United States v. Mendoza-Alarcon , 140 F. App'x 529 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-20506
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE FREDRIC MENDOZA-ALARCON; SACHA HILARY LEE; MARVA SYLVESTER
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Texas
No. 4:03-CR-230-4
Before KING, Chief Judge, and DAVIS, Circuit Judge, and
ROSENTHAL,* District Judge.
PER CURIAM:**
This appeal arises from a conspiracy that involved stealing
vehicles, obtaining fraudulent titles for those vehicles,
transporting the vehicles across state lines, and selling them to
individuals or dealerships. On December 3, 2003, a grand jury
*
District Judge of the Southern District of Texas,
sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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issued a ten-count superceding indictment charging Defendants
Jose Fredric Mendoza-Alarcon, Sacha Hilary Lee, and Marva
Sylvester with crimes related to the conspiracy. Count One
charged Mendoza, Lee, and Sylvester with knowingly and willfully
conspiring to transport in interstate commerce vehicles they knew
to be stolen, in violation of 18 U.S.C. § 371. Count Four
charged Lee with aiding and abetting the unlawful transportation
across state lines of a stolen 1999 Ford Expedition, in violation
of 18 U.S.C. §§ 2 and 2312. Counts Six and Eight charged Mendoza
with aiding and abetting the unlawful transportation across state
lines of a stolen 2000 Toyota and a stolen 1998 Honda, in
violation of 18 U.S.C. §§ 2 and 2312.1 On March 5, 2004, a jury
found Mendoza, Lee, and Sylvester guilty of all counts against
them.
The district court sentenced Mendoza to five-months
imprisonment on each count to run concurrently, followed by
three-years of supervised release, and imposed a $200 special
assessment. After departing downward, the court sentenced Lee to
four-years probation on each of the two counts to be served
concurrently and imposed a $200 special assessment. Finally, the
court sentenced Sylvester to fifteen-months imprisonment,
followed by three-years supervised release, and imposed a fine of
$3,000 and a $100 special assessment.
1
All the other counts related to individuals who are not
parties to this appeal.
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On appeal, each of the defendants argues that the evidence
was insufficient to support his or her conviction. Mendoza also
argues that: (1) the court erred in failing to grant his motion
for a judgment of acquittal pursuant to FED. R. CRIM. P. 29; (2)
the court erred in failing to grant him a new trial; and (3) the
jury failed in its duty to deliberate. Lee argues that the court
erred in admitting evidence that a witness, Janie Braune, saw her
filling out a vehicle inspection form when there was no vehicle
present. Finally, Sylvester argues that: (1) the court erred in
denying her motion for severance; (2) the court erred by
admitting evidence that she inspected a vehicle that the
government did not prove was stolen; and (3) there was a fatal
variance between the charge contained in the indictment and the
proof offered at trial. In addition, via a supplemental letter
brief, Sylvester challenges her sentence under United States v.
Booker, 125 S. Ct. 738 (2005), arguing that it was imposed
pursuant to an unconstitutional mandatory sentencing guidelines
system. We AFFIRM the defendants’ convictions and Sylvester’s
sentence.
A. Sufficiency of the Evidence
Mendoza argues that the evidence at trial was insufficient
to show that he: (1) knew the cars were stolen; (2) knew of the
unlawful purpose of the agreement; (3) willfully joined the
conspiracy; and (4) intended to further the unlawful purpose.
Our review of the record, however, leads us to conclude
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otherwise. There was testimony by two witnesses, Moctezuma Luna
and Jose Ramon Gutierrez, that Mendoza was associated with and
took direction from Roberto Antonio Herrera, the key participant
of the car-theft conspiracy in California. There was also
evidence that Mendoza actively participated in selling a stolen
Honda Accord and attempted to repossess a stolen Toyota Camry.
Mendoza prepared the bill of sale for the stolen Honda. With
respect to the stolen Toyota, Mendoza appeared as the buyer on
the title, asked Gutierrez to repossess the Toyota, and prepared
the repossession note authorizing Gutierrez to repossess the car.
In considering the evidence in the light most favorable to the
government and accepting all inferences in favor of the verdict,
we conclude that a rational trier of fact could have found that
the evidence established Mendoza’s guilt beyond a reasonable
doubt. See United States v. Gardea-Carrasco, 830 F.2d 41, 43
(5th Cir. 1987). Accordingly, the evidence was sufficient to
support Mendoza’s conviction.
