United States v. Chavez , 340 F. App'x 501 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
August 7, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 06-2072
(D. N.M.)
EDUARDO ATAYDE CHAVEZ, (D.Ct. No. CR-04-1313 RB)
Defendant - Appellant.
____________________________
ORDER AND JUDGMENT *
Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge and
O’BRIEN, Circuit Judge.
Eduardo Atayde Chavez was convicted by a jury of conspiracy to distribute
fifty grams and more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) & 846. He claims the evidence was insufficient to support his
conviction and the court erred in giving a jury instruction on deliberate ignorance.
We affirm.
*
This order and judgment is not binding precedent. 10th Cir. R. 32.1(A).
Citation to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is
discouraged, except when related to law of the case, issue preclusion or claim preclusion.
Any citation to an order and judgment must be accompanied by an appropriate
parenthetical notation -- (unpublished). 10th Cir. R. 32.1(A).
I. BACKGROUND
This case arises from an extensive investigation into a large-scale
methamphetamine trafficking organization headed by Guadalupe “Lupe” Lopez, a
resident of Mexico. The government presented the testimony of a confidential
informant, Aldo Rayos, and an undercover officer, Joe Terrazas. Rayos and
Terrazas received over four pounds of methamphetamine from Lopez via a
courier, Frank Gomez, on December 4, 2003. Lopez charged $7,000 per pound so
Rayos and Terrazas owed $28,000. They paid $7,500 to Gomez and awaited
further instructions from Lopez regarding the remaining payment.
In January 2004, Lopez asked Rayos and Terrazas to bring $10,000 to
Juarez, Mexico. The agents advised Rayos it was not prudent to travel to Mexico
so Rayos asked Lopez if he could make the payment to Gomez in El Paso. Lopez
did not want Gomez to receive the money because “Gomez was just a delivery
guy, and [Lopez] always had just family or close friends of his . . . pick up
money.” (Appellant’s App., Vol. I at 73.) Mike Murphy, a special agent with the
Drug Enforcement Administration whom the trial court recognized as an expert in
methods of drug trafficking in general and the Lopez organization in particular,
testified:
[W]hat we found specifically with Guadalupe Lopez is, when it
comes to the money, it’s usually somebody that’s family . . . or
closely related; somebody that he can trust; somebody that he knows
well or he knows their relatives where there’s some sort of control,
and he knows he can trust they’re actually going to do what he wants
-2-
them to do and they’re not going to steal the money on the way back.
(Appellant’s App., Vol. II at 10.)
Lopez called Rayos and said he could make the payment to Chavez in El
Paso: “Call this number and this will be the guy that’s picking it up, and
everything will be cool.” (Appellant’s App., Vol. I at 71.) Rayos called Chavez
and they agreed to meet in a mall parking lot. On January 13, 2004, Chavez
arrived at the parking lot in a Saturn with New Mexico license plates registered to
a Honda. 1 Rayos and Terrazas got into the backseat of the Saturn. There was a
child seat in the front passenger seat. 2 Rayos described the events that ensued as
follows:
[Chavez] asked us where we was from, you know, and how long it
took us to get there. And then he told us he lived close by there, you
know, and we gave him the $10,000. He was sent over there by his
brother-in-law [Angel Martinez], and we just made it clear that it
was—you know, the money was going to be taken to [Lopez], you
know. And he told us, yeah, that was his brother-in-law that sent
him, but we talked to Lupe Lopez, you know, and he ended up saying
that they’re brother-in-laws; they’re all family anyway. So he was
going to pick up his little boy and go back to Juarez and take him the
money.
(Id. at 72.)
Terrazas testified he “handed [Chavez] the $10,000 . . . and [he] told him,
1
One of the police officers conducting surveillance at the parking lot testified
Chavez had false plates “to avoid detection for some reason.” (Appellant’s App., Vol. I
at 155.) He explained: “It’s not uncommon for people that drug traffic or get money to
try to disguise their identity.” (Id.)
2
Chavez testified there was no child seat in the car.
