United States v. Eliu Lorenzana-Cordon ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2019 Decided January 31, 2020
No. 18-3019
UNITED STATES OF AMERICA,
APPELLEE
v.
ELIU ELIXANDER LORENZANA-CORDON,
APPELLANT
Consolidated with 18-3033
Appeals from the United States District Court
for the District of Columbia
(No. 1:03-cr-00331-CKK-13)
(No. 1:03-cr-00331-CKK-14)
Robert E. Cappell argued the cause and filed the briefs for
appellants.
Michael A. Rotker, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was Arthur
G. Wyatt, Chief, Narcotic and Dangerous Drug Section. Ross
2
B. Goldman and Charles Miracle, Attorneys, and Elizabeth
Trosman, Assistant U.S. Attorney, entered appearances.
Before: TATEL, MILLETT, and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Following a three-week trial, a jury
convicted Eliu Lorenzana-Cordon and Waldemar Lorenzana-
Cordon—brothers and Guatemalan nationals—of conspiring to
traffic wholesale quantities of cocaine into the United States.
Now challenging their convictions, the brothers argue that the
government’s trial evidence materially diverged from the
indictment and that the district court erred by refusing to give
a multiple conspiracies jury instruction. Reviewing the record,
we find no grounds for reversal: no material divergence
occurred and, even if a multiple conspiracies instruction was in
order, its omission inflicted no prejudice.
I.
In 1995, Otto Herrera—a Guatemalan narcotics trafficker
who worked for the Sinaloa Cartel, a Mexican drug
syndicate—approached members of the Lorenzana-Cordon
family with a proposal to turn the family’s properties in
Guatemala into makeshift airfields and warehouses where drug
organizations “could store and safeguard cocaine shipments
. . . until the Mexican drug traffickers could come pick them
up.” Trial Tr. 27 (Mar. 1, 2016, 2:00 PM). In exchange,
traffickers would pay the family a fee for each load held at the
properties. The family, including brothers Eliu and Waldemar,
met with Herrera and approved the deal. Colombian suppliers
then began transporting thousands of kilograms of cocaine to a
farm owned by the Lorenzana-Cordon family for delivery to
Mexican purchasers. Although aware of the arrangement, the
brothers were initially uninvolved in the trafficking activities.
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That changed in 1998, when Herrera moved the operation
to a different farm owned by the family, at which point the
brothers took on more active roles. Following the move, the
brothers facilitated several cocaine transactions, with Eliu
offloading shipments and Waldemar serving as a lookout—the
cocaine ultimately destined for the United States by way of
Mexico and the Sinaloa Cartel. Around this time, the brothers,
through Herrera, also struck a deal with Colombian suppliers
to purchase a portion of the cocaine being stored on the
family’s properties in order to resell it to their own customers.
The arrangement proved profitable, with both Eliu and
Waldemar buying and then selling hundreds of kilograms of
cocaine.
In 2003, the family’s arrangement with Herrera abruptly
ended when U.S. law-enforcement officials discovered the
location of Herrera’s stash house in Guatemala. Local law-
enforcement officials executed a search of the house,
recovering a cache of weapons and U.S. currency. The raid
effectively ended Herrera’s trafficking activities.
Needing fresh supplies of cocaine, in 2004, the brothers
met with Marllory Chacon, a Guatemalan woman who
laundered money for Colombian cartels and who offered the
brothers the opportunity to acquire over a ton of cocaine from
Colombian suppliers. The brothers agreed to purchase the
cocaine, with Eliu fronting the money and Waldemar arranging
the logistics. Additional purchases followed, but the
arrangement ended after the brothers made late payments to the
Colombians. In 2008, Eliu and Waldemar reconnected with
Chacon, enlisting her help to launder and transfer millions of
dollars out of Guatemala.
Some years earlier, in either 2005 or 2006, the brothers
also purchased cocaine from Jose Handal, a Honduran
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trafficker. The brothers met with David Andrade, Handal’s
intermediary, at a farm in Honduras where they loaded several
hundred kilograms of cocaine into the hidden compartment of
a cattle truck and then drove the truck across the border into
Guatemala. Several days later, the brothers returned to
Honduras to deliver several million dollars as payment.
Throughout this period, Eliu and Waldemar continued
selling wholesale quantities of cocaine to various customers.
But they typically did so separately. For example, Walter
Merida, a Guatemalan involved in trafficking cocaine and
manufacturing ephedrine, purchased thousands of kilograms of
cocaine from Eliu though he never bought from Waldemar. The
brothers even occasionally competed for sales. Sebastiana
Cotton, a Guatemalan trafficker who purchased cocaine from
both Eliu and Waldemar, testified that, at one point, Waldemar
offered to undercut Eliu’s prices.
