U.S. v. Hinojosa ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-2260
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUMBERTO HINOJOSA and CARLOS LERMA,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(April 3, 1992)
Before WILLIAMS and WIENER, Circuit Judges, and LITTLE,1 District
Judge
JERRE S. WILLIAMS, Circuit Judge:
Appellants Humberto Hinojosa and Carlos Lerma were both
convicted of numerous drug related offenses. Both appellants
insist the evidence was insufficient to support their convictions.
They also claim the trial judge erred in calculating their
sentences. Moreover, Hinojosa individually asserts he should be
granted a new trial due to improprieties in the selection of the
jury. We find appellants' arguments unpersuasive and affirm the
convictions and sentences.
1 District Judge of the Western District of Louisiana,
sitting by designation.
I. FACTS
Evidence was presented at trial that Carlos Lerma operated
numerous businesses in the Houston area as a cover for an elaborate
drug operation. One of Lerma's businesses was an auto paint and
body shop. The body shop was run by Humberto Hinojosa who assisted
Lerma in stripping down cars brought from Mexico and removing
packages of marihuana concealed in the cars. The packages were
then boxed and distributed. Much of the drugs was transported to
Atlanta, Georgia.
In November 1985, Marion Meadows introduced Steven Miller to
Hinojosa. Miller agreed to transport marihuana in his car from
Texas to Georgia. Hinojosa supplied approximately 800 pounds of
marihuana for the first trip to Atlanta.
Meadows and Miller followed Hinojosa's truck as they drove to
Atlanta in Miller's car. Upon arriving in Atlanta, Hinojosa told
Miller and Meadows to check into a particular hotel. At the hotel,
a party unknown to Miller took Miller's car and Hinojosa's truck
and unloaded the marihuana from the vehicles. Later, money was
delivered to the hotel. Miller was instructed to count the money
and Hinojosa told him he could keep all the one and five dollar
bills. The money totalled approximately $150,000. Miller and
Meadows returned to Texas with the money, and they delivered it to
Lerma at his auto body shop.
Through January 1986, Miller made approximately five more
trips to Atlanta, taking between 300 and 500 pounds of marihuana
each time and returning with the money. The procedures sometimes
2
varied, but the trips always involved the same people. After
January of 1986, Miller and Meadows made two or three more trips,
but they stopped after Meadows suspected he was under
investigation. Meadows had been stopped at the Atlanta airport,
and a Drug Enforcement Administration agent discovered $169,000 and
six marihuana cigarettes in his duffle bag. After Meadows returned
to Houston, he met with Lerma and Hinojosa to discuss the
government's seizure of the money. Because of the incident at the
airport, Miller and Meadows then stopped transporting marihuana for
Hinojosa and Lerma.
In the summer of 1987, Miller again began driving marihuana
from Houston to Atlanta because he needed the work. During the
summer, Miller made four or five trips. On each trip he hauled
approximately 300 pounds of marihuana, and on one trip, he
transported six kilos of cocaine. Hinojosa accompanied Miller on
two of the trips. Miller was arrested in Orange County, Texas for
possession of less than an ounce of marihuana in July 1987. He
then moved to Atlanta and ceased transporting drugs for Hinojosa
and Lerma. He did, however, continue his association with the
defendants. In fact, Miller purchased cocaine and marihuana from
Hinojosa for the purpose of resale.
On March 27, 1988, Miller was again arrested. The charge was
possession of marihuana and LSD. Following his arrest, Miller
agreed to cooperate with the Georgia police. He told them that
Hinojosa was his source and that Hinojosa would be coming to
Atlanta. Upon Hinojosa's arrival in Atlanta, Miller was
3
temporarily released from jail so he could meet Hinojosa to receive
a kilo of cocaine. Miller wore a "body-bug" during the
transaction. After the transaction, Miller was returned to
custody, and Hinojosa was arrested in his motel room.
