UNITED STATES of America, Plaintiff-Appellee, v. Rosalinda MIRANDA, Abel Espinoza, Rigoberto Rodriguez, also know as Rigo, Oscar Rodriguez, Hector Espinoza, also known as Toro, Defendants-Appellants.
No. 98-11183.
United States Court of Appeals, Fifth Circuit.
April 17, 2001.
248 F.3d 434
AFFIRMED.
Christopher Michael McCaffrey (argued), Law Offices of Christopher McCaffrey, Dallas, TX, for Miranda.
Jerry V. Beard (argued), Lubbock, TX, for Abel Espinoza.
Jose Alwin Stewart (argued), Dallas, TX, for Rigoberto Rodriguez.
James Gray Jamison (argued), Dallas, TX, for Oscar Rodriguez.
Richard Joseph Deaguero (argued), Dallas, TX, for Hector Espinoza.
Before KING, Chief Judge, and REYNALDO G. GARZA and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Rosalinda Miranda, Abel Espinoza, Rigoberto Rodriguez, Oscar Rodriguez, and Hector Espinoza appeal their convictions and sentences for drug related offenses. We affirm all the convictions, affirm the sentences of Rosalinda Miranda, Abel Espinoza, Rigoberto Rodriguez, and Hector Espinoza, vacate Oscar Rodriguez‘s sentence, and remand his case for resentencing.
FACTS AND PROCEDURAL HISTORY
A large-scale investigation by the Federal Bureau of Investigation (FBI) and the Dallas Police Department into the distribution of cocaine and marijuana in the Dallas, Texas area led to a nineteen-count federal indictment against twenty-one individuals. The indictment alleged, in pertinent part, that from May 1996 until June 1997, Appellants (1) conspired to possess with the intent to distribute marijuana, cocaine, and cocaine base, in violation of
Appellants were jointly tried, along with Roberto Garcia, in July 1998. After a two-and-a-half-week trial, the jury returned a verdict acquitting Garcia and finding the remaining defendants (Appellants) guilty on all counts. The district court overruled Appellants’ objections to the Pre-Sentence Investigation Reports (“PSRs“) prepared by the United States Probation Office, adopted the PSRs’ findings and sentencing recommendations and sentenced Appellants as follows:
| Defendant | Off.Level/ Crim.Hist | U.S.S.G.Range | Count:Sentence |
|---|---|---|---|
| Rosalinda Miranda | 41/I | 324-405 | 1: 364 months 18: 48 months |
| Abel Espinoza | 38/1 | 235-293 | 1: 235 months 11: 48 months 14: 48 months |
| Rigoberto Rodriguez | 38/1 | 235-293 | 1: 240 months 2: 240 months |
| Oscar Rodriguez | 38/II | 262-327 | 1: 262 months 6: 240 months |
| Hector Espinoza | 41/I | 324-405 | 1: 364 months 17: 48 months 20: 48 months |
DISCUSSION
A. Motion for Severance
Rosalinda Miranda moved to sever her trial from the trial of her co-defendants claiming that the other defendants could raise defenses inconsistent and antagonistic to her own, and that she would be prohibited from calling them as witnesses. She also stated that she would be prejudiced by the spillover effect of evidence incriminating her co-defendants. The government filed a response, arguing that joinder was permitted under Federal Rules of Criminal Procedure 8 and 14. The district court denied the motion, finding that Rosalinda Miranda had not demonstrated compelling prejudice or shown that a limiting instruction would not protect her interests. We review the district court‘s denial of severance for abuse of discretion. Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993).
We have noted that “persons indicted together should be tried together, especially in conspiracy cases.” United States v. Neal, 27 F.3d 1035, 1045 (5th Cir.1994) (citations omitted). However, separate trials should be granted when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539, 113 S.Ct. 933.
We are not convinced that Rosalinda Miranda suffered undue prejudice as the result of spillover of evidence offered against her co-defendants. The district сourt clearly instructed the jurors to give separate consideration to the evidence as to each defendant. The jury is presumed to have been able to follow these instructions and, indeed, its finding of “not guilty” as to Garcia demonstrates the validity of that presumption. Neal, 27 F.3d at 1045 (stating that “the jury‘s ‘not guilty’ verdicts as to some defendants demonstrate that the jurors followed the district court‘s instructions and considered the evidence separately as to each defendant“).