Eventually, the brothers came to the attention of U.S. law-
enforcement officials, and, in 2009, a federal grand jury issued
a sealed indictment charging Eliu and Waldemar, among
others, with one count of conspiring to “import into the United
States” and to “manufacture and distribute” for import into the
United States five kilograms or more of cocaine in violation of
21 U.S.C. §§ 952, 959, 960(b)(1)(B)(ii), and 963. Third
Superseding Indictment (Indictment), Joint Appendix (J.A.)
457–58. The Indictment further specified that the brothers
conspired “with each other, and with other co-conspirators,
both known and unknown to the Grand Jury” in “the Republic
of Colombia, El Salvador, Guatemala, Mexico, and
elsewhere.” Id. Guatemala extradited the brothers to the United
States and, following a trial at which they were the sole co-
defendants, a jury convicted both Eliu and Waldemar on the
conspiracy count.
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The brothers filed a host of post-trial motions before the
district court, seeking various forms of relief including new
trials and the unsealing of the Indictment. The brothers also
filed petitions for relief with this court, seeking to unseal
various trial and grand jury materials pending appeal. The
district court and a motions panel of this court denied the
brothers’ requests. The district court sentenced both Eliu and
Waldemar to life imprisonment, and this consolidated appeal
followed.
II.
Despite the flurry of post-trial motions, the brothers
advance only two arguments on appeal: that the evidence
presented at trial materially diverged from the charges
contained in the Indictment and that the district court erred by
refusing to give a multiple conspiracies instruction to the jury.
We address each in turn.
A.
Our court recognizes two types of impermissible
divergences between indictment and proof: variances and
amendments. We explained the difference between the two in
Gaither v. United States, 413 F.2d 1061 (D.C. Cir. 1969):
An amendment of the indictment occurs when the
charging terms of the indictment are altered, either
literally or in effect, by prosecutor or court after the
grand jury has last passed upon them. A variance
occurs when the charging terms of the indictment are
left unaltered, but the evidence offered at trial proves
facts materially different from those alleged in the
indictment.
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Id. at 1071 (internal citations omitted). Whereas “[a]n
amendment is thought to be bad because it deprives the
defendant of his right to be tried upon the charge in the
indictment as found by the grand jury,” “[a] variance is thought
to be bad because it may deprive the defendant of notice of the
details of the charge against him and protection against
reprosecution.” Id. at 1071–72. Amendments and variances
have their “own standards governing prejudice.” Id. at 1071.
Variances warrant reversal only when “the error had a
‘substantial and injurious effect or influence in determining the
jury’s verdict.’” United States v. Baugham, 449 F.3d 167, 174
(D.C. Cir. 2006) (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)). But “the concept of harmless error has not
been applied to amendments,” requiring reversal even absent a
showing of prejudice. Gaither, 413 F.2d at 1072; see Baugham,
449 F.3d at 175 (same).
Here, the brothers contend that the government’s evidence
materially diverged from the Indictment’s charges in four
ways: (1) whereas the government presented evidence of the
brothers’ activities in Honduras, the Indictment never specified
that the conspiracy occurred there; (2) whereas the government
presented evidence of the brothers’ transactions with Cotton,
Chacon, Andrade, and Merida, the Indictment never identified
those individuals as the brothers’ co-conspirators; (3) whereas
the government presented testimony of Merida’s involvement
in manufacturing ephedrine, the Indictment never charged the
brothers with conspiring to manufacture ephedrine; and
(4) whereas the government presented testimony of Chacon’s
money laundering, the Indictment never charged the brothers
with conspiring to launder money. Complicating our review of
these claims, the brothers refer to the four purported
divergences interchangeably as variances and amendments
throughout their briefs. Fortunately, we need not determine
whether the brothers’ divergence claims are best understood as
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amendments or variances because, however framed, the
arguments fail on the merits.
The brothers’ first two divergence claims—premised on
the government’s evidence regarding where and with whom
they conspired—fall at the first hurdle because such evidence
did not even diverge from the Indictment. Evidence that the
brothers conspired with individuals unnamed in the Indictment
(Cotton, Chacon, Andrade, and Merida) and in locations
unenumerated in the Indictment (Honduras) fell squarely
within the charged conduct—specifically, those portions of the
Indictment charging the brothers with conspiring with persons
“both known and unknown to the Grand Jury” in “the Republic
of Colombia, El Salvador, Guatemala, Mexico, and
elsewhere.” Indictment, J.A. 457–58 (emphasis added).
Because the charging terms encompassed the government’s
evidence, no divergence occurred, much less an amendment or
variance. Of course, indictments must contain sufficient detail
for defendants “to understand the charges, to prepare a defense,
and . . . to be protected against retrial on the same charges,”
United States v. Mejia, 448 F.3d 436, 445 (D.C. Cir. 2006)
(internal quotation marks omitted), and the Indictment met that
threshold here, see United States v. Camara, 908 F.3d 41, 47
(4th Cir. 2018) (holding that an indictment’s use of “and
others” provided adequate notice); United States v. Roman, 728
F.2d 846, 853 (7th Cir. 1984) (concluding that an indictment’s
use of “and elsewhere” provided adequate notice).
