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http://laws.findlaw.com/5th/9750096cr0.html |
Plaintiff-Appellee,
and Luis Quintero De Avila,
Defendants-Appellants.
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This direct criminal appeal arises from the convictionfollowing jury trial of Appellants Ruben Gallardo, David Hernandez,and Luis Quintero for conspiracy to distribute and possess withintent to distribute marijuana in violation of 21 U.S.C. §§ 846,841(a)(1). For the reasons assigned, we affirm the convictions andsentences of the Appellants.
I. FACTS
The government's evidence in this case demonstrated theexistence of a drug organization funneling marijuana fromCalifornia and Texas to several Midwestern cities. The complicatedfacts of this appeal involve numerous drug distributors andcouriers. The government indicted ten co-conspirators as beingpart of a single drug conspiracy. Appellants Ruben HoracioGallardo-Trapero (Gallardo), David Christopher Hernandez(Hernandez), and Luis Quintero de Avila (Quintero) were triedtogether and convicted for various roles in the drug conspiracy. Since detailed facts will be recounted in subsequent sectionsdealing with Appellants' specific claims, we will only sketch ageneral overview of the drug conspiracy here.
The government's case relied upon the testimony of the drugcouriers involved in this conspiracy: John Langhout (Langhout) andFred and Lucy Miller (the Millers). Langhout and the Millers wereapparently selected because they do not fit any standard drugcourier profiles: Langhout was in his mid-50s when he made thesedrug runs while Fred Miller was in his early 70s and Lucy Millerwas in her mid-50s. Langhout and the Millers each made numeroustrips delivering marijuana from southern California and Texas toMidwestern cities. They were originally drawn into this operationby an individual named Octavio Rivera (Rivera). John Langhout madehis first drug run for Rivera on March 23, 1994, and took a carloaded with marijuana from Chula Vista, California, to Chicago andthen Detroit. The Millers also made their first trip for Rivera(whom they knew by the name Mario) in late March 1994 from ChulaVista--which is south of San Diego--to Chicago and Detroit as well. For driving the loads of marijuana across the county, the courierswere usually paid $10,000.
Langhout and the Millers each made numerous deliveries. Thefirst runs for both Langhout and the Millers originated in southernCalifornia. Later, Langhout and the Millers both made deliveriesthat began in Texas. On some occasions, Octavio Rivera would meetthem in the drop-off city. On many other occasions, Langhout andthe Millers delivered the marijuana to specified individuals ineach of these cities. On all of the drug runs, the courierscommunicated with Rivera and his associates by cellular phones andbeepers. The Millers and Langhout would be instructed where todeliver the marijuana en route as they neared their Midwestdestinations.
The Millers made ten drug runs in all, usually about once amonth. They testified that they had delivered marijuana to DavidHernandez in Detroit and had made other deliveries to Chicago,Indianapolis, and Piketon, Ohio. The Millers testified that on onetrip to Chicago they contacted Octavio Rivera, apparently afterlosing their way, and that Rivera, Hernandez, and Quintero came tomeet them in a pickup truck and led them to the place of delivery. In addition, Lucy Miller testified that after Octavio Rivera toldthem by phone that someone would come to their El Paso hotel withinstructions as to a shipment, Gallardo was the person who came totheir room. In May 1995, after the Millers were stopped forspeeding in Missouri, the police discovered a marijuana shipment intheir vehicle. Upon arrest, they agreed to cooperate withauthorities in making a police-monitored delivery in Ohio. Theypleaded guilty in federal court in Ohio and received a prisonsentence of a year and one day.
John Langhout made approximately thirteen drug deliveriesbetween March 1994 and February 1996. He testified that he madeseveral drug deliveries to David Hernandez in Detroit and to othercontacts in Indianapolis, Chicago, and Michigan City, Indiana. Langhout testified that on one trip he and Octavio Rivera traveledto Indianapolis and picked up marijuana from a previous deliverythat was being returned because of poor quality by the contactthere, Sergio Zamora (Zamora), and that he (Langhout) and Riveratook this load to Chicago and delivered it to Felipe Gomez(Gomez). (1) Langhout's early trips originated in southernCalifornia, but he later picked up shipments in El Paso and Laredo,Texas. In late January 1995, Langhout went to El Paso at therequest of Octavio Rivera, where he met Rivera, Felipe Gomez, andRicardo Avila (Avila) in picking up a drug shipment. Langhouttestified that he subsequently made other shipments of drugs forRivera that Avila orchestrated.
Langhout testified that at some point Ricardo Avila "stole"him for a run out of El Paso. Langhout said that Avila, and notRivera, was his boss for that shipment which he took to Chicago. Although Langhout testified that he considered this to be aseparate operation, he also claimed that Octavio Rivera and RicardoAvila were "associates" and that as a driver he was kept in thedark about specific information regarding their relationship withinthe illicit drug activities. Langhout was arrested on a drug runin Del Rio, Texas, on October 4, 1995, along with Ricardo Avila. Langhout agreed to cooperate with the government and, pursuantthereto, acceded to Gomez's request to undertake a shipment fromsouth Texas. The preliminary activity involving this shipment inMcAllen, Texas, led to the arrests of Gomez, Gallardo, andQuintero.
Langhout testified that he met Gomez and Quintero in McAllen about the drug run. Langhout testified that he was being "stolen"again--this time, by Gomez and Quintero from Avila. Gomez alsotestified that he was acting under the orders of Roberto and JavierLopez. After the marijuana shipment failed to arrive in McAllenwithin a few days, Langhout returned to El Paso. When themarijuana load eventually arrived, Langhout alerted the DrugEnforcement Administration (DEA) agents and returned to McAllen ina Lincoln Towncar, ostensibly to pick up the cargo. On February15, 1996, Langhout gave Gomez possession of the Lincoln Towncar forthe purpose of loading it with marijuana. Under DEA surveillance,Gomez followed Quintero to a location near the house where themarijuana was located. Quintero parked the Toyota Camry he wasdriving, got into the Lincoln Towncar, and went with Gomez toGallardo's house at 2100 North Eighth Street. Gomez backed the carinto the garage. After approximately twenty minutes, Gomez droveaway in the Lincoln Towncar and Quintero and Gallardo departed inthe Toyota Camry. Gomez was arrested when he reached Langhout'shotel; the Lincoln Towncar's trunk contained 454 pounds ofmarijuana. Quintero and Gallardo were arrested shortly afterwards. No drugs were found in the Camry, but Quintero possessed a drugledger and Gallardo had several small pieces of paper bearing namesand phone numbers. Gallardo was informed of his Miranda rights buthe talked with the DEA Agents and consented to a search of hishouse. There, the agents found 43 bundles of marijuana weighing638 pounds.
