United States v. Posada-Rios , 158 F.3d 832 ( 1998 )

REVISED, November 12, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 94-20645
________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ESNORALDO DE JESUS POSADA-RIOS
CARLOS ANTONIO MENA
ELISA GRAJALES MURGA
CARMENZA GUZMAN VARON
RAUL GAMBOA
LUIS GERARDO RIOS-CASTANO
MANUEL DE JESUS PARADA
ANTHONY JEROME GAGE
KELVIN JACKQUET
MONA SMITH WATSON,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Texas
________________________
October 21, 1998
TABLE OF CONTENTS
I. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . 5
A. Samuel Posada-Rios Organizes “La Compania” . . . . 5
B. Threats from Rival Drug Dealers and
Retaliation by La Compania . . . . . . . . . . . . 8
C. Samuel Posada-Rios Operates La Compania from
Colombia . . . . . . . . . . . . . . . . . . . . . 11
1. Ariel Ochoa and Esnoraldo De Jesus Posada-
Rios take over the Houston operation . . . . . 11
2. Elisa Grajales Murga . . . . . . . . . . . . . 13
D. Harold and Wonda Cortes . . . . . . . . . . . . . . 15
1. The Harold Cortes Organization (Manuel
Parada) . . . . . . . . . . . . . . . . . . . . 16
2. The Wonda Cortes Organization . . . . . . . . . 20
a. Mona Smith Watson and Tony Jones . . . . . 20
b. Mary Helen Hermann . . . . . . . . . . . . 21
c. Anthony Jerome Gage and Kelvin Jackquet . . 22
d. Carmenza Guzman Varon . . . . . . . . . . . 23
e. November 15-16, 1991, distributions to Gage,
Jackquet, Watson, and Varon . . . . . . . . 23
f. December 10-11, 1991, distributions to Watson,
Gage, Jackquet, Carmenza Varon, and Janeth Varon
. . . . . . . . . . . . . . . . . . . . . 26
g. January 1992 distributions . . . . . . . . 29
E. Mona Smith Watson’s Cocaine Distributions . . . . . 29
F. Anthony Gage and Kelvin Jackquet’s Cocaine Distri-butions
. . . . . . . . . . . . . . . . . . . . . . . . . 31
G. Raul Gamboa and Carlos Mena . . . . . . . . . . . . 32
H. The Demise of La Compania . . . . . . . . . . . . . 35
II. VERDICTS AND SENTENCES . . . . . . . . . . . . . . . . 37
III. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . 40
A. Sufficiency of the Evidence Challenges . . . . . . 40
1. RICO, 18 U.S.C. § 1962(c) . . . . . . . . . . . 41
2. RICO Conspiracy, 18 U.S.C. § 1962(d) . . . . . 45
a. Mena . . . . . . . . . . . . . . . . . . . 48
b. Murga . . . . . . . . . . . . . . . . . . . 50
c. Varon . . . . . . . . . . . . . . . . . . . 50
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d. Parada . . . . . . . . . . . . . . . . . . 51
e. Gage . . . . . . . . . . . . . . . . . . . 52
3. The Controlled Substances Violations . . . . . 53
a. Mena . . . . . . . . . . . . . . . . . . . 53
b. Murga . . . . . . . . . . . . . . . . . . . 54
c. Gamboa . . . . . . . . . . . . . . . . . . 54
d. Parada . . . . . . . . . . . . . . . . . . 55
e. Gage . . . . . . . . . . . . . . . . . . . 55
4. Jackquet’s conviction for use of a firearm “during
and in relation to” a drug trafficking offense in
violation of 18 U.S.C. § 924(c) . . . . . . . . 56
5. Murga’s conviction for making a false statement on a
visa application in violation of 18 U.S.C. § 1546(a)
. . . . . . . . . . . . . . . . . . . . . . . 58
B. Joinder and Severance Issues . . . . . . . . . . . 59
1. Joinder . . . . . . . . . . . . . . . . . . . . 59
2. Severance . . . . . . . . . . . . . . . . . . . 60
C. Evidentiary Issues . . . . . . . . . . . . . . . . 66
1. Admissibility of Watson’s Statements . . . . . 66
2. Admissibility of Murga’s Statements . . . . . . 72
3. Admissibility of Evidence Seized from the Mercury
Sable . . . . . . . . . . . . . . . . . . . . . 72
4. Admissibility of Evidence Seized from Jackquet’s
Residence . . . . . . . . . . . . . . . . . . . 74
5. The Government’s Trial Charts . . . . . . . . . 75
6. The Alleged Hearsay Testimony of Agent
Schaefer . . . . . . . . . . . . . . . . . . . 77
7. Impeachment Evidence Against Agent Schaefer . . 79
8. Extraneous Offense Evidence Against Gage . . . 81
9. Violation of Fed. R. Evid. 615 by Hall and
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Cortes . . . . . . . . . . . . . . . . . . . . 82
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D. Instructions to the Jury . . . . . . . . . . . . . 84
1. Voir Dire Instruction About Guilty Pleas . . . 84
2. Failure to Submit Duress Instruction . . . . . 86
3. Deliberate Ignorance Instruction . . . . . . . 92
E. Contact with a Juror . . . . . . . . . . . . . . . 93
F. Ineffective Assistance of Counsel . . . . . . . . . 96
G. Sentencing Issues . . . . . . . . . . . . . . . . . 98
1. Esnoraldo Posada-Rios . . . . . . . . . . . . . 99
2. Mena . . . . . . . . . . . . . . . . . . . . . 99
3. Murga . . . . . . . . . . . . . . . . . . . . . 102
4. Varon . . . . . . . . . . . . . . . . . . . . . 104
5. Gamboa . . . . . . . . . . . . . . . . . . . . 105
6. Rios-Castano . . . . . . . . . . . . . . . . . 106
7. Gage . . . . . . . . . . . . . . . . . . . . . 107
8. Jackquet . . . . . . . . . . . . . . . . . . . 108
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . 109
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Before KING and STEWART, Circuit Judges, and LAKE,* District Judge.
SIM LAKE, District Judge:
In December of 1992 a 134-page superseding indictment was
returned charging 35 defendants with drug trafficking and related
charges arising out of a conspiracy that began in 1985. After 84
days of trial, the ten defendants who are parties to this
consolidated appeal were convicted of a number of offenses. Most
of the defendants challenge the sufficiency of the evidence to
support their convictions, and various defendants challenge a
number of the trial court’s rulings before and during trial and at
sentencing. Except as to the RICO conspiracy conviction of Carlos
Antonio Mena, we AFFIRM the judgments of the trial court.
I. FACTUAL BACKGROUND
A. Samuel Posada-Rios Organizes “La Compania”
In 1985 Leoncio Ysreal Espaillat2 met Fabio Ochoa, Jr., a
Colombian cocaine supplier, and Samuel Posada-Rios. From 1986
through 1988 Espaillat stored approximately 12,000 kilograms of
Fabio Ochoa’s cocaine at Espaillat’s ranch in the Dominican
Republic. Some of the cocaine was delivered to Samuel Posada-Rios,
*
District Judge for the Southern District of Texas, sitting by
designation.
2
The downfall of the Samuel Posada-Rios cocaine trafficking
enterprise was hastened by the arrest of Espaillat. After he was
convicted of federal drug offenses in 1989 and sentenced to twenty
years in prison Espaillat began cooperating with law enforcement
agents. At trial Espaillat detailed the history and organization
of the Samuel Posada-Rios drug conspiracy.
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who was then operating from Tampa, Florida. Samuel Posada-Rios and
his partner, Carlos Moncada Rendon, formed a cocaine trafficking
enterprise known as “La Compania.” Samuel Posada-Rios’ inner
circle of associates included Miguel Cardona and Luis Gerardo Rios-
Castano (“a/k/a Luis Rios”; a/k/a “Flecha”)3 (both of whom operated
as transporters and assassins for the organization), Pepo Rendon
(Carlos Rendon’s brother), Wilson Patino, Mario Restrepo, and
Mercedes Agredo. Samuel Posada-Rios supplied cocaine to a number
of major distributors, including Esnoraldo De Jesus Posada-Rios,
Jose Aref-Mohammed, Enrique Perez, Jose Hernandez, Harold Cortes,
and Wonda Cortes. Each of the major distributors had his or her
own distributor customers.
At Samuel Posada-Rios’ direction Espaillat began transporting
drugs and money from Los Angeles to New York and Miami in 1986. On
his first trip Espaillat flew to Los Angeles and was driven by
Samuel Posada-Rios from the airport to the cocaine stash house.
After hiding the cocaine in a secret compartment in a camper of a
small truck, Espaillat drove to Queens, New York, and delivered the
cocaine to Esnoraldo De Jesus Posada-Rios. Shortly thereafter,
Samuel Posada-Rios moved his drug trafficking operations from Tampa
to Houston. Samuel Posada-Rios began paying Espaillat $10,000 a
month to assist in driving 25- to 200-kilogram loads of cocaine
from Houston to Austin, Dallas, New York, and Colorado by renting
cars and finding apartments and storage for the cocaine.
3
For ease of understanding the names of the ten appellants are
underlined in this abbreviated factual summary.
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In early 1987 Espaillat delivered two loads, of 10 and 25
kilograms, to Aref-Mohammed at the instructions of Samuel Posada-
Rios. Aref-Mohammed then asked to meet Samuel Posada-Rios, and the
two began dealing directly with one another. Espaillat then began
making cocaine deliveries at least twice a month to “Chu Chu,” an
employee of Aref-Mohammed. Henry Alfredo Garcia also transported
cocaine from Samuel Posada-Rios to Aref-Mohammed through Chu Chu.
In 1987 most of the cocaine delivered to Samuel Posada-Rios
in Houston arrived over land. On September 6, 1987, however, 850
kilograms of cocaine arrived in Houston on a ship from Colombia and
was transported to Samuel Posada-Rios’ house in the Mission Bend
area of Houston. Present at the house to count and distribute the
cocaine were Samuel Posada-Rios, Espaillat, Enrique Perez, Mercedes
Agredo, Miguel Cardona, Rios-Castano, and Chu Chu. Perez and Aref-
Mohammed received 350 kilograms, and the remaining 500 kilograms
went to Samuel Posada-Rios. Espaillat delivered $675,000 in cash
to the captain of the ship as payment for transporting the cocaine.
Espaillat obtained the money from Samuel Posada-Rios, Enrique
Perez, and Chu Chu, who was acting on behalf of Aref-Mohammed.
In 1987, 1988, and 1989 Samuel Posada-Rios received between
400 and 500 kilograms of cocaine per month. Espaillat estimated
that from the beginning of 1987 through the summer of 1988 Samuel
Posada-Rios received between 12,000 and 14,000 kilograms of
cocaine, and that he received another 2,000 kilograms of cocaine
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during the remainder of 1988. Over 1,000 kilograms of this cocaine
was supplied to Aref-Mohammed.4
In September of 1988 Espaillat distributed 60 kilograms of
cocaine in Miami at Samuel Posada-Rios’ direction. He received
$250,000 in cash in payment but was robbed of this money at
gunpoint. Samuel Posada-Rios ordered Espaillat to go to Colombia,
where he was shown a severed arm and hand wearing the watch and
ring that Espaillat identified as formerly belonging to the person
who had robbed him.
B. Threats from Rival Drug Dealers and Retaliation by La
Compania
Carlos Palomino belonged to a rival drug gang from Buena
Ventura, Colombia, called “Los Canoneros” (highjackers or
cannoneers in Spanish) that was noted for stealing cocaine and
money from rival drug dealers and for killing members of rival
gangs. In December of 1987 Samuel Posada-Rios told Espaillat that
Palomino had stolen 5 kilograms of cocaine from the Posada-Rios
organization and had molested a woman who was guarding the drugs.
Samuel Posada-Rios, Espaillat, Pepo Rendon, and other members of
La Compania decided to kill Palomino after the Christmas holidays
in retaliation and to ensure respect for La Compania.
On January 18, 1988, Rios-Castano and Edison Alvarez (a/k/a
“Motor”) were sitting inside the Miami Beat Disco in Houston when
4
When the trial began Aref-Mohammed was a defendant. On
July 21, 1993, he pled guilty to a superseding information charging
him with one count of engaging in a continuing criminal enterprise
in violation of 21 U.S.C. § 848 pursuant to an agreement with the
government. He was sentenced to ten years in prison, three years
of supervised release, a $50,000 fine, and a $100 special
assessment.
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Palomino and his girlfriend, Carolyn Tippett, arrived. Carlos
Moncado-Rendon testified at trial that Rios-Castano related to him
the following account of what happened at the club. Rios-Castano
and Alvarez were sitting at the club drinking when Palomino arrived
with two women. An argument ensued between Alvarez and Palomino,
and Rios-Castano grabbed Alvarez and took him outside. Carolyn
Tippett followed Rios-Castano and Alvarez outside and began arguing
with Alvarez. Palomino followed Tippett out of the club. When
Tippett tried to hit Alvarez in the face he pulled his gun and shot
and killed her. During the defense portion of the case Rios-
Castano described a similar, but more detailed, version of the
Tippett killing. The thrust of both of Rios-Castano’s versions was
that Tippett’s killing was a personal, rather than business
related, matter. Tippett’s murder was discussed at a subsequent
meeting of La Compania members Samuel Posada-Rios, Rios-Castano,
Miguel Cardona, and Espaillat. When Samuel Posada-Rios suggested
that they should not have killed Tippett, Rios-Castano responded,
“We killed her, so what.”
On February 27, 1988, three carloads of Posada-Rios’ men
(including Miguel Cardona, Rios-Castano, Tumaco, Mikiquito,
Moncada, and Pepo Rendon) went to the Thunderdome nightclub to kill
Palomino. Although they shot Palomino numerous times as he came
out of the club, Palomino escaped with only minor injuries. Robert
Torres-Gonzalez (a/k/a “Gustavito”), a drug dealer who had been
with Palomino at the club and who testified at trial, identified
Rios-Castano as one of the gunmen, and Rios-Castano later pled
guilty in state court of aggravated assault of Palomino.
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Palomino retaliated on June 26, 1988, by murdering Pepo
Rendon at the Miami Beat Disco. Samuel Posada-Rios then told
Mikiquito to find out which of Palomino’s people had killed Pepo
Rendon and where they lived. Mikiquito identified Gustavito and
Henry Barahona as Pepo Rendon’s killers and identified a house
where they could be found. On June 27, 1988, Samuel Posada-Rios,
Rios-Castano, Moncado, Mikiquito, and others went to 2703 Skelton
to kill Gustavito and Barahona. When they could not find Rendon’s
killers, they shot up the house, and another house at 11811 Green
Lane.
On August 7, 1988, Samuel Posada-Rios, Miguel Cardona, Carlos
Moncada Rendon, and Rios-Castano finally tracked Gustavito and
Barahona to an apartment complex, laid in wait for them to leave,
and retaliated for Pepo Rendon’s murder. When four people emerged
from the apartment, a gun battle ensued; Barahona was killed and
Gustavito was shot nine times. Rios-Castano later pled guilty in
state court to Barahona’s murder. Samuel Posada-Rios bragged to
Harold Cortes how Barahona’s brain “splattered or exploded
everywhere.”
Barahona’s murder forced Samuel Posada-Rios to leave the
country. Espaillat drove him to Miami, and from there he went to
the Dominican Republic, and ultimately to Colombia, where Espaillat
delivered $3 million to him.5
5
Samuel Posada-Rios was a fugitive at the time of the
appellants’ trial in 1993. On June 15, 1995, the United States
extradited Samuel Posada-Rios from Frankfurt, Germany. In 1996 he
was tried and sentenced to life in prison after a jury found him
guilty of participating in a racketeering enterprise and possessing
cocaine with intent to distribute it in violation of 18 U.S.C.
(continued...)
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C. Samuel Posada-Rios Operates La Compania from Colombia
1. Ariel Ochoa and Esnoraldo De Jesus Posada-Rios take over
the Houston operation
Samuel Posada-Rios continued his drug trafficking enterprise
from Colombia, calling Espaillat on a daily basis. Carlos Moncada
took over the Houston enterprise until his arrest on September 9,
1988. Samuel Posada-Rios then designated Ariel Ochoa as his
successor in Houston to distribute Colombian cocaine. Samuel
Posada-Rios also designated his brother, Esnoraldo De Jesus Posada-
Rios, as his local successor to collect money owed him for previous
cocaine deliveries. The money owed was recorded in ledgers that
Espaillat retrieved from Samuel Posada-Rios’ house and gave to
Miguel Cardona and Esnoraldo Posada-Rios.
Esnoraldo Posada-Rios was arrested in August of 1988. Samuel
Posada-Rios instructed Espaillat to bond Esnoraldo out of jail and
to find him a place to live. Samuel Posada-Rios promised Espaillat
15 kilograms of cocaine for putting up Esnoraldo’s bond. Espaillat
complied and moved Esnoraldo to 9001 Jones Road, #1111, after
bonding him out of jail.
After his release from jail Esnoraldo and Ariel Ochoa worked
together at Samuel Posada-Rios’ direction. (After his release from
jail Esnoraldo also collected over $2 million of Samuel’s drug
debts.) Ochoa had agreed with Samuel Posada-Rios to supply
Esnoraldo with up to 150 kilograms of cocaine per week. Esnoraldo
(...continued)
§ 1962 and 21 U.S.C. § 846.
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met with Ochoa at the Two Pesos restaurant on FM 1960 to arrange
for additional deliveries of cocaine. Maximo Perez, a friend from
the Dominican Republic whom Espaillat recruited to come to Houston,
attended the meeting with Esnoraldo; and Ochoa was accompanied by
Tatiana Bedoya, his girlfriend, and Elisa Grajales Murga, his ex-
wife. After the meeting Murga and Bedoya delivered 25 kilograms to
Esnoraldo at Ochoa’s direction. Espaillat purchased 2 kilograms of
this delivery. Again through Murga and Bedoya, Ochoa delivered a
second 75-kilogram load to Esnoraldo and Maximo Perez in November
of 1988.
In January of 1989 Esnoraldo Posada-Rios had arranged for
Espaillat to make a cocaine delivery. Espaillat had spotted
surveillance agents earlier that day. Afraid that he was about to
be arrested, he called a friend from his car to retrieve the
cocaine he was carrying. Although Espaillat delivered what he
believed to be all of the cocaine to the friend, when his car was
stopped by the police 1 kilogram was discovered on the back seat
floorboard. The Jones Road apartment was searched later that day,
and nine packages of cocaine, weighing paraphernalia, guns, and
ammunition were seized.
Esnoraldo Posada-Rios talked to Espaillat two days after this
arrest to locate the 3 kilograms of cocaine that Espaillat had
turned over to his friend. Esnoraldo then fled to New York, where
he ran Samuel Posada-Rios’ New York cocaine distribution operation.
New York police arrested Esnoraldo on January 24, 1990, at an
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apartment where they also seized a machine gun, ammunition, and
cocaine that belonged to him.
2. Elisa Grajales Murga
Elisa Grajales Murga assisted her ex-husband, Ariel Ochoa,
in the cocaine distributing operation. Jose Antonio Ortiz
testified that in March of 1989 Murga paid him $500 per kilogram to
sell cocaine for her. He sold 1 or 2 kilograms, which he received
from Murga's maid, Mercedes Alonzo, at Murga's house at 12806
Maxfield and for which he paid Alonzo. In late May of 1989 Ortiz
negotiated a second delivery that was to occur in June of 1989.
On June 13, 1989, surveillance officers observed Ernesto
Torres emerge from room #113 at a Manor House Motel with Murga
carrying a large hard-sided suitcase, which Torres placed in the
trunk of his car. Torres and Murga drove to her house at 12806
Maxfield, where police observed them carrying packages into the
house. Police continued to follow Torres. Later that afternoon
Torres met several unidentified Latin males, one of whom handed
Torres a package from the trunk of his car.
