-1997, a new trial was denied the Mendiolas and Cruz.
II.
A.
The denial of Cruz‘s motion to sever is reviewed only for abuse of discretion. See Zafiro v. United States, 506 U.S. 534, 541 (1993); United States v. Arzola-Amaya, 867 F.2d 1504, 1516 (5th Cir.), cert. denied, 493 U.S. 933 (1989). For “conspiracy cases, the general rule is that persons indicted together should be tried together.” United States v. Fields, 72 F.3d 1200, 1215 (5th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 48 (1996). “Severance is a matter left to the sound discretion of the trial court, and a defendant is not entitled to severance unless he can demonstrate specific compelling prejudice that actually results in his having received an unfair trial.” United States v. Capote-Capote, 946 F.2d 1100, 1104 (5th Cir. 1991), cert. denied, 504 U.S. 942 (1992); see
Cruz contends that, as a result of the denial of his motion, inadmissible hearsay statements were admitted against him. It is difficult to determine from his brief exactly which statements he complains of, but they are apparently the telephonic intercepts of the co-defendants, which were admitted over his objection. He additionally appears to contend that, in relation to the denial of a severance and the admission of the intercepts, he was denied his Sixth Amendment right to confront the witnesses against him.
Along this line, Cruz maintains that, aside from the intercepts, there is little independent evidence implicating him for possession with intent to distribute. We disagree. In any event, a difference in the amount of evidence “is clearly insufficient in itself to justify severance.” United States v. Harrelson, 754 F.2d 1153, 1175 (5th Cir.), cert. denied, 474 U.S. 1034 (1985).
Cruz‘s Sixth Amendment contention is also without merit. Severance is proper in such cases only where a defendant‘s statement directly incriminates his or her co-defendants without reference to other, admissible evidence. United States v. Beaumont, 972 F.2d 91, 95 (5th Cir. 1992). The statements of the co-defendants, which Cruz does not identify with any specificity, did not directly incriminate Cruz without reference to other
Accordingly, Cruz does not demonstrate the requisite unfair trial. Indeed, the jury found the Mendiolas guilty, but acquitted Cruz, on the conspiracy charge, reflecting that it considered the evidence separately as to each Appellant.
B.
The Mendiolas base their double jeopardy claim on the civil forfeiture proceeding concerning their home, restaurant, and other assets. As held fairly recently, an in rem civil forfeiture is not a “punishment” subject to the Double Jeopardy Clause. United States v. Ursery, ___ U.S. ___, 116 S. Ct. 2135, 2147 (1996). Instead, the proceeding is “a remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines, and does not constitute a punishment under the Double Jeopardy Clause.” Id. at 2142. In the light of Ursery, “[i]n rem civil forfeitures do not constitute ‘punishment’ for purposes of the Double Jeopardy Clause, but operate, merely to ‘confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct.‘” United States v. Perez, 110 F.3d 265, 267 (5th Cir. 1997).
C.
Testimony by Diane Reyes, a friend of Elsa Mendiola‘s sister, Mari Gaona, was admitted pursuant to
The admission of Rule 801(d)(2)(E) evidence is reviewed for abuse of discretion. United States v. Triplett, 922 F.2d 1174, 1181 (5th Cir.), cert. denied, 500 U.S. 945 (1991). And, even if an abuse of discretion is found, the harmless error doctrine is applied. United States v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996). Determinations that the statements were made by a co-conspirator and in furtherance of the conspiracy are reviewed only for clear error. United States v. Stephens, 964 F.2d 424, 434 (5th Cir. 1992). Needless to say, “[w]here there are two permissible views of the evidence, the factfinder‘s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 574 (1985).
The Mendiolas contend that Reyes’ testimony about Gaona‘s statements should not have been admitted because there is no independent evidence of a concert of action between them and Gaona.
At trial, Appellants objected on several grounds, including that, as an unindicted co-conspirator, the statements made by Gaona were inadmissible. Counsel for Cruz objected on the basis that Reyes’ testimony had nothing to do with Cruz. After lengthy argument, the district court overruled all objections and determined later that the Government had shown by a preponderance of the evidence that a conspiracy existed, that the defendants against whom the statements were offered were members of the conspiracy, and that the statements were made in furtherance of that conspiracy.