The brothers’ remaining divergence claims—premised on
Merida’s testimony regarding ephedrine and Chacon’s
testimony regarding money laundering—fare no better.
First, such evidence did not alter “the charging terms of
the indictment . . . either literally or in effect.” Gaither, 413
F.2d at 1071. No “literal” amendment of the Indictment
8
occurred because the charging terms remained unchanged
“after the grand jury . . . last passed upon them.” Id. Nor did
the government’s evidence “effect[ively]” alter the
Indictment—commonly called a “constructive amendment.”
Id. at 1071–72. “To support a claim of constructive
amendment,” the defendant must “show that the evidence
presented at trial and the instructions given to the jury so
modif[ied] the elements of the offense charged that the
defendant may have been convicted on a ground not alleged by
the grand jury’s indictment.” United States v. Toms, 396 F.3d
427, 436 (D.C. Cir. 2005) (internal quotation marks omitted).
Here, the district court specifically instructed the jury that
for you to find a defendant guilty of conspiracy, the
Government must prove . . . that the defendant
knowingly and willfully joined and participated in the
conspiracy with the specific intent to commit a
criminal objective, namely, to import cocaine into the
United States, or to manufacture or distribute cocaine
for the purpose of the unlawful importation into the
United States.
Trial Tr. 21–22 (Mar. 17, 2016). Thus, regardless of Merida
and Chacon’s testimony, no constructive amendment occurred
because “[t]he instructions . . . required the jury to find that [the
brothers] w[ere] engaged in a conspiracy to [import cocaine or
manufacture and distribute cocaine for import], as alleged in
the indictment.” Toms, 396 F.3d at 436; cf. United States v.
Shmuckler, 792 F.3d 158, 162 n.4 (D.C. Cir. 2015) (explaining
that the government charges in the conjunctive and the court
instructs in the disjunctive).
Second, Merida and Chacon’s testimony did not materially
vary from the Indictment. As noted, only variances that have a
“substantial and injurious effect or influence in determining the
9
jury’s verdict” warrant reversal. Baugham, 449 F.3d at 174
(internal quotation marks omitted). Neither Merida nor
Chacon’s testimony so prejudiced the brothers. They suffered
no harm from Merida’s testimony because, as the government
points out, “the[] witness[] w[as] testifying about [his] own
criminal conduct” and nothing in the record connected the
brothers to Merida’s ephedrine manufacturing. Appellee’s Br.
44. And although Chacon, unlike Merida, implicated the
brothers by testifying about their money laundering, “it simply
was not the case that the jury here was substantially likely to
consider against the [brothers] evidence of [money laundering]
not charged in the indictment,” given the overwhelming
evidence of cocaine trafficking, which dwarfed Chacon’s
passing testimony regarding money laundering, and given the
district court’s instructions regarding the permissible grounds
for conviction. United States v. Straker, 800 F.3d 570, 593 n.4
(D.C. Cir. 2015) (per curiam).
B.
This leaves the brothers’ claim that the district court erred
by rejecting their request for a multiple conspiracies jury
instruction. “We review de novo th[e] failure to provide a
requested jury instruction.” United States v. Hurt, 527 F.3d
1347, 1351 (D.C. Cir. 2008). In United States v. Cross, 766
F.3d 1 (D.C. Cir. 2013), we explained that, “[a]s with any other
theory-of-defense instruction, a multiple conspiracies
instruction ‘is in order if there is sufficient evidence from
which a reasonable jury could find for the defendant on his
theory.’” Id. at 4 (quoting United States v. Moore, 651 F.3d 30,
78 (D.C. Cir. 2011) (per curiam)). But the refusal to give a
requested charge “requires reversal of a conviction only if the
defendant suffered prejudice as a consequence.” Id. at 5.
 10
The brothers contend that, even if the government’s
evidence established the single conspiracy charged in the
Indictment, the record also contained enough evidence of
separate conspiracies to warrant a multiple conspiracies
instruction. As evidence that multiple conspiracies existed, the
brothers point out that they sold cocaine separately and sourced
cocaine from diverse suppliers. Although we have held that a
single conspiracy to distribute narcotics exists even where co-
conspirators “sometimes competed with each other for sales,”
United States v. Graham, 83 F.3d 1466, 1471 (D.C. Cir. 1996),
and even where co-conspirators relied on “different suppliers,”
United States v. Maynard, 615 F.3d 544, 554 (D.C. Cir. 2010),
we have also observed that such evidence can indicate a lack
of interdependence among purported co-conspirators,
warranting a multiple conspiracies instruction, see, e.g., United
States v. Mathis, 216 F.3d 18, 24–25 (D.C. Cir. 2000) (finding
multiple conspiracies instruction warranted where evidence
showed no interdependence among competing suppliers of
narcotics).