On June 14, 1989, around 11:00 a.m., Murga met Carlos
Guillermo Rodriguez and Torres at the Cafe Miami Restaurant. Murga
then left the restaurant and returned to the Maxfield house.
Around noon police observed a Latin male, later identified as
Victor Rodriguez, carry a box from the Maxfield house and place it
in the trunk of his car. Victor Rodriguez was later stopped by the
police on an outstanding warrant, and 10 kilograms of cocaine were
seized from his car. The cocaine was labeled “Oro” and “Peria.”
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The same day that she delivered cocaine to Victor Rodriguez,
Murga called Ortiz three times at the restaurant to tell him that
his cocaine was ready. Ortiz drove to Murga's house around
1:00 p.m. and spoke with Mercedes Alonzo, who told him that Murga
had left him a package in a boat in Murga's garage. Ortiz and
Alonzo loaded a large corrugated box from the boat into the trunk
of Ortiz’s car. Police later stopped Ortiz and seized 20 kilograms
of cocaine from the box in his car.
The police then went to Murga’s house and searched it with
her consent. The police seized 10 kilograms of cocaine from the
boat in the garage. The cocaine was packaged with the same “Oro”
and “Peria” markings as the 30 kilograms previously seized from
Rodriguez and Ortiz. Police also seized a bag containing 2.9 grams
of cocaine from Murga's purse and a triple-beam scale from her
house.
Olivia Alastre, a confidential informant working for the FBI,
testified that in January of 1991 Murga was attempting to
reestablish her contacts in the drug trafficking business. Murga
first tried unsuccessfully to obtain cocaine from Fabio Zuniga, a
friend of Ochoa's. Ochoa finally agreed to give her 30-40
kilograms. In April of 1991 Murga asked Alastre’s assistance in
renting an apartment to store the cocaine. She introduced Alastre
to “Don Jose,” whom Murga told Alastre she had employed to assist
her in distributing the cocaine to reduce her personal involvement.
Murga's address book, which she inadvertently left in Alastre's
car, was photocopied by federal agents before it was returned. The
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book contained names and telephone numbers of other documented drug
traffickers.
D. Harold and Wonda Cortes
Harold Cortes was one of Samuel Posada-Rios' best customers.
When Ariel Ochoa took over the distribution of Samuel Posada-Rios’
cocaine in Houston, Harold became one of his main assistants. When
Samuel Posada-Rios fled to Colombia, Harold Cortes owed him between
$125,000-$130,000; Ariel Ochoa offered to let Harold repay the debt
by becoming one of his distributors.
Wonda Cortes was Harold’s wife and a long-time drug dealer
in her own right. Wonda had a large number of customers whom she
was not able to supply because of her own limited supply of cocaine
and the high cost she was paying for the cocaine. In the fall of
1990 Harold Cortes agreed to let Wonda distribute cocaine from
Ochoa to these customers. By 1991 the Corteses were well
established as major distributors in the Samuel Posada-Rios
organization. Ledgers seized from Harold Cortes's residence on Sir
William Street during a July 10, 1992, search reflected almost $72
million in drug proceeds and 5,753.3 kilograms of cocaine
distributions.
Ariel Ochoa supplied cocaine to Harold Cortes through Tatiana
Bedoya, Ochoa’s girlfriend. Millions of dollars in drug proceeds
collected by the Corteses were wired to Colombia through money
laundering facilities known as "giro houses" in Houston or other
cities. Bedoya worked at a giro house named "One Stop Express."
1. The Harold Cortes Organization (Manuel Parada)
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Wonda Cortes testified for the government at trial. She
explained that the Posada-Rios drug trafficking enterprise operated
like a corporation. Cocaine and money had to be accounted for,
stored, and redistributed; and money had to be paid out for renting
houses for living and stashing contraband, for cars for
transporting drugs and money, and for pagers, telephones, scanners,
and antisurveillance devices. To accomplish these tasks Harold
Cortes employed Victor Loaiza (a/k/a Julio Jimenez), Hernan Moreno
(a/k/a “Papo”), and Manuel De Jesus Parada.
Victor Loaiza met Ariel Ochoa in 1989. Loaiza testified that
in early 1990 he flew from Miami to Houston at Ochoa's request to
"take care of the money." Ochoa took Loaiza to an apartment, and
Harold Cortes arrived at the apartment with $150,000 for Loaiza to
guard. Loaiza remained in Houston about 1-1/2 months before
returning to Miami. On his next trip he remained in Houston for
2-3 months. He helped count and guard $350,000 to $400,000. On
three occasions Loaiza also transferred drug proceeds at Harold
Cortes's direction in amounts ranging from $150,000 to $400,000 to
a woman named "Bruni" and through Bedoya at One Stop Express.
Hernan Moreno and Manuel De Jesus Parada performed logistical
services for Harold Cortes. They rented stash houses, cars, U-Haul
trailers, telephones, and pagers. At Harold Cortes's direction
they used false information in leases and applications, and changed
residences periodically to minimize detection. Parada let Cortes
and Moreno use his apartment at 2828 Rogerdale for registering car
titles and applying for pager rentals. Moreno used Parada's
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Rogerdale address on a purchase application for a gold Oldsmobile,
which he bought with cash, and that was later discovered to have a
hidden compartment.
Parada also rented a house at 9658 Angie Street in his own
name at Harold Cortes's instruction. Moreno, who paid the rent,
and "Alexis" and "Fernando (a/k/a Potes)" moved into the house to
guard cocaine stored there. Loaiza testified that he also rented
an apartment on Trailing Vine. At Harold Cortes’s instructions
Loaiza listed Parada as a reference on the lease application.
Loaiza explained that it was essential to use Parada as a reference
because Parada had the necessary credit card.
Harold Cortes paid Parada $1,000 per month. Parada’s name
appeared in drug ledgers reflecting "rent" payments for stash
houses, cars, and other expenses of the drug operation. Wonda
Cortes explained that the ledger notations reflected expenses for
their drug enterprise. For example, one entry in a ledger stated
“Manuel carro, phone car, phone house" next to the figure 3.0.
Wonda Cortes explained that the entry referred to a $3,000 payment
to Parada for expenses of the car and the house telephone bill.
Harold Cortes also hired Parada to drive a car from Miami to
Houston. Parada was stopped by a Louisiana state patrolman for a
traffic violation on May 18, 1991. He told the patrolman that he
was transporting the car from Florida to Houston for a friend, whom
he did not identify. The car contained a fresh odor of fiberglass
and paint. After obtaining Parada's consent to search, the officer
found an empty hidden compartment that had been built into the back
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of the rear seat and operated by a sophisticated hidden release
device wired through the air conditioning vent. The car was also
equipped with air shocks, controlled by an air pump panel switch,
to disguise the weight being carried in the vehicle. Parada denied
any knowledge of the hidden compartment. Parada was issued a
traffic citation and released. Loaiza testified that after this
incident Harold Cortes considered the car to be ruined as a drug
smuggling vehicle and gave it to Parada. Registration of this
vehicle was later changed to Parada's name.
On July 18, 1991, DEA agents followed Loaiza in a gray Dodge
rented by Parada from the Angie Street house to an apartment at the
Stonefield Village complex. Loaiza entered the apartment empty-
handed and left carrying a shoulder bag. When Loaiza was stopped
by police officers and searched, he had $73,405 in cash and a
digital pager. Loaiza identified this cash as drug proceeds
received from "Hubert," an associate of Harold Cortes who lived at
the Stonefield Village complex. Loaiza was stopped en route to
delivering the money to Cortes. A digital pager in Loaiza’s
possession reflected a coded message from Parada.
After the July 18, 1991, seizure of drug proceeds Ariel Ochoa
instructed Loaiza to return to Miami, and he did so the next day.
Law enforcement agents continued to follow Moreno and Parada. On
August 6, 1991, agents saw Hernan Moreno and Parada arrive at a
Captain Benny’s restaurant around 6:50 p.m. Moreno made several
calls from a pay telephone at the rear of the restaurant. The
calls appeared to be made to a beeper. The two men then drove from
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the restaurant to an Exxon station next door and made more calls
from a pay telephone there. They then returned to Captain Benny’s
and made more calls from the pay telephone there. Around 7:20 p.m.
Moreno and Parada left the Captain Benny’s restaurant and drove to
the Stonefield Village apartment complex and went inside apartment
#1804. Fifteen minutes later the two men came out of the
apartment, one of them carrying a purple gym bag. Moreno and
Parada then drove to Harold Cortes’s residence at 19803 JoanLeigh.
Moreno carried a half-full brown grocery bag into the residence.
A few minutes later Parada came out of the JoanLeigh residence
carrying a purple gym bag. He got into a different car with two
women and drove to 9658 Angie, where he took the gym bag into the
residence. Fifteen minutes later Parada left the Angie residence
without the gym bag with the two women and drove to a Two Pesos
restaurant. There was no direct evidence of the contents of the
grocery bag or the purple gym bag.
Pen registers from the three telephone lines that Parada had
installed at his Rogerdale residence reflected 238 calls from
Harold Cortes during the period from June 5, 1991, through
January 15, 1992. In a telephone conversation intercepted pursuant
to a Title III wiretap on March 5, 1992, Jaime Cardenas told Parada
that he had "papers" to bring him. Wonda Cortes testified that she
used the term “papers” in telephone conversations to refer to
money. In a statement made to DEA agent Mike Schaefer after his
arrest in August of 1992 Parada stated that Hernan Moreno had
stopped him from walking down the hallway of one of the rented
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houses and told him that “you don’t need to see what’s down there.”
Parada told agent Schaefer that at that point he knew Harold Cortes
and Hernan Moreno were "up to no good."
2. The Wonda Cortes Organization
Wonda Cortes distributed cocaine to her brother, Richard
Winston Hall,6 Mona Smith Watson, Tony Jones, Carmenza Guzman
Varon, Mary Helen Hermann, Anthony Jerome Gage, and Kelvin
Jackquet.
a. Mona Smith Watson and Tony Jones
Tony Jones began as one of Wonda Cortes's customers and
became one of Harold Cortes's largest customers. Through Mona
Smith Watson, Jones' girlfriend and the mother of his child, Harold
Cortes distributed large amounts of cocaine. Watson assisted Jones
by retrieving and delivering cocaine-laden vehicles supplied by
Harold Cortes and returning drug proceeds to Cortes. Tony Jones
was murdered in 1991. At the time of his death Jones owed Harold
Cortes $360,000 for drug purchases. Harold asked Watson for
assistance in collecting drug debts owed by Jones, and Watson gave
Harold Cortes a list of people who owed money to Jones.
6
Some of Wonda’s distributors’ customers also bought cocaine
from Harold. Wonda's brother, Richard Winston Hall, also made
deliveries for Harold Cortes. Hall and Harold Cortes made a number
of cocaine deliveries to Conroe, Texas, in 1989. At Harold's
direction and with his money, Hall purchased a pickup truck in his
name on February 17, 1991. Harold Cortes was stopped while driving
this truck in Louisiana on March 20, 1991. A search of the truck
uncovered a black overnight bag containing $126,053, vehicle
registration documents in Hall's name, and an insurance contract in
Ochoa's name. Wonda Cortes identified this money as drug proceeds.
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After Tony Jones was murdered Wonda Cortes agreed to continue
supplying Mona Smith Watson with cocaine for the customer base that
Jones had developed during his drug trafficking activities with
Harold Cortes. Watson acted primarily as a broker in these
transactions. She would contact the customers, determine how much
cocaine they wanted, and call Wonda Cortes and put the customer in
contact with her. For her role as a broker Watson was paid from
$500 to $1,000 per kilogram. In a statement made to the FBI at the
time of her arrest, Watson also admitted personally buying and
distributing 3 kilograms of cocaine in addition to her brokering
activities.
b. Mary Helen Hermann
Mary Helen Hermann was a long-time drug dealer who testified
for the government at trial. In 1987 Hermann supplied Wonda Cortes
with cocaine from a supplier named Mario Moreno in Los Angeles.
Wonda Cortes later told Hermann that she would no longer deal with
Moreno because she could get a better price and had easier access
to cocaine through Samuel Posada-Rios. In mid-1988 Hermann moved
from Los Angeles to Wonda Cortes’s residence on Hearthstone in
Houston and began assisting Wonda and accompanying her on
deliveries of cocaine received from the Posada-Rios organization
through Harold Cortes.
Hermann described instances when Wonda Cortes and Mona Smith
Watson distributed cocaine together and counted the proceeds.
Hermann also picked up a load of cocaine for Wonda Cortes at the
Port of Houston. Hermann and her brother went to the port
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pretending to sell electronic equipment. They took a television
set onto a ship and two sailors loaded 24 kilograms of cocaine
inside the television. Hermann and her brother delivered the
television set to Wonda Cortes and were each paid $12,000. In late
1991 or early 1992 Hermann assisted Wonda Cortes and Tatiana Bedoya
in counting $500,000 at Wonda’s house on Corral Street. Cortes and
Bedoya delivered the money to Ochoa later that evening.
c. Anthony Jerome Gage and Kelvin Jackquet
In August of 1991 a large shipment of cocaine arrived in
Houston. In August and September of 1991 Wonda Cortes made four
large cocaine sales. Wonda delivered 14 kilograms to Watson and
Anthony Jerome Gage a/k/a "Bo" at a price of more than $14,000 per
kilogram. This was the first time Wonda Cortes had met Gage.
Wonda Cortes delivered another 20 kilograms to Gage at the
apartment of his brother, Kelvin Jackquet a/k/a “Pop,” at 2425
Holly Hall, apartment #B-25. Gage paid Cortes for part of the
price for the cocaine, and Mona Smith Watson paid Cortes the rest
of the sales price. Wonda Cortes made a third, 25-kilogram sale,
at $14,500 per kilogram, at Jackquet's apartment on Holly Hall.
Present during this sale were Gage, Jackquet, Wonda Cortes, and
Carmenza Guzman Varon. Gage delivered the balance of the payment
for the 25 kilograms to Wonda Cortes at a "stash house" that she
rented on El Mundo Street under the alias "Alexis Caron"; and Wonda
Cortes, Carmenza Guzman Varon, and Wonda’s brother, Richard Winston
Hall, counted about $350,000 in cocaine receipts. In September of
1991 Wonda Cortes made a fourth delivery of 40 kilograms to Gage at
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the apartment of Gage’s sister, Yolanda Gage. Present during the
delivery were Wonda Cortes, Carmenza Varon, and Gage. Gage made a
$300,000 or $400,000 down payment for the cocaine and took the rest
on consignment, with the balance to be paid after Gage sold the
cocaine.
d. Carmenza Guzman Varon
Carmenza Guzman Varon (a/k/a “Menchie”) began working for
Wonda Cortes in May or June of 1991 at a clothing store Cortes
owned. In July of 1991 Varon agreed to supply cocaine to Olivia
Alastre. Alastre would sell the cocaine to her customers, and
Alastre and Varon would split the proceeds equally. On August 15,
1991, Alastre gave Varon $15,000 for 1 kilogram of cocaine at
Varon's apartment at 7222 Bellerive. On October 2, 1991, Wonda
Cortes made a second 1-kilogram delivery to Alastre through Wonda’s
younger brother, Richard Winston Hall. Hall handed the cocaine to
Varon, who handed it to Alastre.
e. November 15-16, 1991, distributions to
Gage, Jackquet, Watson, and Varon
By November of 1991 federal authorities had placed a wiretap
on one of Wonda Cortes's cellular telephones and began recording
conversations detailing her drug trafficking activities. In a
conversation recorded on November 8, 1991, Anthony Jerome Gage told
Wonda Cortes that he had lost $100,000 at the airport and that
someone "got hit 76 times," meaning that the police had confiscated
76 kilograms of cocaine. Wonda Cortes told Gage that his brother,
Kelvin Jackquet, was short $4,640 in his cocaine payments. (This
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shortage was also reflected in Wonda's drug ledger; it was paid on
November 15, 1991.)
A series of conversations were recorded on November 13, 1991.
Wonda Cortes testified about the code phrases the participants used
in the calls to conceal drug quantities and prices. In the first
call Kelvin Jackquet told Wonda Cortes that he was ready to buy
cocaine from someone else. Wonda replied that she was expecting
another delivery of cocaine in a day or so. In a later call that
day with Jackquet and Gage, Wonda Cortes confirmed the load was
coming but could not quote a price. In a conversation between Mona
Smith Watson and Wonda Cortes, Watson told Wonda that she needed to
make some money selling cocaine. Wonda replied that she had 5
kilograms to sell and Watson asked to buy it. Bedoya called Wonda
Cortes to tell her that she had been notified that the expected
load of cocaine had arrived in Houston.
The arrival of the load of cocaine sparked a series of
telephone calls on November 14, 1991. Wonda Cortes notified Gage,
Roy Ford, and Jackquet that she was on her way to pick up the
cocaine. Jackquet wanted 3 kilograms. Wonda quoted Ford a price
of $14,500 per kilogram; and she quoted Watson a price of $14,000.
Tatiana Bedoya delivered 15 kilograms of cocaine to Wonda.
Wonda stored it at a stash house she had rented at 1115 Augusta,
#31, under the alias Alexis Caron. Carmenza Varon was living at
the house to guard the cocaine. From this shipment of cocaine
Wonda delivered 1 kilogram to Ford on November 14, 1991.
Mona Smith Watson wanted 8 kilograms but only had the money
to buy 4. She later called Wonda Cortes to tell her that she had
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the money for 5 kilograms. Wonda delivered 4 kilograms to Watson,
and Wonda made another 1-kilogram delivery to “Andrea” the next day
at Watson's request.
In a coded conversation between Wonda Cortes, Carmenza Varon,
and Janeth Varon, Janeth told Wonda that she had "dresses"
(kilograms of cocaine) she wanted to sell in Wonda's shop. Wonda
replied that "most of the things I take in are "11 and 11-1/2,”
meaning $11,000 to $11,500 per kilogram. Janeth's price was too
high and Wonda did not want to deal with her.
Wonda Cortes and Richard Winston Hall made a cocaine delivery
to Kelvin Jackquet and Anthony Gage on November 15, 1991, at a
house on Calumet. This delivery was referenced in Wonda's ledgers
as 2 kilograms at $14,300 each. Jackquet was short $100. In a
subsequent conversation, Wonda informed Jackquet that he was $200
over, and that she would credit the amount against his outstanding
cocaine balance. Wonda also told Jackquet that she was going to
have additional cocaine to sell him. Wonda delivered her remaining
7 kilograms of cocaine to Jackquet on November 16, 1991. On
November 16, 1991, after receiving payment for the sale of this
cocaine, Wonda Cortes, Carmenza Varon, Richard Hall, and Donald
Wayne Woods counted it in a room at the Holiday Inn Crowne Plaza at
the Houston Galleria. While there Wonda received a phone call from
a Colombian with a Cali accent whose voice she did not recognize.
He warned her that one of her associates was an informant and that
"there was a tail" on her. They quickly gathered the money and
left the hotel. In a conversation with Mona Smith Watson on
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November 18, 1991, Wonda Cortes referred to having "loose ends,"
meaning she had people around her who were making mistakes. Wonda
Cortes wanted to consolidate her cocaine deliveries to Watson into
one daily load.
f. December 10-11, 1991, distributions to Watson, Gage,
Jackquet, Carmenza Varon, and Janeth Varon
On November 26, 1991, Jackquet asked Wonda Cortes if she
could obtain 2 kilograms of cocaine for him. Wonda replied that a
shipment was coming but that she did not yet have any cocaine.