Likewise, we find no merit in Rosalinda Miranda‘s claim that she was prejudiced by being denied the opportunity to challenge statements made in taped phone conversations because her co-defendants did not take the stand at trial. While not entirely clear, Rosalinda Mi
We conclude that the district court did not abuse its discretion in denying Rosalinda Miranda‘s motion for severance.
B. Evidentiary Rulings
Appellants challenge the district court‘s admission of evidence in two separate instances during trial. We review evidentiary rulings for abuse of discretion. See United States v. Parsee, 178 F.3d 374, 379 (5th Cir.1999).
1. Drug transactions that pre-dated the indicted conspiracy
At trial, the government introduced the testimony of Gracie Martinez, who testified that she had bought drugs from Abel Espinoza sometime “around 1989, 1990, 1991.” Abel Espinoza objected, arguing that the government had failed to make the necessary pretrial disclosures regarding the introduction of evidence of Abel Espinoza‘s prior bad acts, and that the testimony concerned events prior to the dates of the indicted conspiracy.
The district court admitted the evidence, finding that Martinez‘s testimony was background information and therefore not subject to Federal Rule of Evidence 404(b). In the alternative, the district court determined that the probative value of the evidence outweighed its possible prejudice and that the evidence went to intent and was thus admissible under Rule 404(b). See United States v. Beechum, 582 F.2d 898 (5th Cir.1978).
On appeal, Abel Espinoza focuses solely on whether the testimony can withstand a Beechum analysis, arguing that the government failed to inform him of its intention to present extrinsic evidence of his prior bad acts and that Martinez‘s testimony resulted in undue prejudice. Abel Espinoza also claims that the district court did not adequately articulate its Beechum analysis findings and that the limiting instruction was inadequate to protect his rights.
Abel Espinoza does not address the district court‘s decision that Martinez‘s testimony constituted intrinsic background information and therefore Rule 404(b)‘s limits on admissibility of extrinsic acts did not apply. Evidence of other acts is intrinsic “when the evidence of the other act and the evidence of the crime charged are inextricably intertwined or both acts are part of a single criminal episode or other acts were necessary preliminaries to the crime charged.” United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990) (internal quotation marks omitted). In United States v. Wilson, 578 F.2d 67 (5th Cir.1978), this court held that evidence of a drug transaction that was not part of the crime charged was nonetheless admissible as intrinsic evidence becаuse it “was part of the background facts surrounding the commission of the crime.” Id. at 72. The court noted that the evidence was not submitted to show the de
2. Testimony regarding the use of code words in recorded calls
FBI Special Agent Amado Vega-Irizarry (“Vega“) testified at trial that he had been involved in the investigation of the conspiracy and in translating intercepted phоne calls from Spanish to English. Vega identified various code words that callers had used and the English drug terms to which the words referred. On the third day of Vega‘s testimony, Hector Espinoza objected on the grounds that Vega was testifying as an expert. The district court overruled Hector Espinoza‘s objections, holding that Vega was not testifying as an expert, but stated that if he were, he nonetheless had “the necessary expertise to be able to give this testimony in light of his experience in the law enforcement area.”
On appeal, Hector Espinoza maintains that the district court abused its discretion because Vega‘s testimony “crossed the line” from lay to expert opinion testimony, citing United States v. Griffith, 118 F.3d 318, 321 (5th Cir.1997) (stating that “[d]rug traffickers’ jargon is a specialized body of knowledge, familiar only to those wise in the ways of the drug trade, and therefore a fit subject for expert testimony“), and that Vega was not qualified to testify as an expert on the subject of drug dealers’ jargon or code words.
The government replies that Vega‘s testimony was admissible pursuant to Federal Rule of Evidence 701, which provides:
[i]f the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.
We agree. Vega‘s еxtensive participation in the investigation of this conspiracy, including surveillance, undercover purchases of drugs, debriefings of cooperating witnesses familiar with the drug negotiations of the defendants, and the monitoring and translating of intercepted telephone conversations, allowed him to form opinions concerning the meaning of certain code words used in this drug ring based on his personal perceptions. We therefore hold that Vega‘s testimony was admissible pursuant to Rule 701 and that the district court did not abuse its discretion in admitting his testimony.
C. Sentencing Issues
1. Drug amounts attributable to defendants for sentencing purposes on the conspiracy count.
a. Appellants’ objections and arguments.