But we need not decide whether the record here required a
multiple conspiracies instruction because even if one was in
order, reversal is unwarranted given that the brothers fail to
“show that the [error] substantially prejudiced them.” Id. at 25
(internal quotation marks omitted). In Cross, we explained that
defendants may be prejudiced by the failure to give a multiple
conspiracies instruction where: (1) “insufficient evidence
[existed] for a reasonable jury to find [the defendants] guilty of
the conspiracy charged in the indictment beyond a reasonable
doubt;” (2) a lack of notice “interfere[d] with either . . . the
accused[’s ability] . . . to present his defense” or to “protect[]
against another prosecution for the same offense;” or
(3) evidence “spill[ed] over” from “one [defendant] to another”
or from “one conspiracy . . . [to] another.” Cross, 766 F.3d at
5–7 (internal quotation marks and citations omitted).
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According to the brothers, “[t]he prejudice in this case was
lack of notice,” as they were unable “to present their defense
and not be surprised at trial” and unable to “protect[] in the
future from prosecution for the same offense.” Appellants’ Br.
29. This claim finds no support in the record.
First, “[w]hile [the brothers] assert that they were unable
to prepare a defense, they fail to say how this was so.” United
States v. Morris, 700 F.2d 427, 430 (1st Cir. 1983). The
Indictment apprised the brothers of the “precise offense[] of
which [they were] accused” and “‘set forth all the elements
necessary to constitute the offence,’” United States v.
Williamson, 903 F.3d 124, 130 (D.C. Cir. 2018) (quoting
Hamling v. United States, 418 U.S. 87, 117 (1974)), putting the
brothers on notice of the need to defend against the charge at
trial. Moreover, they had “notice of the scope of the evidence
that would be used against [them] at trial,” United States v.
Sanders, 778 F.3d 1042, 1050 (D.C. Cir. 2015), because, per
order of the district court, the government provided defense
counsel with Jencks materials several days before testifying
witnesses took the stand. And the brothers “ha[ve] not provided
any reason for us to conclude that the government’s evidence”
tending to show multiple conspiracies “prejudiced [their]
ability to” cross-examine the government’s witnesses or
otherwise prepare a defense. United States v. Emor, 573 F.3d
778, 787 (D.C. Cir. 2009).
Second, the Indictment contains sufficient detail to permit
the brothers “to plead it in the future as a bar to subsequent
prosecutions,” thereby protecting them from further
prosecution for any “narrower and more limited” conspiracy
“included” within the Indictment’s broad scope. Miller, 471
U.S. at 131, 135. Accordingly, the brothers suffered no notice-
related prejudice from the district court’s refusal to give the
requested instruction.
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The brothers raise no other claims of prejudice. “Nor do
we,” reviewing the record on our own, “discern any of the kinds
of prejudice that we typically associate with” the omission of a
multiple conspiracies instruction. Cross, 766 F.3d at 6.
For starters, the record supports the jury’s verdict:
whatever else the government’s evidence showed, it
established that, at the very least, the brothers conspired “with
each other” to traffic over five kilograms of cocaine into the
United States, as alleged in the Indictment. Indictment, J.A.
457; cf. Miller, 471 U.S. at 131 (explaining no prejudice arises
where “a defendant is tried under an indictment that alleges a
certain fraudulent scheme but is convicted based on trial proof
that supports only a significantly narrower and more limited,
though included, fraudulent scheme”). Indeed, the brothers
raise no challenge to the jury’s verdict.
Nor did the brothers suffer any spillover prejudice—i.e.,
any risk that one brother’s conviction impermissibly rested on
evidence of the other’s guilt or that evidence from one
conspiracy “spill[ed] over onto the jury’s assessment of another
conspiracy.” Cross, 766 F.3d at 7. As we have explained, no
risk of spillover prejudice exists where the government tries
only a handful of alleged co-conspirators and where the district
court gives a clarifying instruction to the jury. United States v.
Celis, 608 F.3d 818, 845–46 (D.C. Cir. 2010) (per curiam).
That was the case here: the brothers were the only defendants
tried and the district court specifically instructed the jury that
“[e]ach defendant is entitled to have the issue of his guilt of the
crime for which he’s on trial determined from his own conduct
and from the evidence which applies to him, as if he were being
tried alone.” Trial Tr. 34 (Mar. 17, 2016).
Thus, regardless of whether the district court should have
given the multiple conspiracies instruction in the first place, no
13
prejudice arose from the charge’s omission, dooming the
brothers’ instructional claim.
III.
For the foregoing reasons, we affirm Eliu and Waldemar’s
convictions.
So ordered.