On April 10, 1996, Appellant Hernandez was arrested inDetroit. In the spring of 1996, an arrest warrant for Hernandezhad been issued in the Western District of Texas in connection withthis conspiracy. Previously, in August 1995, Hernandez had beenstopped in the Detroit airport (after using cash to purchase a one-way ticket to Orange County, California) and was found to becarrying approximately $49,000 in cash on his person. Hernandezhad placed the bundles of cash around his lower back and these werekept in place by his tucked-in shirt.
Gallardo, Hernandez, and Quintero were tried together. Gomezpleaded guilty and testified against them at trial. The Millersboth served time after they pleaded guilty in federal court inOhio. Langhout was never prosecuted for his participation. Likewise, Avila was never prosecuted following his arrest. Insofaras the record discloses, neither Octavio Rivera, Roberto Lopez, orJavier Lopez was ever apprehended or charged in connection withthis conspiracy.
II. CONSPIRACY
Appellants Hernandez and Quintero contend that a materialvariance existed between their indictment for a single conspiracy,and the evidence adduced at trial which, they contend, pointed tothe existence of multiple conspiracies. They contend that therewas insufficient evidence tying together all the individuals anddrug transactions brought forward at trial. Fatal variance claimsspring from protections in the Fifth and Sixth Amendments and arethe right "not to be tried en masse for the conglomeration ofdistinct and separate offenses committed by others." Kotteakos v.United States , 328 U.S. 750, 775 (1946).
Appellants Hernandez and Quintero fashioned this fatalvariance claim as an appeal of the trial court's denial of theirmotions for a judgment of acquittal. They assert that the districtcourt erred in not granting their motion for a judgment ofacquittal because the evidence precluded a finding that a singleconspiracy existed. Their motion for a judgment of acquittal istreated as a challenge to the sufficiency of the evidence toconvict. United States v. Medina , 161 F.3d 867, 872 (5th Cir.1998), cert. denied , 119 S. Ct. 1344 (1999).
This court reviews a claim of insufficient evidence todetermine whether a rational trier of fact could have found thatthe evidence proved the essential elements of the crime beyond areasonable doubt. United States v. Ramirez , 145 F.3d 345, 350 (5thCir. 1998). The evidence presented at trial is viewed in the lightmost favorable to the government and with all reasonable inferencesmade in support of the jury's verdict. United States v. Thomas ,120 F.3d 564, 569 (5th Cir. 1997), cert. denied , 118 S. Ct. 721(1998).
We review in two steps the Appellants' claim of a fatalvariance between the single conspiracy charged in the indictmentand the trial evidence, which they contend relates to multipleconspiracies. First, we must decide whether the evidence variedfrom the indictment's allegations and whether it supports areasonable finding of one conspiracy linking all defendants withall transactions. Second, if there was such a variance, we mustassess whether that variance affected a substantial right of theappellants. United States v. Medina , 161 F.3d at 872.
The Appellants claim that the record demonstrates theexistence of at least two distinct conspiracies: one organized byOctavio Rivera involving narcotics shipments from southernCalifornia and El Paso and Laredo, Texas, to several Midwesterncities, and a second one in which marijuana was to be shipped fromMcAllen, Texas. Quintero suggests that there were actually threeconspiracies: one headed up by Octavio Rivera, one organized byRicardo Avila, and a third one centered in McAllen, headed byJavier and Roberto Lopez and run by Felipe Gomez.
We conclude that there was no material variance between theindictment and the evidence presented at trial. As the defendantsrecognize, the evidence does not demonstrate with absolutecertainty whether the individuals who coordinated the marijuanashipments were all associates in one organization or whether any ofthese individuals had, on occasion, struck out on his own as thehead of a separate conspiracy. There is, however, a high degree ofoverlap of individuals involved in the drug operations described bythe evidence. The use of the same drug couriers, John Langhout andFred and Lucy Miller, is some evidence of a common criminalenterprise. Langhout made numerous runs for Octavio Rivera fromboth California and Texas and delivered the marijuana shipments toindividuals such as David Hernandez (and sometimes Rivera himself)in various Midwestern locales. Langhout also picked up a shipmentfrom Ricardo Avila in El Paso which was delivered to Chicago. Inaddition, Langhout was recruited by Felipe Gomez and Luis Quinteroto be the driver of the shipment from McAllen which was terminatedby the arrests of several defendants and the seizures of marijuanaand Langhout's Lincoln Towncar.
Felipe Gomez is another individual who reappears throughoutthe record. Gomez was the recipient of a shipment of marijuana inChicago from Langhout and Octavio Rivera on one of Langhout's earlytrips. At another time, Gomez picked up Hernandez at the El Pasoairport on Octavio Rivera's orders and met Langhout in order totransfer marijuana into Langhout's car for the drive to Chicago. Langhout testified that on one occasion he met with Gomez, OctavioRivera, and Ricardo Avila in El Paso during his pickup ofapproximately 200 pounds of marijuana for a delivery to Chicago forRivera. Langhout testified that on another occasion Gomez andRivera gave him $60,000 in Chicago to bring back to a contact inLaredo, Texas. Finally, Gomez was involved with Quintero inorganizing a shipment from McAllen, Texas, to Chicago whereLanghout was instructed to transport the cargo and to meet Gomez. As we stated earlier, this plan was terminated when Gomez wasarrested in Langhout's rented Lincoln Towncar with 450 pounds ofmarijuana in McAllen.