Evidence was introduced to show that throughout the same time
period, Lerma was involved in numerous other drug transactions. On
two occasions in the summer of 1987, Lerma and Roger Solis
transported between 500 and 900 pounds of marihuana from Laredo to
Houston. Solis also drove two separate loads of marihuana to South
Carolina. On the first trip to South Carolina, the marihuana was
loaded at Lerma's house, and Solis drove in tandem with Ricardo
Montalvan (a/k/a Valentin). On the second trip, Solis was stopped
en route with the load and was arrested.
Testimony at trial indicated that one of Lerma's cocaine
sources was his girlfriend, Jacquelyn Cruzco. In May 1988,
Cruzco's house was searched pursuant to a valid search warrant.
The police discovered $147,000 in cash, scales, drug paraphernalia,
and marihuana at Cruzco's house. Lerma's briefcase was also
searched, and the police found drug ledgers and a business card for
an attorney named Lawrence Rothenberg. On the back of the card was
a notation indicating that Lerma had paid $25,000 in legal expenses
for Hinojosa. The briefcase also contained a memorandum regarding
the events surrounding Hinojosa's arrest.
In August 1988, as a result both of information supplied by
Miller and the arrest of Hinojosa, law enforcement officials in
Houston obtained court-authorized wiretaps on several telephone
4
numbers utilized by Lerma, and they also conducted surveillance on
his activities. Numerous incriminating conversations between
Lerma, Lionel Sosa, Lee Hernandez, Solis, Montalvan, Vincente
Rivera, and Cruzco were recorded. These conversations involved
drug transactions and delivery of money. Approximately nine
conversations were recorded between Lerma, Lee Hernandez, and
Lionel Sosa, regarding money Hernandez allegedly owed Lerma for
cocaine. Sosa testified at trial that Lerma recruited him to sell
cocaine. Sosa agreed to assist Lerma by directing cocaine
customers to him. In August 1988, Sosa put Lerma in touch with Lee
Hernandez for the purpose of conducting cocaine and marihuana
transactions.
In a separate conversation, Lerma told Montalvan that Lerma
and two others had purchased 10,000-12,000 pounds of marihuana, and
that Lerma intended to set aside 2000-3000 pounds for Montalvan.
Another series of calls involved a 1000-pound marihuana transaction
between Lerma and Montalvan. Lerma had purchased the marihuana
from Felix Castillo. He had shown samples of the marihuana to
Montalvan, but Montalvan rejected the marihuana. Lerma was en
route to return the marihuana to Castillo when he was arrested by
surveillance agents. A search of his car produced two samples of
marihuana totalling forty pounds, a gun, and drug ledgers.
Hinojosa was indicted and convicted of conspiracy to possess
with intent to distribute in excess of 1000 kilograms of marihuana
and in excess of five kilograms of cocaine in violation of 21
U.S.C. § 846 and two counts of interstate travel in aid of
5
racketeering in violation of 18 U.S.C. §§ 2, 1952(a)(1), and
1953(a)(3). He was sentenced to a total prison term of 235 months,
followed by five years supervised release. Lerma was indicted and
convicted of 51 counts, involving: conspiracy to possess with
intent to distribute in excess of 1000 kilograms of marihuana and
in excess of five kilograms of cocaine in violation of 21 U.S.C.
§ 846; engaging in a continuing criminal enterprise in violation of
21 U.S.C. § 848; interstate travel in aid of racketeering in
violation of 18 U.S.C. §§ 2 and 1952(a)(1); possession with intent
to distribute in excess of 100 kilograms of marihuana in violation
of 21 U.S.C. § 841(a)(1); possession with intent to distribute
marihuana in violation of 21 U.S.C. § 841(a)(1); use of a telephone
to facilitate the commission of a felony in violation of 21 U.S.C.
§§ 846 and 843(b); carrying a firearm during a drug trafficking
crime, in violation of 21 U.S.C. § 924(c)(1); conducting financial
transactions in violation of 18 U.S.C. § 1956(a)(1)(B)(i); engaging
in monetary transactions in violation of 18 U.S.C. § 1957; and
investing illegal proceeds in violation of 21 U.S.C. § 854. He was
sentenced to a total prison term of 300 months, followed by five
years supervised release. Both appellants filed timely appeals.