-3-
“Here, son diez . . . .” (Id. at 117-18.) Chavez responded, “Okay, son diez.” 3 (Id.
at 118.) The money was wrapped in newspaper and black electrical tape. The
package was the length and width of a dollar bill and about “3 ½ to 4 inches”
thick. (Id. at 125.) Chavez did not ask any questions about the money; nor did he
unwrap or count it. Chavez said he was going to take the money to Lopez in
Juarez. He said he was going to take his vehicle over the border but first he was
going to pick up his son and motioned to where the car seat was “like . . . he was
going to put the kid there . . . and the money in that area.” (Id. at 119.) Terrazas
testified he had previously seen people use children to try to deflect attention
from their activities.
Chavez asked for Rayos’ phone number so he could set up the next
transaction. Chavez also asked Rayos and Terrazas to follow him to his house so
they would know where it was which would “make it a lot easier for the next
time, the next payment.” (Id. at 80-81.) Rayos testified he “told [Chavez] we had
another payment to make the following week.” (Id. at 81.) Terrazas testified
“[Chavez] stated that we could go to his house the next week when we were going
to bring the other $10,000.” 4 (Id. at 120.)
3
Rayos testified “we always used some kind of code word.” (Appellant’s App.,
Vol. I at 66.) For example, “[a] dollar would be $1,000 to [Lopez].” (Id. at 75.) Terrazas
testified in his experience drug dealers “talk in code” because “they’re paranoid or they
just don’t like to talk out in the open.” (Id. at 104.)
4
Many of the telephone conversations as well as the meeting in the parking lot
were recorded. The jurors received copies of the transcripts (including translations from
Spanish to English) and listened to the tape recordings.
-4-
Manuel Marquez, a deputy sheriff patrolman, stopped Chavez
approximately two months later to determine his identity. At the time he was
stopped, Chavez was driving a Ford Crown Victoria with the same license plates
he had on the Saturn (which were registered to a Honda). Chavez stated the
plates belonged to his wife’s vehicle. 5
Not surprisingly, Chavez presented a somewhat different version of the
events. Chavez testified he did not know Lopez. Chavez’s sister was dating
Lopez’s ex-brother-in-law, Angel Martinez, who worked with Lopez. Chavez’s
sister claimed Martinez called her and asked her to pick up some money for him.
Because she was busy preparing for her baby shower (she was pregnant with
Martinez’s child), she suggested Martinez call Chavez. Chavez claims Martinez
called and asked him to pick up a $10,000 down payment for a ranch he sold in
New Mexico. Chavez agreed to do so. He claimed he was not paid for his role in
the transaction and did not know the money he received represented drug
proceeds.
Special Agent Murphy testified he “ha[d] yet to find anybody [who had
picked up money for Lopez] that doesn’t know when they’re involved in a drug
deal.” (Appellant’s App., Vol. II at 12.)
The jury found Chavez guilty of conspiracy to distribute fifty grams and
5
At trial, Chavez admitted he lied to the police officer about the origin of the
plates.
-5-
more of methamphetamine. The court sentenced him to 120 months
imprisonment.
II. DISCUSSION
Chavez claims the government’s evidence was insufficient to support his
conviction and the court erred in instructing the jury on deliberate ignorance.
A. Sufficiency of the Evidence
“We review de novo the sufficiency of the evidence.” United States v.
Floyd, 81 F.3d 1517, 1525 (10th Cir. 1996). “We must inquire whether, taking
the evidence—both direct and circumstantial, together with the reasonable
inferences to be drawn therefrom—in the light most favorable to the government,
a reasonable jury could find the defendant guilty beyond a reasonable doubt.” Id.(quotations omitted). “To establish a conspiracy, the government was required to
show (1) that two or more persons agreed to violate the law, (2) that [Chavez]
knew at least the essential objectives of the conspiracy, (3) that [Chavez]
knowingly and voluntarily became a part of it, and (4) that the alleged
coconspirators were interdependent.” United States v. Sells, 477 F.3d 1226, 1235
(10th Cir. 2007) (quotations omitted), cert. denied, 129 S. Ct. 1391 (2009).
Chavez contends the evidence was insufficient to prove the second and
third elements. He claims “mere association with conspirators does not support a
conspiracy conviction.” (Appellant’s Br. at 23.) Chavez is correct as to his
-6-
statement of the law, but viewing the evidence in the light most favorable to the
government, there was more than “mere association” here. “Because conspiracies
are, by definition, secretive, elements of the crime are often established through
circumstantial evidence.” United States v. Dunmire, 403 F.3d 722, 724 (10th Cir.