Lee argues that Janie Braune’s testimony that Lee was
filling out a vehicle inspection form when there was no vehicle
present was legally insufficient to support her conviction
because it did not permit a rational jury to find that she knew
the vehicles referred to in the indictment were stolen. We
conclude that the evidence was sufficient for a jury to conclude
that Lee knew the vehicles were stolen. Specifically, the jury
could conclude that Lee knew the vehicles were stolen from Juan
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Anjello Beltran’s testimony that he would obtain Texas titles for
Herrera without physically taking the vehicles for inspections,
the fact that Lee filled out an inspection certificate when there
was no vehicle present, and the fact that Lee’s signature was on
the vehicle inspection form for a Ford Expedition involved in the
conspiracy. Although Lee argues that she could have been filling
out the inspection form absent a vehicle for any number of
reasons, the evidence need not exclude every reasonable
hypothesis of innocence. United States v. Martinez, 151 F.3d
384, 389 (5th Cir. 1998). Accordingly, considering the evidence
in the light most favorable to the government, and accepting all
reasonable inferences that tend to support the verdict, a
rational juror could find that Lee knew the Ford Expedition was
stolen. See Gardea-Carrasco, 830 F.2d at 43.
Finally, Sylvester argues that the evidence was insufficient
to show that she knew the vehicles were stolen and that she
knowingly entered into the conspiracy. Again, we look at the
evidence presented as a whole, including Beltran’s testimony that
he would obtain Texas titles for Herrera without physically
taking the vehicles for inspections and evidence that Sylvester
signed inspection stickers for two cars that were both stolen and
involved in the conspiracy. A rationale juror could infer that
Sylvester never actually physically inspected the vehicles when
she signed the vehicle inspection forms. In combination with the
fact that Sylvester inspected vehicles at ICM Automotive (which
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was owned by another participant in the conspiracy, Frank
Nwabardi) along with Lee (who also signed vehicle inspection
forms for stolen vehicles), a rational trier of fact could
conclude that Sylvester knew the cars were stolen and knowingly
entered into the conspiracy. Considering the evidence in the
light most favorable to the government and accepting all
reasonable inferences that tend to support the verdict, we
conclude that the evidence was sufficient to support Sylvester’s
conviction. See Gardea-Carrasco, 830 F.2d at 43.
B. Judgment of Acquittal Pursuant to FED. R. CRIM. P. 29
Mendoza argues that the court erred in denying his motion
for judgment of acquittal pursuant to FED. R. CRIM. P. 29, which
he made at the end of the government’s case in chief and reurged
at the close of the defense’s case in chief. Mendoza contends
that his motion should have been granted because the government
failed to prove that he joined the conspiracy or that he knew the
vehicles were stolen. We conclude that the court properly denied
Mendoza’s motion because, as stated above, the evidence was
sufficient for a rational juror to find that Mendoza joined the
conspiracy and knew that the vehicles were stolen.
C. Failure to Grant Mendoza a New Trial
Mendoza argues that the district court erred in failing to
grant him a new trial pursuant to FED. R. OF CRIM. P. 33. Rule 33
provides in pertinent part that “[u]pon the defendant’s motion,
the court may vacate any judgment and grant a new trial if the
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interest of justice so requires.” Mendoza concedes that he did
not file a motion for a new trial. He asserts, however, that
such a motion was filed by his co-defendant Terry Kim, and
because his motion to join in the motions of his co-defendants
was granted, this court should consider Mendoza as having filed a
motion for a new trial. Mendoza goes on to argue that the court
erred in not granting a new trial because the government failed
to furnish him with all of the discovery materials he was
entitled to under FED. R. CRIM. P. 16. Mendoza asserts that the
defense made mistakes in determining whether to go to trial or to
plead as a result of the government’s failure to provide him with
the voluminous reprints prepared by officer Tom Civitello,
detective Richard Lee Job, and officer Anthony Banks before
trial.
The record does not reflect that a motion for a new trial
under FED. R. OF CRIM. P. 33 was made or ruled on by the court.
Indeed, Mendoza provides no record cite to where such a motion
appears. Absent such a motion, the district court was without
authority to grant a new trial. See FED. R. CRIM. P. 33; United
States v. Eaton, 501 F.2d 77, 79 (5th Cir. 1974).