II. SUFFICIENCY OF THE EVIDENCE
Both Lerma and Hinojosa challenge the sufficiency of the
evidence to support a portion of their conviction. We address each
appellant's claim individually. In reviewing the sufficiency of
the evidence, this Court views all evidence in the light most
6
favorable to the government with all reasonable inferences and
credibility choices to be made in support of the jury's verdict.
The evidence is sufficient if a rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236
(5th Cir. 1990); United States v. Medina, 887 F.2d 528, 530 (5th
Cir. 1989).
Both Hinojosa and Lerma have a difficult burden to overcome
because they did not object to the sufficiency of the evidence at
the trial level. Without the objection, we extend even greater
weight than is usual as to the jury's finding. A review of
Hinojosa and Lerma's sufficiency claims is "limited to the
determination of whether there was a manifest miscarriage of
justice. Such a miscarriage would exist only if the record is
devoid of evidence pointing to guilt." United States v. Robles-
Pantoja, 887 F.2d 1250, 1254 (5th Cir. 1989)(citations omitted).
Hinojosa challenges the sufficiency of the evidence with
respect to his conviction for traveling and aiding and abetting
travel in interstate commerce with the intent to distribute the
proceeds of unlawful activity in violation of 18 U.S.C.
§ 1952(a)(1) and (2).2 The essential elements of a violation under
2
"(a) Whoever travels in interstate or foreign commerce or
uses the mail or any facility in interstate or foreign commerce,
with intent to--
(1) distribute the proceeds of any unlawful activity; or
(2) commit any crime of violence to further any unlawful
activity; or
(3) otherwise promote, manage, establish, carry on, or
7
Section 1952(a) are: (1) travel in interstate or foreign commerce;
(2) with the specific intent to distribute the proceeds of an
unlawful activity; and (3) knowing and willful commission of an act
in furtherance of that intent. United States v. Logan, 949 F.2d
1370, 1380-81 (5th Cir. 1991), petition for cert. filed, (U.S. Mar.
2, 1992) (No.91-7478). To convict Hinojosa for aiding and abetting
an offense against the United States, the government must prove he
was: (1) associated with the criminal venture; (2) participated in
it as something he wished to bring about; and (3) sought by his
actions to make it succeed. United States v. Tullos, 868 F.2d 689,
694 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3171, 104
L.Ed.2d 1033 (1989).
Although Hinojosa traveled with Miller and Meadows to
transport marihuana to Atlanta, he claims there is no evidence to
support the conclusion that he actively participated in the
distribution of proceeds. Miller counted the money, and then
Miller and Meadows drove to Houston to deliver the proceeds to
Lerma. Hinojosa maintains there is no evidence showing that he
either delivered the proceeds or that he aided and abetted others
in the interstate travel of the proceeds.
Although it is true that Hinojosa did not deliver the proceeds
from Atlanta to Houston personally, it is not necessary under an
facilitate the promotion, management, establishment, or
carrying on, of any unlawful activity,
and thereafter performs or attempts to perform any of the acts
specified in subparagraphs (1), (2), and (3), shall be fined not
more than $10,000 or imprisoned for not more than five years, or
both." 18 U.S.C. § 1952 (1984).
8
aiding and abetting theory that he personally do so. This court
has held that the requisite intent for Section 1952(a) may be
inferred from a defendant's conduct immediately before and after
travel. United States v. Abadie, 879 F.2d 1260, 1266 (5th Cir.),
cert. denied, 493 U.S. 1005, 110 S.Ct. 569, 107 L.Ed.2d 563 (1989).
Conduct before and after the actual travel may also be used to
infer that Hinojosa aided and abetted the distribution of proceeds.
Hinojosa provided the marihuana for the trip to Atlanta, and, once
the proceeds were received in Atlanta, he instructed Miller to
count the money, permitting Miller to keep the smaller bills. The
money was then transported by Meadows and Miller to Lerma for whom
Hinojosa worked. These overt acts are sufficient to manifest
Hinojosa's desire to aid and abet in the distribution of proceeds
of an unlawful activity. Accordingly, the record is not "devoid of
evidence" of Hinojosa's guilt.