The ties between individuals involved in the allegedconspiracy do not end there. Testimony linked Octavio Rivera with(1) deliveries to Hernandez in Detroit, (2) shipments incollaboration with Felipe Gomez from El Paso, and (3) shipmentsorganized in association with Gomez and Ricardo Avila from El Paso. Langhout testified that he met with Ricardo Avila and AppellantQuintero in El Paso in order to accept payment from Avila for anearlier drug run; that he met with Felipe Gomez and Luis Quinteroin McAllen because they were expecting to receive marijuana; andthat on this occasion Quintero said that he wanted Langhout to workfor him instead of for Ricardo Avila in the future.
In reviewing Appellants' claim of material variance, theprimary factors to be considered in determining whether a singleconspiracy was proven are (1) the existence of a common goal, (2)the nature of the scheme, and (3) the overlapping of participantsin the various dealings. United States v. Morgan , 117 F.3d 849,858 (5th Cir. 1997); United States v. Pena-Rodriguez , 110 F.3d1120, 1126 (5th Cir.), cert. denied , 118 S. Ct. 71, 72 (1997). Whether the evidence proved the existence of single or multipleconspiracies is a question of fact for the jury. We must affirmthe jury's finding that the government proved a single conspiracy"unless the evidence, viewed in the light most favorable to thegovernment, would preclude reasonable jurors from finding a singleconspiracy beyond a reasonable doubt." Morgan , 117 F.3d at 858.
Viewing the evidence in the light most favorable to thegovernment, we are convinced that the evidence presented here wouldallow a reasonable juror to find beyond a reasonable doubt that asingle conspiracy existed involving all of the Appellants. Therewas a common goal of transporting marijuana to certain Midwesterncities and the scheme hinged upon the participants' supplying thecouriers with the drugs and then contacting the couriers alongtheir route to direct them to their drop off cargo in Detroit,Chicago, Indianapolis, or Michigan City. As demonstrated above,there was significant overlap in the participants in the variousdealings. It may be true that certain participants did not knowothers involved in the different operations, but "to establish anoverlap, '[t]he government does not have to establish that thesellers and purchasers knew each other or knew what each wasdoing.'" United States v. Payne , 99 F.3d 1273, 1280 (5th Cir.1996) (quoting United States v. Morris , 46 F.3d 410, 416 (5th Cir.1995)). In addition, the jury instruction given by the districtcourt was designed to safeguard the Appellants against thepossibility of guilt transference. (2) See Pena-Rodriguez , 110 F.3dat 1128-29 (similar jury instruction); Morris , 46 F.3d at 417-18(similar jury instruction).
The Appellants argue that evidence of the existence ofmultiple conspiracies came to light when John Langhout testifiedthat he had been "stolen" by different individuals who wanted himto work for them and not for others. It is true that Langhout didtestify that Ricardo Avila had "stolen me" from Octavio Rivera eventhough Avila had previously been working with (or for) Rivera. Subsequently, in preparation for the drug run from McAllen,Langhout testified that Felipe Gomez and Luis Quintero told himthat Ricardo Avila was their enemy and that "Quintero wanted me towork for him and not work for Ricardo anymore."
The testimony of record is complex and sometimes inconsistent. As Langhout stated above, Quintero "wanted me to work for him," butFelipe Gomez later testified that he wanted Langhout "[t]o work forme," and then Gomez added that he was simply following the ordersof Javier and Roberto Lopez. As to the other incident, Langhoutdid testify that he was "stolen" by Ricardo Avila and he testifiedon cross-examination that Ricardo Avila and Octavio Rivera operatedseparate enterprises. On another occasion, however, Langhouttestified on cross-examination that Avila and Rivera were"associates" but that he was unclear about any possible hierarchybecause "[a]s a driver they kept me in the dark as much aspossible." (3)
Based upon the entire record and viewing the evidence in thelight most favorable to the government, we cannot say that theevidence would preclude a reasonable juror from finding beyond areasonable doubt that each of the Appellants participated in asingle conspiracy as charged. Thus, there was no fatal variancebetween the indictment and the evidence adduced at trial.
III. INSUFFICIENT EVIDENCE
Appellant Gallardo maintains that the district court erred indenying his motion for judgment of acquittal based on theinsufficiency of the evidence.
As stated above, this court reviews a claim of insufficientevidence to determine whether a rational trier of fact could havefound that the evidence established the Appellant's guilt and eachessential element of the crime beyond a reasonable doubt. Ramirez ,145 F.3d at 350. The evidence presented at trial is viewed in thelight most favorable to the Government and with all reasonableinferences made in support of the jury's verdict. Thomas , 120 F.3dat 569.
A conviction for conspiracy to possess and distribute acontrolled substance, 21 U.S.C. §§ 846, 841(a)(1), requires proofbeyond a reasonable doubt that demonstrates (1) the existence of anagreement between two or more persons to violate the narcoticslaws, (2) the defendant's knowledge of the agreement, and (3) thedefendant's voluntary participation in the conspiracy. Ramirez ,145 F.3d at 350; Thomas , 120 F.3d at 569. Mere presence orassociation with actual conspirators "standing alone, will notsupport an inference of participation in the conspiracy." UnitedStates v. Maltos , 985 F.2d 743, 746 (5th Cir. 1992). However, inmeeting its burden, the government may rely on circumstantialevidence tying the defendants together in order to proveconspiracy: "The agreement may be tacit, and the jury may inferits existence from circumstantial evidence." United States v.Crooks , 83 F.3d 103, 106 (5th Cir. 1996).
Addressing Appellant Gallardo's arguments here required athorough consideration of the evidence in the record, but we areultimately persuaded that the evidence sufficiently supports thejury's verdict. Our function is to assess whether any rationaljuror could conclude beyond a reasonable doubt that the governmentproved its case, and "we need not be persuaded that the evidenceexcludes every reasonable hypothesis of innocence." United Statesv. Velgar-Vivero , 8 F.3d 236, 239 (5th Cir. 1994), cert. denied ,511 U.S. 1096 (1994).