“Statements made by a non-testifying co-conspirator are admissible against the defendant if there is ‘independent evidence of a concert of action’ in which the defendant was a participant.” United States v. Asibor, 109 F.3d 1023, 1033 (5th Cir.), cert.
As noted, the Government‘s burden is to establish by a preponderance of the evidence that the declarant (Gaona) and the defendants were involved in a conspiracy and that the statements were made during, and in furtherance of, the conspiracy. Bourjaily, 483 U.S. at 175. As also noted, Appellants contend there was no evidence they entered into a conspiracy with Gaona, and that the Government failed to prove that she was a member of the conspiracy for which the Mendiolas were convicted. This
As noted, Cruz contends also that there was no evidence that he was involved in a conspiracy with Reyes, and that the statements made by Reyes were not made in furtherance of a conspiracy involving her and Cruz. But, the focus concerning a Rule 801(d)(2)(E) admission is on the declarant, Gaona, not Reyes.
D.
The Mendiolas challenge the sufficiency of the evidence on conspiracy and, with Cruz, on possession with intent to distribute. For such challenges, the evidence is viewed in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the jury; and, it is sufficient if a rational juror 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). Toward that end, “[i]t is not necessary that the evidence exclude every reasonable hypothesis of
As noted, concerning the insufficiency claims as to both charges, a key Government witness was Figueroa. Figueroa, who was also a key player in the operation, engaged in a marijuana growing and dealing relationship with James Mendiola and Wolf. He testified that he had a drug dealing relationship with James Mendiola; that Wolf oversaw the growing operation; that the marijuana began growing at the Mendiola residence and was then transferred to the Rocksprings ranch; and that Cruz was a laborer in charge of caring for the plants. James Mendiola also showed him marijuana that was growing. Figueroa testified also that, once the marijuana was transferred from the residence to the ranch, James Mendiola would go to the ranch to make sure the plants were perfect; that Cruz lived both at the Mendiola residence and at the Rocksprings ranch; and that Elsa Mendiola was aware of the growing operation, because she witnessed the loading of marijuana on a truck.
1.
“To establish a conspiracy under
Approximately 450 marijuana plants were found growing at the Mendiolas’ residence, with over 300 plants found growing at the Rocksprings ranch. Also, the Mendiolas were overheard in numerous intercepted telephone calls discussing marijuana purchases and deliveries in coded language.
James Mendiola was a leader and organizer of the grow operation. Moreover, an undercover FBI Agent testified that James Mendiola informed him that he grew seedless marijuana and offered to sell it to the Agent.
In addition, as noted, Elsa Mendiola was present when a shipment of marijuana was loaded aboard a truck; and, as also noted, she used code in discussing drugs on the telephone, and, sold marijuana to her sister, Gaona, for distribution in Austin (the sister discussed in part II. C. supra).
2.
Under
Along this line, the elements for aiding and abetting a criminal offense, in violation of
Approximately 450 plants were seized at the Mendiolas’ residence; approximately 315, at the Rocksprings ranch. Additionally, there was evidence regarding the premium price and high quality of the seedless marijuana being grown by the Mendiolas; that James Mendiola actively offered to sell marijuana; that Elsa Mendiola witnessed loading marijuana shipments; that she was engaged in a distribution scheme with her sister in Austin; that Cruz tended and cared for the marijuana at the Rocksprings ranch; and that he was seen at the ranch the majority of the time (indeed, he was the only person there when the search was conducted). There was also testimony that, when Cruz was not working at the ranch, he lived at the Mendiola residence. And, a money order receipt and an emergency notification card bearing Cruz‘s name and the address for the Mendiolas’ residence were found at that residence.
The jury could reasonably find, beyond a reasonable doubt, that the Mendiolas and Cruz possessed marijuana with intent to distribute.
E.
A sentence will be upheld “unless it was imposed in violation of law; imposed as a result of an incorrect application of the
1.
Appellants contend that the court erred in calculating their offense level based upon a finding that there were 771 marijuana plants at the residence and ranch. We accept such sentencing findings unless they are clearly erroneous. E.g., United States v. Sotelo, 97 F.3d 782, 799 (5th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 620 (1996); United States v. Robins, 978 F.2d 881, 889 (5th Cir. 1992); United States v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989). And, due deference is given to the district court‘s application of the Sentencing Guidelines to those findings. Id. Robins, 978 F.2d at 889.