The attack by Lerma on the sufficiency of the evidence is much
narrower. Lerma was convicted under the Continuing Criminal
Enterprise statute ("CCE"),3 which requires proof that a defendant
3
"For purposes of subsection (a) of this section, a person
is engaged in a continuing criminal enterprise if--
(1) he violates any provision of this subchapter or
subchapter II of this chapter the punishment for which is a
felony, and
(2) such violation is a part of a continuing series of
violations of this subchapter or subchapter II of this
chapter--
(A) which are undertaken by such person in concert with
five or more other persons with respect to whom such
person occupies a position of organizer, a supervisory
position, or any other position of management, and
(B) From which such person obtains substantial income or
resources.
21 U.S.C. § 848(c) (1981).
9
organized, supervised, or managed five or more persons in a
continuing series of drug violations from which the defendant
obtained substantial income. Lerma admits he organized,
supervised, or managed Solis, Montalvan, and Sosa, but he contends
the evidence is insufficient to show he had similar authority over
anyone else.
The evidence, when viewed in the light most favorable to the
government, indicates Lerma was Hinojosa's supervisor. Hinojosa
worked directly under Lerma, assisting him by stripping down cars
full of marihuana, delivering the marihuana to Atlanta, and
ensuring the money was delivered back to Lerma. The most
convincing evidence indicating Lerma supervised Hinojosa's affairs
is the business card signifying that Lerma paid Hinojosa's legal
fees after the 1988 arrest.
Because Lerma supervised Hinojosa and Hinojosa managed or
supervised Miller and Meadows, Lerma is thus considered a manager,
supervisor, or organizer of Miller and Meadows as well. Lerma
argues he is not responsible for the people who worked for
Hinojosa, but this argument defies common logic. The CCE must not
be rendered meaningless by permitting the head of a drug enterprise
to insulate himself from liability by merely delegating authority
to several lieutenants. The specific wording of the statute
compels this Court to include delegated authority within the
definition of the CCE statute. No where in Section 848(c) does it
say the defendant must "directly" or "personally" organize,
supervise, or manage five people. Moreover, the terms "organize,"
10
"supervise," or "manage" are used disjunctively in the statute.
Lerma wants us to assume the drafters intended the words
"supervise" and "manage" to be synonymous. This is an assumption
we will not make. "[T]hese terms should be applied in their
ordinary sense as understood by the public or the business
community." United States v. Butler, 885 F.2d at 200. The term
"manage" suggests delegated authority while "supervise" connotes
one-on-one guidance.
The caselaw firmly supports the statutory wording and purpose.
"[A] defendant may not insulate himself from CCE liability by
carefully pyramiding authority so as to maintain fewer than five
direct subordinates." United States v. Ricks, 882 F.2d 885, 891
(4th Cir. 1989), cert. denied, 493 U.S. 1047, 110 S.Ct. 846, 107
L.Ed.2d 841 (1990). See also, United States v. Phillips, 664 F.2d
971, 1034 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1136, 102
S.Ct. 2965, 73 L.Ed.2d 1354, and cert. denied, 459 U.S. 906, 103
S.Ct. 208, 74 L.Ed.2d 166 (1982)("Mere delegation by Myers of the
authority to personally hire crew members to the ship's foreman
does not detract from Myers' ultimate status as organizer"); United
States v. Butler, 885 F.2d 195, 200-01 (4th Cir. 1989)("Nor need
the defendant have personal contact with the five persons because
organizational authority and responsibility may be delegated");
United States v. Alvarez, 860 F.2d 801, 816 (7th Cir. 1988), cert.
denied, 490 U.S. 1051, 109 S.Ct. 1966, 104 L.Ed.2d 434, and cert.
denied, 493 U.S. 829, 110 S.Ct. 97, 107 L.Ed.2d 60 (1989) ("We find
that mere delegation of authority does not detract from [the
11
defendant's] ultimate status as organizer"); United States v.
Becton, 751 F.2d 250, 255 (8th Cir. 1984), cert. denied, 472 U.S.
1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985) ("Furthermore, the
government need not prove that the supervisor had personal contact
with each person"). Under the proper statutory interpretation, the
evidence clearly is sufficient to sustain Lerma's conviction under
the CCE.