The evidence clearly supports such findings that Gallardoresided at the house at 2100 North Eighth Street in McAllen wherea search after Gallardo's arrest turned up 638 pounds of marijuana. Likewise, despite Gomez's testimony to the contrary, there wassubstantial evidence that he knew the house was Gallardo's home. DEA Special Agent Anthony Santos testified that after advisingGallardo of his Miranda rights, Gallardo told him that he and hiswife and his family resided at the house. DEA Special Agent JackArnold also testified that his investigation led him to concludethat a personal relationship existed between Gallardo and MariaMesa and that they resided at the house. Felipe Gomez testifiedthat he had been to this particular house twice before and thatRuben Gallardo was there both times. After his arrest, AgentSantos testified that Gallardo consented to a search of the houseand that Gallardo told him that marijuana would be found in thegarage of the house. The search subsequently turned up 43 bundlesof compressed marijuana which weighed 638 pounds in total.
Other testimony and evidence presented at trial ties Gallardoto this conspiracy. Lucy Miller identified Gallardo at trial as anindividual who came to the Millers' hotel room in El Paso afterOctavio Rivera informed them that someone would meet them there totransfer marijuana for a drug run. In addition, the twoindividuals arrested with Gallardo in McAllen each had somethingthat linked them with Gallardo: Felipe Gomez had a slip of paperwith Gallardo's name and a phone number on it, and Luis Quinterohad a drug ledger which listed bundles of marijuana thatcorresponded to the markings on the bundles in Gallardo's garage. Written on the six small pieces of paper that Gallardo had when hewas arrested were phone numbers of "Quintero" and "Felipe." Therewere also two phone numbers for "Ricardo Avila" which matched thenumbers for Ricardo Avila given by John Langhout during histestimony. Langhout gave a cellular phone number for Avila andanother number which he said that "[Avila] and Octavio [Rivera]shared."
In combination, this evidence constitutes a sufficient basisfrom which a reasonable juror could find beyond a reasonable doubtthat the government had established Gallardo's guilt of theessential elements of the crime charged.
IV. PROSECUTORIAL MISCONDUCT
The Appellants contend that Assistant U.S. Attorney JuanitaFielden made improper statements during her closing argument in anattempt to bolster her own credibility and that of the federal DEAagents who testified during trial. Appellants argue that AUSAFielden exceeded the proper bounds of a closing argument when sheclaimed that people working for the United States--here, DEA agentsand herself, a federal prosecutor--would not lie on the witnessstand because of the risk of jeopardizing their careers. Appellants argue that these assertions improperly tied the federalofficials' testimony to the authority of the United States and"vouch[ed] for the credibility of government witnesses on the basisof their status as government employees."
During the trial, Fred Miller testified as a cooperatingwitness for the government. On cross examination, Mr. Miller wasquestioned about his cooperation with the government and whatbenefits he received in return. As we noted earlier, the Millerswere arrested in Missouri carrying marijuana they received in ElPaso. They then cooperated with federal authorities by making amonitored delivery in Piketon, Ohio. The Millers were indicted infederal court in Ohio and although it is not absolutely clear fromthe record what they were charged with, it appears from statementsmade by Mr. Miller on cross examination and by the trial judgeduring a sidebar conference that they were charged with a drugconspiracy crime. The indictment undoubtedly related to themarijuana in their vehicle, which they possessed because of theirparticipation in the conspiracy at issue in the present case. Significantly, the Millers cooperated with the federal prosecutorsin Ohio and received reduced sentences for that cooperation. Theywere sentenced to a year and a day; Fred Miller served nine monthsin prison while Lucy Miller served seven months in a federalpenitentiary.
In the present case, the defense attorneys questioned Mr.Miller about whether he had been offered anything in return for histestimony for the government. Although Mr. Miller's answers wereconfusing at times because it was unclear which case he was askedabout (his Ohio prosecution or the present case), he testified thathe received a reduced sentence in Ohio for his testimony but hedenied that he was informed that he would not be prosecuted in thepresent case in Texas federal court. Miller stated clearly on twoseparate occasions that he had not received any promises from AUSAFielden in return for his testimony in the present case. Onredirect, Ms. Fielden asked, "Mr. Miller, have I promised youanything in return for your testimony?" Fred Miller's response: "No, ma'am."
At sidebar, the defense attorneys produced a letter that AUSAFielden had sent on October 10, 1996, to the attorneys for thedefendants in the present case. (4) The prosecutor's letter, sentpursuant to Giglio v. United States , 405 U.S. 150 (1972), informedthe defense attorneys that the government witnesses Fred and LucyMiller "in exchange for their co-operation and testimony, they willnot be prosecuted for their involvement in this conspiracy." Following this sidebar conference, defense attorney Roberts askedMr. Miller on recross whether he had been promised anything by AUSAFielden in exchange for his testimony in this case. Mr. Millerdenied that Fielden had ever promised not to prosecute him inreturn for his testimony.
Because of the possible discrepancy between Mr. Miller'stestimony and AUSA Fielden's Giglio letter, Fielden was called asa defense witness about the letter. On the witness stand, Fieldenadmitted that she had written the letter but denied that she hadever communicated to Lucy and Fred Miller that they would not beprosecuted. In response to a question asked by defense attorneySalas, AUSA Fielden stated:
That was never communicated to them. That was a letteraddressed to you. I never communicated with them. Theonly time that I talked to Fred and Lucy Miller prior totheir testimony was on Monday . . . October 14th, in myoffice. At that time we discussed their testimony. Theydid not ask, and I did not discuss any immunity fromprosecution whatsoever.
In sum, Ms. Fielden asserted that she wrote the letters on October10, 1996, and sent them to Appellants' attorneys before she hadspoken with the Millers and that when she did talk with the Millerson October 14, 1996, she did not communicate any arrangement likethe one she had described in the letters.
Appellants maintain that AUSA Fielden improperly attempted tobolster the credibility of her testimony and that of the DEA agentswho testified by invoking the authority of the United States andcloaking that testimony in the mantle of the federal government. During Fielden's closing argument, she stated (between defendants'objections): "I repeat, do you think that agents for the federalgovernment and a prosecutor for the federal government, for theUnited States of America, are going to risk their career and get onthe stand and commit * * * would get on the witness stand andcommit perjury and risk their career. It's not going to happen,ladies and gentlemen."
