United States v. Gallegos ( 2015 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 30, 2015
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-6236
SIMONA GALLEGOS,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:12-CR-00297-2)
_________________________________
James L. Hankins, Edmond, Oklahoma, for Defendant-Appellant.
David McCrary, Assistant United States Attorney (Sanford C. Coats, United States
Attorney, and Leslie M. Maye, Assistant United States Attorney, with him on the brief),
Oklahoma City, Oklahoma, for Plaintiff-Appellee.
_________________________________
Before BRISCOE, Chief Judge, TYMKOVICH and MORITZ, Circuit Judges.
_________________________________
MORITZ, Circuit Judge.
_________________________________
Simona Gallegos appeals her convictions for one count of conspiracy to
distribute methamphetamine and to possess methamphetamine with intent to
distribute in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1); two counts of
possession of methamphetamine with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1); and one count of use of a communication facility to facilitate the
distribution of methamphetamine in violation of 21 U.S.C. § 843(b).
Gallegos argues (1) the district court erred in admitting the hearsay statements
of her alleged co-conspirators; (2) the government presented insufficient evidence to
support her convictions; (3) a fatal variance occurred because the indictment charged
a single large conspiracy but the evidence at trial proved only multiple smaller
conspiracies; (4) the district court erred in admitting testimony regarding her co-
defendant’s post-arrest request for an attorney; and (5) the cumulative effect of these
errors requires reversal. Because sufficient evidence supports Gallegos’ convictions
and because her remaining claims do not warrant reversal under our plain-error test,
we affirm.
BACKGROUND
Simona Gallegos’ convictions arose from law enforcement’s investigation into
the activities of Iran Zamarripa, the regional supervisor of an international
methamphetamine ring. Based on her alleged involvement in Zamarripa’s
organization, Gallegos was tried alongside her common-law husband, Pedro Juarez,
and two of their alleged co-conspirators, Bani Moreno and Edgardo Josue Aguilar.
At trial, Special Agent Casey Cox testified about Moreno’s post-arrest request
for an attorney. Although Moreno initially agreed to speak with Cox, after Cox began
to probe Moreno’s involvement in the drug trade, Moreno declined to answer further
questions without an attorney present. None of the defendants’ attorneys objected to
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Cox’s testimony, and Moreno declined the district court’s offer of a curative
instruction.
Unlike Moreno and Aguilar, both of whom purchased methamphetamine from
Zamarripa by the pound, Gallegos assisted Juarez in obtaining considerably smaller
quantities of methamphetamine from Zamarripa and his local manager, Alfredo
Resendiz. For example, on one occasion, Zamarripa instructed Resendiz to deliver a
half-ounce of methamphetamine to Gallegos because Juarez was at work. Gallegos
partially paid for the fronted methamphetamine ten days later. On another occasion,
Gallegos met Resendiz to pick up more methamphetamine for Juarez and to pay for a
half-ounce of methamphetamine Zamarripa previously fronted Juarez. On still
another occasion, Gallegos called Resendiz and used a code word to order a half-
ounce of methamphetamine for Juarez. In that call, Gallegos stressed the need for
prompt delivery because Juarez “ha[d] people[] waiting.” Intercept Tr., Supp. R.,
at 8. When Resendiz arrived at the apartment Gallegos and Juarez shared, he
delivered the methamphetamine to Gallegos.
Based on this evidence, the jury found Gallegos guilty of one count of
conspiracy to distribute methamphetamine and to possess methamphetamine with
intent to distribute; two counts of possession of methamphetamine with intent to
distribute; and one count of use of a communication facility to facilitate the
distribution of methamphetamine. The district court sentenced Gallegos to 144
months in prison, and Gallegos appealed.
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DISCUSSION
I. Gallegos forfeited her hearsay argument.
Gallegos first argues the district court erred in admitting hearsay statements of
her alleged co-conspirators absent independent evidence she conspired with them to
distribute methamphetamine. But because Gallegos fails to identify any specific
statements on appeal, we decline to reach this issue. See United States v. Thornburgh,
645 F.3d 1197, 1210 (10th Cir. 2011) (refusing to address appellant’s challenge to
admission of co-conspirator statements when appellant neglected to identify any
specific statements on appeal; failure to identify specific statements prevented court
from determining whether statements were offered for truth of matters asserted); see
also United States v. Lewis, 594 F.3d 1270, 1284-85 (10th Cir. 2010) (declining to
examine each record page cited in appellant’s brief to determine whether any co-
conspirator statements contained therein were hearsay and, if so, whether their
admission prejudiced appellant).