2005). Here, the circumstantial evidence supports the inference that Chavez knew
the essential objectives of the conspiracy and knowingly and voluntarily became a
part of it.
The jury could reasonably have found Chavez knew he was receiving drug
money from Rayos and Terrazas because Chavez appeared to know Lopez, his
sister was dating Lopez’ ex-brother-in-law, and Lopez only used close friends and
relatives to pick up drug money. When Rayos called Chavez to arrange the
transaction, they agreed to meet in a parking lot. The jury could have found they
chose a parking lot as opposed to a more public location—and conducted the
transaction inside Chavez’s vehicle—because they all knew the transaction
involved drug money. Moreover, Chavez drove to the parking lot in a vehicle
with false license plates. The jury could have found he used the false plates to
avoid detection.
The jury could have found that when Terrazas told Chavez “son diez,”
Chavez knew he was referring to $10,000 because he knew the Lopez
organization’s terminology. (Appellant’s App., Vol. I at 118.) Though he claims
he thought the payment was a down payment for a ranch, he received the money
-7-
wrapped in newspaper and secured with electrical tape without question—he
neither unwrapped nor counted the money and did not offer a receipt. Chavez
referred to Lopez, the organization’s “kingpin,” in his conversation with Rayos
and Terrazas even though he claimed not to know him. (Oral Argument at 16:45,
23:27.) Chavez stated he might have trouble with the customs agents at the
border but explained he was taking his son with him and waived toward the car
seat, suggesting he intended to conceal the money in the car seat. Finally, Chavez
requested Rayos’ phone number and asked Rayos and Terrazas to follow him to
his house so they would know where he lived to facilitate the next payment.
There would have been no further payment if the money represented a down
payment for a ranch. The jury could have found Chavez’s conduct was more
consistent with the receipt of drug money than a legitimate payment.
Chavez provided an alternative explanation of the events, but obviously the
jury chose not to believe him and the witnesses he called on his behalf. “[T]he
evidence supporting the conviction . . . need not conclusively exclude every other
reasonable hypothesis and it need not negate all possibilities except guilt.”
United States v. Burkley, 513 F.3d 1183, 1188 (10th Cir.) (quotations omitted),
cert. denied, 128 S. Ct. 2979 (2008). Credibility determinations are within the
exclusive province of the jury and are not for this Court to second-guess. See
United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir. 2002) (“In
reviewing the evidence, we do not weigh conflicting evidence or consider witness
-8-
credibility, as that duty is delegated exclusively to the jury.”). In evaluating a
sufficiency of the evidence claim, “our restrictive standard of review . . . provides
us with very little leeway.” Sells, 477 F.3d at 1235 (quotations omitted). Here,
the jury could reasonably have found all the elements of a conspiracy were
present and thus, the evidence was sufficient to support Chavez’ conviction.
B. Jury Instruction
After instructing the jury on the elements of a conspiracy, the court, over
defense counsel’s objection, instructed the jury on deliberate ignorance:
The word “knowingly,” as that term has been used from time to time
in these instructions, means that the act was done voluntarily and
intentionally, not because of mistake or accident. You may find that
the 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.
(Appellee’s Br. at 16.) Chavez contends the court erred in giving this instruction
because it was not supported by the evidence. 6 The government contends the
instruction was proper because Chavez’ defense at trial was that he did not know
the money he received was drug money and “[t]here is ample evidence in the
record that [Chavez] deliberately avoided creating evidence of what he knew, i.e.,
he turned a blind eye to what otherwise would have been obvious.” (Appellee’s
Br. at 17-18.)
6
Notably, Chavez does not contend the instruction misstated the law.
-9-
We have repeatedly applied a de novo standard to review the propriety of a
deliberate ignorance instruction. 7 See, e.g., United States v. Espinoza, 244 F.3d
1234, 1241 (10th Cir. 2001); United States v. Delreal-Ordones, 213 F.3d 1263,
1264 (10th Cir. 2000); United States v. de Francisco-Lopez, 939 F.2d 1405, 1409
(10th Cir. 1991).