(5)
AUSA Fielden's comments merit close attention because "it isparticularly improper, indeed, pernicious, for a prosecutor to seekto invoke his personal status as the government's attorney or thesanction of the government itself as a basis for convicting acriminal defendant."
United States v. Goff
, 847 F.2d 149, 163 (5thCir. 1988) (citing
United States v. Garza
, 608 F.2d 659, 663 (5thCir. 1979)). As this court has pointed out, "The power and forceof the government tend to impart an implicit stamp of believabilityto what the prosecutor says."
United States v. Garza
, 608 F.2d659, 663 (5th Cir. 1979) (quoting
Hall v. United States
, 419 F.2d582, 583-84 (5th Cir. 1969)).
This court's review of an assertion of prosecutorialmisconduct takes place in two steps. First, we must initiallydecide whether or not the prosecutor made an improper remark.
United States v. Munoz
, 150 F.3d 401, 414 (5th Cir. 1998). If animproper remark was made, we must then evaluate whether the remarkaffected the substantial rights of the defendant.
Id.
at 415;
Garza
, 608 F.2d at 663.
In assessing whether statements made by a prosecutor wereimproper, it is necessary to look at them in context.
UnitedStates v. Washington
, 44 F.3d 1271, 1278 (5th Cir. 1995). WhileAUSA Fielden could respond to the defense attorneys' statements inher closing argument, she cannot base her arguments on facts not inevidence or cloak her witnesses in the protective mantle of theUnited States government. A prosecutor can argue that "'the fairinference from the facts presented is that a witness has no reasonto lie.'"
Munoz
, 150 F.3d at 414 (quoting
Washington
, 44 F.3d at1278). However, a prosecutor's closing argument cannot roam beyondthe evidence presented during trial: "Except to the extent [theprosecutor] bases any opinion on the evidence in the case, he maynot express his personal opinion on the merits of the case or thecredibility of witnesses."
Garza
, 608 F.2d at 663.
A majority of this panel is of the opinion that Fielden'sremarks were improper because they referred to facts not inevidence and invoked the aegis of a governmental imprimatur.
(6)
Thispanel unanimously agrees, however, that AUSA Fielden's remarks didnot affect the substantive rights of the Defendants.
In determining whether Fielden's comments prejudiced theDefendants' substantive rights, we assess "'(1) the magnitude ofthe statement's prejudice, (2) the effect of any cautionaryinstructions given, and (3) the strength of the evidence of thedefendant's guilt.'"
Munoz
, 150 F.3d at 415 (quoting
United Statesv. Tomblin
, 46 F.3d 1369, 1389 (5th Cir. 1995)). As this court hasconcluded in this context, "Proper supervision requires us at leastto balance the need to protect the integrity of federal trialsagainst the practical interest in giving finality to an accurateand fair verdict; we cannot by our supervisory power reverse aconviction for trial error that was harmless."
United States v.Jones
, 839 F.2d 1041, 1050 (5th Cir.),
cert. denied
, 486 U.S. 1024(1988).
We conclude that the prosecutor's remarks during closingargument did not prejudicially affect the substantive rights of thedefendants. As to the first factor, "[t]he magnitude of theprejudicial effect is tested by looking at the prosecutor's remarksin the context of the trial in which they were made and attemptingto elucidate their intended effect."
United States v. Fields
, 72F.3d 1200, 1207 (5th Cir.),
cert. denied
, 519 U.S. 807 (1996). Given the strident advocacy on both sides of this case and thenumerous witnesses, pieces of evidence, and issues placed beforethe jury, we cannot say that the prosecutor's statementsovershadowed what had come before and unduly prejudiced theAppellants' case. In addition, the district court helped tomitigate any prejudicial effect by instructing the jury to basetheir decision solely upon the testimony and evidence presented:
In reaching your decision to the facts, you mayconsider only the evidence admitted in the case. Theterm evidence includes the sworn testimony of thewitnesses and the exhibits admitted in the record. Remember that any statements, objections or argumentsmade by the lawyers are not evidence in the case.
We presume that such instructions are followed "unless there is an'overwhelming probability that the jury will be unable to followthe instruction and there is a strong probability that the effect[of the improper statement] is devastating.'"
United States v.Tomblin
, 46 F.3d 1369, 1390 (5th Cir. 1995) (quoting
United Statesv. Barksdale-Contreras
, 972 F.2d 111, 116 (5th Cir. 1992),
cert.denied
, 506 U.S. 1084 (1993)). Finally, in light of our review ofAppellants' sufficiency of the evidence claims, we find that theremark by the government during closing argument does not outweighthe strength of the multifaceted evidence and testimony presentedduring trial. Viewing the statement in the context of the entirecase, we conclude the argument of the prosecutor did not prejudicethe Appellants' substantive rights.
V. "MERE PRESENCE" COMMENTS DURING CLOSING ARGUMENT
Appellant Quintero contends that the government's statementsabout conspiracy law and "mere presence" during closing argumentconstituted prejudicial prosecutorial misconduct. Since defensecounsel did not object to the prosecutor's statements, we mustreview Appellant's claim based upon plain error.
United States v.Crooks
, 83 F.3d 103, 107 (5th Cir. 1996).
We begin by noting that the government failed to respond inits brief to this point of error raised by Appellant Quintero. This fact does not preclude our review of this issue.
UnitedStates v. Pryce
, 938 F.2d 1343, 1351 (D.C. Cir. 1991) (Randolph,J., concurring). Nevertheless, we feel compelled to observe thatthe government's failure to address legal issues raised byappellants is looked upon with disfavor because it imposes"unnecessary burdens" on the courts.
United States v. Rosa
, 434F.2d 964, 966 (5th Cir. 1970) (per curiam).
Appellant Quintero makes two arguments. First, he contendsthat AUSA Fielden committed prejudicial prosecutorial misconduct inher closing argument at trial by suggesting that mere presenceamong drug conspirators is enough to make an individual part of aconspiracy and that this suggestion was an "end run" aroundconspiracy law. Second, Quintero claims that Fielden's closingargument was also improper because it alluded to facts that werenot in evidence.