Wonda Cortes received 50 kilograms of cocaine from Tatiana
Bedoya on December 10, 1991. With Wonda Cortes’s acquiescence,
Bedoya agreed to lend Harold Cortes 10 of the 50 kilograms. Wonda
Cortes then began contacting her distributors to sell the rest of
the cocaine. In a 10:37 a.m. telephone conversation with Jackquet
on December 10, 1991, Wonda told him to “sit still” because she was
awaiting delivery of the cocaine. At 2:36 p.m. Wonda told Mona
Smith Watson that "everything is everything," meaning that she had
the cocaine in hand. Wonda Cortes also told Watson that the price
would be around $14,400 per kilogram and she would confirm the
price to Watson over her digital pager. In these conversations
Wonda cautioned both Jackquet and Watson about talking over the
telephone. Kelvin Jackquet and Anthony Gage spoke with Wonda
Cortes three times between 3:02 and 3:39 p.m. Wonda stated that a
"plentiful" cocaine load had arrived, and Gage stated that his
customers were ready. At 4:17 p.m. Wonda told Mona Smith Watson
that she had the cocaine, and Watson replied that she had to get
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the “papers (i.e., money) together.” At 4:21 p.m. Wonda told
Jackquet that she had the cocaine but that she would not deliver
the amount he requested to him on consignment. At 4:31 p.m. Roy
Ford called requesting 1 kilogram. At 4:52 p.m. Mona Smith Watson
called and ordered 3 kilograms.
Later that afternoon, while still negotiating sales to other
customers, Wonda Cortes began delivering the cocaine she had sold
earlier in the afternoon. At 6:11 p.m. Wonda arranged with Watson
to meet Andrea at the Children’s Etc. in the Galleria to deliver 2
kilograms of cocaine. Wonda made the delivery later that evening.
By 8:20 that evening Wonda Cortes told Mona Smith Watson that she
only had 25 kilograms of cocaine left.
Wonda met Roy Ford later that evening at a shopping center
and delivered 1 kilogram of cocaine to him. Ford was driving a
white Lincoln Continental limousine that the agents had seen in
November. A DEA agent observed Wonda Cortes remove a light-colored
bag from her vehicle, place it in the limousine, and leave. The
limousine was followed and stopped by Houston police officers for
a traffic violation, and Ford was arrested. Four clear plastic
bags containing 128 grams of cocaine were recovered from the front
seat transmission hump of Ford’s car.
Wonda Cortes made two deliveries to Kelvin Jackquet on
December 10. The first, a 3-kilogram delivery, was made around
6:15 p.m. to Jackquet's Holly Hall apartment. Jackquet paid Wonda
in cash. Wonda made the second 1-kilogram delivery to Jackquet at
a strip shopping center later that evening. Surveillance agents
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followed Wonda and saw her park beside a white pickup truck
occupied by Jackquet and Gage. Jackquet got out of his truck and
joined Wonda in her vehicle for 2-3 minutes. Wonda handed him a
dark-colored plastic bag from the back seat and Jackquet returned
to his pickup truck.
While making cocaine deliveries during the evening of
December 10, 1991, Wonda Cortes was also negotiating a 5-kilogram
sale to Janeth Varon through her sister, Carmenza Varon. At
5:36 p.m. Carmenza Varon called Wonda. Later that evening Wonda
delivered 5 kilograms of cocaine to the Varon sisters at a
Shipley’s Do-Nut Shop on Veteran’s Memorial Drive. A DEA agent
watched the transaction. The Varon sisters retrieved a gray
plastic bag from Wonda’s Lincoln Continental and put it in the
trunk of the red Chevrolet they were driving. In return the Varon
sisters gave Wonda Cortes a brown paper bag. The Varons were later
stopped by HPD officers and Janeth Varon was arrested. Inside the
gray bag was a telephone box containing 5 kilograms of cocaine.
Carmenza Varon called Wonda Cortes the next day to discuss the
arrest. Wonda was upset over losing the cocaine because she would
have to explain the loss to Ariel Ochoa and was concerned that
Janeth could implicate her as the source of the cocaine. Wonda met
with Ochoa, Harold Cortes, Tatiana Bedoya, and Hernan Moreno the
next day to discuss the seizure. Harold Cortes was concerned that
if Wonda "brought the heat" everybody would go to jail.
Wonda Cortes testified that while making the December 10
deliveries, she drove around Houston carrying both cocaine and
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large amounts of cash. She delivered the drug proceeds to her
house on Corral Street. She continued negotiating cocaine sales on
December 11, 1991. Around 6:30 p.m. she delivered 1 kilogram to
Jackquet and Gage at a location on Yellowstone and Lozier, near a
"Dr. Chuck's” auto shop. Earlier that day she had tried to
convince Donald Wayne Woods to take at least 4 kilograms. After
the Jackquet delivery Wonda delivered 15-17 kilograms of cocaine to
Woods at his residence. She was there 3-4 hours and saw his
customers come and go. Wonda Cortes and Mary Hermann checked into
the Residence Inn on December 12, 1991, to count the drug proceeds.
g. January 1992 distributions
Wonda Cortes received another load of cocaine in January of
1992. Roy Ford called Wonda on January 8, 1992, asking if she
still had the cocaine and requested a kilogram. Richard Winston
Hall assisted Wonda in delivering at least 2 kilograms of cocaine
to Mona Smith Watson in January of 1992. Hall testified that in
January of 1992 he also made a 2-kilogram delivery and a 1-kilogram
delivery to Ford, and a 4-kilogram delivery to Kelvin Jackquet.
Each time he returned the money to Wonda Cortes. Hall also
testified at trial that he delivered cocaine supplied by Wonda
Cortes to Ford in February, March, and April of 1992 and returned
the money to Wonda.
E. Mona Smith Watson’s Cocaine Distributions
Like many of Wonda Cortes’s customers, Mona Smith Watson had
other sources of cocaine and her own network of customers for the
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cocaine she obtained. Watson shopped around for the lowest price
and the best terms. On January 10, 1992, Wonda Cortes quoted
Watson a price of $14,100 per kilogram. Wonda agreed to lower the
price if Watson purchased at least 20 kilograms. In a January 16,
1992, conversation Wonda offered to sell Watson 10 kilograms at a
time at $13,500 per kilogram. This was the same price she was then
quoting to Kelvin Jackquet. (Wonda quoted Richard Winston Hall a
discounted price of $13,200 because he was her brother.)
Mona Smith Watson’s customers included “Paula,” “Stan,” and
Linda Jones, the mother of Watson’s murdered boyfriend, Tony Jones.
The cocaine that Watson purchased from Wonda Cortes in January of
1992 was for Paula. Wonda Cortes, Hall, and Watson delivered a few
kilograms of cocaine to Stan at his residence in Missouri City,
Texas, in December of 1991 or January of 1992. Stan wanted to deal
on a regular basis directly with Wonda, but she refused to do so
because Stan was Watson's customer.
Most of Mona Smith Watson's cocaine was supplied by Wonda
through Carmenza Varon. In the late spring to early summer of 1992
Wonda Cortes and Mary Hermann made six deliveries in amounts
ranging from 10 to 30 kilograms to Watson, who would send Linda
Jones to pick up the cocaine. Linda Jones picked up three of the
loads of cocaine from Carmenza Varon at her apartment on 2205 Hayes
Road. Carmenza Varon later moved to 2801 Walnut Bend and delivered
cocaine to Linda Jones from that location.
In the spring of 1992 Mona Smith Watson was also dealing
directly with Ariel Ochoa, who was suppling Watson with cocaine
through Jaime Cardenas. Cardenas had started out as one of Harold
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Cortes's subordinates but had become one of Ariel Ochoa's major
distributors by January of 1992. Wonda Cortes believed that
Cardenas had been skimming money from her drug payments to Ochoa
and blaming her for the shortages. Mona Smith Watson experienced
a similar problem; in February of 1992 Ariel Ochoa called Watson
complaining that a cash delivery from Watson to Ochoa through
Cardenas was short $5,000.
F. Anthony Gage and Kelvin Jackquet’s Cocaine Distributions
Kelvin Jackquet and Anthony Gage redistributed the cocaine
they purchased from Wonda Cortes and Mona Smith Watson. One of
Jackquet and Gage's drug transporters was Charles White, who ran a
vehicle body shop called "Dr. Chuck's Auto Hospital." White
testified that beginning in December of 1991 he delivered cocaine
for Gage. For his first delivery Jackquet and Gage gave White
cocaine, which he hid in the doors of a rented U-haul truck. White
drove the truck to Atlanta where, as Gage directed, a man picked up
the truck from White. Gage provided White a plane ticket to return
from Atlanta to Houston and paid him $1,500 for transporting the
cocaine.
White made a second trip to Atlanta about a week later,
driving a blue Chevy Malibu. Both Gage and Jackquet were with
White when he picked up the car. When White picked up the car
there was a black bag with cocaine inside. At the direction of
Gage and Jackquet, White hid the cocaine in the car’s spare tire.
White drove the car to Atlanta where he delivered part of the
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cocaine to Gage and part to another man at Gage’s direction and was
paid by Gage.
White made a third and final trip to Atlanta on January 14,
1992. He drove the same blue Chevrolet. White put the cocaine in
a car door and in the spare tire. Gage and Jackquet paid White
$600 before he left Houston. Late that evening sheriff’s deputies
in Atlanta stopped White for not wearing a seat belt. After White
consented to a search of the car the deputies found a .22 caliber
handgun in a soft eyeglass case on the front passenger floorboard.
They also found five packages of cocaine and four packages of
marijuana in the car’s spare tire. During a later interview White
told the deputies that more cocaine was concealed in the right door
panels, and three additional packages of cocaine were found there.
G. Raul Gamboa and Carlos Mena
Mary Hermann testified that she first met Carlos Antonio Mena
a/k/a Gaspar Prado in early 1987 in Houston. At the time Hermann
was transporting cocaine for Jose Mosquera. In Mosquera’s apart-
ment Hermann saw a drug ledger that belonged to Mena. The ledger
contained figures representing distributions of kilogram quantities
of cocaine. Mena took the ledger away from Hermann and told her
not to look in it. In September of 1989 Mena was convicted in
state court of Panola County, Texas, of aggravated possession of
cocaine after law enforcement officers found 11 pounds of cocaine
in a car he was driving.
In October of 1991 Wonda Cortes began using Tatiana Bedoya
as a direct source of supply for cocaine instead of buying the
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cocaine through her estranged husband, Harold Cortes. Bedoya
agreed to supply the cocaine in return for Wonda splitting the
profits 50/50. In early November of 1991 Bedoya attempted to find
a source of cocaine apart from the Samuel Posada-Rios organization.
On November 7, 1991, she flew to Los Angeles to meet with Carlos
Mena, whom she had known since 1988. Carlos Mena arranged for
Wonda to meet with "El Negro"7 to discuss the possibility of
obtaining cocaine from a source not associated with Harold Cortes.
Although Wonda and Mena continued to discuss a possible purchase of
cocaine from Mena for several months, no purchase ever materialized
from the discussions with El Negro or Mena. There was no evidence,
either from Wonda’s trial testimony or the recorded conversations
between Wonda and Mena, that Wonda told Mena about the Posada-Rios
organization or any of her co-conspirators in the organization.
On August 11, 1992, at around 5:45 p.m., United States
Customs Service agents observed Raul Gamboa, Mena, and a woman
arrive at “Giro El Calima,” a money exchange, in a tan Nissan
Maxima. A confidential source had told the agents that money
laundering was occurring at the giro house. The woman remained in
the car while Gamboa and Mena "scanned" the cars in the parking
lot. The men then walked empty handed into the giro house,
remained inside for 10-15 minutes, and came out carrying a red and
black gym bag that appeared to be quite heavy. Gamboa and Mena
7
Wonda Cortes testified that the nickname "El Negro" was
common for Colombian drug dealers. This “El Negro” was not
associated with the Samuel Posada-Rios enterprise.
-34-
again scanned the parking lot before they got back in their car.
Gamboa put the bag in the trunk of the car.
Agents followed the Nissan and noticed Mena making cellular
telephone calls. The Nissan proceeded to the Collingsford
Apartments, where it drove through a coded gate to the back of the
apartment complex and then exited through another gate. The Nissan
then circled around the complex and proceeded to the Rustic Village
Apartments. Customs Agent Peter Lattanci, who participated in the
surveillance of the Nissan, testified that these maneuvers were
typical of a “heat run” -- a tactic commonly used by drug traffick-
ers to detect surveillance. At the Rustic Village Apartments Mena,
Raul Gamboa, and the woman who was with them went into apartment
#181. A few minutes later a blue Mercury Sable, driven by
Esmeralda Hooker, arrived and Hooker went into apartment #181.
Mena, Gamboa, and Hooker left the apartment together and
proceeded in the blue Sable to the Collingsford Apartments, where
they parked the car. Dressed in raid jackets, agents approached
Gamboa and Mena as they got out of the car. A Spanish-speaking
officer informed Gamboa that the agents were investigating drug and
money laundering activities at Giro El Calima. Gamboa consented to
a search of the car and signed a Spanish language “Voluntary
Consent to Search and Seize” form. Agents recovered a plastic bag
that contained $34,000 in cash from the right rear passenger area
of the car where Mena had been sitting.
When asked in Spanish about going to the Rustic Village
Apartments, Gamboa stated he had driven Hooker there to visit her
friends; and Mena stated that he had just been picked up by Gamboa
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and Hooker from a bus stop near the apartments. Both Gamboa and
Mena denied being at the Giro El Calima or knowing anything about
the Nissan Maxima. Gamboa and Mena were not arrested but agreed to
follow the agents back to the Rustic Village Apartments. There,
the Nissan Maxima was pointed out to both Mena and Gamboa, and they
again denied any knowledge of the vehicle -- which was registered
to Mena -- or of apartment #181. The agents called a drug
detection dog to the scene, and it alerted them to the trunk of the
Nissan. After Gamboa consented to a search of the car agents
seized from the trunk the red and black gym bag, which contained 9
packages of cocaine wrapped in plastic tape, and $4,000 in cash in
the glove compartment, and arrested Mena and Gamboa. An hour or
two later Mena admitted that he had owned the Nissan, but stated
that he had sold it, but could not recall to whom.
H. The Demise of La Compania
DEA agents searched Harold Cortes's residence on Sir William
Street on July 10, 1992. They seized drug ledgers, cellular
telephones, anti-surveillance equipment, a sophisticated scanner,
photographs, and various documents.
Wonda Cortes was arrested on July 21, 1992. On July 23,
1992, agents executed a search at her residence at the Legend Point
Apartments. They seized several cellular telephones, a pink drug
ledger, a blue drug ledger, and numerous other documents and
notebooks. Analysis of Wonda Cortes’s drug ledgers documented the
receipt of $3,952,402 in drug proceeds for cocaine sold to
customers in 1991 and 1992. Cortes testified that she "doctored"
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this ledger to reflect lesser amounts to cheat Bedoya out of
profits.
On August 13, 1992, fifteen raid teams participated in the
simultaneous execution of arrest warrants for Elisa Murga, Ford,
Manuel Parada, Hall, Donald Wayne Woods, Kelvin Jackquet, and Mona
Smith Watson and execution of search warrants for various premises.
Watson was arrested at her mother's residence. A search of
Watson’s apartment on Greenbriar uncovered photographs, notebooks,
and drug ledgers. Carmenza Varon's residence on Walnut Bend was
searched and agents seized drug ledgers, a money counting machine,
an address book, and other documents noting prices for varying
amounts of cocaine.
When agents arrived at 10538 Farmington in Houston to execute
a search warrant and a warrant to arrest Kelvin Jackquet, they saw
a silver Nissan drive away. The agents stopped the vehicle and
spoke with the driver, Marla Jackquet, Kelvin Jackquet’s sister.
Marla told the agents that Kelvin Jackquet was in the downstairs
bedroom, and Marla gave agents keys to the burglar bars that
protected the house. Agents unlocked the burglar bars and
announced their presence loudly several times. When the agents
entered the house they again announced their presence. As agent
Renaldo Ollie approached the downstairs bedroom, he told Kelvin
Jackquet to come out and that agents had a warrant for his arrest.
As agent Ollie reached inside the room to turn on the lights, he
heard what appeared to be the sound of someone chambering a round
in a shotgun. Agent Ollie yelled out “shotgun” loudly to warn
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other agents. Agent Ollie then backed out into the hallway. As he
did so he saw someone run down the hallway carrying a shotgun into
the utility room that led to the garage. Agent Ollie then heard
the garage door opening and heard several shots. DPS agent Larry
Allen was securing the perimeter approximately 8 feet from the
garage door. Allen was wearing a raid jacket labeled “DPS” and
“Police” in large letters. As Jackquet came out of the garage he
shot Allen in the chest. Although Allen was wounded in the hand
and arm, his body armor prevented more serious injury. Agent Allen
returned fire and one bullet grazed Jackquet’s left shoulder blade.
Agent Ollie then ran outside and saw Jackquet standing with the
shotgun. Ollie told Jackquet to drop the shotgun. Jackquet
dropped the gun and ran, but other agents quickly arrested him.
Approximately $32,000 in cash and an address book were seized from
a nightstand next to Jackquet’s bed and two pistols were seized
from beneath his mattress.
II. VERDICTS AND SENTENCES
Esnoraldo De Jesus Posada-Rios was convicted of count 1
(conspiracy to participate in a racketeering enterprise in
violation of 18 U.S.C. § 1962(d)), count 2 (participation in a
racketeering enterprise in violation of 18 U.S.C. § 1962(c)), and
count 3 (conspiracy to possess with intent to distribute cocaine in
violation of 21 U.S.C. §§ 841(b)(1)(A) and 846). Posada-Rios was
sentenced to concurrent terms of life in prison, followed by 10
years of supervised release, and was ordered to pay $150 in special
assessments.
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Carlos Antonio Mena was convicted of counts 1 and 3 and of
counts 42 and 43 (conspiracy to possess with intent to distribute
cocaine and possession with intent to distribute it in violation of
21 U.S.C. §§ 841(a) and 846). He pled guilty to count 46
(unlawfully reentering the United States after deportation and
commission of an aggravated felony in violation of 8 U.S.C.
§ 1326(a)). Mena was sentenced to concurrent terms of 240 months
in prison on counts 1, 3, 42, and 43 and a 180-month concurrent
prison term on count 46, followed by 10 years of supervised
release, and was ordered to pay $250 in special assessments.
Elisa Grajales Murga was convicted of counts 1 and 3 but was
acquitted of count 2. She was also convicted of count 41
(possession with intent to distribute cocaine in violation of 21
U.S.C. § 841(a)) and count 48 (making a false statement on an
application for immigrant visa in violation of 18 U.S.C.
§ 1546(a)). Counts 37-40 (possession with intent to distribute
cocaine) and count 53 (possessing a firearm as an illegal alien in
violation of 18 U.S.C. § 922(g)(5)) were dismissed on the
government’s motion. Murga was sentenced to concurrent terms of
292 months in prison on counts 1, 3, and 41 and 60 months in prison
on count 48, followed by 5 years of supervised release, and was
ordered to pay $200 in special assessments.
Carmenza Guzman Varon was convicted of counts 1, 2, and 3.
She was also convicted of counts 11, 12, 13, 22, 23, and 24
(possession with intent to distribute cocaine in violation of 21
U.S.C. § 841(a)), but was acquitted of counts 6, 21, and 25, which
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also charged her with violating § 841(a)(1). Varon was sentenced
to concurrent terms of 292 months in prison, followed by 5 years of
supervised release, and was ordered to pay $450 in special
assessments.
Raul Gamboa was convicted of counts 42 and 43 (conspiracy to
possess with intent to distribute cocaine in violation of 21 U.S.C.
§ 841(a)(1)). He was sentenced to concurrent 121-month prison
terms, followed by 5 years of supervised release, and was ordered
to pay $100 in special assessments.
Luis Gerardo Rios-Castano was convicted of counts 1 and 2,
and pled guilty to count 45 (unlawfully reentering the United
States after deportation and commission of an aggravated felony in
violation of 8 U.S.C. § 1326(a)). He was sentenced to life in
prison on counts 1 and 2 and a concurrent 180-month prison term on
count 45, followed by 5 years of supervised release, and was
ordered to pay $150 in special assessments.