A deliberate ignorance instruction is appropriate when a defendant
denies knowledge of an operant fact but the evidence, direct or
circumstantial, shows that defendant engaged in deliberate acts to
avoid actual knowledge of that operant fact. Such an instruction
alerts a jury that conscious avoidance of knowledge in order to have
a defense at trial suggests a sufficient guilty knowledge to satisfy the
knowing element of the crime.
United States v. Baz, 442 F.3d 1269, 1271-72 (10th Cir. 2006) (quotations and
citations omitted). Here, Chavez denied knowing the money he received was drug
money and a reasonable jury could find from the evidence presented at trial that
he either knew the money was drug money or engaged in deliberate acts to avoid
such knowledge. See Espinoza, 244 F.3d at 1244 (“[U]nder the precedents of this
circuit, the jury may properly infer from the same evidence either that the
Defendant had actual knowledge or that he deliberately avoided acquiring such
knowledge.”).
7
In other contexts, we have reviewed the district court’s decision to give a
particular instruction in a criminal trial for an abuse of discretion. See, e.g., United States
v. McPhilomy, 270 F.3d 1302, 1310 (10th Cir. 2001); United States v. Cerrato-Reyes, 176
F.3d 1253, 1262 (10th Cir. 1999). We need not resolve this apparent conflict in our case
law because the government “acquiesces to the broader [de novo] standard of review,”
and applying a more deferential standard of review would not lead to a different result.
(Appellee’s Br. at 15, n.6.)
-10-
In Baz, the defendant claimed to be transporting computer servers in
cardboard boxes for a friend. 442 F.3d at 1271. Instead of computer equipment,
the boxes contained approximately 476 pounds of marijuana. We held the
evidence was sufficient to support a deliberate ignorance instruction because the
defendant “had ample reason to be suspicious of the cargo he transported, but
consciously avoided acquiring actual knowledge regarding its true contents.” Id.
at 1272. Similarly, in Delreal-Ordones, the defendant claimed he was not aware
he was transporting methamphetamine in a laundry detergent box in his suitcase.
213 F.3d at 1268. We held the court did not err in giving a deliberate ignorance
instruction because the facts “support[] an inference of Defendant’s guilty
knowledge” and “a jury could readily conclude that despite a clear opportunity to
do so, Defendant purposely declined to learn more about his suitcase’s contents.”
Id. at 1269 (quotations omitted); see also Espinoza, 244 F.3d at 1242-43 (10th
Cir. 2001) (holding the court did not err in giving a deliberate ignorance
instruction where the defendant claimed he was not transporting a controlled
substance but where, inter alia, he failed to ask his wife if there was marijuana in
the truck).
Like in Baz, Delreal-Ordones, and Espinoza, a reasonable jury could have
found Chavez had reason to suspect the money he received from Rayos and
Terrazas represented drug proceeds rather than the down payment for a ranch, but
consciously avoided confirming his suspicion. Chavez did not ask either Rayos
-11-
or Terrazas what the money was for or why it was packaged in newspaper and
electrical tape. He did not unwrap or count the money and did not offer a receipt.
Chavez made small-talk with Rayos and Terrazas but did not ask anything about
the alleged ranch. He stated he was instructed to tell Rayos and Terrazas that
Lopez sent him. He conducted the transaction in private and employed two
different methods to lesson his chance of detection (false license plates and the
child seat).
Chavez claims the instruction allowed the jury to find he was guilty “if he
negligently or foolishly remained ignorant” which “amounted to allowing [him] to
be convicted of a crime requiring intentional and knowing conduct by employing
a negligence standard . . . .” (Appellant’s Br. at 20.) We have recognized this
danger:
The danger in giving the instruction where there is evidence of direct
knowledge but no evidence of avoidance of knowledge is that the
jury could still convict a defendant who merely should have known
about the criminal venture. Conviction because the defendant
“should have known” is tantamount to conviction for negligence,
contrary to section 841(a) which requires intentional misbehavior.
-12-
Francisco-Lopez, 939 F.2d at 1410 (quotations and citation omitted). Here,
however, the court specifically instructed the jury “knowledge . . . cannot be
established merely by demonstrating that the defendant was negligent, careless, or
foolish . . . .” (Appellee’s Br. at 16 (emphasis added).) In light of this language
and considering the evidence in the light most favorable to the government, as we
must, we see no error in the court’s instruction.
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
-13-