The PSRs state that the conspiracy was responsible for distributing 3.3 kilograms of crack cocaine, 7.2 kilograms of cocaine, and 56.32 kilograms of marijuana. Pursuant to the Drug Equivalency Tables in the Sentencing Guidelines, these drug amounts equal 67,496.32 kilograms of marijuana for sentencing purposes. See
In his written Objections to Pre-Sentence Report, Oscar Rodriguez stated, in pertinent part, “[t]he Pre-Sentence Report has calculated the base offense level too high. The probation officer has apparently relied upon the case agent to determine the quantity of drugs to be used in the guideline calculations.... The determination of the quantity of drugs to be used to determine the guidеline sentence is the responsibility of the probation office and the Court. It is improper to delegate this important task to a biased case agent.”
Abel Espinoza‘s written Objections to Pre-Sentence Report stated, “Mr. Espinoza objects to the drug quantity used to establish the base offense level.... Mr. Espinoza‘s alleged knowledge of the scope of the conspiracy and his alleged participation was very limited. The only drug quantities attributable to Mr. Espinoza should be the 1/16th of an ounce referred to in the phone calls of May 23, 1997, and the 75 pounds of marijuana which was sold.... The drug quantity distributed by the conspirators in this case was not reasonably foreseeable to Mr. Espinoza and he should not be held responsible for the entire drug quantity.”
Hector Espinoza objected in writing to drug quantities attributed to him in the Pre-sentence Report, alleging that “no evidence was presented at trial” to support the PSR‘s conclusions that he had knowledge of or was linked with a conspiracy to distribute cocaine/cocaine base or that he coordinated how the marijuana entered the United States or that he transported marijuana. He did not challenge the conclusion that he was responsible for “13 or 12 avocados [of marijuana], whatever this quantity is determined to be.”
Rosalinda Miranda‘s Objections to the Pre-Sentence Report challenges the drug quantities attributed to her, stating that there was no evidence produced at trial or produced by the government to support the statement that she was involved to the degree alleged in paragraph 39 of the PSR—that is, 3.3 kilograms of crack cocaine, 7.2 kilograms of cocaine and 56.32 kilograms of marijuana.
Rigoberto Rodriguez objected succinctly to the PSR on the basis that the drug quantity used to establish his base level offense was not correct.
In addition to the Appellants’ written objections to their PSRs, Appellants moved to present live testimony consisting of cross examination of case agents during the sentencing hearing to challenge the PSRs’ conclusions concerning the drug amount attributable to each Aрpellant. The district court denied the motions, ruling that if a defendant makes only unsworn objections to the PSR but submits nothing in the way of evidence, the court is free to adopt, without further inquiry, the PSR and to consider it as reliable evidence at sentencing. On appeal, Appellants challenge that denial, arguing that this circuit‘s case law does not require criminal defendants to submit sworn affidavits or other admissible evidence to the district court prior to sentencing in order to obtain an
b. Standard of Review
The district court sentenced Appellants prior to the Supreme Court‘s recent decisions in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as well as this court‘s opinions interpreting Apprendi, United States v. Doggett, 230 F.3d 160 (5th Cir.2000), and United States v. Meshack, 225 F.3d 556 (5th Cir.2000). These decisions make it clear that when the Government seeks, as it did in the case at bar, enhanced penalties based on the amount of drugs attributable to a defendant, the quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt. Doggett, 230 F.3d at 165. The Supreme Court decided Jones in March 1999, while the present appeal was pending. Apprendi was decided on June 26, 2000, after briefing was complete, but prior to oral argument, in this case. While Appellants squarely presented a challenge to the fairness and reliability of the fact-finding process employed in determining the amount of drugs attributable to each Appellant, they did not specifically object to the procedure employed by the district court on the basis that they were entitled to a jury determination of drug quantity based on a beyond-a-reasonable-doubt standard of proof, even though the objections lodged had a due process basis which is the underpinning of both Jones and Apprendi.
In light of their failure to raise the Jones/Apprendi objections below, we review the district court‘s drug-quantity-determination procedure for plain error. See United States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir.2000) (reviewing for plain error even though the case the defendants relied upon was not decided at the time of trial); see also United States v. Candelario, 240 F.3d 1300, 1311-12 (11th Cir.2001) (reviewing Apprendi issue for plain error when defendant objected in district court to drug amount attributed to him, but did not raise a constitutional objеction on Apprendi grounds).1 Plain error is defined as “(1) an error; (2) that is clear or plain; (3) that affects the defendant‘s substantial rights; and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Vasquez, 216 F.3d 456, 459 (5th Cir.2000).
c. Preservation of Issue for Appeal
Appellant‘s brief must contain the “appellant‘s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies[.]”
