United States v. Joe Rodriguez ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-3053
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United States of America
Plaintiff - Appellee
v.
Joe Lenard Rodriguez
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Fargo
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Submitted: October 20, 2020
Filed: January 8, 2021
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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Joe Lenard Rodriguez was convicted of seven drug-trafficking crimes.
Rodriguez appeals, challenging the sufficiency of the evidence for one of his
convictions and arguing that the district court1 erred in its handling of a transcript of
an audio recording. We affirm.
I.
On August 1, 2017, law enforcement conducted a controlled buy from an
individual who subsequently agreed to become a confidential informant (the “CI”).
The CI told law enforcement that Rodriguez was the source of the methamphetamine
that she was caught selling. She testified that Rodriguez would supply her with 3.5
to 7 grams of methamphetamine “[o]nce a week at least” during the time period
leading up to August 1. Some of this she would use—she testified that she used
methamphetamine most days, a quarter gram at a time—and the rest of it she would
sell. According to the CI, Rodriguez made regular trips to Texas to replenish his
stock of methamphetamine.
After agreeing to cooperate with law enforcement, the CI conducted four
controlled buys from Rodriguez in August 2017 and a fifth in October 2017. On
each occasion, the CI carried a hidden recording device. During the October
controlled buy, Rodriguez said that he was heading to Texas to acquire more
methamphetamine and offered to sell some to the CI at a discount if she paid in
advance. After obtaining a warrant, law enforcement placed a tracker on
Rodriguez’s vehicle, monitored his travel to Texas, and arrested him on November 9
while he was on his way back to North Dakota. A search of his car revealed over
300 grams of methamphetamine wrapped in plastic and concealed in raw meat.
On June 20, 2018, a federal grand jury indicted Rodriguez on seven counts,
including one count of conspiracy to possess with intent to distribute
methamphetamine. See generally 21 U.S.C. §§ 841(a)(1), 846. The indictment
1
The Honorable Daniel L. Hovland, then Chief Judge, United States District
Court for the District of North Dakota.
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alleged that Rodriguez was involved in the conspiracy between July 1, 2017 and the
date of the indictment.
During the morning of the day before trial, the prosecutor emailed defense
counsel a transcript of a recording of one of the controlled buys. That afternoon, the
prosecutor sent defense counsel another email with the subject line “Joe Rodriguez
trial, stipulation to Exhibit 5 (audio of 10/24/17 controlled buy).” In the body of the
email, the prosecutor wrote, “I agree to your proposal from our call this morning that
the parties stipulate as to foundation and admissibility for the ‘deal’ portion of this
audio recording (and related transcript) in exchange for us not trying to offer into
evidence the entire audio recording as part of the prosecution case-in-chief.”
Defense counsel responded, “That sounds good.” What was then labelled
“Exhibit 5” included both the audio and the transcript.
The next day, at the beginning of trial, the district court asked the parties if
there were any evidentiary issues that needed to be resolved outside the presence of
the jury. The prosecutor stated that “with respect to Exhibit 5, which is an audio
excerpt of one of the five controlled buys that is alleged to have taken place in this
case, the parties have agreed as to foundation and admissibility for that and I wanted
to put that on the record now.” When the district court asked defense counsel if she
was “on the same page,” she replied: “Yes, Your Honor. . . . [W]e just request that
the transcript be just limited to the actual controlled buy, not before or after the
parties interact in that tape.” Rodriguez was present when his counsel made this
statement, and he did not object.
After the Government played the controlled-buy segment of Exhibit 5 for the
jury with the transcript appearing on the screen in the courtroom, defense counsel
objected on the ground that the transcript was lacking in foundation. Later, defense
counsel claimed that the transcript contained inaccuracies. The district court ruled
that the transcript was not to be replayed for or sent back with the jury and that
Rodriguez could argue to the jury that the transcript was inaccurate. Exhibit 5 was
relabeled “Exhibit 5A” and marked as a court exhibit, and a copy of the audio
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recording without the transcript was sent back with the jury under the label
“Exhibit 5.” When the district court presented its final jury instructions, which did
not address the transcript, defense counsel stated, “I just wanted to put on the record
that we did review the jury instructions and we don’t have any objections.”
The jury returned a verdict of guilty on all seven counts. Rodriguez appeals,
raising two issues. First, he argues that there was insufficient evidence to support
his conviction for conspiracy to possess with intent to distribute methamphetamine.
Second, he argues that the district court erred in its handling of the transcript of the
audio recording.
II.