D. Jury’s Duty to Deliberate
Mendoza argues that the jury failed in its duty to
deliberate because it only deliberated for five hours. Mendoza
points to no authority for his argument but nonetheless asks this
court to consider the issue. We conclude that Mendoza has waived
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his argument because he failed to cite any legal authority for
his position. See FED. R. APP. P. 28(a)(9)(A); United States v.
Edwards, 303 F.3d 606, 647 (5th Cir. 2002).
E. Admission of Evidence Regarding Lee
Lee argues that the court erred in admitting Braune’s
testimony that she saw Lee filling out an inspection form when
there was no vehicle present. Specifically, Lee asserts that the
evidence was not, as the court concluded, evidence intrinsic to
the conspiracy, but rather evidence pursuant to FED. R. EVID.
404(b).
FED. R. EVID. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance
of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any
such evidence it intends to introduce at trial.
“[E]vidence of acts committed pursuant to a conspiracy and
offered to prove the defendant’s membership or participation in
the conspiracy are not extrinsic evidence, i.e., evidence of
other acts, for purposes of Rule 404(b).” United States v. Garcia
Abrego, 141 F.3d 142, 175 (5th Cir. 1998) (internal quotations
omitted). “Acts committed in furtherance of the charged
conspiracy are themselves part of the act charged.” Id. “Thus,
evidence of such acts constitutes intrinsic evidence--that is,
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direct evidence of the charged conspiracy itself.” Id. Part of
the conspiracy here consisted of getting Texas titles to stolen
vehicles without showing the cars for a physical inspection.
Thus, the evidence that Lee completed a vehicle inspection form
without actually inspecting the car clearly goes to show Lee’s
membership and participation in the conspiracy and that she
committed acts in furtherance of the conspiracy. Thus, Braune’s
testimony about this act was not evidence of other crimes,
wrongs, or acts under 404(b), but rather evidence intrinsic to
the conspiracy itself. Accordingly, the district court did not
err in admitting Braune’s testimony as evidence intrinsic to the
conspiracy.
F. Sylvester’s Motion for Severance
Sylvester argues that the district court erred in denying
her various motions for severance based on the following evidence
and testimony introduced at trial: (1) evidence that Lee’s state
license to inspect automobiles was suspended because she made
false entries when inspecting a car; (2) Braune’s testimony that
she witnessed Lee filling out a vehicle inspection form while no
car was present; (3) Nwarbardi’s testimony that he never stated
that he had taken documents to Sylvester in order to obtain
completed vehicle inspection forms; and (4) Officer Civitello’s
testimony (impeaching Nwarbardi’s testimony) that he was present
when Nwabardi made the statement that he took two California
certificates of title to Sylvester to obtain vehicle inspection
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certificates. Sylvester argues that the evidence was prejudicial
because it allowed the jury to assume that Sylvester: (1) knew
the vehicles were stolen based on her association with Lee; and
(2) was involved in the conspiracy.
FED. R. CRIM. P. 14 provides:
If the joinder of offenses or defendants in an
indictment, an information, or a consolidation for trial
appears to prejudice a defendant or the government, the
court may order separate trials of counts, sever the
defendants’ trials, or provide any other relief that
justice requires.
In order to obtain a Rule 14 severance, the defendant must make a
showing of “compelling prejudice.” United States v. Coppola, 788
F.2d 303, 307 (5th Cir. 1986). Where the record discloses that
the trial court carefully instructed the jury that the case
against each defendant was to be separately considered, courts
will usually not find compelling prejudice. See id. Here, the
evidence of Lee’s license suspension and Braune’s testimony did
not result in “compelling prejudice” to Sylvester because the
evidence and testimony clearly implicated only Lee. Furthermore,
Braune answered “no” when Sylvester’s counsel asked her if she
had ever suspended Sylvester or given Sylvester any citations.
Also, the district court gave the jury a very thorough
instruction that it was not to consider evidence about one
defendant in considering the counts against another defendant.2
2
The court gave the following instruction to the jury
immediately before Braune’s testimony:
There are six defendants here. Some of the testimony
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In addition, with respect to Nwarbardi and Officer Civitello’s
testimony, the court also gave a limiting instruction.