Manuel De Jesus Parada was convicted of counts 1 and 3. He
was sentenced to concurrent terms of 151 months in prison, followed
by 5 years of supervised release, and was ordered to pay $100 in
special assessments.
Anthony Jerome Gage was convicted of counts 1, 2, and 3. He
was also convicted of count 5 (conspiracy to possess with intent to
distribute cocaine), but was acquitted of counts 6 and 21, which
charged him with the same offense. Gage was sentenced to
concurrent terms of 300 months in prison, followed by 5 years of
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supervised release, and was ordered to pay $200 in special
assessments.
Kelvin Jackquet was convicted of counts 1, 2, and 3 and of
count 52 (use of a firearm during and in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)). He pled
guilty to count 27 (possession with intent to distribute cocaine).
Jackquet was acquitted of count 6 (possession with intent to
distribute cocaine). The court granted his motion for a mistrial
on count 26 (possession with intent to distribute cocaine).
Jackquet was sentenced to concurrent terms of 235 months in prison
on counts 1, 2, 3, and 27 and a consecutive 60-month prison term on
count 52, followed by 5 years of supervised release, and was
ordered to pay $250 in special assessments.
Mona Smith Watson was convicted of counts 1, 2, and 3 and of
counts 5, 7, 8, 10, 11, 12, and 13 (possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1)). She was
acquitted of count 6. Watson was originally sentenced to concur-
rent terms of 360 months in prison, followed by 5 years of
supervised release, and was ordered to pay $500 in special
assessments. On September 23, 1996, an Amended Judgment was
entered reducing her term of imprisonment to 292 months pursuant to
18 U.S.C. § 3582(c)(2) because of a retroactive amendment to the
Sentencing Guidelines that lowered Watson’s guideline range.
III. DISCUSSION
A. Sufficiency of the Evidence Challenges
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Mena, Murga, Varon, Gamboa, Parada, Gage, and Jackquet
contend that the evidence was insufficient to sustain some or all
of their convictions.8 In reviewing the sufficiency of the
evidence we view the evidence and all inferences to be drawn from
it in the light most favorable to the verdict to determine if a
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See United States v. Sneed,
63 F.3d 381, 385 (5th Cir. 1995).9
1. RICO, 18 U.S.C. § 1962(c)
The substantive RICO statute charged in the indictment, 18
U.S.C. § 1962(c), prohibits “any person employed by or associated
with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly
or indirectly, in the conduct of such enterprise’s affairs through
a pattern of racketeering activity or collection of unlawful debt.”
To establish a violation of § 1962(c) the government must prove
(1) the existence of an enterprise that affects interstate or
foreign commerce, (2) that the defendant was “employed by” or
“associated with” the enterprise, (3) that the defendant partici-
8
Although defendants attempt to adopt the claims raised by
each other as provided by Fed. R. App. P. 28(I), this court does
not allow an appellant to adopt fact-specific challenges, such as
sufficiency of the evidence, to support a conviction or sentence.
See United States v. Moser, 123 F.3d 813, 819 n.3 (5th Cir.), cert.
denied, --- U.S. ---, 118 S. Ct. 642 (1997); United States v. Alix,
86 F.3d 429, 434 n.2 (5th Cir. 1996).
9
Because none of the parties have raised the issue and because
the government contends in its brief that this is the appropriate
standard of review, the court assumes that each of the defendants
made all appropriate motions to preserve this issue for review.
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pated in the conduct of the enterprise’s affairs, and (4) that the
participation was through “a pattern of racketeering activity.”
United States v. Erwin, 793 F.2d 656, 670 (5th Cir. 1986).
Gage argues that the government failed to establish that he
participated in the conduct of the affairs of the enterprise as
required by Reves v. Ernst & Young, 507 U.S. 170, 113 S. Ct. 1163(1993). In Reves the Court held that to be convicted of a
substantive RICO offense under § 1962(c), “one must participate in
the operation or management of the enterprise itself.” Reves, 507
U.S. at 185, 113 S. Ct. at 1173. The Court concluded that in
enacting § 1962(c) Congress intended “participate” to have the
“common understanding of the word . . . ‘to take part in.’” Id. at
179, 113 S. Ct. at 1170. The Court specifically rejected the D.C.
Circuit’s suggestion that § 1962(c) requires significant control
over or within an enterprise. Id. at 179 n.4, 113 S. Ct. at 1170
n.4. The Court held that “the word ‘participate’ makes clear that
RICO liability is not limited to those with primary responsibility
for the enterprise’s affairs, just as the phrase ‘directly or
indirectly’ makes clear that RICO liability is not limited to those
with a formal position in the enterprise. . . .” Id. at 179, 113
S. Ct. at 1170. The Court explained that “[a]n enterprise is
‘operated’ not just by upper management but also by lower rung
participants in the enterprise who are under the direction of upper
management.” Id. at 184, 113 S. Ct. at 1173. Because the Court
found that the petitioner, an outside accounting firm engaging in
the valuation of a farming cooperative, was clearly not involved in
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the management of the enterprise or acting under direction of the
cooperative’s management, the Court declined to “decide how far
§ 1962(c) extends down the ladder of operation.” Id. at 184 n.9,
113 S. Ct. at 1173 n.9.
Gage argues that he was merely “an independent purchaser who
was buying from whomever . . . [and that] he had no power to direct
the affairs of the enterprise.” (Gage’s brief at page 20) He
argues that the evidence is insufficient to support his conviction
under § 1962(c) because Reves requires evidence that he exhibited
“decision-making” power, such as the power to “set prices or
schedule delivery dates and times.” Id. Although such evidence
would certainly be relevant to show that a defendant participated
in the operation of an enterprise, Reves does not require it.
Reves only requires that a defendant “take part in” the operation
of the enterprise, not that he direct its affairs. Moreover,
unlike Reves, which involved a defendant with a “horizontal”
connection to the enterprise, this case presents the “vertical”
question of how far RICO liability may extend “down the
organizational ladder.” See United States v. Oreto, 37 F.3d 739,
750 (1st Cir. 1994).
In a multiple-level, international drug enterprise such as
the Samuel Posada-Rios organization, the success of the enterprise
depends upon many people who participate in the affairs of the
enterprise at different levels, from the boss in Colombia through
multiple levels of distributors to the retail dealers who sell to
the ultimate users. Gage was a mid-level distributor; he bought
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multiple-kilogram loads of cocaine from Cortes and paid large sums
of money to the enterprise. Although he did not operate the
enterprise as a whole, he participated in its operation at his
level by deciding how much cocaine to buy and what prices and terms
to charge to the lower-level distributors to whom he redistributed
the cocaine.
In United States v. Cauble, 706 F.2d 1322 (5th Cir. 1983),
we held that a defendant does not “conduct” or “participate in the
conduct of an enterprise’s affairs” unless (1) the defendant has in
fact committed the racketeering acts as alleged, (2) the defend-
ant’s position in the enterprise facilitated his commission of the
racketeering acts, and (3) the predicate acts had some effect on
the enterprise. Id. at 1332-33. The government’s evidence against
Gage established each of these elements.
The enterprise was the Samuel Posada-Rios organization, a
group of people who distributed and redistributed large amounts of
cocaine over an extended period of time for profit. There was
evidence at trial to support the jury’s verdict that Gage committed
racketeering acts Nos. 131A (count 3) and 145 (count 5) by conspir-
ing to possess cocaine with intent to distribute it and by
possessing with intent to distribute 14 kilograms of cocaine in
August of 1991. It was also reasonable for the jury to conclude
that Gage’s position in the Posada-Rios organization facilitated
the commission of his racketeering acts because the Posada-Rios
organization made large supplies of cocaine from the enterprise
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available to Gage on a regular basis. Likewise, the jury could
have reasonably concluded that Gage’s racketeering acts affected
the enterprise because his willingness to purchase multiple-
kilogram amounts of cocaine on a regular basis for hundreds of
thousands of dollars enhanced the continued economic viability of
the enterprise. See Cauble, 706 F.2d at 1341. Without attempting
to define the limits of vertical RICO liability after Reves, we are
persuaded that the evidence against Gage was sufficient to support
his § 1962(c) conviction under both Reves and Cauble.
2. RICO Conspiracy, 18 U.S.C. § 1962(d)
Title 18 § 1962(d) makes it unlawful “for any person to
conspire to violate any of the provisions of subsection (a), (b),
or (c) of this section.” Mena, Murga, Varon, Parada, and Gage
argue that the direction and control requirements of Reves also
apply to a RICO conspiracy charge. This is an issue of first
impression in this circuit. To date five circuit courts have
addressed whether the management and control test set forth in
Reves applies to a RICO conspiracy. The Second, Seventh, and
Eleventh Circuits have held that Reves’ management and control test
does not apply to a RICO conspiracy, concluding that “Reves
addressed only the extent of conduct or participation necessary to
violate a substantive provision of the statute; the holding in that
case did not address the principles of conspiracy law undergirding
§ 1962(d).” United States v. Quintanilla, 2 F.3d 1469, 1484-85
(7th Cir. 1993); accord United States v. Starrett, 55 F.3d 1525,
-46-
1547 (11th Cir. 1995), cert. denied, 517 U.S. 111, 116 S. Ct. 1335(1996); Napoli v. United States, 45 F.3d 680, 683-84 (2d Cir.
1995). The Third and Ninth Circuits, however, have held that
Reves’ management and control test must necessarily apply to a RICO
conspiracy because to hold otherwise would render Reves nugatory.
See Neibel v. Trans World Assurance Co., 108 F.3d 1123, 1128 (9th
Cir. 1997); United States v. Antar, 53 F.3d 568, 581 (3d Cir.
1995).10
We conclude that the better-reasoned rule is the one adopted
by the Second, Seventh, and Eleventh Circuits, especially in light
of the Supreme Court’s recent decision in Salinas v. United States,
522 U.S. 52, 118 S. Ct. 469 (1997), which affirmed this court’s
decision in United States v. Marmolejo, 89 F.3d 1185 (5th Cir.
1996). In Salinas the petitioner argued that to convict a defend-
ant of conspiring to violate RICO the government must prove that
the defendant personally agreed to commit two predicate acts. The
Court disagreed, holding instead that § 1962(d) is governed by
traditional conspiracy law. The Court held that “[a] conspiracy
may exist even if a conspirator does not agree to commit or facili-
tate each and every part of the substantive offense.” Salinas, 118
S. Ct. at 477.
To prove a RICO conspiracy the government must establish
(1) that two or more people agreed to commit a substantive RICO
10
The D.C. Circuit has recognized the split but declined to
resolve the issue because it concluded that the defendant would
have been convicted regardless of the approach adopted by the
court. See United States v. Thomas, 114 F.3d 228, 242-43 (D.C.
Cir.), cert. denied, --- U.S. ---, 118 S. Ct. 635 (1997).
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offense and (2) that the defendant knew of and agreed to the
overall objective of the RICO offense. See Marmolejo, 89 F.3d at
1196-97. The government is not required to prove a conspiracy
through direct evidence. Because conspirators normally attempt to
conceal their conduct, the elements of a conspiracy offense may be
established solely by circumstantial evidence. See United States
v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988). “The
agreement, a defendant’s guilty knowledge and a defendant’s
participation in the conspiracy all may be inferred from the
‘development and collocation of circumstances.’” United States v.
Maltos, 985 F.2d 743, 746 (5th Cir. 1992) (quoting United States v.
Lentz, 823 F.2d 867, 868 (5th Cir. 1987)). Although a defendant’s
mere presence at the scene of a crime is not, by itself, sufficient
to support a finding that the defendant is participating in a
conspiracy, presence and association may be considered by the jury
along with other evidence in finding that the defendant
participated in a conspiracy. See United States v. Chavez, 947
F.2d 742, 745 (5th Cir. 1991).
Moreover, a defendant may be convicted of a conspiracy if the
evidence shows that he only participated at one level of the
conspiracy charged in the indictment, and only played a minor role
in the conspiracy. See United States v. Prieto-Tejas, 779 F.2d
1098, 1103 (5th Cir. 1986). The government does not have to prove
that the defendant knew all of the details of the unlawful
enterprise or the number or identities of all of the co-
conspirators, as long as there is evidence from which the jury
could reasonably infer that the defendant knowingly participated in
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some manner in the overall objective of the conspiracy. See United
States v. Fernandez-Roque, 703 F.2d 808, 814-815 (5th Cir. 1983).
A defendant may not, however, be convicted of a drug conspiracy
merely by evidence that he associated with other drug conspirators
or by evidence that places the defendant in “a climate of activity
that reeks of something foul.” Maltos, 985 F.2d at 746 (quoting
United States v. Galvan, 693 F.2d 417, 419 (5th Cir. 1982)).
a. Mena
The government attempts to link Mena with the Samuel Posada-
Rios drug conspiracy through Wonda Cortes’s testimony that she flew
to Los Angeles in November of 1991 and negotiated with Mena for
several months to obtain cocaine from a source of supply other than
the Posada-Rios enterprise. It is undisputed, however, that noth-
ing ever materialized from these negotiations. According to the
government, by negotiating with Wonda Cortes, Mena should have
acquired at least a rough idea of the larger scheme. Although the
government correctly points out that parallel or multiple sources
of drugs do not destroy the existence of a single conspiracy, see
United States v. Johnson, 54 F.3d 1150, 1154 (4th Cir. 1995), the
government must nevertheless establish that Mena was involved in
the conspiracy charged in the indictment. The government also
argues that since Mena had a longstanding association with both the
drug trade and with various members of the Posada-Rios enterprise,
the jury was entitled to infer that he knew that the prospective
act of supplying cocaine to Wonda Cortes would entail numerous
violations of the law. That is no doubt true and supports, in
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part, Mena’s conviction on count 3. But even accepting every
reasonable inference, there is no evidence that Mena knew of and
agreed to participate in the Posada-Rios RICO conspiracy charged in
count 1. Although we agree that a conspirator need not know each
of his co-conspirators, or the details of the conspiracy, the
government’s theory in this case stretches too far the outer bounds
of RICO conspiracy law. We conclude that the evidence was not
sufficient to support Mena’s conviction on count 1.11
Although we vacate Mena’s conviction and sentence on count
1, we do not remand for resentencing. In calculating Mena’s
offense level, counts 1, 3, 42, and 43 were grouped together.
Because count 3 had the highest level, it became the offense level
for all four counts. Mena’s total offense level on these four
counts was 36. With a criminal history category of II, his
guideline range was 210-262 months. Because of a prior Texas
felony drug conviction, however, Mena was subject to the statutory
minimum sentence of 240 months under 21 U.S.C. § 841(b)(1) for
11
When questioned at oral argument about the weak evidentiary
support for Mena’s RICO conspiracy conviction, the government
argued that the conviction was sustainable under the court’s
analysis in United States v. Elliott, 571 F.2d 880 (5th Cir. 1978).
Having carefully considered Elliott we are not persuaded that it
can shoulder the load the government assigns it. Although Elliott
recognized the well-established rules that “under the RICO
conspiracy provision, remote associates of an enterprise may be
convicted as conspirators on the basis of purely circumstantial
evidence” and that the “government is not required to prove that a
conspirator had full knowledge of all the details of the
conspiracy,” the court also acknowledged the equally well-
established principle that the defendant must nevertheless have
“knowledge of the essential nature of the plan.” Id. at 903(citations omitted). In this case Mena’s unsuccessful negotiations
with Wonda Cortes are inadequate to show that Mena was aware of the
Samuel Posada-Rios drug distribution enterprise.
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counts 1, 3, 42, and 43, which was the sentence he received. (See
Part III.G.2., infra.) Where, as here, Mena’s sentence on counts
3, 42, and 43 was no harsher than it would have been with his
conviction for count 1 there is no need to remand for resentencing.
See United States v. Narviz-Guerra, 148 F.3d 530, 534 (5th Cir.
1998); United States v. Michel, 588 F.2d 986, 1001 (5th Cir. 1979).
b. Murga
Relying on her acquittal on count 2, the substantive RICO
charge, Murga first argues that there was insufficient evidence to
support her RICO conspiracy conviction because a RICO conspiracy
requires proof that she committed two overt acts in furtherance of
the conspiracy. As we explained above this argument was rejected
by this court in Marmolejo and by the Supreme Court in Salinas.
Murga next argues that there was no direct evidence linking
her to any of the drugs or money involved in the conspiracy. We
are not persuaded by this argument because as detailed in Part
I.C., supra, of this opinion, the government presented ample
evidence that in 1988 and again in 1991 Murga assisted her ex-
husband, Ariel Ochoa, in distributing multiple-kilogram loads of
cocaine for the Samuel Posada-Rios organization. Because the
evidence was sufficient to establish that Murga knew of and agreed
to the overall objective of the RICO conspiracy, the evidence was
sufficient to sustain her RICO conspiracy conviction.
c. Varon
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Varon argues that she was merely “assisting Cortes in
selling, delivering and protecting the drugs” and that “[s]he did
not set prices or schedule the delivery dates and times.” (Varon’s
brief at page 15) The record, however, does not corroborate such
a limited role for Varon. There was evidence that Varon persuaded
Wonda Cortes to sell cocaine to her sister, Janeth Varon, and to
Olivia Alastre, with Carmenza Varon and Alastre agreeing to split
the proceeds for the sale of the cocaine. Varon also guarded Wonda
Cortes’s cocaine, accompanied Cortes on cocaine deliveries, and
assisted Cortes in counting the proceeds of the cocaine sales on
November 15 and 16, 1991. The evidence was sufficient for the jury
to conclude that Varon knew of and agreed to the overall objective
of the RICO conspiracy.
d. Parada
Parada argues that he was hired by Harold Cortes merely to
run errands. Although he acknowledges that he performed services
for Harold Cortes and that he was paid with drug proceeds by Harold
Cortes, he argues that he was shielded from any knowledge that
Harold Cortes and Hernan Moreno were engaging in drug trafficking.
He argues that the services he performed were capable of innocent
explanation, i.e., he leased the apartments where Moreno lived
because he had good credit and spoke better English, and he did not
know that the car he transported was altered for smuggling.
Our review of the evidence discussed in Part I.D.1, supra,
does not support such a benign role for Parada. Parada’s claim of
ignorance is inconsistent with his post-arrest statement in which
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he acknowledged that he knew that his cohorts were “up to no good.”
Likewise, Parada’s claim of ignorance overlooks the fact that he
continued his association with Harold Cortes and Moreno even after
he was stopped by the Louisiana Highway Patrol in May of 1991 and
after the July 1991 seizure of money from Victor Loaiza. Moreover,
evidence that Parada rented apartments under false names and
allowed members of the enterprise to use his address to register
pagers is probative of his knowledge of the conspiracy and intent
to act in furtherance of it. See United States v. Quiroz-
Hernandez, 48 F.3d 858, 868 (5th Cir. 1995). Although many of the
facts of Parada’s involvement with the conspiracy, when viewed in
isolation, may be explainable, when viewed together in light of the
other evidence, the jury could have reasonably concluded that
Parada knew of and agreed to the overall objective of the
conspiracy.
e. Gage
The evidence established that between August and December of
1991 Gage purchased large amounts of cocaine from Wonda Cortes for
redistribution. Although Gage is correct that a buyer-seller
relationship, by itself, is insufficient to show conspiratorial
activity, the government also presented evidence that Gage
purchased some of the cocaine on consignment, which is “strong
evidence” of membership in a conspiracy because it indicates a
strong level of trust and an ongoing, mutually dependent
relationship. See United States v. Rodriguez, 53 F.3d 1439, 1445
-53-
(7th Cir. 1995). A rational jury could have concluded that Gage
knew of and agreed to the overall objective of the conspiracy.