Rodriguez first claims that the evidence was insufficient to support his
conviction for conspiracy to possess with intent to distribute methamphetamine
within the time period alleged in the indictment. We reverse a conviction “for
insufficient evidence only if no reasonable jury could have found [the defendant]
guilty beyond a reasonable doubt.” United States v. White, 816 F.3d 976, 985 (8th
Cir. 2016).
To convict a defendant of conspiracy to possess with intent to distribute
methamphetamine under 21 U.S.C. §§ 841(a)(1), 846, the government must prove
that the defendant “intentionally became a part of . . . an agreement among
individuals to” possess with intent to distribute methamphetamine. See United
States v. Herra-Herra, 860 F.3d 1128, 1132 (8th Cir. 2017). “[A]n express
agreement is unnecessary—a conspiracy may consist of simply a tacit
understanding.” Id. Because at least two individuals must be parties to an agreement
in good faith for there to be a genuine agreement, “there can be no indictable
conspiracy involving only the defendant and government agents and informers.” See
United States v. Nelson, 165 F.3d 1180, 1184 (8th Cir. 1999). To prove the existence
of a conspiracy, the government need not establish the identities of the other
conspirator(s); it just needs to establish that there were other conspirator(s). Id.-4-
(noting that we have “sustain[ed] conspiracy convictions when all conspirators other
than the defendant are unknown”).
In cases involving the distribution of controlled substances, we distinguish
between a conspiracy and a mere “buyer-seller” relationship. United States v.
Conway, 754 F.3d 580, 591 (8th Cir. 2014). Evidence of “a single transaction . . .
involving small quantities of drugs consistent with personal use” is consistent with
a “mere buyer-seller relationship.” Id. at 591-92. However, evidence of multiple
transactions is evidence of a conspiracy. See id. at 592 (explaining that the “buyer-
seller [jury] instruction is inappropriate where there is evidence of multiple drug
transactions, as opposed to a single, isolated sale” (internal quotation marks
omitted)). So is evidence that the transaction involved large quantities of drugs. See
United States v. Wiggins, 104 F.3d 174, 177 (8th Cir. 1997) (treating the “receipt of
large quantities of drugs” as indicative of a conspiracy rather than “a single buy-sell
relationship”).
Here, evidence of Rodriguez’s dealings with the CI and evidence of
Rodriguez’s dealings with an unknown individual in Texas were each independently
sufficient to support a reasonable jury’s finding beyond a reasonable doubt that
Rodriguez conspired to possess with intent to distribute methamphetamine within
the time period alleged in the indictment.
Regarding the CI, Rodriguez points out, correctly, that the controlled buys
executed after August 1 do not prove the existence of a conspiracy between
Rodriguez and the CI because by then the CI was acting as a confidential informant.
See Nelson, 165 F.3d at 1184 (“[T]here can be no indictable conspiracy involving
only the defendant and government agents and informers.”). But the CI testified that
she had been purchasing methamphetamine from Rodriguez “[o]nce a week at least”
during the time period “leading up to” August 1, when she became a confidential
informant. And she testified that she purchased enough to satisfy her own addiction
with plenty leftover to sell. Thus, there was evidence that, between July 1, 2017 and
August 1, 2017, Rodriguez and the soon-to-be CI engaged in multiple drug
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transactions involving more than “small quantities of drugs consistent with personal
use.” See Conway, 754 F.3d at 592. This alone is sufficient to support Rodriguez’s
conviction for conspiracy to possess with intent to distribute methamphetamine. See
id.; Wiggins, 104 F.3d at 177.
In addition, law enforcement caught Rodriguez returning from Texas in
November 2017 with more than 300 grams of methamphetamine after he had told
the CI that he was going to Texas to replenish his stock. Thus, there was evidence
that Rodriguez and an unknown individual in Texas engaged in a transaction
involving a large quantity of drugs inconsistent with personal use. This also is
sufficient on its own to support Rodriguez’s conviction for conspiracy to possess
with intent to distribute methamphetamine. See Wiggins, 104 F.3d at 177.2
In sum, there was sufficient evidence for a reasonable jury to conclude beyond
a reasonable doubt that Rodriguez conspired with the soon-to-be CI and with an
unknown individual in Texas to possess with intent to distribute methamphetamine.
Rodriguez emphasizes that much of this evidence consisted in the testimony of the
CI, whose credibility he challenges. But “[i]t is axiomatic that we do not review
questions involving the credibility of witnesses.” United States v. Dabney, 367 F.3d
1040, 1043 (8th Cir. 2004). “Unwilling to usurp the jury’s unique role in judging
the credibility of witnesses,” id., we conclude that there was sufficient evidence to
support Rodriguez’s conviction for conspiracy to possess with intent to distribute
methamphetamine.