Therefore, the fact that the evidence was admitted was not
prejudicial. See Coppola, 788 F.2d at 307. Accordingly, the
district court did not abuse its discretion in denying
Sylvester’s motion for severance.
G. Admission of Evidence Regarding Sylvester
Sylvester argues that the district court erroneously
admitted evidence that Sylvester completed a vehicle inspection
applies to certain defendants, some applies to others.
I want to remind you of some basic principles that you
need to keep in mind as you’re assessing the evidence
through the trial. First of all, I believe you have a
copy of the indictment and I want to remind you that a
separate crime is charged in each count of the
indictment. And the evidence pertaining to each count
should be considered separately. And the fact that you
find a particular defendant guilty or not guilty on a
particular count should not control your verdict as to
other crimes or other defendants. You must give separate
consideration of the evidence as to each defendant. In
addition, in many, if not all, of the counts, a separate
crime is charged against each defendant in each count.
And each count and the evidence pertaining to it, again,
needs to be considered separately as to each defendant
within that count. The fact that you might find one or
more of the accused guilty or not guilty of a particular
crime in a particular count should not control your
verdict as to any other crime or any other defendant as
charged in the count under consideration. You must give
separate consideration of the evidence as to each
defendant. So, as the testimony comes out, I think you
need to keep in mind to be focusing on which defendant is
the subject of the testimony and then evaluating the
evidence as to that defendant. And remember your decision
as to each defendant and each count will need to be
separate.
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form for a 2000 7-Series BMW because it incorrectly determined
the evidence was intrinsic to the conspiracy rather than Rule
404(b) evidence. Sylvester contends that the evidence was not
intrinsic because the government did not prove it was stolen or
include it in the indictment.
As discussed above with respect to Lee’s claim, intrinsic
evidence includes evidence of acts committed to prove the
defendant’s membership or participation in the conspiracy or acts
committed in furtherance of the conspiracy. Garcia Abrego, 141
F.3d at 175. Here, while the government did not prove the BMW
was stolen, the BMW was connected to the conspiracy by virtue of
its association with David Fox. The Certificate of Title for the
BMW listed David J. Fox as the owner. The name David J. Fox was
listed as the previous owner of a stolen Porsche that was a part
of the conspiracy. In addition, Fox’s address, which was listed
on the application for title for the BMW, belonged to Vilma
Flores, who was Rodriguez’s mother, and Rodriguez was known to
sell stolen cars for Herrera. Thus, Sylvester’s name on the
inspection certificate implicated her in the conspiracy, and the
fact that Sylvester completed a vehicle inspection form for the
BMW was evidence intrinsic to the conspiracy. Accordingly, the
district court did not err in admitting this evidence as
intrinsic to the conspiracy.
H. Fatal Variance
Sylvester argues that there was a fatal variance between the
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conspiracy charged in the indictment and the proof at trial of
multiple conspiracies. More specifically, Sylvester contends
that the charge in the indictment and the proof offered at trial
did not share a common goal, differed in nature, and did not
involve an overlap of participants. According to Sylvester, the
indictment alleged a conspiracy to obtain stolen vehicles, obtain
counterfeit and fraudulent titles for those stolen vehicles,
transport the stolen vehicles interstate, and sell them. She
argues, on the other hand, that the evidence at trial established
a second conspiracy to resell salvaged cars for more than their
market value. Sylvester asserts that this fatal variance
violated her substantial rights because the evidence against her
was so weak.
To demonstrate a fatal variance the defendant must prove:
(1) a variance between the indictment and the proof at trial; and
(2) that the variance affected the defendant’s substantial
rights. United States v. Morrow, 177 F.3d 272, 291 (5th Cir.
1999) (per curiam). The existence of a single or multiple
conspiracies is determined by examining three factors: (1) the
existence of a common goal; (2) the nature of the scheme; and (3)
the overlapping of participants in the various dealings. Id.;
United States v. Allen, 76 F.3d 1348, 1370 (5th Cir. 1996). A
jury’s finding that a single conspiracy was proven by the
evidence will be affirmed unless the evidence, viewed in the
light most favorable to the government, would preclude reasonable
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jurors from finding a single conspiracy beyond a reasonable
doubt. Morrow, 177 F.3d at 291; United States v. Morris, 46 F.3d
410, 415 (5th Cir. 1995).