In this case, we find the following circumstances relevant to the exercise of our Rule 28 discretion. One, Apprendi was decided after briefing and one of the defendants refers us to the new decision in his post-argument brief. Thus, it is not completely accurate to characterize the issue as waived or abandoned. Two, Appellants protested at trial and on appeal that their due process rights had been infringed by the district court‘s procedure for determining drug quantity. We cannot in good faith ignore Apprendi in a discussion of what process is due a criminal defendant who challenges a drug quantity determination. Finally, it is clear from the record in this case that Appellants were sentenced in violation of constitutional due process as interpreted by the Supreme Court in Apprendi. Based on these factors, we will consider whether that violation was plain error as to each of the Appellants in this case. See United States v. Garcia, 242 F.3d 593 (5th Cir.2001)
d. Did the District Court Plainly Err?
To reiterate, the Supreme Court has hеld that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 120 S.Ct. at 2362-63; see also Jones, 526 U.S. at 252, 119 S.Ct. 1215. In Doggett, we applied Apprendi to
The first prong of plain error analysis requires that we determine whether the district court erred in assigning sentences to Appellants that exceed the relevant statutory maximums. In the present case, the indictment charged that Appellants consрired to possess with intent to distribute in excess of 5 kilograms of cocaine, in excess of 50 grams of cocaine base and in excess of 50 kilograms of marijuana. However, the district court instructed the jury that the “evidence in the case need not establish that the amount or quantity of controlled substance was as alleged in the count under consideration, but only that a measurable amount of that controlled substance was in fact the subject of the acts charged in that count.” Further, the jury was instructed that the government need only prove that the defendant under consideration conspired to violate the law as to one or more of the charged substances—that is, cocaine, сocaine base, or marijuana. The most we can be sure that the jury found beyond a reasonable doubt is that Appellants conspired to possess with intent to distribute a measurable amount of marijuana. The maximum sentence for the first such conviction is imprisonment of not more than 1 year, a minimum fine of $1000 or both.
An error meets the “plain” requirement—the second prong—if it is “obvious” or “clear under current law.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A new rule for the conduct of criminal prosecutions must be “applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Even assuming that the Government is correct that the district court‘s procedure comported with clear, controlling precedent at the time it ruled on Appellants’ objections, the failure to have the jury determine drug quantity for sentencing purposes is obviously error, post-Apprendi and -Doggett. The error is therefore plain for purposes of the present appeal. See Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (holding that “where the law at the time of trial was settled and clearly contrary to the law at thе time of appeal—it is enough that an error be ‘plain’ at the time of appellate consideration“).
The third prong of plain error review asks whether the error affected the defendant‘s substantial rights.
Based on the foregoing, we hold that the procedure used by the district court to determine drug quantities attributable to each of these Appellants was plain error. We correct plain error only if we determine, in our discretion, that the error “seriously affect[s] the fairness, integrity or public reputation of judicial proсeedings.” United States v. Franks, 46 F.3d 402, 404 (5th Cir.1995). In exercising this discretion, we have considered whether applying the proper rule would result in significant reduction in the length of a sentence. United States v. Williamson, 183 F.3d 458, 464 (5th Cir.1999).
We note that the amount of drugs attributed to each defendant in the PSRs has ample support in the trial record. The District Court finding that Abel Espinoza and Rigoberto Rodriguez were not minor
2. Criminal History Category
Appellant Oscar Rodriguez‘s PSR indicated that he had a prior conviction for unauthorized use of a motor vehicle. As such, the PSR recommended, and the district сourt found, that Oscar Rodriguez‘s Criminal History Category was II. Oscar Rodriguez contends on appeal that he was not the same Oscar Rodriguez responsible for the prior conviction. The government concedes error and recognizes that Oscar Rodriguez should not have had a Criminal History Category of II. We therefore vacate Oscar Rodriguez‘s sentence on Count Six as well and remand for new sentencing with the appropriate Criminal History Category.