Moreover, “a presentence report generally bears sufficient indicia of reliability to be considered as evidence by the trial court in making factual determinations required by the Guidelines.” Robins, 978 F.2d at 889. And, the district court is well within its province “to rely on a presentence report‘s construction of evidence to resolve a factual dispute, rather than relying on the defendant‘s version of the facts.” Id. (internal citations and quotations omitted).
During oral argument for this appeal, counsel for James Mendiola contended that an FBI Special Agent simply “guessed” during sentencing at the number of plants seized at the residence. However, the Agent testified at trial that 455 plants were seized at that site. Based on our review of the record, we cannot say that the plant quantity finding was clearly erroneous.
2.
Cruz contends that the district court erred by including the plants seized at the Mendiola residence in calculating his base offense level. But, the court had the discretion to consider amounts that were part of a common plan or scheme to distribute. United States v. Ponce, 917 F.2d 841, 844 (5th Cir. 1990) (per curiam), cert. denied, 499 U.S. 940 (1991); United States v. Sarasti, 869 F.2d 805, 806 (5th Cir. 1989). Moreover, under the Guidelines, the court may consider as relevant conduct occurrences which did not result in a conviction in determining the actual
3.
While this appeal was pending, Guidelines § 2D1.1(c) was amended by replacing the one kilogram per plant ratio with an instruction to base the sentence upon the greater of the actual weight of the usable marijuana, or 100 grams per plant. See U.S.S.G. App. C, Amendment 516 (Nov. 1, 1995) (amending the notes and commentary to U.S.S.G. § 2D1.1). This amendment may be applied retroactively by the district court. United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997). Appellants contend, and the Government concedes, that the amendment may affect their sentences.
A motion pursuant to
4.
Appellants maintain that the district court erred in applying Guideline § 2D1.1(b)(1) (increase offense level by two for possession of dangerous weapon) because the seized-firearms were neither possessed during, nor connected to, the commission of any offense. The increase should be given if a weapon was present, unless it is clearly improbable that it was connected to the offense. United States v. Sparks, 2 F.3d 574, 587 (5th Cir. 1993) (citing § 2D1.1, comment. (n.3)), cert. denied, 510 U.S. 1056 (1994). In this regard, the analysis of the term “use” of a weapon in Bailey v. United States, ___ U.S. ___, 116 S. Ct. 501 (1995), was limited to
The evidence established that four handguns, including one found in a briefcase used by Elsa Mendiola, and one shotgun were found at the Mendiolas’ residence, where 455 plants were found. Additionally, a shotgun and one rifle were found at the ranch, where 316 plants were found.
F.
While their convictions and sentences were on appeal, Appellants obtained information relating to Moises Perez, an FBI informant and witness, and relating to a Special Agent, who also testified. The Government dismissed charges in an unrelated case in which Perez was to be a witness because they allegedly had lost confidence in him.
The information revealed that Perez had entered a plea of no contest to the offense of organized crime in Texas state court, which was never given to Appellants prior to trial and that, consequently, Perez may have testified falsely at their trial. Additionally, information that the Special Agent had been investigated by the FBI‘s Office of Professional Responsibility was never revealed.
Impeachment evidence, which is primarily at issue here, is covered by the disclosure requirements of Brady v. Maryland, 373 U.S. 83 (1963). See Wilson v. Whitley, 28 F.3d 433, 435 (5th Cir. 1994), cert. denied, 513 U.S. 1091 (1995) (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). The Court has held: “When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within [Brady‘s] general rule.” Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). Brady rulings are reviewed de novo. United States v. Green, 46 F.3d 461, 464 (5th Cir.), cert. denied, 515 U.S. 1167 (1995).
The challenge at hand focuses on withheld impeachment evidence regarding Perez and the Special Agent. “In assessing the materiality of undisclosed impeachment evidence, ‘we must consider the nature of the impeachment evidence improperly withheld and the additional evidence of the defendant‘s guilt independent of the disputed testimony.‘” Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir. 1994) (quoting United States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir. 1989)) cert. denied, 513 U.S. 1091 (1995). There is overwhelming evidence of the Mendiolas’ guilt, independent of the evidence in issue that could be obtained from Perez or the Special Agent. Consequently, there is no Brady violation; a new trial was properly denied. (In connection with his new trial motion, James Mendiola sought the disqualification of the Assistant United States Attorney who tried the case. Obviously, there being no error regarding the new trial denial, we do not reach this issue.)