III. JURY SELECTION
Hinojosa maintains he should be granted a new trial because
he was denied a fair trial due to two improprieties in the jury
selection process. He first asserts that the trial judge erred in
refusing to strike Ms. Morgan from the jury panel because she was
allegedly biased against drug-related crimes. Ms. Morgan's son,
although drug-free at the time of trial, had had a drug problem as
a teenager, and Ms. Morgan expressed some concern as to whether she
could put the experience aside during the trial. When the trial
judge asked Ms. Morgan if she could decide a case based on the
evidence despite her son's past problems, she stated, "I feel like
I could in one way, and another way I'm not sure. I'm being
truthful with you, Judge." When the government questioned Ms.
Morgan, the following exchange occurred:
Government: Do you understand that you will be under
oath to follow the law and the Judge's
instructions? Can you do this?
Morgan: Yes.
Government: We're all products of our upbringing and
our hates and dislikes and likes. But
12
setting those aside and deciding the facts
of the case, can you do that?
Morgan: Yes, I can.
Hinojosa attempted to have the juror struck because of bias, but
the trial judge denied the motion. As a result of the ruling,
Hinojosa used one of his peremptory challenges on Ms. Morgan, which
meant he was unable to use it on another venireman. We affirm the
trial court's ruling.
The Sixth and Fourteenth amendments of the U.S. Constitution
guarantee all criminal defendants the right to a trial by an
impartial jury. The implementation of this guarantee is entrusted
to the trial court. King v. Lynaugh, 850 F.2d 1055, 1058 (5th Cir.
1988)(en banc), cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102
L.Ed.2d 809 (1989), and cert. denied, 489 U.S. 1093, 109 S.Ct.
1563, 103 L.Ed.2d 930 (1989). We grant broad discretion to the
trial judge in making determinations of impartiality and will not
interfere with such decisions absent a clear abuse of discretion.
United States v. McCord, 695 F.2d 823, 828 (5th Cir.), cert.
denied, 460 U.S. 1073, 103 S.Ct. 1533, 75 L.Ed.2d 953 (1983);
United States v. Jones, 712 F.2d 115, 121 (5th Cir. 1983); United
States v. Allred, 867 F.2d 856, 869 (5th Cir. 1989).
The decision to grant such power to the trial judge is based
on the acknowledged advantage the trial judge has in observing the
demeanor and credibility of any potential juror. Wainwright v.
Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985)
("[S]uch a finding is based upon determinations of demeanor and
credibility that are peculiarly within a trial judge's province);
13
Wicker v. McCotter, 783 F.2d 487, 493 (5th Cir.), cert. denied, 478
U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986) ("[D]eterminations
of juror bias depend in great degree on the trial judge's
assessment of the potential juror's demeanor and credibility, and
on his impressions about that venireman's state of mind").
In the present case, the trial judge questioned the venireman
himself and then listened as both sides questioned her as well. At
the conclusion of this process, he believed Ms. Morgan's assertion
that she would follow the law and his instructions. Ms. Morgan's
candor on the subject bolsters her later assertions that she would
set aside her "hates and dislikes and likes." The present case
involves a less extreme potential for bias than Celestine v.
Blackburn, 750 F.2d 353 (5th Cir. 1984), cert. denied, 472 U.S.
1022, 105 S.Ct. 3490, 87 L.Ed.2d 624 (1985), in which we affirmed
a trial judge's refusal to strike a juror for bias even though the
juror knew both the prosecuting attorney and the granddaughter of
the murder victim. If the trial judge in Celestine did not abuse
his discretion in believing the claims of impartiality, then the
trial judge in the present case certainly did not abuse his
discretion either.
Hinojosa's second claim regarding the selection of the jury is
that the government denied him equal protection of the law by using
its peremptory challenges to exclude three black prospective jurors
solely because of their race in violation of Batson v. Kentucky,
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The government
claims the objection was not timely made because Hinojosa raised
14
his Batson claim only after the venire was dismissed and after the
jury was sworn and excused for the day. Although the caselaw
supports the government's contention,4 we address the issue on the
merits because the trial judge ruled on the Batson claim.