3. Offense Level Adjustments
Prior to sentencing, Appellants Abel Espinoza and Rigoberto Rodriguez requested a two-level decrease in their offense levels based on their minor participation in the conspiracy, pursuant to
We review a district court‘s determination that a defendant qualifies for an offense level adjustment for an aggravating or mitigating role in the offense for clear error. United States v. Valencia, 44 F.3d 269, 272 (5th Cir.1995). A district court‘s factual findings are not clearly erroneous if they are “plausible in light of the record as a whole.” United States v. Alford, 142 F.3d 825, 831 (5th Cir.1998). A party seeking an adjustment in the base level of an offеnse bears the burden of proving by a preponderance of the evidence that the adjustment is warranted. See United States v. Patterson, 962 F.2d 409, 414 (5th Cir.1992). The sentencing court is free to consider all relevant evidence, even inadmissible evidence, in determining whether an adjustment is warranted so long as the evidence has a “sufficient indicia of reliability to support its probable accuracy.” Id.
In this case, the district court did not make independent findings concerning offense levels, but adopted the PSRs. A review of the record reveals sufficient facts to support a finding that Abel Espinoza and Rigoberto Rodriguez were average, not minor participants and that Rosalinda Miranda and Hector Espinoza were managеrs of the conspiracy. A minor participant adjustment is not appropriate simply because a defendant does less than other participants; in order to qualify
To determine whether a defendant is appropriately termed a manager, the court considers factors such as the exercise of decision-making authority, nature of participation in commission of the offense, recruitment of accomplices, claimed right to a larger share of the profits, degree of participation in planning or organizing the offense, nature and scope of the illegal activity and degree of control and authority exercised over others.
CONCLUSION
Based on the foregoing, we affirm all of Appellants’ convictions and the sentences of all Appellants except Oscar Rodriguez, whose sentence we vacate and remand for re-sentencing.
AFFIRMED in part, VACATED in part, and REMANDED.
KING, Chief Judge, concurring in part and concurring in the judgment:
I concur in the judgment, together with Parts A and B of the opinion, insofar as it affirms the convictions and sentences of Appellants. However, I respectfully disagree with the majority‘s decision (set out in Part C.1 of the opinion) to raise sua sponte an Apprendi issue that was neither preserved below nor raised on appeal to this court. It is error, and unfortunate as well, to embark on that path. If we limited ourselves to the issues raised in the district court and in Appellants’ briefs, we would do the required, and routine, analysis of the adequacy of the evidence supporting Appellants’ sentences in affirming all sentences (except for the sentence of Oscar Rodriguez, which the government concedes should be vacated).
First, Appellants did not raise the constitutional concern of Apprendi in any way, shape, or form. The Supreme Court defined the issue in Apprendi as “whether [the defendant] had a constitutional right to have a jury [make a finding] on the basis of proof beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2355, 147 L.Ed.2d 435 (2000). Appellants have never argued that the jury must find certain aspects of their case beyond a reasonable doubt.1 Their gar
The majority raises the Apprendi issue sua sponte, however, stating that the preservation-of-issues rule is subject to the discretion of the court. In Silber v. United States, the Supreme Court stated: “While ordinarily we do not take note of errors not called to the attention of the Court of Appeals nor properly raised here, that rule is not without exception.” 370 U.S. 717, 717-18, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962). The Court then narrowly defined the contours of this exception: “In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” Id. at 718, 82 S.Ct. 1287 (emphasis added) (internal quotations omitted) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)).3 We have also recognized that we have the power to raise sua sponte an issue and examine it for plain error. See, e.g., United States v. Pineda-Ortuno, 952 F.2d 98, 105 (5th Cir.) (“Where plain error is apparent, the issue may be raised sua sponte by this court even though it is not assigned or specified.” (citing Silber)), cert. denied, 504 U.S. 928, 112 S.Ct. 1990, 118 L.Ed.2d 587 (1992).
Thus, I whole-heartedly agree that the preservation-of-issues rule is not without exception, albeit limited. However, I havе been unable to find a case in which a court sua sponte raised an issue, but then afforded no relief.4 The core idea underly
As the majority correctly points out, the evidence of the drug quantities аttributable to Appellants in this case was overwhelming and another trial would likely reach the same result. Therefore, there is no grave injustice that necessitates our reaching past the preservation-of-issues rule and sua sponte conducting plain error review. A routine analysis of the sufficiency of the evidence is all that is required to dispose of Appellants’ claims in this regard.