In her closing argument, AUSA Fielden stated:
Members of the jury, there is one concept that I want youto keep in mind when you go back, one concept that hasnot been addressed here. You don't bring innocent peopleto a dope deal. Dopers don't create witnesses who cancome in and testify against them in court. The peoplewho come to dope deals, whether it's storing,transporting, buying or selling dope, are people who theycan trust and who are part of their organization. Youdon't create a witness list. You don't bring innocentpeople to dope deals. Keep that in mind throughout this.
She reiterated this point at the very end of her closing argument: "You don't take innocent people to drug deals, ladies andgentlemen. You don't take innocent people around millions andmillions and millions of dollars worth of marijuana if they are notpart of the conspiracy."
It is undoubtedly true that an individual's mere presencearound a drug deal or around drug conspirators does not make thatindividual a member of the conspiracy.
United States v. Paul
, 142F.3d 836, 840 (5th Cir. 1998). At the same time, "'[a] jury mayfind knowledgeable, voluntary participation from presence when thepresence is such that it would be unreasonable for anyone otherthan a knowledgeable participant to be present.'"
Id.
(quoting
United States v. Cruz-Valdez
, 773 F.2d 1541, 1546 (11th Cir. 1985)(en banc)).
As noted, since no objection was made by the defendants tothese statements,
(7)
we must review them for plain error. Theappellate court must determine (1) whether there was an error, thatis, a deviation from a legal rule, (2) whether that error wasplain, which means obvious, and (3) whether the error affected thedefendant's substantial rights, which means that it was prejudicialand affected the outcome of the trial.
United States v. Hernandez-Guevara
, 162 F.3d 863, 870 (5th Cir. 1998),
cert. denied
, 119 S.Ct. 1375 (1999). The Supreme Court has said that such errorsshould lead to reversals only if the error "seriously affect[s] thefairness, integrity or public reputation of judicial proceedings."
United States v. Olano
, 507 U.S. 725, 736 (1993).
We are not persuaded by Appellant Quintero's contention thatAUSA Fielden's remarks misled the jury as to conspiracy law bysuggesting that mere presence indicates complicity. Even if herremarks constituted error, we conclude that Ms. Fielden'sstatements were not "plain" error because they did not clearlypurport to be an explanation of law. AUSA Fielden did not clearlytie the statements to the legal elements of a drug conspiracy.
(8)
Moreover, "the magnitude of the prejudicial effect of thestatement[],"
United States v. Vaccaro
, 115 F.3d 1211, 1215 (5thCir. 1997),
cert. denied
, 118 S. Ct. 635 (1998), was so minimalthat it could not have affected Quintero's substantial rights.
Appellant Quintero also claims that AUSA Fielden's closingargument touched upon evidence outside the trial record because noevidence was presented which demonstrated that those present duringa conspiracy are always members of the conspiracy. It is true that"[a] prosecutor may not directly refer to or even allude toevidence that was not adduced at trial."
United States v. Murrah
,888 F.2d 24, 26 (5th Cir. 1989).
However, part of AUSA Fielden's statements arguably referredto "people who come to dope deals" as actual participants in drughandling activities that constitute more than mere presence duringthose activities. She referred to individuals who have a moreinvolved role: "The people who come to dope deals, whether it'sstoring, transporting, buying or selling dope, are people who [drugconspirators] can trust and who are part of their organization." This court has held that participation in a conspiracy can beinferred from presence when it would be "unreasonable for anyoneother than a knowledgeable participant to be present,"
Paul
, 142F.3d at 840 (citation omitted).
Assuming that some of the prosecutor's remarks impliedlyreferred to "evidence" not presented at trial, however, we do notthink they did so with sufficient force or clarity to affectAppellant Quintero's substantial rights. In evaluating whetherAppellant's substantial rights were affected by the government'sclosing argument, we consider the following factors: "(1) themagnitude of the prejudicial effect of the statements; (2) theefficacy of any cautionary instruction; and (3) the strength of theevidence of the defendant's guilt."
Vaccaro
, 115 F.3d at 1215. Weare not convinced that Ms. Fielden's statements were prejudicialbecause, as we noted above, she arguably limited part of herremarks to those individuals who had a role in storing,transporting, buying, or selling the marijuana. In addition, thedistrict court specifically instructed the jury that statements bythe attorneys are not evidence
(9)
and that an individual's presencearound a drug conspiracy or drug conspirators does not make thatperson a member of the conspiracy.
(10)
In sum, we hold that the statements made by AUSA Fielden inher closing argument did not affect Appellant Quintero'ssubstantial rights and do not warrant reversal.
VI. SENTENCING ISSUES
Each Appellant claims that the district court erred when itimposed his sentence. Appellants Gallardo and Hernandez argue thatthe district court erred in overruling their objections to thedenial of a two-level downward adjustment in their sentences basedon their minor participation in the offense pursuant to § 3B1.2 ofthe Sentencing Guidelines. Appellant Quintero contends that thedistrict court erred in basing his sentence on an amount ofmarijuana that exceeded the amount seized in McAllen, Texas, whenQuintero, Gomez, and Gallardo were arrested.
We review the district court's application and interpretationof the sentencing guidelines de novo.
United States v. Garcia
, 86F.3d 394, 400 (5th Cir. 1996),
cert. denied
, 519 U.S. 1083 (1997). We review the district court's factual findings at the sentencinghearing for clear error.
Id.
A. Gallardo
Appellant Gallardo claims that the district court erred inoverruling his objection to the denial of a two-level downwardadjustment for his minor participation in the drug conspiracy. Atsentencing, Gallardo argued that contrary to the characterizationin the Presentence Investigation Report, he was not a "right-handman" to various drug brokers. Rather, Gallardo claimed that he hada minor role because he only provided the stash house for themarijuana in McAllen. The district court denied this objection tothe presentence report and the request for a two-level downwardadjustment.
Appellant Gallardo asserts that in denying his request for atwo-level reduction as a minor participant in this conspiracy, thedistrict court erred by failing to articulate the basis for itsfinding. This court has held that the district court must "statefor the record the factual basis upon which it concludes that arequested reduction for minor participation is, or is not,appropriate."