2
Furthermore, the CI testified that Rodriguez regularly sourced his
methamphetamine from Texas. From this, a reasonable jury could infer that
Rodriguez was making multiple purchases of methamphetamine from the same
supplier rather than returning to the same location for unplanned, one-time
transactions with different suppliers. This constitutes a second basis for finding that
Rodriguez conspired with an unknown individual in Texas to possess with intent to
distribute methamphetamine. See Conway, 754 F.3d at 592.
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III.
Rodriguez’s second claim concerns the transcript of the audio recording. He
argues that the district court erred by permitting the jury to view the transcript before
defense counsel had an opportunity to review the transcript and take a position as to
its accuracy. See United States v. McMillan, 508 F.2d 101, 105 (8th Cir. 1974) (“[A]
transcript should normally be used only after the defendant has had an opportunity
to verify its accuracy . . . .”). According to Rodriguez, the district court’s error in
permitting the jury to view the transcript, together with the fact that the transcript
contained inaccuracies and the district court failed to provide a curative instruction,
entitles him to a new trial.
Rodriguez frames his claim in terms of the Sixth Amendment right to trial by
jury.3 Ordinarily, we review claims of constitutional error, including violations of
the Sixth Amendment right to trial by jury, de novo. United States v. Hawkins, 796
F.3d 843, 863 (8th Cir. 2015). “When there is no objection [at trial] to the lack of
an instruction,” however, the objection is forfeited, and “we review any decision by
the district court to omit a curative instruction for plain error.” See United States v.
LeGrand, 468 F.3d 1077, 1081 (8th Cir. 2006). And when “a defendant knowingly
and voluntarily waives a right, any error is unreviewable on appeal.” United States
v. Campbell, 764 F.3d 874, 878 (8th Cir. 2014).
Rodriguez’s assertion that his counsel had no opportunity to review the
transcript and take a position as to its accuracy fails to support his claim of error
because it is false. Defense counsel received the transcript by email, agreed to
stipulate as to its foundation and admissibility, and confirmed this agreement before
the district court.
3
Because we conclude that the district court did not commit the alleged error,
we need not address whether Rodriguez is correct that the alleged error constitutes
a Sixth Amendment violation.
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Rodriguez’s assertion that the transcript contained inaccuracies also fails to
support his claim of error, even assuming it is true. Rodriguez’s counsel confirmed
her stipulation to the admissibility of the audio recording and its transcript before
the court, in the presence of and without objection from Rodriguez. Thus, Rodriguez
waived any objection that he may have had to the presentation of the transcript to
the jury—including any objection on the ground that the transcript was inaccurate.
See United States v. Robinson, 617 F.3d 984, 989-90 (8th Cir. 2010) (holding that
defense counsel’s stipulation to the admissibility of evidence, in the presence of and
without objection from the defendant, constitutes a waiver of objections to the
evidence’s admission). Even assuming that, by objecting to the transcript after it
was shown, Rodriguez successfully withdrew his earlier stipulation, but see United
States v. Mezzanatto, 513 U.S. 196, 202 (1995) (“[A]greements to waive evidentiary
rules are generally enforceable even over a party’s subsequent objections.”), the
transcript was not replayed for or sent back with the jury. The only time the jury
saw the transcript was when Rodriguez’s waiver was unambiguously in effect.
That leaves Rodriguez’s objection to the lack of a curative instruction.
Because Rodriguez did not raise this objection below, we review his claim for plain
error. See LeGrand, 468 F.3d at 1081. Rodriguez has failed to show any error, let
alone error that was plain. As we have explained, Rodriguez waived any right that
he may have had against the presentation of the transcript to the jury. Therefore, the
district court did not err by permitting the jury to see the transcript. See United States
v. Olano, 507 U.S. 725, 732-33 (1993) (explaining that, if a right has been waived,
then what would otherwise violate the right does not constitute error). And if the
district court did not err by permitting the jury to see the transcript, then neither did
the district court err, plainly or otherwise, by failing to give a curative instruction.
See Hendricks v. Vasquez, 974 F.2d 1099, 1108 (9th Cir. 1992) (explaining that no
curative instruction is necessary where there is no underlying error to cure).
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Therefore, the lack of a curative instruction regarding the transcript did not constitute
error, let alone error that was plain.4
IV.
For the foregoing reasons, we affirm.
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4
Even assuming the district court did err in failing to give a curative
instruction, Rodriguez’s claim would not survive plain-error review because he has
not shown that the lack of a curative instruction affected the outcome of the trial.
See LeGrand, 468 F.3d at 1081.
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