3. The Controlled Substances Violations
To prove a drug conspiracy in violation of 21 U.S.C. §§ 841and 846 the government must establish: “(1) the existence of an
agreement between two or more persons [to violate the narcotics
laws]; (2) the defendant’s knowledge of the agreement; and (3) the
defendant’s voluntary participation in the conspiracy.” United
States v. Thomas, 120 F.3d 564, 569 (5th Cir. 1997), cert. denied,
--- U.S. ---, 118 S. Ct. 721 (1998) (quoting United States v.
Brown, 29 F.3d 953, 958 (5th Cir. 1994)).
To convict a defendant of possession of an illegal drug with
intent to distribute in violation of 21 U.S.C. § 841(a), the
government must establish that the defendant (1) knowingly
(2) possessed a controlled substance (3) with intent to distribute
it. See id.To convict a defendant of aiding and abetting the possession
of a controlled substance with intent to distribute it the
government must establish that the defendant (1) associated with
the criminal venture, (2) participated in the venture, and (3)
sought by action to make the venture succeed. See United States v.
Lombardi, 138 F.3d 559, 561 (5th Cir. 1998). In addition, the
defendant must share the intent to commit the crime and must play
an active role in its commission. Id.a. Mena
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Although we have concluded that the evidence was not
sufficient to support Mena’s RICO conspiracy conviction under count
1, we are satisfied that Mena’s conviction for conspiracy to
possess cocaine with intent to distribute as charged in count 3 of
the indictment is supported by the evidence discussed in Part I.G.,
supra.12
b. Murga
In her brief Murga offers no real analysis of the evidence
of guilt on these counts and concedes that this is her weakest
argument. Our review of the evidence against Murga summarized in
Part I.C., supra, satisfies us that the jury had sufficient
evidence to convict her of counts 3 and 41.
c. Gamboa
Gamboa was not charged in counts 1-3 of the indictment; he
was charged and convicted of count 42 for a separate conspiracy
with Mena to distribute cocaine and of count 43 for aiding and
abetting the underlying substantive offense. Gamboa argues that,
at best, the evidence only established that he associated with
people engaged in a conspiracy and that he was in “a climate of
activity that reeks of something foul,” see Maltos, 985 F.2d at
746, and he attempts to compare the facts of his case to those of
other cases in which the defendants’ convictions were reversed on
appeal for insufficient evidence. Drug cases are fact specific.
12
Mena does not challenge his conviction on counts 42 and 43,
which charged him with a narrower drug conspiracy and with cocaine
possession relating to his August 1992 drug deal with Raul Gamboa.
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Gamboa’s testimony denying that he was present at the Giro El
Calima and denying any knowledge of the Nissan Maxima, coupled with
the other evidence against him summarized in Part I.G., supra, was
sufficient to sustain his convictions on counts 42 and 43. See
Thomas, 120 F.3d at 570 (false statements by a defendant are
evidence of guilty knowledge).
d. Parada
Our discussion above of the evidence that supports Parada’s
conviction for conspiring to violate RICO satisfies us that the
evidence was also sufficient to sustain his conviction on count 3
for conspiracy to possess cocaine with intent to distribute it in
violation of 21 U.S.C. §§ 841(a) and 846.
e. Gage
Gage argues that because the jury acquitted him on counts 6
and 21, which were based primarily on the testimony of Wonda
Cortes, the jury’s guilty verdicts on counts 3 and 5 were
inconsistent and based on confusion. We reject this argument
because inconsistent verdicts do not impact the court’s sufficiency
of the evidence analysis. See United States v. Parks, 68 F.3d 860,
865 (5th Cir. 1995), cert. denied, 516 U.S. 1098, 116 S. Ct. 825(1996). It was within the jury’s discretion to disregard Cortes’s
testimony in some respects and accept it in other respects. Gage
also argues that there was no corroborating surveillance of his
meetings with Wonda Cortes. It is well settled, however, that a
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conviction may rest solely upon the uncorroborated testimony of an
accomplice, even one who has chosen to cooperate with the
government in exchange for leniency, as long as the testimony is
not insubstantial on its face. See United States v. Rasco, 123
F.3d 222, 228 (5th Cir. 1997), cert. denied, --- U.S. ---, 118
S. Ct. 868 (1998). Testimony is incredible as a matter of law only
if it relates to facts that the witness could not possibly have
observed or to events which could not have occurred under the laws
of nature. See United States v. Bermea, 30 F.3d 1539, 1552 (5th
Cir. 1994). Wonda Cortes’s testimony is not susceptible to either
vice. We have considered Gage’s other factual sufficiency
arguments and are not persuaded by them. There was ample evidence
that Gage conspired with other defendants to possess cocaine with
the intent to distribute it, as charged in count 3, and that he
possessed 14 kilograms of cocaine in August of 1991 with the intent
to distribute it, as charged in count 5.
4. Jackquet’s conviction for use of a firearm “during and in
relation to” a drug trafficking offense in violation of
18 U.S.C. § 924(c)
Count 52 of the superseding indictment charged Jackquet with
using and carrying a 12-gauge shotgun on August 13, 1992, “during
and in relation to the drug trafficking crime charged in Count
Three . . .” The district court instructed the jury on both the
“use” and “carry” prongs of § 924(c). Jackquet argues that the
evidence was not sufficient to show that he “used” a firearm within
the meaning of Bailey v. United States, 516 U.S. 137, 116 S. Ct.
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501 (1995), or that he used a firearm “in relation to” a drug
trafficking offense.
The first argument clearly has no merit. The evidence showed
that Jackquet used the shotgun to shoot DPS officer Larry Allen to
avoid being arrested. As the Supreme Court explained in Bailey
“using” a firearm includes “brandishing, displaying, . . . and most
obviously, firing or attempting to fire, a firearm.” Id. at 148,
116 S. Ct. at 508. Jackquet’s conduct meets Bailey’s definition of
use.
Jackquet’s argument that his use was not “during and in
relation to” a drug trafficking offense is based on the fact that
his arrest on August 13, 1992, occurred six months after the last
specific drug trafficking transaction with Wonda Cortes. In United
States v. Tolliver, 116 F.3d 120, 125 (5th Cir.), cert. denied, ---
U.S. ---, 118 S. Ct. 324 (1997), the court explained that “[t]he
phrase ‘in relation to’ . . . requires only that the firearm have
played a role in the crime for which the defendant is charged; the
firearm cannot have been inadvertently used or carried ‘in relation
to’ an obviously unrelated crime.” In Tolliver defendant Shane
Sterling was convicted under § 924(c) based on evidence that he
reached for a loaded pistol as federal agents entered his bedroom
to arrest him on drug charges. On appeal Sterling argued that he
did not use the pistol “in relation to” the underlying drug
conspiracy because his use of the pistol related only to “the
assault of a federal officer,” not the underlying drug offense.
Id. at 125. This court disagreed, concluding that his use of the
pistol “had the potential to facilitate the drug distribution
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conspiracy for which Sterling is charged.” Id. at 126. The court
concluded that “Sterling’s use of the gun was ‘in relation to’ the
underlying drug conspiracy; such use could have facilitated that
conspiracy by preventing the arrest of two conspirators and
forestalling the seizure of various instrumentalities of the
conspiracy.” Id. In this case we likewise conclude that
Jackquet’s use of the shotgun to avoid arrest on drug charges
provided a sufficient factual basis for the jury to conclude that
he used the gun in relation to the underlying drug conspiracy.
5. Murga’s conviction for making a false statement on a visa
application in violation of 18 U.S.C. § 1546(a)
Murga challenges the sufficiency of the evidence to support
her conviction on count 48 for knowingly making a false statement
on a visa application that she signed on March 9, 1992, at the
American Embassy in Bogota, Colombia. Question 33.B on the
application asked whether “you are an alien who is or has been a
trafficker in any controlled substance.” Murga answered “no” to
the question, and the United States issued her a visa based on the
application. The jury heard evidence, summarized in Part I.C.,
supra, that Murga delivered a 25-kilogram load of cocaine and a 75-
kilogram load of cocaine to Esnoraldo Posada-Rios in 1988 at the
direction of Ariel Ochoa and that Murga sold cocaine to Jose
Antonio Ortiz in 1989.13 We have considered all of Murga’s
13
In her reply brief Murga argues that the government did not
“rely” on this evidence at trial to establish her guilt on count
48. The record contradicts this argument. At vol. 113, pages 9107
to 9110 of the Trial Transcript the government argued that this
very evidence established Murga’s guilt on count 48.
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arguments and are satisfied that there was sufficient evidence for
the jury to convict her of count 48.14
B. Joinder and Severance Issues
1. Joinder
Mena and Gamboa argue that they were improperly joined in the
superseding indictment. Under Fed. R. Crim. P. 8(b) the initial
joinder of defendants is proper “if they are alleged to have
participated in the same act or transaction or in the same series
of acts or transactions constituting an offense or offenses.”
Defendants who are charged with conspiring together are properly
joined in a single indictment. See Moser, 123 F.3d at 828.
Whether joinder is proper is normally determined from the
allegations in the indictment. See United States v. Faulkner, 17
F.3d 745, 758 (5th Cir. 1994).
Because Mena was charged with both the RICO and drug
distribution conspiracies (counts 1 and 3), his joinder in the
indictment with his alleged co-conspirator was proper under Rule
14
Murga argues that the district court erred in excluding from
evidence a letter from a Texas judge to the Colombian consul
stating that she had been acquitted of state drug charges arising
out of her delivery of 40 kilograms of cocaine on June 14, 1989.
The district court did not err in excluding the letter under Fed.
R. Evid. 403 because the question for the jury was whether Murga
had falsely denied prior drug trafficking in her visa application,
not whether she had falsely denied a prior drug conviction. We
have held that “evidence of a prior acquittal is not relevant
because it does not prove innocence but rather merely indicates
that the prior prosecution failed to meet its burden of proving
beyond a reasonable doubt at least one element of the crime.”
United States v. Kerley, 643 F.2d 299, 300-301 (5th Cir. Unit B
April 1981). For the same reasons we also conclude that the
district court did not err in refusing Murga’s proposed jury
instruction that the jury could not consider her participation in
the events of June 14, 1989, in its consideration of count 48.
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8(b). Gamboa, however, was not charged in either of those conspir-
acies. He was charged in count 42 with conspiring with Mena to
possess with intent to distribute cocaine and in count 43 with
possession with intent to distribute cocaine. Gamboa argues that
the only “common denominator” between him and the other defendants
was Mena. “Joinder of charges is the rule rather than the excep-
tion and Rule 8 is construed liberally in favor of initial
joinder.” United States v. Bullock, 71 F.3d 171, 174 (5th Cir.
1995), cert. denied, 517 U.S. 1126, 116 S. Ct. 1365 (1996).
Although the question is a close one, we are satisfied that the
initial joinder of the subsidiary conspiracy charged in count 42
and of the substantive cocaine possession charged in count 43 with
the other counts of the superseding indictment was proper. The
conspiracies charged were not separate or distinct; they were
substantially interrelated by their facts and common aims
(importation and distribution of large amounts of Colombian
cocaine) and by at least one common participant (Mena). See United
States v. Kaufman, 858 F.2d 994, 1003 (5th Cir. 1988).
2. Severance
Varon, Parada, and Gage join Mena and Gamboa in arguing that
the district court abused its discretion by denying their motions
to sever under Fed. R. Crim. P. 14 before trial and at various
times during the trial and by denying their motions for new trial
based on alleged prejudice to them from the joint trial. This
court reviews a district court’s denial of a motion to sever for an
abuse of discretion. Bullock, 71 F.3d at 174. Even in cases where
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the initial joinder of defendants was not proper, to demonstrate
reversible error from the denial of a motion for severance a
defendant must still show “clear, specific and compelling prejudice
that resulted in an unfair trial.” Id. The general rule is that
“‘persons indicted together should be tried together, especially in
conspiracy cases, and . . . the mere presence of a spillover effect
does not ordinarily warrant severance. . . .’” Moser, 123 F.3d at
828 (quoting United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir.
1993)). That separate trials might have afforded the defendant “a
better chance of acquittal” does not justify a severance. Id. at
828. The possibility of prejudice must also be balanced against
the interest of judicial economy. See United States v. Wolford,
614 F.2d 516, 518 (5th Cir. 1980). A defendant complaining of the
denial of a motion to sever must also show that he did not receive
adequate protection from the potential prejudice of a joint trial
through the court’s instructions to the jury. See United States v.
Mitchell, 31 F.3d 271, 276 (5th Cir. 1994).
Appellants advance both common and individual arguments to
show that they were prejudiced by the joint trial. Generally, they
argue that they were prejudiced by evidence of crimes committed by
co-conspirators, including gruesome murders, before they joined the
conspiracies. As the court noted in United States v. Manges, 110
F.3d 1162, 1174-75 (5th Cir. 1997), cert. denied, --- U.S. ---, 118
S. Ct. 1675 (1998), however, “[w]hile the district court must guard
against undue prejudice, it need not protect conspirators from
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evidence of their confederates’ acts in furtherance of their common
illegal aim.”
Appellants also argue that they were prejudiced by the length
of the trial (six months) and the number of defendants tried
together (twelve), and by the tense atmosphere created by the high
security required for this trial. This court has rejected the
notion that the length of trial or number of defendants or the
atmosphere of a “megatrial” alone can establish the compelling
prejudice required for reversal based on the denial of a motion to
sever. In United States v. Ellender, 947 F.2d 748, 755 (5th Cir.
1991), the court acknowledged that there are legitimate concerns
over megatrials (in that case, 23 defendants tried over 3 months),
but concluded that “[m]ere generalized criticism of megatrials
generally will not withstand the rigorous standard of review for
denial of severance.” Id. Instead, appellants must “isolate
events occurring in the course of a joint trial and then . . .
demonstrate that such events caused substantial prejudice.” Id.In this case the district court took a number of steps to
lessen the prejudice to individual defendants from a joint trial.
During the voir dire examination of the jury panel, and again
before any evidence was offered, the court told the jury that the
case against each individual defendant should be considered
separately. The court also allowed the jurors to take notes and to
have photographs of the defendants to enable the jurors to keep the
defendants separate in their minds. In Ellender we concluded that
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the defendants had not demonstrated compelling prejudice in part
because “the jurors were provided with a copy of the final
indictment, a seating chart, and note-taking materials.” 947 F.2d
at 755.
In its charge to the jury, the district court instructed:
A separate crime is charged against one or more of
the defendants in each count of the Indictment. Each
count, and the evidence pertaining to it, should be
considered separately. Also, the case of each
defendant should be considered separately and
individually. The fact that you may find one or more
of the defendants guilty or not guilty of the crimes
charged should not control your verdict as to any
other crime or any other defendant. You must give
separate consideration to the evidence against each
defendant. (Court’s Instructions to the Jury at page
19)
Similar instructions have been held to be sufficient to cure the
possibility of prejudice because the court presumes that the jury
followed the court’s instructions. See, e.g., Faulkner, 17 F.3d at
759.
The district court also instructed the jury many times during
the trial to consider certain evidence only against certain
defendants and to consider other evidence only for limited
purposes. For example, with respect to Gamboa, who has the
strongest severance argument since less than 2 days of evidence
related to him, the district court instructed the jury:
Ladies and Gentlemen, you are instructed that the
evidence of this witness and the evidence of the
witnesses you have already heard, the monitor
witnesses, and the evidence that I have admitted in
the case up until now has not been offered by the
government for your consideration against Mr. Gamboa,
the Defendant Mr. Gamboa. The government has
indicated that the charges against Mr. Gamboa, the
accusations against him refer to a specific date,
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August 11, 1992. So until further notice, none of the
evidence, until I tell you that the government is
going to offer evidence now concerning Mr. Gamboa,
none of the evidence is against Mr. Gamboa, is being
offered by the government for your consideration
against Mr. Gamboa. (Trial Transcript, vol. 70, pages
1551-1552)
When the government later began presenting evidence against Gamboa
the court reminded the jury that none of the evidence presented
thus far related to Gamboa, but that the government would now be
offering evidence against Gamboa. (Trial Transcript, vol. 89, page
4936)
In this case the presumption that the jury followed the
court’s instructions is even stronger in light of the jury’s
verdicts. The jury acquitted Murga of count 2; acquitted Varon of
counts 6, 21, and 25; acquitted Jackquet of count 6; acquitted
Watson of count 6; and acquitted Gage of counts 6 and 21.
“[A]cquittals as to some defendants on some counts support an
inference that the jury sorted through the evidence and considered
each defendant and each count separately.” Ellender, 947 F.2d at
755.15
Defendants also raise various individual arguments in support
of their severance points. Gamboa argues that the government’s
15
Varon and Gage argue that the mixed verdicts demonstrates
juror confusion because the government’s case against them was
supported by the testimony of the same two witnesses (Wonda Cortes
and Hall). That the jury acquitted defendants of some charges
based on the testimony of Cortes and Hall, but convicted them of
other charges based on the testimony of the same witnesses does not
necessarily demonstrate juror confusion: The testimony may have
been more believable with respect to some counts than others. The
jury was apparently quite able to separate the wheat from the
chaff.
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case against him was weak and that he was prejudiced by being
pictured on a large chart along with all of the defendants. But
the evidence relating to Gamboa’s activities on August 11, 1992,
was not weak, and those events were separated in time and place
from the evidence against other defendants, thereby lessening any
possible spillover effects from the evidence against other
defendants. Likewise, although Gamboa’s face on the photo chart
was constantly before the jury, the only relationship noted between
him and any of the other defendants on the chart was a horizontal
dotted line between Gamboa and Mena.
Gage argues that he was prejudiced by the joint trial because
his brother Jackquet pleaded guilty to count 27. The plea occurred
after three days of voir dire examination of the jury panel and
outside of their presence. After the jury was sworn the government
arraigned the defendants in open court, and Jackquet pled guilty to
count 27 and not guilty to the other counts against him. Any risk
of prejudice to Gage from Jackquet’s guilty plea to count 27 was
remote. Only Jackquet was charged with count 27 (possession with
intent to distribute cocaine on or about October 10, 1991), and no
evidence was offered about Wonda Cortes’s sales of cocaine on
December 10 and 11, 1991, until several weeks later during the
trial.
Parada argues that a juror acceptable to him was stricken for
cause at Jackquet’s behest because of his apparent inability to be
fair to a defendant charged with shooting a police officer. Parada
provides no support for his assertion that this was a “fundamental
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error” that requires a reversal. Parada also argues that the joint
trial resulted in a violation of his right to a speedy trial.
Although Parada might have been able to raise a separate speedy
trial claim, this is not the type of prejudice that requires
reversal under a severance analysis. Parada also argues that an
incident in which codefendant Watson’s brother accosted a juror
constitutes prejudice flowing from the joint trial. This incident,
raised in separate points of error by Parada and other defendants
and discussed separately below, does not show compelling prejudice
from the joint trial.
We have carefully considered all of the appellants’ severance
arguments. A long and complex trial like this one taxes the
patience and vigor of the judge, jury, and counsel. The record
discloses very few instances of antagonistic arguments or evidence
among defense counsel. The government’s evidence was focused, and
the testimony of witnesses was directed to particular defendants
and counts. The district judge ably parsed through the almost
daily arguments of counsel over evidentiary and procedural issues
in order to assure a fair trial for all parties and to minimize any
spillover effect from the long joint trial. None of the
defendants’ arguments persuade us that the district court erred in
denying appellants’ motions to sever or their motions for new trial
based on the alleged prejudice of a joint trial.
C. Evidentiary Issues
1. Admissibility of Watson’s Statements
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Watson filed a motion to suppress statements made to law
enforcement officers after her arrest. After an evidentiary
hearing the court entered an order on March 29, 1993, denying the
motion to suppress. The order stated
The Court finds that on August 13, 1992, law enforcement
officers entered the residence at 4801 Meadow Park, Houston,
with Defendant Mona Smith Watson’s permission, read Defendant
her rights, lawfully took Defendant into custody pursuant to
an arrest warrant, and searched the home of her mother,
Marion Smith, following consent from Defendant with her
mother’s authorization. Credible testimony from DEA agent
Roger Norman, ATF agent Mary Daugherty, and Harris County
Sheriff’s Department’s Butch Porter convinces the Court that
Defendant did not ask for an attorney nor request her mother
to call an attorney for her at this time.