United States v. Melton
, 930 F.2d 1096, 1099 (5thCir. 1991). At the same time, this court has "rejected theproposition that a court must make a 'catechismic regurgitation ofeach fact determined'; instead, we have allowed the district courtto make implicit findings by adopting the PSR."
United States v.Carreon
, 11 F.3d 1225, 1230 (5th Cir. 1994).
See also
Garcia
, 86F.3d at 401 ("The district court can implicitly make such findingsby adopting the presentence report.").
We find that the district court made the necessary findings byadopting the presentence report. The district judge stated at thesentencing hearing and in the signed judgment that he agreed withand adopted the factual findings in Appellant Gallardo'spresentence report. We affirm the district court's denial ofGallardo's request for a two-level downward reduction.
B. Hernandez
Appellant Hernandez also argues that the district court erredin overruling his objection to the denial of a two-level downwardadjustment for his minor participation in the drug conspiracy. Thepresentence report on Hernandez prepared by a U.S. ProbationOfficer recommended a three-level increase under U.S.S.G. § 3B1.1for Appellant's role as a manager or supervisor in this drugconspiracy. Hernandez objected to this three-level upwarddeparture and, in turn, requested a two-level reduction as a minorparticipant in the drug distribution conspiracy. At sentencing,the district court agreed with Hernandez that he should not begiven a three-level increase but denied his request for a two-levelreduction as a minor participant.
Appellant Hernandez, like Gallardo, argues that in denying hisrequest for a two-level reduction as a minor participant in thisconspiracy, the district court erred by failing to articulate thebasis for its finding. Although defense counsel argues that ifHernandez was not a manager or organizer then his role wasnecessarily minor, that view is without merit. This court has heldthat the downward departures outlined in § 3B1.2 are "designed tobe applied infrequently, as many offenses are committed by actorsof 'roughly equal culpability' . . . ."
United States v. Nevarez-Arreola
, 885 F.2d 243, 245 (5th Cir. 1989)(quoting U.S.S.G. §3B1.4, comment.). In addition, we have ruled that a "downwardadjustment under section 3B1.2 is generally appropriate only wherea defendant was '
substantially less culpable
than the averageparticipant.'"
United States v. Brown
, 54 F.3d 234, 241 (5th Cir.1995) (quoting
United States v. Buenrostro
, 868 F.2d 135, 138 (5thCir. 1989),
cert. denied
, 495 U.S. 923 (1990)).
We find that the district court made the necessary findings todeny Appellant's request for a two-level reduction. Here, we areable to determine how the district court resolved these issues.
Cf.
Carreon
, 11 F.3d at 1231 (where court was left to "second guessthe basis for the district court's calculation"). The districtjudge was clear in setting out Appellant Hernandez's role here:
I'm not sure that I would use the example of thewheel conspiracy to describe this particular case. Butit is obvious that Mr. Hernandez's role in the offensewas as a receiver and then purchaser and thenredistributor of marijuana, and that's how he fit in,just like other people [defense counsel] mentioned like. . . Ute Serrano was another one. She was up inMichigan City. And you had Sergio Zamora. He was downin Indianapolis, I believe. And your man was thecustomer, so to speak, in Detroit. And what he did withthe marijuana after it got to him, we can only speculate. But that was his participation in this conspiracy.
Given that the district court found that the applicable amount ofmarijuana attributable to Hernandez was 567 kilograms, the judgedenied the request for the two-level downward departure: "Icertainly don't think that he is entitled to an adjustment downwardfor having a minor role or less in the offense, but by the sametoken, I can't see him as being qualified as a manager-supervisor,organizer or leader. That just doesn't fit, doesn't fit hisposition in this conspiracy." We conclude that the district courtproperly and sufficiently articulated the basis for its denial ofAppellant's request for a downward departure.
C. Quintero
Appellant Quintero claims that the district court erred inbasing his sentence on an amount of marijuana that exceeded theamount seized in McAllen when he was arrested. The presentencereport attributed 3,643.97 kilograms of marijuana to Quintero whichwould establish a base offense level of 34. At the sentencinghearing, however, the district court reduced Quintero's base levelto 32 which applies for amounts of marijuana between 1,000 and3,000 kilograms. The district judge observed that "from what Iheard in the trial it's beyond dispute that his relevant conductwas involved with at least 1,000 kilograms of marijuana."
In a drug conspiracy case, sentencing must take into accountthe drugs with which the defendant was directly involved but alsothose that can be attributed to him as part of his "relevantconduct" under § 1B1.3 of the Sentencing Guidelines.
United Statesv. Puig-Infante
, 19 F.3d 929, 942 (5th Cir.),
cert. denied
, 513U.S. 864 (1994). Relevant conduct includes "all reasonablyforeseeable acts and omissions of others in furtherance of thejointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(B)(Nov. 1995).
(11)
The district court's determination of relevantconduct is a factual finding that we review for clear error.
Puig-Infante
, 19 F.3d at 942.
Here, there is ample evidence that Appellant Quintero'srelevant conduct involved more than 1000 kilograms of marijuana. The amount seized in McAllen totaled 495 kilograms (1092 pounds). Moreover, John Langhout testified that he met with Quintero andFelipe Gomez in McAllen prior to their arrest and that he(Langhout) was told that Quintero had an additional 2000 kilogramsstored in Reynosa, Mexico. The presentence report on Quinteroconcluded that he was a main source for the marijuana shipped fromsouthern Texas. Two instances from the presentence report arerepresentative of the depth of Quintero's involvement. On one ofJohn Langhout's drug deliveries, Quintero was the source forapproximately 181 kilograms (400 pounds) of marijuana that RicardoAvila transferred to Langhout in El Paso. Ricardo Avila alsoindicated that Quintero took him and another individual to anapartment in Chicago where Quintero gave them approximately 45kilograms (100 pounds) from the approximately 408 kilograms (900pounds) stored there.
At sentencing, the district court "adopt[ed] the factualfindings" in the presentence report except that instead of the3,643.97 kilograms attributed in the report to Appellant Quintero,the district court found that only between 1,000 and 3,000 could beattributed to Quintero. Since we conclude that these findings werenot clearly erroneous, we affirm the district court's calculationof marijuana attributable to Quintero.