The government gave the following reasons for striking the
respective jurors:
Panelist No. 1 - The government felt he was both slow in
answering the questions and not paying attention during
voir dire. The government was also concerned because the
panelist stated he had twelve years of formal education
but did not state he had completed high school.
Panelist No. 16 - The government struck this juror
because he had not completed high school.
Panelist No. 23 - The government struck this juror
because he, too, had not completed high school.
The government's concern over lack of education and inattentiveness
was due to the complex legal issues involved in this case. The
trial involved 58 counts, including continuing criminal enterprise,
money laundering, and structuring financial transactions.
Additionally, it required the jury to determine whether Lerma's
vast properties and assets were subject to criminal forfeiture as
proceeds of unlawful activity. The government was apprehensive that
these particular veniremen would have difficulty understanding the
complexities involved. The district court accepted the
government's reasons for its use of peremptory strikes on these
veniremen and denied the Batson motion.
4
Jones v. Butler, 864 F.2d 348, 370 (5th Cir. 1988), cert.
denied, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989) ("The
Supreme Court's analysis in Batson presumed that an objection would
be made promptly, probably before the venire was dismissed").
15
As with the motion to strike for cause, we pay great deference
to the trial judge's decision regarding a Batson motion. The trial
judge's decision rests upon a credibility determination, and, thus,
we interfere with that decision only if it is clearly erroneous or
an abuse of discretion. United States v. Terrazas-Carrasco, 861
F.2d 93, 94 (5th Cir. 1988); United States v. Clemons, 941 F.2d
321, 324 (5th Cir. 1991).
Once Hinojosa made a prima facie showing that the government's
peremptory challenges were based on race, the burden shifted to the
government to articulate a race-neutral reason for its challenges.
United States v. Clemons, 941 F.2d at 323. "Unless a
discriminatory intent is inherent in the prosecutor's explanation,
the reason given by the prosecutor will be deemed race-neutral."
Id. at 325. The government's reason need not rise to the level
justifying a challenge for cause, United States v. Roberts, 913
F.2d 211, 214 (5th Cir. 1990), cert. denied, ___ U.S. ___, 111
S.Ct. 2264, 114 L.Ed.2d 716 (1991), and valid reasons for exclusion
may include intuitive assumptions. United States v. Terrazas-
Carrasco, 861 F.2d at 94.
This Court has previously held that a disinterested demeanor
and inattentiveness are valid, race-neutral reasons for excluding
a venireman from jury service. Moore v. Keller Industries, Inc.,
948 F.2d 199, 202 (5th Cir. 1991). We now hold that a trial judge
does not abuse his discretion by allowing exclusion of a venireman
by peremptory challenge if that venireman's education is
insufficient when taking into account the legal issues to be
16
presented. Of course, whether a venireman's education is
insufficient is a factual determination made by the judge. In the
present case, we cannot hold that the trial judge's determination
was clearly erroneous.
IV. LERMA'S SENTENCE
Lerma asserts that there are two errors in the sentence he
received and that this Court should reverse and remand for
resentencing. We are unable to consider his request because Lerma
has not provided this Court with a record of the sentencing
hearing, and no justification is given for not doing so. The rules
of appellate procedure require the appellant to provide the
record,5 and our caselaw has consistently followed this rule.
United States v. Juarez-Fierro, 935 F.2d 672, 675, n.1 (5th Cir.),
cert. denied, ___ U.S. ___, 112 S.Ct. 402, 116 L.Ed.2d 351(1991)("Since the appellant failed to order the parts of the record
regarding the swearing of the second petit jury, we cannot review
his claim"); United States v. Alfaro, 919 F.2d 962, 966, n.16 (5th
Cir. 1990)("If a defendant reasonably expects us to overturn the
factual findings of the trial court, he should strive to provide a
thorough evidentiary record on the factual issues")(emphasis in
5
"(1) Within 10 days after filing the notice of appeal the
appellant shall order from the reporter a transcript of such parts
of the proceedings not already on file as the appellant deems
necessary, subject to local rules of the courts of appeals. . . .