. . . Defendant’s voice exemplar tape fortuitously
and clearly shows that during her post-arrest
questioning by Butch Porter at the [DEA building],
Defendant Mona Smith Watson failed to assert, even
equivocally, her right to have an attorney present or
to stop the questioning. [citations omitted] Porter
did not pressure her, but gave her free choice whether
to call an attorney or stop the interview. Defendant
orally and in writing voluntarily and knowingly waived
her rights to do so. Moreover FBI agent Bobby Echard
credibly testified that Defendant was fully
cooperative during her interview and did not request
a call to anyone other than her mother. Moreover
Defendant voluntarily signed a consent form for the
search of her apartment.
The Court did not find believable the testimony of
Marion Smith, whose credibility was undermined by
questioning about her job, income, false credit
statement for the purchase of a Jaguar, and the car
itself.
All testimony showed that at the time of her
arrest and subsequent processing and interview at the
[DEA building], Defendant was in complete control of
her senses, not under the influence of drugs,
coherent, able to understand, and fully apprised of
her rights. This and other appearances before this
Court have revealed her to be an intelligent and
sophisticated business woman, who supervised eight
employees and dealt extensively with the public. The
Court finds that she was not intimidated or misled
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during the post-arrest processing, nor did she request
interruption of the questioning. The Court does not
find convincing her testimony that she was relying on
the advice and help of her sister’s friend, Butch
Porter, of agent Bobby Echard, and of interviewer Joe
Harris in her cooperation with the authorities.
The district court also instructed the jury that it must determine
whether an out-of-court statement by a defendant was knowingly and
voluntarily made. (Court’s Instructions to the Jury at pages 7 and
8)
Watson raises three challenges to the admissibility of her
confession. First, she contends that the confession was involun-
tary under the Fifth Amendment because it was the result of a
“false friend” interrogation condemned by the Supreme Court in
Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202 (1959). She also
contends that her confession violated her Fifth Amendment right to
counsel because it occurred after the interrogating agents were
aware that she wanted counsel, and that it violated her Sixth
Amendment right to counsel because it occurred after she had been
indicted, but had not waived her right to counsel.
A confession is voluntary if under all the circumstances it
is the product of the defendant’s free and rational choice. See
United States v. Restrepo, 994 F.2d 173, 182 (5th Cir. 1993). The
voluntariness of a statement is reviewed on a case-by-case basis.
Findings of the district court after an evidentiary hearing,
including credibility choices made by the district court, are
reviewed by this court under a clearly erroneous standard. Id.The ultimate issue of voluntariness, however, is a question of law
subject to de novo review by this court.
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Watson’s claim that her confession was involuntary because
it was the result of a “false friend” interrogation is based on the
fact that the police used deputy Porter, a friend of Watson’s
sister, to fingerprint, photograph, and interview her for a DEA
“personal history.” Deputy Porter, who was not involved in the
investigation of this case, was also present at Watson’s arrest and
the search of her house. The facts of this case do not approach
those in Spano, where the government used a longtime friend of the
accused to coerce a confession. Spano had called his friend,
officer Bruno, and told him about the events that led up to the
shooting for which he was arrested. See Spano, 360 U.S. at 316, 79
S. Ct. at 1204. After Spano repeatedly refused, on advice of
counsel, to answer questions from an assistant district attorney
and police detectives, Bruno’s supervisors coached Bruno to tell
Spano that his telephone call had “gotten him ‘in a lot of
trouble,’” and that Spano should think of Bruno’s wife and three
children. Id. at 319, 79 S. Ct. at 1205. Bruno pleaded with Spano
at least four times before he confessed.
In contrast, deputy Porter told Watson that he could not tell
her what to do. He also informed her of her right to an attorney.
Although he told her that another friend, detective Joe Harris,
would be conducting the interrogation, a female FBI agent actually
conducted the interrogation. The fact that deputy Porter exhibited
sympathy and created an atmosphere of trust does not demonstrate
the type of police overreaching prohibited by Spano. See United
States v. Rojas-Martinez, 968 F.2d 415, 418 (5th Cir. 1992)
(“Expressions of sympathy by an officer are not coercive.”).
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Watson was allowed to call her mother, the only person she asked to
call. Watson never asked to terminate the interview, never
requested counsel, and signed a written waiver of her rights.
Although she testified at the suppression hearing that agents
threatened that she would never see her daughter again, the
district court found that this testimony was not credible.
Watson also argues that her confession was inadmissible under
the Fifth and Sixth Amendments because it was obtained in violation
of her right to counsel. Agent Norman testified that he read
Watson her Miranda rights as soon as she was arrested and that she
indicated that she understood those rights. This circuit has held
that “[a]s long as the police administer Miranda warnings before
proceeding, a defendant’s voluntary decision to answer questions
without claiming his right to have a lawyer present to advise him
constitutes a ‘knowing and intelligent,’ and therefore valid,
waiver of his Sixth Amendment right.” Montoya v. Collins, 955 F.2d
279, 282 (5th Cir. 1992) (quoting Patterson v. Illinois, 487 U.S.
285, 292-97, 108 S. Ct. 2389, 2394-97 (1988)).
Watson acknowledges that “[t]he evidence was in dispute as
to whether, where, and when [she] indicated that she wanted to
contact counsel.” (Watson’s brief at 19) She appears to argue
that she invoked her right to counsel at her mother’s home when she
was arrested, and that she gave another indication that she had not
waived her right to counsel when she commented to deputy Porter
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later at the DEA building that she “might have to get a lawyer
then, huh?” in response to Porter’s reiteration of her right to
counsel.
In support of her argument that she invoked her right to
counsel at her home Watson points to her mother’s testimony that
Watson asked her mother to contact Linda Jones so that Jones could
contact an attorney who had represented her deceased son (and
Watson’s former boyfriend), Tony Jones. Watson testified that
deputy Porter heard this request, and there was evidence that
another officer wrote down Jones’ telephone number for Watson’s
mother. The right to counsel must be “unambiguously” invoked.
Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355
(1994). Watson’s statements to her mother, even if overheard by
the officers, were insufficient to invoke her right to counsel.
The arresting officers were not obligated to clarify whether her
comments were intended to be an invocation of her right to counsel.
See United States v. Scurlock, 52 F.3d 531, 537 (5th Cir. 1995).
Watson’s comment to deputy Porter that she “might have to get a
lawyer then, huh?” was also insufficient to invoke her right to
counsel. See Davis, 512 U.S. at 459, 114 S. Ct. at 2355 (holding
that an arrestee’s comment that “maybe [she] should talk to a
lawyer” did not constitute an unambiguous request for counsel);
Scurlock, 52 F.3d at 537 (holding that defendant’s comment that she
“needed a lawyer” was not a request for counsel when the comment
was made in response to an agent’s statement that she would be
indicted in the future).
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Fundamentally, these points of error express Watson’s
disagreement with the credibility choices made by the district
court and the court’s conclusions based on the evidence at the
suppression hearing. Having carefully reviewed Watson’s arguments
and the record we are persuaded that none of the district court’s
findings are clearly erroneous and that Watson voluntarily con-
sented to answer questions without the presence of counsel.
Accordingly, we find no violation of Watson’s Fifth or Sixth
Amendment right.
2. Admissibility of Murga’s Statements
After a two-day evidentiary hearing the district court
entered a comprehensive, seven-page order denying Murga’s motion to
suppress her statements to law enforcement officers. In response
to the district court’s detailed findings of facts and conclusions
of law regarding the voluntariness of Murga’s confession and waiver
of her Miranda rights, Murga states in her brief only that her
“custodial statements were not truly voluntary because they
resulted from improper inducements and continuing interrogation by
numerous law enforcement officers and agents.” (Murga’s brief at
30 n.55) Murga’s brief contains no argument or discussion of the
facts explaining why the district court’s findings were incorrect,
and she does not even present an argument “as to what improper
inducements were made.” Although Murga cites documents filed in
the district court by prior counsel, Murga cannot satisfy the
requirements of Fed. R. App. P. 28(a)(5) by merely referring to
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briefing filed with the district court. We conclude that Murga has
waived this point of error because her brief fails to satisfy the
requirements of Fed. R. App. P. 28(a)(5) and (6).
3. Admissibility of Evidence Seized from the Mercury Sable
Gamboa argues that the district court erred in denying his
motion to suppress evidence seized from a blue Mercury Sable on
August 11, 1992. Gamboa first argues that he was illegally
detained in violation of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868(1968). As explained in Part I.G., supra, the officers saw Gamboa
and Mena enter a suspected money laundering exchange, scanning the
parking lot as they went in. The officers saw them leave the
exchange, again scanning the parking lot as they returned to their
car, with Gamboa carrying a heavy duffle bag, which he put into the
trunk of the car. They then saw Mena use a cellular phone and saw
Gamboa and Mena engage in counter-surveillance techniques.16
Officers later saw Gamboa and Mena get into a blue Mercury Sable
and drive to another apartment complex. The officers testified
that they approached Gamboa and Mena without drawing their weapons,
asked for identification, and told them that they were investigat-
ing drug trafficking activities.
16
Use of counter-surveillance techniques by suspects raises a
reasonable suspicion. See United States v. Quiroz-Hernandez, 48
F.3d 858, 863 (5th Cir. 1995).
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In an order entered on April 1, 1993, the district court
concluded that the investigating officers had reasonable suspicion
of criminal activity to stop Gamboa. The district court also
concluded that the government had proved by a preponderance of the
evidence that Gamboa voluntarily consented to the officers’ search
of the Mercury Sable, both orally and in writing. Although Gamboa
testified that the officers approached the car with their guns
drawn and that he did not understand the consent form, the district
court credited the officers’ testimony that their weapons were not
drawn when they approached the car, that officer Montalvo explained
to Gamboa that he could refuse to consent to the search, and that
Gamboa acknowledged that he understood him and executed a Spanish
language consent form.
The district court was presented with two conflicting
versions of the facts. Because the district court’s factual
findings are supported by the evidence, they are not clearly
erroneous. See Amadeo v. Zant, 486 U.S. 214, 223, 108 S. Ct. 1771,
1778 (1988) (holding that where there are two permissible views of
the evidence, the factfinder’s choice between them cannot be
clearly erroneous). Reviewing the evidence de novo, we also
conclude that Gamboa has failed to establish a Fourth Amendment
violation.
4. Admissibility of Evidence Seized from
Jackquet’s Residence
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Although Jackquet argues in his brief that the officers who
arrested him failed to knock and announce their presence before
entering his residence in violation of the Fourth Amendment, he
never states that he objected to the admissibility of the evidence,
either through a pretrial motion to suppress evidence or by
objecting to evidence at trial.
Moreover, even had Jackquet objected to this evidence, he has
failed to satisfy his initial burden of proving that “an
unannounced entry actually occurred.” Moser, 123 F.3d at 824
(quoting United States v. Fike, 82 F.3d 1315, 1323 (5th Cir.),
cert. denied, 117 S. Ct. 241 (1996)). Jackquet argues that his
statement to interrogating officers that he did not hear the
arresting officers knock and announce before entering meets his
initial burden. That statement, however, is not sufficient to make
a prima facie showing under this court’s analysis in United States
v. Mueller, 902 F.2d 336 (5th Cir. 1990). In Mueller the court
held that the defendant’s affidavit, which stated that he had been
asleep in a back bedroom of the house and had not heard the
officers knock and announce, was too speculative to support the
required initial showing, even in the absence of any testimony from
the arresting officers that they knocked and announced before
entering. Id. at 344. Jackquet’s prima facie evidence is even
weaker since the arresting officers testified that they knocked and
repeatedly announced their presence before they entered Jackquet’s
residence. Jackquet has failed to show that the district court
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committed plain error in admitting this evidence, see Moser, 123
F.3d 824, or assuming arguendo that he properly objected to it
before the trial court, that the court erred in admitting the
evidence.
5. The Government’s Trial Charts
Jackquet and Watson complain that the district court erred
in allowing the government to display throughout the trial time-
line and organizational charts. The time line was posted on eight
large poster boards on easels. The organizational chart arranged
photographs of the defendants in a manner that demonstrated the
government’s theory of the defendants’ roles in the conspiracies
and substantive RICO offenses. Summaries of evidence and testimony
were attached to the time-line chart with Velcro as those items
were admitted into evidence. The district court allowed the charts
to be used as demonstrative aids. Since the charts were not
admitted in evidence, they were not sent to the jury room during
deliberations.
Since the government did not offer the charts into evidence
and the trial court did not admit them, we need not decide whether,
as appellants argue, they were not admissible under Fed. R. Evid.
1006, which allows charts and summaries of “voluminous writings,
recordings, or photographs” to be received as evidence. Where, as
here, the party using the charts does not offer them into evidence,
their use at trial is not governed by Fed. R. Evid. 1006. See
Pierce v. Ramsey Winch Co., 753 F.2d 416, 431 (5th Cir. 1985).
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We review the district court’s decision to allow the
government to display summary charts for abuse of discretion. See
United States v. Winn, 948 F.2d 145, 158 (5th Cir. 1991). As the
trial court explained in her memorandum and order allowing the use
of the charts, the charts were not evidence but were “pedagogical”
devices intended to present the government’s version of the case.
This court has held that the use of a chart as a demonstrative aid
to summarize the evidence is permissible as long as the court gives
the jury appropriate limiting instructions. See United States v.
Torres, 114 F.3d 520, 526 (5th Cir.), cert. denied, 118 S. Ct. 316(1997). In this case the district court instructed the jury that
the charts were not evidence and that the summary was “just an
effort to help you follow the evidence that you are going to be
hearing over the course of the trial.” The district court gave
additional instructions during the trial that the charts were not
evidence when asked to do so by defense counsel. We are satisfied
that Fed. R. Evid. 611(a) afforded the district court discretion to
allow the government to use the summary charts and organizational
charts. The district court’s rulings allowing the use of the
charts, when accompanied by the court’s repeated limiting
instructions, was not an abuse of discretion.17
17
Watson argues that the district court’s charge to the jury
failed to contain another limiting instruction about the charts.
Watson does not argue, however, that she ever requested such an
instruction. Although the charge did not reiterate the earlier
limiting instructions about the charts, the charge did instruct the
jury that “[i]t is your duty to base your verdict solely upon the
(continued...)
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6. The Alleged Hearsay Testimony of Agent Schaefer
The government called Julio Jimenez a/k/a Victor Loaiza as
a witness. On cross-examination by Parada’s counsel Loaiza
testified that Parada was not aware of the illegal activities of
Ariel Ochoa, Harold Cortes, or Hernan Moreno. Loaiza testified
that he and the other drug conspirators were careful not to let
Parada in on the secrets of the drug business because “he was too
sound a person, too straight of a person for that type of
business.” Loaiza also testified that Parada was not told about
the hidden compartment in the car, and that all the errands Parada
was asked to perform appeared on their surface to be legitimate.
Loaiza also testified that he had told government agents that
“Parada was not aware of what was going on.” Later in the trial
counsel for Parada cross-examined DEA agent Mike Schaefer about
whether he participated in “the debriefing of [Loaiza] that took
place over the last ten months where he said my client wasn’t in
the drug business.” Agent Schaefer testified that he had partici-
pated in debriefing Loaiza.
The government then informed the court that agent Schaefer
would be asked whether Loaiza had told Schaefer that Parada knew
that Harold Cortes and Hernan Moreno were engaging in drug
trafficking and money laundering. In response to Parada’s hearsay
(...continued)
testimony and evidence.” (Court’s Instructions to the Jury at
page 2) Given this instruction and the court’s repeated instruc-
tions during trial that the charts were not evidence, even if
Watson had preserved this argument for appeal by requesting an
appropriate instruction, the district court would not have erred in
refusing it.
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objection the government argued, and the district court agreed,
that agent Schaefer’s testimony about Loaiza’s statements to him
was relevant to refute the inference raised by Parada’s counsel’s
questions to Loaiza and agent Schaefer that the government had
acted in bad faith by prosecuting someone the government knew to be
innocent. Before allowing the government to question agent
Schaefer about Loaiza’s statements the court gave the following
instruction to the jury:
Ladies and gentlemen, Mr. Lewis has indicated that he
will elicit from Michael Schaefer, the witness on the
stand, testimony concerning statements made to this
witness by Victor Loaiza, also known as Julio Jimenez.
These statements are not being offered for the truth of
the matters asserted in Loaiza’s statements to
Mr. Schaefer, but, rather, are being offered to show that
Loaiza made the statements to the investigating agents
and to establish the effect on the agents in forming the
bases of their subsequent conduct. (Trial Transcript,
vol. 89, page 4919)
Agent Schaefer then testified that Loaiza had told him that “Parada
knew that there was drug trafficking and money laundering going on
by Hernan Moreno and Harold Cortes.” Parada’s counsel then cross-
examined agent Schaefer at length about his interview with Loaiza.
Parada argues that the district court erred in allowing agent
Schaefer to testify to Loaiza’s hearsay statements and that the
court’s instruction was insufficient to prevent prejudice to Parada
from this testimony. The district court’s decision to allow this
testimony is reversible only for abuse of discretion. See United
States v. Carrillo, 20 F.3d 617, 619 (5th Cir. 1994). In light of
the questioning by Parada’s counsel, which made the testimony
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relevant, and the limiting instruction given by the court, which
minimized any unfair prejudice to Parada, the district court did
not abuse its discretion in allowing Schaefer’s testimony.
7. Impeachment Evidence Against Agent Schaefer
Parada argues that the district court abused its discretion by
refusing to allow him to introduce evidence that he claims would
have impeached agent Schaefer’s testimony. First, Parada complains
that he was prevented from presenting evidence that agent Schaefer
erroneously testified at Parada’s pretrial detention hearing that
pretrial services had told him that Parada was on probation in New
York. Parada sought to present the testimony of Carolyn
Baranowski, a pretrial services officer, that her files did not
indicate that Parada was on probation as of the date of his arrest.
The district court acted well within its discretion in excluding
Schaefer’s testimony from the pretrial detention hearing and
Baranowski’s testimony. See United States v. Hawkins, 661 F.2d
436, 444 (5th Cir. Unit B Nov. 1981) (“There is no right to impeach
a witness with respect to collateral or irrelevant matters.”).
Second, Parada complains that he was precluded from presenting
evidence that Parada’s son, mother, and daughter were handcuffed
while the police arrested Parada and searched his apartment. Agent
Schaefer testified that several agents participated in the arrest
and search and that he did not see the women handcuffed. He also
testified that Parada’s son, Christian, had remained handcuffed “no
more than a half hour,” and that the handcuffs were removed when
Christian spoke with his father in a bedroom. Christian Parada
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testified about conversations between agent Schaefer and his father
and threats by Schaefer to both Christian and his father to induce
their cooperation. In a bill of exceptions Christian Parada
testified that he remained handcuffed throughout the search of the
apartment and that his mother and sister were handcuffed.
The district court did not abuse its discretion in sustaining
the government’s relevancy objection to exclude the testimony of
Christian Parada. That Parada’s wife and daughter were handcuffed
does not necessarily impeach agent Schaefer’s testimony that he did
not see them handcuffed. Parada does not argue that the fact that
Parada’s family was handcuffed is relevant to whether Parada’s
confession was voluntary. In fact, the statement of Parada that
was introduced into evidence was made seven hours later at DEA
headquarters after Parada was informed of and waived his Miranda
rights. Given the marginal relevance of the testimony that the
district court excluded, the court did not err in excluding it.
8. Extraneous Offense Evidence Against Gage
Gage argues that the district court abused its discretion in
admitting evidence of extraneous offenses under Fed. R. Evid.