VII. CONCLUSION
For the foregoing reasons, we AFFIRM the convictions andsentences of Appellants Gallardo, Hernandez, and Quintero.
1.
1
Gomez and Zamora were indicted in this conspiracy but bothpleaded guilty before trial and testified for the government in thepresent case.
2.
2
Of course, mere presence at the scene of an allegedtransaction or event, even with knowledge that a crime isbeing committed, or mere similarity of conduct among variouspersons, and the fact that they may have associated with eachother, does not establish the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but whohappens to act in a way which advances some object or purposeof a conspiracy, does not thereby become a conspirator. Youmust determine whether the conspiracy charged in theindictment existed, and, if it did, whether the defendant wasa member of it. If you find that the conspiracy charged didnot exist, then you must return a not guilty verdict eventhough you find that some other conspiracy existed. If youfind that a defendant was not a member of the conspiracycharged in the indictment, then you must find that defendantnot guilty even though that defendant may have been a memberof some other conspiracy.
The case of each defendant and the evidence pertaining tothat defendant should be considered separately andindividually. The fact that you may find one of thedefendants guilty or not guilty should not control yourverdict as to any other defendant.
3.
3
DEFENSE ATTORNEY ROBERTS: Do you [Langhout] recall mentioningto him [Agent Sperry] that, for instance, that Mario Bugarin wasOctavio Rivera's partner?
LANGHOUT: Yes.
Q. Okay. And I suppose Ricardo Avila would also be one ofOctavio's partners?
A. Associates, yeah.
Q. Was he a higher level than Octavio?
A. As a driver they kept me in the dark as much as possible.
Q. Okay.
A. I mean Octavio--Ricardo initially, when I first went to ElPaso, Ricardo was a source of marijuana for Octavio. I think theywere cutting out middle men and stuff like that.
Q. And didn't you discuss earlier in these early trips fromChula Vista that a man by the name of Raul was the Mexican sourcefor the marijuana?
A. He was Octavio's supplier, yes.
Q. And do you recall mentioning Luis Quintero's name to Agent Sperry during this debriefing on February 12?
A. No. This debriefing was separate from the McAllen bust.
Q. And it was dealing mainly, I guess, with the Riveraorganization, right?
A. It was dealing with my prior trips before October 4th of '95.
Q. Yes. But this would be the Rivera-Avila group, right?
A. Oh, Octavio. Octavio and Rivera.
Q. Octavio Rivera and Ricardo Avila?
A. Ricardo Avila, yes.
4.
4
5.
5
MS. FIELDEN: These letters that I wrote--and I did write theseletters. Now, they have accused every government witness of lying,every government witness was lying that got on the stand, SteveSperry, Steve Mattas, Jack Arnold, Kerry Keeter, Tony Santos,Michael Smith, Langhout, Millers, Gomez, Zamora. And I guess theydidn't address the El Paso PD. But everybody is lying, and nowthey are accusing me of lying also. * * *
I got on the stand, and what I told you was that I wrote thisletter October 10. I did not talk to Fred and Lucy Miller untilOctober 14. And that the subject -
MR. ROBERTS: Your honor, counsel is testifying at this point. She did not testify to that.
THE COURT: Objection is overruled. She did testify.
MS. FIELDEN: I did not speak to these people until October 14th. The subject of whether or not they were going to be prosecuted didnot come up. This letter was written and sent to these people onOctober 10th, before I even laid eyes on Fred and Lucy Miller.
Let's talk about some of the other things we've got here. Theother witnesses that they talk about, they were all lying exceptwhen they felt they said something beneficial to their client andthen they were telling the truth. Are they going to have it bothways? Either they're lying or they're telling the truth. But doyou think that all those agents, and do you think a prosecutor forthe United States is going to put their career on the line and getup and commit--
MR. ROBERTS: Your Honor, she is testifying as to her owncredibility now in argument.
THE COURT: She's what?
MR. ROBERTS: She is bolstering her own credibility as a witnessand a prosecutor, arguing here today, and giving her personalaffirmation of her honesty.
THE COURT: She's doing nothing more than responding to attacksby you, Mr. Lopez and Mr. Salas. Perfectly proper. Your objectionis overruled. Go ahead.
MR. ROBERTS: Thank you.
MS. FIELDEN: I repeat, do you think that agents for the federalgovernment and a prosecutor for the federal government, for theUnited States of America, are going to risk their career and get onthe stand and commit -
MR. ROBERTS: Your honor, I will renew the argument as to theother agents.
THE COURT: No, you don't argue with me. You object.
MR. ROBERTS: I'm sorry, your Honor. I would renew the objectionas to her testifying that federal agents would not lie as beingimproper argument outside the record.
THE COURT: She didn't say that. You're the one saying that. Anyway, your objection is overruled.
MR. ROBERTS: Thank you.
MS. FIELDEN: -- would get on the witness stand and commitperjury and risk their career. It's not going to happen, ladiesand gentlemen.
6.
6
Judge Higginbotham disagrees, being of the opinion that theremarks were little more than the prosecutor making a fairinference from the facts presented.
7.
7
MS. FIELDEN: What I found interesting about Mr. Quintero is he'sshowing up all over the place. For somebody . . . who is merelypresent. Remember, they don't take innocent people to dope deals. But you have him, John Langhout places him in El Paso with RicardoAvila paying off a drug deal.
MR. SALAS: Objection, your Honor. There was no testimony tothat effect.
THE COURT: I remember that as a matter of fact. Objection isoverruled.
The district court was correct; John Langhout did testify thatRicardo Avila owed him $4000 for one of his trips to Chicago andthat when he met Avila at a mall in El Paso to receive thispayment, Luis Quintero was in the car with Avila.
8.
8
9.
9
In reaching your decision to the facts, you may consider onlythe evidence admitted in the case. The term evidence includesthe sworn testimony of the witnesses and the exhibits admittedin the record. Remember that any statements, objections orarguments made by the lawyers are not evidence in the case.
10.
10
11.
11