There was no variance between the charge in the indictment
and the evidence at trial. First, there was a common goal. The
testimony by Beltran and Officer Civitello established that the
purpose of the conspiracy was to steal cars, alter VINs, retitle
cars with false information, transport the cars across state
lines, and resell the cars. At no time did they make any mention
that the conspiracy involved the resale of salvaged cars.
Although Herrera stated that he obtained clean titles to salvaged
cars to resell them at higher than market prices, the vehicles
Herrera was speaking of were actually stolen. In addition,
Sylvester contributed to reaching that common goal by completing
vehicle inspection forms to get titles to the stolen cars. See
United States v. DeVarona, 872 F.2d 114, 118 (1989) (stating that
a single conspiracy exists “if the evidence demonstrates that all
of the alleged co-conspirators directed their efforts to
accomplish a single goal or common purpose”).
Second, the nature of the scheme was such that completion of
the vehicle inspection forms was part of a single conspiracy.
Sylvester asserts that the nature of the schemes was different
because the charged conspiracy required the theft and
transportation of stolen vehicles but the separate conspiracy
required neither proof that the vehicle was stolen nor that it
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traveled in interstate commerce. Sylvester’s argument is
misguided. Here, there was one conspiracy, and, as described
above, it was to steal cars, alter VINs, retitle cars with false
information, transport the cars across state lines, and resell
the cars. Completing the vehicle inspection forms was necessary
to obtain titles for the stolen cars. Morris, 46 F.3d at 416
(stating that in analyzing whether the nature of the scheme
points to a single conspiracy, this court asks whether the
activities of one aspect of the scheme are necessary or
advantageous to the success of another aspect of the scheme or to
the overall success of the venture, and whether the agreement
contemplated bringing to pass a continuous result that will not
continue without the ongoing cooperation of the conspirators);
DeVarona, 872 F.2d at 119-20. Thus, the nature of the scheme was
such that completion of the forms was part of one single
conspiracy.
Third, the overlapping of participants in the various
dealings and the interrelationships among the various
participants in the conspiracy suggests there was a single
conspiracy. See Morris, 46 F.3d at 416. Sylvester argues that
there was no overlap of participants because there was no
evidence linking Sylvester to Herrera, Beltran, Nwarbardi, or
Teran, who were all key participants in the conspiracy. While
Sylvester’s assertions may be correct, the members of a
conspiracy that functions though a division of labor need not
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have an awareness of the existence of the other members or be
privy to each aspect of the conspiracy. United States v.
Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987); Morris, 46 F.3d
at 416-417. Thus, the fact that neither Herrera nor Beltran
knew about Sylvester is not dispositive. Furthermore, Sylvester
worked at ICM Automotive, which was owned by Nwarbardi, who she
admits was the focus of the investigation. See Morris, 46 F.3d
at 416 (stating that there is no requirement that every member
must participate in every transaction to find a single
conspiracy, but only that parties who knowingly participate with
core conspirators to achieve a common goal may be members of an
overall conspiracy). Accordingly, there was no variance between
the charge in the indictment and the evidence at trial.
I. Sylvester’s Booker-Argument
Sylvester challenges her sentence under Booker, arguing that
it was imposed pursuant to a mandatory sentencing guidelines
regime. Because Sylvester did not raise her Booker objection
below, we review it for plain error. See United States v. Mares,
402 F.3d 511, 515 (5th Cir. 2005). Although Sylvester has shown
error that is plain, she cannot satisfy her burden of showing
that the error affected the outcome of the district court
proceedings because she points to no evidence in the record
indicating that the court would have sentenced her differently
under an advisory sentencing scheme. See United States v. Olano,
507 U.S. 725, 734 (1993); Mares, 402 F.3d at 521. Sylvester,
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however, argues that Booker error is structural error, and even
if the error is not structural, it should be presumed prejudicial
because the difference in the sentencing scheme pre and post-
Booker is extremely likely to affect a district court’s
sentencing decision. This court has specifically rejected both
of these arguments as inconsistent with Mares. See United States
v. Martinez-Lugo, --- F.3d ----, 2005 WL 1331282 (5th Cir. June
7, 2005); United States v. Malveaux, No. 03-41618, 128 Fed. Appx.
362, 364 n.9 (5th Cir. Apr. 11, 2005) (unpublished).
Accordingly, Sylvester’s challenge to her sentence fails.
AFFIRMED.
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