404(b). The government was allowed to introduce evidence that on
August 23, 1992, Louisiana officers stopped Kelvin Jackquet’s
sister for traffic violations. The Chevrolet van she was driving
had been rented by Gage. While the officers were talking to her,
a Chevrolet Corvette in which Gage was a passenger pulled up. Gage
told the officers that he was traveling with the van. A search of
the van recovered a black tote bag containing $24,985. The
government also introduced the testimony of Tom Burgess that in
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November of 1992 he delivered 30 kilograms of cocaine to Gage, as
well as recorded telephone conversations from December of 1992 in
which Gage, Burgess, and others discussed the purchase of cocaine
by Gage.
Gage concedes that evidence of extraneous offenses is
admissible if relevant to an issue other than the defendant’s
character. He also concedes that a defendant’s plea of not guilty
in a criminal case raises the issue of intent allowing the
government to use evidence of extrinsic acts to prove the
defendant’s intent. He contends, however, that the district court
abused its discretion in admitting this extraneous offense evidence
without considering that other evidence had already been admitted
to establish his intent. See United States v. Roberts, 619 F.2d
379, 383 (5th Cir. 1980) (stating that the district court “must
consider ‘the extent to which the defendant’s unlawful intent is
established by other evidence’” (quoting United States v. Beechum,
582 F.2d 898, 914 (5th Cir. 1978) (en banc))). In this case the
district court did just that. In an order entered on July 8, 1993,
the court concluded that the evidence the government sought to
offer was relevant to the issue of Gage’s intent and that,
notwithstanding Gage’s “overkill” argument, such evidence would not
unduly prejudice Gage. The district court also minimized the risk
of undue prejudice by twice giving a detailed limiting instruction
that the extraneous evidence was only to be considered to show
Gage’s intent. The district court carefully complied with the
requirements of Beechum, and we find no error in the court’s
rulings.
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9. Violation of Fed. R. Evid. 615 by Hall and Cortes
On cross-examination Richard Hall testified that before he
testified, his sister, Wonda Cortes, called him from jail after she
had testified and the two discussed her testimony. Hall admitted
that he had talked with his sister about her testimony “[d]uring
the time she was testifying” and that they discussed “some of the
things that were happening to her on the witness stand,” “some of
the things she had said,” and “some of the things the lawyers had
asked her about.” Gage and Varon argue that their convictions
should be reversed because the district court refused to strike the
testimony of Hall and Cortes pursuant to Fed. R. Evid. 615, which
provides for sequestration of witnesses during trial, and refused
to allow them to explore outside the presence of the jury whether
Cortes influenced Hall’s testimony.
Although Cortes had been sequestered pursuant to Rule 615 at
the time of her conversations with Hall, the district court has
discretion to allow the testimony of a witness who violated a
sequestration order, and its decision to do so is reviewed for an
abuse of discretion. See United States v. Wylie, 919 F.2d 969, 976
(5th Cir. 1990). “In evaluating whether an abuse of discretion has
occurred, the focus is upon whether the witness’s out-of-court
conversations concerned substantive aspects of the trial and
whether the court allowed the defense fully to explore the
conversation during cross-examination.” Id. (citation omitted).
After a lengthy conference with counsel at which defense counsel
suggested various alternative remedies for the Rule 615 violation,
the district court concluded that defense counsel could cross-
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examine Hall further about his conversations with Cortes. The
court refused, however, to allow defense counsel to question Hall
or Cortes outside of the presence of the jury to explore the nature
and extent of their conversations.18 Defense counsel then declined
to cross-examine Hall further about his conversations with Cortes.
On redirect Hall testified that Cortes had not attempted to
influence his testimony by telling him what to say in court. On
recross Hall essentially reiterated his cross-examination testimony
quoted above.19
In the limited cross-examination of Hall conducted by the
defense there was no indication that his testimony was “tainted” as
Varon suggests. Moreover, as in Wylie, Varon and Gage fail to
identify which portions of Hall’s testimony they contend “were
either tailored or less than candid.” Id. at 976. Because the
defendants were allowed a full opportunity to cross-examine Hall,
and because the testimony that was elicited from Hall did not
indicate that his testimony was influenced by his conversations
18
The district court had the discretion under Fed. R. Evid.
104(c) to allow defense counsel to question Hall and Cortes outside
of the presence of the jury or to require that the questioning be
in open court before the jury. The Advisory Committee Notes to
Rule 104(c) explain that allowing counsel to question witnesses on
preliminary matters outside of the presence of the jury is time
consuming and in many cases testimony given in such a hearing must
later be presented to the jury.
19
Gage also faults the district court for not instructing the
jury about how to consider and evaluate Hall’s testimony in light
of the violation of Rule 615. In his brief Gage does not state
that any defense counsel ever requested such an instruction,
however, and we did not find such a request in our review of the
record.
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with Cortes, the district court did not err in refusing to strike
the testimony of Hall and Cortes or to allow further questioning of
Hall and Cortes outside of the presence of the jury.
D. Instructions to the Jury
1. Voir Dire Instruction About Guilty Pleas
During voir dire Watson’s counsel told the jury panel that a
guilty plea was not evidence of a crime. The next morning, outside
of the presence of the jury panel, the government objected that the
statement was misleading. The district court agreed and instructed
the jury panel:
Yesterday, also, Mr. DeGeurin mentioned that it is
possible for an individual to plead guilty to a crime and
that person not actually been guilty, and that’s true,
that is the law, but I want you to know that it is not
the policy nor the practice of this court to accept a
plea of guilty from anyone who tells me he or she is not
guilty of the crime to which he is pleading guilty.
During the trial the government elicited testimony from Wonda
Cortes that she had pled guilty before Judge Harmon. Defendants
objected and moved for a mistrial. Although the court denied the
motion for mistrial, the court promptly instructed the jury:
Ladies and Gentlemen, the last questions and answer are
stricken and you are instructed to disregard it. To whom
Ms. Cortes pled guilty in this case is totally irrelevant
to this case and you are instructed to disregard the last
statement of the witness.
In the jury charge the court instructed the jury that “[t]he fact
that the alleged accomplice has entered a plea of guilty to the
offense charged is not evidence, in and of itself, of the guilt of
any other person.” (Court’s Instructions to the Jury at page 12)
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Parada and Mena argue that the court’s initial instruction and
the government’s subsequent questions to Wonda Cortes prejudiced
them by implying to the jury that since Cortes had pled guilty, the
district judge who was presiding over the case must have found that
a conspiracy existed before accepting Cortes’s plea. A district
court has broad discretion under Fed. R. Crim. P. 24 in conducting
the voir dire examination of the jury panel, and “absent an abuse
of discretion and a showing that the rights of the accused have
been prejudiced thereby, the scope and content of voir dire will
not be disturbed on appeal.” United States v. Black, 685 F.2d 132,
134 (5th Cir. 1982). In light of the comment to the jury panel by
counsel for Watson, the court’s initial instruction was proper to
cure any misimpression by the jury panel that the court would allow
innocent people to plead guilty. Any prejudice to Parada or Mena
that resulted from the instruction or from the government’s
subsequent question to Cortes was cured by the district court’s
later instructions.
2. Failure to Submit Duress Instruction
Watson argues that the district court erred in refusing to
instruct the jury on her duress defense and erred in refusing to
allow counsel to argue during closing arguments that evidence of
duress negated the government’s proof of Watson’s intent. Watson’s
brother, Christopher Smith, testified that he visited his mother’s
house, where Watson lived, once or twice a week. Smith testified
that after Watson’s boyfriend, Tony Jones, was murdered in 1991,
Watson was afraid to stay at home by herself and was afraid that
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other family members might be killed. Wonda Cortes testified that
the conspiracy would not allow members who threatened its existence
to withdraw voluntarily. Watson argues that this evidence estab-
lished that her participation in the conspiracy was compelled by
her fear for her own and her family’s safety.
Duress, like the related, and often overlapping, defenses of
self-defense and necessity, is a form of the affirmative defense of
justification. See United States v. Harper, 802 F.2d 115, 117 (5th
Cir. 1986).20 To raise an issue of duress for the jury a defendant
must present proof of four elements:
(1) that the defendant was under an unlawful and
“present, imminent, and impending [threat] of such
a nature as to induce a well-grounded apprehension
of death or serious bodily injury”;
(2) that defendant had not “recklessly or negligently
placed himself in a situation in which it was
probable that he would be [forced to choose the
criminal conduct]”;
(3) that defendant had no “reasonable legal alternative
to violating the law; a chance both to refuse to do
the criminal act and also to avoid the threatened
harm”; and
(4) “that a direct causal relationship may be
reasonably anticipated between the [criminal]
action taken and the avoidance of the [threatened]
harm.”
20
“While the defense of duress covered the situation where the
coercion had its source in the actions of other human beings, the
defense of necessity, or choice of evils, traditionally covered the
situation where physical forces beyond the actor’s control rendered
illegal conduct the lesser of two evils.” United States v. Bailey,
444 U.S. 394, 409-410, 100 S. Ct. 624, 634 (1980).
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Harper, 802 F.2d at 117 (quoting United States v. Gant, 691 F.2d
1159, 1162-63 (5th Cir. 1982) (citations and footnotes omitted)
(brackets in original)).
Because duress is an affirmative defense, a defendant must
present evidence of each of the elements of the defense before it
may be presented to the jury. See United States v. Bailey, 444
U.S. 394, 415, 110 S. Ct. 624, 637 (1980); Gant, 691 F.2d at 1165.
In determining whether a defendant has made a threshold showing of
the elements of the defense a court must objectively evaluate the
facts presented by the defendant. See Gant, 691 F.2d at 1163. An
objective analysis of Watson’s evidence persuades us that Watson
failed to present evidence that she was under a “present, imminent,
and impending” threat of death or serious bodily injury, or that
she had no available legal alternatives other than her continued
course of criminal conduct.
Watson presented no specific evidence of any threat to her or
her family. She attempts to overcome this evidentiary deficit by
arguing that Bailey only requires an “imminent” threat. Watson
argues that “‘imminent’ does not always mean ‘immediate,’” and that
in a conspiracy case like this one “a threat remains ‘present,
imminent, and impending’ . . . as long as the conspiracy’s
potential for violence remains.” (Watson’s brief at pages 29 and
30) Watson’s attempt to drive a semantic wedge between “imminent”
and “immediate” is of no avail under the facts of this case.
Regardless of which adjective is used to describe the threat, our
decisions make it clear that the defense only arises if there is a
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real emergency leaving no time to pursue any legal alternative. In
stating why the defense requires proof “of absolute and
uncontrollable necessity” the Supreme Court explained that “[a]ny
rule less stringent than this would open the door to all sorts of
fraud.” The Diana, 74 U.S. (7 Wall.) 354, 360-61, 19 L. Ed. 165(1868).21
Nor has Watson presented evidence of the absence of a legal
alternative to drug dealing. To establish the absence of a legal
alternative a defendant must show “that he had actually tried the
alternative or had no time to try it, or that a history of futile
attempts revealed the illusionary benefit of the alternative.”
Harper, 802 F.2d at 118 (quoting Gant, 691 F.2d at 1164). In
assessing whether reasonable alternatives were available to a
defendant a court must objectively evaluate the facts. A
“[d]efendant’s subjective belief as to available legal alternatives
is not determinative. As long as defendant’s crises permitted ‘a
selection from among several solutions, some of which did not
involve criminal acts,’ . . . the necessity defense must fail.”
United States v. Meraz-Valeta, 26 F.3d 992, 995 (10th Cir. 1994).
As the Supreme Court explained in Bailey, “[v]ague and necessarily
self-serving statements of defendants or witnesses as to future
good intentions or ambiguous conduct simply do not support a
21
Examples of the type of immediacy that will warrant a
justification defense include a prisoner who flees a burning prison
without permission to avoid being burned to death, see United
States v. Kirby, 74 U.S. (7 Wall.) 482, 487, 19 L. Ed. 278 (1869),
and a mariner who jettisons wood from a sinking ship during a storm
without paying excise taxes to save the lives of passengers. See
Reniger v. Fogossa, 1 Plowd.1, 75 Eng. Rep. 1 (K.B. 1551).
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finding of this element of the defense.” Bailey, 444 U.S. at 415,
100 S. Ct. at 637.
A comparison of decisions in which a duress defense has been
invoked illustrates the rigorousness of the requirements of a real,
imminent threat and the absence of any legal alternative. For
example, in one of the few cases in which the defense was held to
be available, United States v. Panter, 688 F.2d 268 (5th Cir.
1982), Panter, a convicted felon, was working as a bartender. He
was assaulted by a patron who had been drinking heavily and who had
previously been convicted of murder. After a brief argument the
patron threatened to kill Panter, pulled a knife, and stabbed
Panter in the stomach. As the two men fought on the floor, Panter
reached under the bar for a club he kept there. As he reached for
the club, his hand fell upon a pistol placed there by another
employee, and he shot his attacker. This court held that the
defenses of self-defense and necessity were available to Panter in
defending against a charge of possession of a firearm by a felon
because there was no time for Panter to take any lawful action to
avoid being killed. See id. at 271.
Contrasted with Panter are the facts in Harper and United
States v. Harvey, 897 F.2d 1300 (5th Cir. 1990), overruled in part
on other grounds by United States v. Lambert, 984 F.2d 658 (5th
Cir. 1993) (en banc). In Harper the defendant, also a convicted
felon, had purchased firearms to protect himself and his fiancee
after he had been robbed several times. We held that the defense
of necessity was not available because there was no evidence that
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Harper was in danger of any “imminent” bodily harm when he
purchased and possessed the gun, and because Harper had reasonable
legal alternatives available to possessing a firearm; for example,
he could have notified the police of the threats. See id. at 118.
In Harvey the defendant, again a convicted felon, argued that he
feared for his life because a rival church faction in his small
hometown had engaged in “shootouts” and that Harvey had been
threatened by members of the faction who wanted him to leave town.
We affirmed the district’s refusal to submit a duress instruction
to the jury because Harvey’s evidence did not show that any
present, immediate threat prevented him from calling the police.
See Harvey, 897 F.2d at 1305.
Watson’s evidence of duress was much more analogous to Harper
and Harvey than to Panter. Watson presented no evidence of any
imminent threat or that she could not pursue legal alternatives to
drug dealing, such as contacting the police. The generalized
testimony of her brother that Watson was afraid to stay at home and
that she feared for her family’s safety and Cortes’s testimony that
the conspiracy did not allow members to withdraw fell far short of
the proof required to raise an issue of duress. A district court’s
refusal to submit a requested jury instruction is reviewed for
abuse of discretion. See United States v. Clements, 73 F.3d 1330,
1338 (5th Cir. 1996). The district court was well within its
discretion in refusing to instruct the jury on the defense of
duress.
During closing arguments Watson’s counsel argued, based on the
same evidence that Watson relied on in support of her duress
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defense, that the government had failed to prove that Watson acted
willfully. The government objected that Watson’s counsel was
attempting to argue indirectly the duress defense. At the govern-
ment’s request the district court instructed the jury that
“Ms. Watson is not entitled to the defense of duress in this case.”
Watson argues on appeal that this instruction left the jury with
the impression that the evidence of the murders and other violence
could not be considered, even in relation to her intent.
Evaluating a challenged jury instruction “requires careful
attention to the words actually spoken to the jury . . ., for
whether a defendant has been accorded his constitutional rights
depends upon the way in which a reasonable juror could have
interpreted the instruction.” Francis v. Franklin, 471 U.S. 307,
314, 105 S. Ct. 1965, 1971 (1985) (citation omitted). The district
court’s instruction to the jury was a correct and limited statement
of the court’s conclusion that she was not entitled to a duress
defense. It said no more, and did not foreclose Watson from
arguing that the government had not proved her intent beyond a
reasonable doubt.
Neither Watson’s complaint that the district court failed to
instruct the jury on her duress defense nor her complaint that the
district court instructed the jury that she was not entitled to a
duress defense provides a basis for overturning her convictions.
3. Deliberate Ignorance Instruction
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Parada challenges the district court’s submission of a delib-
erate ignorance instruction.22 A deliberate ignorance instruction
is warranted “when a defendant claims a lack of guilty knowledge
and the proof at trial supports an inference of deliberate
indifference.” Moser, 123 F.3d at 825 (quoting United States v.
McKinney, 53 F.3d 664, 676-77 (5th Cir. 1995)). The instruction
should not be submitted unless the evidence raises inferences that
(1) the defendant was subjectively aware of a high
probability of the existence of illegal conduct,
and
(2) the defendant purposely contrived to avoid learning
of the illegal conduct.
United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990).
Although Parada concedes that “the evidence . . . tended to
show that Parada should have been aware of the illegal conduct
. . .” (Parada’s brief at 24), he argues that there was no evidence
that he purposely contrived to avoid learning of the illegal
conduct. We are not persuaded by this argument. As discussed in
Part I.D.1., supra, Parada rented apartments for Harold Cortes and
Hernan Moreno under false names, and allowed Cortes and Moreno to
use his address to register pagers and vehicles for Cortes and
22
The district court instructed the jury:
You may find that a defendant had knowledge of a
fact if you find that the defendant deliberately closed
his eyes to what would otherwise have been obvious to
him. While knowledge on the part of the defendant cannot
be established merely by demonstrating that the defendant
was negligent, careless, or foolish, knowledge can be
inferred if the defendant deliberately blinded himself to
the existence of a fact. (Court’s Instructions to the
Jury at pages 20 and 21)
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Moreno. When Parada was stopped in Louisiana for a traffic
violation a Louisiana state patrolman uncovered a hidden
compartment that had been built into the back of the rear seat and
operated by a sophisticated hidden release device wired through the
air conditioning vent. Parada told agent Schaefer that he knew
Cortes and Moreno were “up to no good” when Moreno had stopped him
from going into a room saying “you don’t need to see what’s down
there.” Because this evidence raised an inference that Parada
purposely avoided learning the true facts about his dealings with
Harold Cortes and Hernan Moreno, it supported the district court’s
deliberate ignorance instruction.
E. Contact with a Juror
Murga and Parada argue that the district court abused its
discretion by failing to grant a mistrial because of contact
between Mona Smith Watson’s brother and a juror. During a break in
closing arguments Watson’s brother, Christopher Smith, approached
one of the jurors, handed her a business card with his phone
number, and told her not to tell anyone. The juror took the card
into the jury room, placed it on the table, and told several other
jurors how she had received it.
A deputy marshal retrieved the card from the jury room and
brought the matter to the district court’s attention. The court
promptly interviewed the juror privately in chambers. The juror
stated that she had discussed the incident in the jury room, and
that based on negative comments she had heard about Watson’s
attorney, Mike DeGeurin, through her employment at the police
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department she had speculated that it was possible that the
incident could “be a totally innocent thing” or it could have been
instigated by DeGeurin. The district court instructed the juror
not to say anything more about the matter and then discussed with
counsel the interview with the juror. DeGeurin asked the court to
instruct the jury that he did not have anything to do with the
incident and that it was an innocent act that should not have been
done. DeGeurin and counsel for Murga also moved to dismiss the
juror who received the card, but counsel for defendant Roy Ford
objected, viewing the juror as favorable to his client. Counsel
for Murga moved for a mistrial.
The district court denied the motions to dismiss the juror and
for mistrial. Before DeGeurin’s closing argument the court again
called the juror into chambers and told her “I wanted to tell you
that I have done an investigation of this whole incident and I am
convinced that Mr. DeGuerin [sic] had nothing whatsoever to do with
it. So I just wanted you to put that out of your mind . . . .”
The juror responded “[f]ine . . . I felt like it was an innocent
thing on the guy, I felt like it was really innocent. But once I
brought it back [into the jury room] and threw it on the table and
told them where I had gotten it from, . . . it seemed to escalate
from that . . . .” The court then related the second private
discussion with the juror to all counsel. Murga renewed her motion
for mistrial, and the court again denied it.