(2) If the appellant intends to urge on appeal that a finding or
conclusion is unsupported by the evidence or is contrary to the
evidence, the appellant shall include in the record a transcript of
all evidence relevant to such finding or conclusion." Fed. R. App.
P. 10(b).
17
original); United States v. O'Brien, 898 F.2d 983, 985 (5th Cir.
1990)("It is appellant's responsibility to order parts of the
record which he contends contain error and his failure to do so
prevents us from reviewing this assignment of error"); Brookins v.
United States, 397 F.2d 261, 262 (5th Cir.), cert. denied, 393
U.S. 952, 89 S.Ct. 377, 21 L.Ed.2d 364 (1968)("This appellate court
`[C]an only take the record as it finds it, and cannot add thereto,
or go behind, beyond, or outside it . . .'") (quoting 4A C.J.S.
Appeal and Error § 1206 at p. 1333). The rulings of other circuits
comport with our rulings on the importance of the inclusion of the
record.6 Thus, to maintain the integrity of the rules and the
appellate process, we properly decline to review controversies in
which the record is not supplied to us.
V. HINOJOSA'S SENTENCE
Hinojosa, like Lerma, claims the district court erred in
computing his sentence, but, unlike Lerma, Hinojosa provided this
Court with a record of his sentencing hearing. Consequently, we
are able to evaluate whether the district court erred.
6
See United States v. Durrive, 902 F.2d 1221, 1232, n.8
(7th Cir. 1990)("We reiterate the requirement that counsel provide
this court with the district court's specific findings of fact
relevant to sentencing . . ."); United States v. Mobile Materials,
Inc., 881 F.2d 866, 878 (10th Cir. 1989). cert. denied, 493 U.S.
1043, 110 S.Ct. 837, 107 L.Ed.2d 833 (1990)("Appellants have made
no effort to provide us with a statement envisioned by Fed.R.App.
10(c), and it is the responsibility of counsel . . . to insure that
a complete record is available for our review"); United States v.
Johnson, 584 F.2d 148, 156, n.18 (6th Cir. 1978), cert. denied, 440
U.S. 918, 99 S.Ct. 1239, 59 L.Ed.2d 469 (1979) ("It is the
responsibility of appellants to insure inclusion in the record of
all trial materials upon which they intend to rely on appeal").
18
For sentencing purposes, the district court imposed a two
level increase of Hinojosa's offense level because "the defendant
was an organizer, leader, manager, or supervisor in any criminal
activity." U.S.S.G. § 3B1.1(c). "Factors the court should
consider include the exercise of decision making authority, the
nature of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger share of
the fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised over
others." Application Note 3, U.S.S.G. § 3B1.1(c). Unlike a
finding of guilt, the facts necessary to support an adjustment in
sentencing must only be proved by a preponderance of the evidence.
United States v. Alfaro, 919 F.2d at 965. This Court will not
reverse findings of fact unless they are clearly erroneous. United
States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).
Hinojosa claims the evidence is insufficient to support a
finding that he was a "leader." He alleges the evidence shows only
that he was a participant with Miller and Meadows, but not their
leader. In contrast to this claim, the following evidence
established at trial supports the district court's finding of
Hinojosa as a leader: (1) Hinojosa supplied the marihuana for the
trips to Atlanta; (2) he was involved with the men who picked up
the marihuana and paid for the load; (3) he chose the hotel where
they met; (4) he directed Miller to count the money and gave Miller
permission to keep the small bills; and (5) when Meadows was
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stopped with money in the Atlanta airport, it was Hinojosa and
Lerma who met with Meadows to discover what happened to the money.
With this preponderance of the evidence supporting the finding of
Hinojosa as a leader, we hold that the district court's ruling was
not clearly erroneous.
VI. CONCLUSION
We hold the convictions of Hinojosa and Lerma must be upheld.
There were no improprieties in the selection of the jury, and the
evidence was sufficient to support all convictions. With respect
to Hinojosa, the trial judge did not err in calculating his
sentence, and with respect to Lerma, we do not address the issue of
error in calculating his sentence because Lerma did not provide us
with the record of the sentencing proceedings. Finding no error,
we affirm the convictions and sentences.
AFFIRMED.
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