The court then instructed the jury:
Ladies and Gentlemen, yesterday I was informed that
one of the spectators handed to one of you a business
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card, and the juror to whom the business card was handed
told the rest of you about it in the jury room and that
there was some discussion about it, and I understand that
some of that discussion was as to whether or not
Mr. DeGeurin had had anything to do with the spectator
handing the juror the card. I want to assure you that I
have spoken to Mr. DeGeurin and made an investigation of
this incident and I am convinced that Mr. DeGeurin did
not have anything whatsoever to do with that. And I want
you all to simply put that out of your minds and not to
consider or think about that incident whatsoever during
your consideration of the case.
After jury arguments were concluded the court conducted a
hearing. The court inquired of each juror what he or she had heard
about the card incident, whether they were concerned about it,
whether they believed DeGeurin was involved, and whether the
incident could affect their ability to be a fair and impartial
juror. Not all of the jurors heard the discussion of the card in
the jury room or any mention of DeGeurin’s name. Each juror told
the court that the incident would not affect his or her
deliberations. The court then again denied the defendants’ motions
for mistrial after concluding that none of the jurors “had been
influenced in any way by the card incident.”
In Smith v. Phillips, 455 U.S. 209, 215, 102 S. Ct. 940, 945
(1982), the Court held that “the remedy for allegations of juror
partiality is a hearing in which the defendant has the opportunity
to prove actual bias.” Drawing on its previous decision in Remmer
v. United States, 347 U.S. 227, 74 S. Ct. 450 (1954), the Court
explained in Smith that the trial judge is “to ‘determine the
circumstances, the impact thereof upon the jurors, and whether or
not [they were] prejudicial, in a hearing with all interested
parties permitted to participate.’” Smith, 455 U.S. at 216, 102
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S. Ct. 945 (quoting Remmer, 347 U.S. at 230, 74 S. Ct. 451)
(emphasis in Smith). This is exactly what the district judge did
in this case.
A district court has broad discretion in handling allegations
of outside influences on the jury. See United States v. Ramos, 71
F.3d 1150, 1153 (5th Cir. 1995), cert. denied, 517 U.S. 1227, 116
S. Ct. 1864 (1996) (“We do not understand Smith to require a full-
blown evidentiary hearing in every instance in which an outside
influence is brought to bear on a petit juror. Our precedents
allow the trial judge the flexibility, within broadly defined
parameters, to handle such situations in the least destructive
manner.”). Neither Murga nor Parada has shown any abuse of
discretion by the district court in handling this incident.
F. Ineffective Assistance of Counsel
After the jury’s verdict Louis Suarez, counsel for Luis Rios-
Castano, was indicted for drug dealing. The court appointed a new
lawyer to represent Rios-Castano at his sentencing and on appeal.
Rios-Castano’s new counsel filed a motion for new trial alleging
that Suarez had provided ineffective representation at trial
because (1) he entered into a cocaine transaction with an
undercover agent during trial (and later pleaded guilty to the
offense), and (2) he did not devote adequate time to Rios-Castano’s
defense, and in particular, failed to interview a key witness. To
preserve Suarez’s testimony while his memory was fresh the district
court allowed the parties to make a record concerning Rios-
Castano’s claims. Because Rios-Castano’s newly appointed counsel
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did not have access to a transcript of the trial at the time of the
hearing or to all of the facts, including several government
memoranda that were filed under seal, the court recessed the
hearing so that Rios-Castano’s new counsel could supplement the
evidence at a later hearing. Nothing in the record indicates that
Rios-Castano ever asked the district court to complete the hearing,
and the district court has never ruled on Rios-Castano’s motion for
new trial.
Generally, a claim of ineffective assistance of counsel will
not be addressed on direct appeal unless it has first been
considered by the district court. See United States v. Bounds, 943
F.2d 541, 544 (5th Cir. 1991). Because Rios-Castano’s claims of
ineffective assistance of counsel focus on his trial counsel’s
trial strategy and investigation, which are fact-intensive issues
that must initially be addressed by the district court, we dismiss
this portion of his appeal without prejudice to his right to raise
the issue of ineffective assistance of counsel in a proceeding
brought in the district court under 28 U.S.C. § 2255.
G. Sentencing Issues
Esnoraldo Posada-Rios, Carlos Mena, Elisa Murga, Carmenza
Varon, Raul Gamboa, Luis Rios-Castano, Anthony Gage, and Kelvin
Jackquet challenge the sentences imposed by the district court. We
review factual findings under the “clearly erroneous” standard
mandated by 18 U.S.C. § 3742(e) and accord great deference to the
trial judge’s application of the sentencing guidelines to the
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facts. See United States v. Humphrey, 7 F.3d 1186, 1189 (5th Cir.
1993). In a conspiracy case the drug quantity for purposes of
sentencing includes amounts attributable to co-conspirator conduct
in furtherance of the conspiracy as long as those amounts were
reasonably foreseeable to the defendant and includes drugs
possessed by other conspirators who were “aided and abetted” by the
defendant. See United States v. Carreon, 11 F.3d 1225, 1237 (5th
Cir. 1994). The district court’s determination of the amount of
drugs attributable to a defendant is a finding of fact reviewed for
clear error. See United States v. Alix, 86 F.3d 429 (5th Cir.
1996). The district court’s determination of a defendant’s role in
the offense is also a finding of fact that is reviewed for clear
error. See United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir.
1994). The sentencing court may consider any relevant information,
without regard to its admissibility, as long as the court concludes
that it has sufficient indicia of reliability. See
Section 6A1.3(a) of the United States Sentencing Commission
Guidelines Manual (1993) (USSG).
1. Esnoraldo Posada-Rios
Posada-Rios argues that the district court erred by sentencing
him as a Career Criminal Offender under USSG § 4B1.1 because the
two prior convictions relied on by the court to sentence him as a
career offender were related to his current convictions and
therefore could not serve as a basis for enhancement. This
argument is irrelevant because the district court did not sentence
Posada-Rios as a career offender.
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In Posada-Rios’ Presentence Investigation Report (PSR) the
probation officer calculated Posada-Rios’ base offense level as 40
based on the quantity of drugs attributable to him. That level was
increased by 2 levels because Posada-Rios possessed a firearm in
connection with his drug trafficking activities and by an
additional 3 levels for his role as a supervisor or manager in the
offense. The resulting total offense level of 45 was then reduced
to 43, the maximum offense level under the Sentencing Guidelines.
Because Posada-Rios’ offense level under the career criminal
provisions of Chapter Four of the guidelines was lower (37), it did
not apply. With a total offense level of 43 and a criminal history
category of VI, Posada-Rios’ guideline sentence was life in prison,
the sentence that the district court imposed. There was no error
in Posada-Rios’ sentence.
2. Mena
The probation officer calculated Mena’s base offense level on
counts 1, 3, 42, and 43 under USSG § 2D1.1 as 36, based on the
cocaine he negotiated to deliver to Wonda Cortes in 1991 and the
cocaine seized from the Nissan on August 11, 1992. For Mena’s
conviction on count 46, illegal reentry in violation of 8 U.S.C.
§ 1326(a), the probation officer calculated a base offense level of
8 under USSG § 2L1.2(a), which was increased by 16 levels under
USSG § 2L1.2(b)(2) because Mena had previously been deported after
being convicted for an aggravated felony, for an adjusted offense
level of 24. Under the grouping rules of USSG § 3D1.4 his
multiple-count adjustments calculated to only one unit, and his
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guideline level became the greater adjusted offense level of 36.
Mena was assigned to criminal history category II. The district
court adopted the PSR and found that Mena’s imprisonment range
under the sentencing guidelines was 210-262 months. The court
concluded, however, that Mena was subject to the statutory minimum
sentence of 240 months under 21 U.S.C. § 841(b)(1) for counts 1, 3,
42, and 43 based on his prior Texas drug conviction and that the
statutory maximum sentence on count 46 was then 180 months in
prison. The court sentenced Mena to concurrent sentences of 240
months in prison on counts 1, 3, 42, and 43 and a concurrent 180-
month sentence on count 46.
On appeal Mena does not challenge the manner in which the
probation officer and the district court grouped his counts of
conviction or that his prior state conviction constitutes a prior
conviction that requires a mandatory minimum sentence of 240
months. Instead, he argues that the district court erred in
considering the cocaine that he negotiated but never delivered to
Wonda Cortes, and that the district court erred in calculating his
sentence on count 46.
Because the district court sentenced Mena to the statutory
minimum based on his prior state drug conviction, the total amount
of cocaine attributable to Mena does not affect his guideline
calculation or his sentence on the conspiracy and controlled
substance violations. Because Mena’s guideline range on count 46
was based in part, under the grouping rules, on the amount of
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cocaine attributed to him, the amount of cocaine did, however,
indirectly affect his guideline range on count 46.
A district court may hold a defendant accountable for an
unconsummated transaction unless the defendant did not intend and
was not reasonably capable of producing this amount. See USSG
§ 2D1.1, comment 12 (“In an offense involving negotiation to
traffic in a controlled substance, the weight under negotiation in
an uncompleted distribution shall be used to calculate the
applicable amount.”); United States v. Davis, 76 F.3d 82, 85 (5th
Cir. 1996). There was no evidence that Mena did not intend or
could not produce the cocaine to Wonda Cortes; their negotiations
apparently floundered over price.23 Accordingly, Mena has not shown
any error by the district court in including the cocaine that Mena
negotiated to sell to Cortes in calculating his base offense level
under § 2D1.1.
Mena’s second sentencing challenge is unclear. Under the
multiple-count grouping rules Mena’s guideline range on count 46
was 210-262 months. Because the statutory maximum under 8 U.S.C.
§ 1326(b)(2) on count 46 was 180 months at the time of Mena’s
conviction, the district court sentenced Mena to a concurrent
sentence of 180 months on that count. Mena cites no authority, and
23
In his brief Mena argues that the evidence only showed that
Cortes spoke with Mena about a possible purchase of 30 to 40
kilograms of cocaine, not the 50 kilograms referenced in Mena’s
PSR. Although there was also evidence in the record of a
discussion of 50 kilograms, even if Mena were correct on this
factual argument it would merely lower his base offense level by
two levels, which would not affect his sentence on any of his
counts of conviction.
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presents no argument, why this sentence was not correct. He makes
only the conclusory argument that his “[b]ase [l]evel should have
been 8 plus 16, or 24, before the application of a 2-level decrease
for acceptance of responsibility.” (Mena’s brief at page 19)
Because this argument overlooks the effect of the grouping rules to
his sentence on count 46, we reject it and conclude that his 180-
month sentence on count 46 was proper.
3. Murga
The probation officer calculated a base offense level of 38
for Murga’s sentence on counts 1, 3, and 41 based on 162.2
kilograms of cocaine. That level was increased by 2 levels under
USSG § 3B1.1(c) for her role as an organizer, manager, leader, or
supervisor, resulting in an adjusted offense level of 40. For
Murga’s sentence on count 48, making a false statement on an
application for immigrant visa in violation of 18 U.S.C. § 1546(a),
the probation officer calculated a base offense level of 6 under
§ 2L2.2(a), increased 2 levels under USSG § 2L2.2(b)(1) because she
had previously been deported. Under the grouping rules of USSG
§ 3D1.4 her multiple-count adjustments were calculated to only one
unit, and her guideline level became the greater adjusted offense
level of 40. With a criminal history category of I, her guideline
range was 292-365 months in prison.24 The district court adopted
the PSR.
24
A statutory maximum sentence of 60 months applied to count
48.
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Murga first argues that the district court erred by holding
her accountable for 162.2 kilograms of cocaine. She argues that
the amount attributable to her is less than 125 kilograms, and
alternatively, not more than 148.9 kilograms. Although Murga
argues that the evidence relied on by the probation officer was
uncertain and not credible,25 she does not explain how she arrives
at her alternative drug quantity calculations. The district court
rejected a similar argument at Murga’s sentencing. Our review of
the record satisfies us that there was ample evidence to support
the amount of cocaine that the probation officer and the district
court attributed to Murga.
Murga also complains that the district court erroneously
increased her base offense level by 2 levels under § 3B1.1(c) for
her role in the offense. At Murga’s sentencing the district court
rejected this argument citing several instances in which Murga had
recruited other people to distribute cocaine for her. We also
reject this argument, which is essentially a disagreement with the
district court as to how her criminal activities should be
characterized. There was sufficient evidence for the district
court to conclude that Murga occupied a supervisory or management
role in the conspiracy.
Murga argues that the weapon found at her home at the time of
her arrest provides no basis for departure under USSG § 5K2.6.
25
To the extent that Murga contends that the probation officer
could not rely on FBI debriefings of confidential informants, she
is incorrect. See United States v. Golden, 17 F.3d 735, 736 (5th
Cir. 1994).
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This argument is frivolous because the probation officer did not
recommend an upward departure or any adjustment to Murga’s
guideline range based on the weapon, and there was no mention of it
at the sentencing hearing. In fact, the district court sentenced
Murga to 292 months in prison, the lowest sentence possible under
the sentencing guidelines. We have considered Murga’s numerous
other objections to her sentence, including her conclusory chal-
lenges to the 60-month concurrent sentence she received on count
48, and conclude that none have merit.
4. Varon
Varon was sentenced on September 2, 1994, under the 1993
edition of the Sentencing Guidelines. The probation officer and
the district court applied a base offense level of 40 under USSG
§ 2D1.1, after attributing 608.4 kilograms of cocaine to Varon.
Varon received no enhancements and had a criminal history category
of I. This resulted in a guideline range of 292-365 months. The
district court sentenced Varon to 292 months in prison.
Varon’s only sentencing argument on appeal is that she is
entitled to be resentenced under Amendment 505 to the Sentencing
Guidelines, effective November 1, 1994. Under that amendment
Varon’s base offense level would be 38 instead of 40. As Varon
correctly states, this amendment is given retroactive effect under
USSG § 1B1.10(c). See United States v. Gonzalez-Balderas, 105 F.3d
981 (5th Cir. 1997). Whether to reduce a sentence based on a
subsequent change in the sentencing guidelines rests with the sound
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discretion of the district court and the proper mechanism for
reviewing such a claim is a motion brought under 18 U.S.C.
§ 3582(c)(2). See Gonzalez-Balderas, 105 F.3d at 982. We
therefore dismiss this portion of Varon’s appeal without prejudice
to her right to seek relief from the district court.
5. Gamboa
Gamboa argues that the district court misapplied the
sentencing guidelines by refusing to reduce his offense level under
USSG § 3B1.2 for minimal or minor participation. Gamboa’s request
is premised on his argument that he is less culpable than Mena. A
defendant is not entitled to a reduction under § 3B1.2, however,
merely because he was less culpable than his codefendants; a
downward adjustment may only be appropriate if the defendant was
“substantially less culpable than the average participant.” United
States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994). Gamboa bears
the burden of proving his mitigating role by a preponderance of the
evidence. Id. Because Gamboa has not established that his conduct
in the August 11, 1992, drug deal for which he was convicted on
counts 42 and 43 was substantially less culpable than Mena’s, the
district court did not abuse its discretion in denying him a
mitigating role adjustment.
6. Rios-Castano
Rios-Castano was convicted of counts 1 and 2, the RICO
conspiracy and substantive offenses. Under USSG § 2E1.1(a)(2) the
base offense level for racketeering is calculated based on the
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offense level applicable to the underlying racketeering activity.
Where, as here, there is more than one underlying racketeering act,
each racketeering act is treated as if it were contained in a
separate count of conviction. USSG § 2E1.1, comment 1. The
racketeering act that yields the greatest offense level is used to
determine the guideline range. Id. In this case the greater base
offense level was 43 for the murder of Carolyn Tippett.
On appeal Rios-Castano argues that the district court erred in
calculating his sentence based on the murder of Carolyn Tippett
because it was not a foreseeable consequence of his criminal
activity as required by USSG § 1B1.3(a)(1)(B) but was merely the
result of a personal dispute between Tippett and Edison Alvarez.
Rios-Castano made the same argument at sentencing before the
district court. The district court chose to credit the PSR’s
conclusion, based on a police report of the Tippett killing, that
her death occurred when Palomino, seeing that he had walked into a
trap in the parking lot of the Miami Beat Disco, grabbed Tippett
and used her as a human shield to protect himself from a fusillade
of bullets from Samuel Posada-Rios’ men who were waiting for him in
the parking lot. The police report noted that Tippett’s autopsy
reflected that she had sustained 14 bullet wounds. The district
court concluded that Rios-Castano could have reasonably foreseen
Tippett’s murder because he and other conspirators had gone to the
club to eliminate Palomino, a rival drug dealer. Because the
police report bore sufficient indicia of reliability, the probation
officer and the district court properly relied on it. Reviewing
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the district court’s finding of Rios-Castano’s responsibility for
Tippett’s killing under a clear error standard, we conclude that
the court could properly choose to discredit the self-serving
testimony of Rios-Castano and credit instead the police report and
the previously announced intention of Rios-Castano and other
members of La Compania to go to the club to kill Palomino. Based
on that information, it was reasonable to conclude that Rios-
Castano could have foreseen that an innocent bystander could be
injured in an attempt to murder Palomino.
Rios-Castano also argues that the district court erred in
calculating his criminal history category. An offense level of 43
carries a mandatory life sentence irrespective of the defendant’s
criminal history category, and the transcript of Rios-Castano’s
sentencing makes it clear that the district court would not have
considered any grounds for any downward departure from the
guideline sentence. Any error committed by the district court in
calculating his criminal history category was therefore harmless.
See United States v. Rogers, 126 F.3d 655, 661 (5th Cir. 1997).
7. Gage
Gage argues that the district court misapplied the guidelines
by increasing his offense level by 2 levels for his participation
as an organizer, leader, manager, or supervisor pursuant to USSG
§ 3B1.1(c). At Gage’s sentencing the district court expressly
found that Gage was responsible for recruiting and directing
Charles White in his drug trafficking activities. Because the
evidence discussed in Part I.F., supra, supports that conclusion,
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the district court did not err in increasing Gage’s base offense
level under § 3B1.1(c). See United States v. Palomo, 998 F.2d 253,
257 (5th Cir. 1993).
8. Jackquet
In determining Jackquet’s base offense level for counts 1, 2,
3, and 27 the probation officer concluded that Jackquet was
accountable for 43 kilograms of cocaine and calculated a base
offense level of 34 under USSG § 2D1.1 (applicable to at least 15
kilograms of cocaine but less than 50 kilograms of cocaine). The
district court adopted the PSR. On appeal Jackquet argues that the
court erred in the amount of drugs attributed to him.
Specifically, Jackquet argues that he should only be held
accountable for 12 kilograms of cocaine that Wonda Cortes testified
she delivered to him. He argues that the cocaine attributed to him
in Wonda Cortes’s drug ledgers “double counts” the cocaine she
testified about at trial and that he did not reasonably foresee the
drug purchases of the other conspirators that occurred in his
presence.
We are not persuaded by this argument. Our brief summary of
the facts in Part I.D.2.e. and f., supra, reflects direct sales of
18 kilograms of cocaine to Jackquet by Wonda Cortes (2 kilograms on
November 15, 1991; 7 kilograms on November 16, 1991; 4 kilograms on
December 10, 1991; 1 kilogram on December 11, 1991; and 4 kilograms
in January of 1992). Cortes delivered another 45 kilograms of
cocaine to Jackquet’s brother, Anthony Jerome Gage, at Jackquet’s
apartment in August of 1991 (see Part I.D.2.c., supra). This
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cocaine was attributable to Jackquet both as an aider and abettor
pursuant to USSG § 1B1.3(a)(1)(A) and because it was reasonably
foreseeable to Jackquet that other drug dealers with whom he
conspired would deal in additional amounts of cocaine. The
district court did not err in using 34 kilograms to calculate
Jackquet’s base offense level on these counts.
IV. CONCLUSION
For the foregoing reasons, we VACATE Mena’s conviction and
sentence on count 1. In all other respects we AFFIRM the district
court’s judgments of conviction and sentences.
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