II. The government presented sufficient evidence to support Gallegos’
convictions, and any prejudice arising from the alleged variance does not
warrant reversal under our plain-error test.
A. Sufficiency of the Evidence
Next, Gallegos challenges the sufficiency of the evidence supporting all four
of her convictions. Although the parties disagree as to whether we should review
Gallegos’ sufficiency claims de novo or for plain error, a conviction in the absence of
sufficient evidence will almost always satisfy all four plain-error requirements. Thus,
our review for plain error in this context differs little from our de novo review of a
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properly preserved sufficiency claim. See United States v. Rufai, 732 F.3d 1175, 1189
(10th Cir. 2013) (quoting United States v. Duran, 133 F.3d 1324, 1335 n.9 (10th Cir.
1998)) (concluding plain-error review and review for sufficient evidence “‘usually
amount to largely the same exercise’”). Under the sufficiency-of-the-evidence test,
we view the evidence in the light most favorable to the government and ask whether
the evidence—and any reasonable inferences to be drawn from it—would allow a
reasonable jury to find the defendant guilty beyond a reasonable doubt. United States
v. Green, 435 F.3d 1265, 1272 (10th Cir. 2006).
Likening the facts of this case to those in United States v. Evans, 970 F.2d 663
(10th Cir. 1992), Gallegos insists we must reverse her conspiracy conviction under
the “buyer-seller rule” because the government established only that she obtained
methamphetamine for personal use. See United States v. Patterson, 713 F.3d 1237,
1245-46 (10th Cir. 2013) (pointing out that an individual who merely purchases
drugs from a member of a conspiracy is not automatically part of the conspiracy);
United States v. Watson, 594 F.2d 1330, 1337 (10th Cir. 1979) (recognizing “that
proof of the existence of a buyer-seller relationship, without more, is inadequate to
tie the buyer to a larger conspiracy”).
But unlike in Evans, where the evidence demonstrated the defendant obtained
crack-cocaine from a member of the conspiracy on a single occasion and solely for
her personal use, the evidence here established Gallegos repeatedly procured
methamphetamine from Resendiz on Juarez’s behalf, knowing full well Juarez
planned to distribute it. 970 F.2d at 673. Under those circumstances, the buyer-seller
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rule does not apply. See United States v. Ivy, 83 F.3d 1266, 1285-86 (10th Cir. 1996)
(explaining that purpose of buyer-seller rule is to separate consumers who do not
intend to redistribute drugs for profit from distributors who intend to further
objective of conspiracy by distributing drugs to others).
Gallegos disagrees, arguing the buyer-seller rule precludes her conviction even
if she purchased methamphetamine with the intent to distribute. Citing United States
v. Johnson, 592 F.3d 749 (7th Cir. 2010), she maintains that “a drug purchaser does
not enter into a conspiracy with his supplier simply by reselling the drugs to his own
customers.” Id. at 752. But Johnson’s interpretation of the buyer-seller rule is
contrary to this court’s precedent. See Ivy, 83 F.3d at 1285-86 (explaining buyer-
seller rule applies only to end users).
Moreover, in Johnson the Seventh Circuit specifically recognized that
evidence of fronting coupled with evidence of repeat drug purchases is sufficient “to
distinguish a conspiracy from a nonconspiratorial buyer-seller relationship.” 592 F.3d
at 755 n.5. Here, Gallegos was involved in multiple drug transactions with Resendiz,
and she both received and paid for fronted drugs. Thus, even under Johnson’s
broader interpretation of the buyer-seller rule, a reasonable jury could have found
Gallegos acted as more than a mere buyer.
To support Gallegos’ conspiracy conviction, the government was required to
prove she (1) agreed with at least one other person to violate the law, (2) knew of the
conspiracy’s objectives, and (3) knowingly and voluntarily involved herself in the
conspiracy. The government also was required to demonstrate (4) interdependence
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among the co-conspirators. See United States v. Foy, 641 F.3d 455, 465 (10th Cir.
2011).
Here, the jury heard a recorded telephone call during which Gallegos asked
Resendiz to deliver a half-ounce of methamphetamine to the apartment she shared
with Juarez because Juarez “ha[d] people[] waiting.” Intercept Tr., Supp. R., at 8.
When Resendiz arrived, he delivered the requested methamphetamine to Gallegos.
From this evidence alone, the jury could have inferred an agreement to distribute
methamphetamine.1 See United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir.
1994) (explaining jury may infer agreement between two or more parties based on
circumstantial evidence indicating concerted action directed toward common goal).
Evidence showing Gallegos received methamphetamine from Resendiz on
credit and paid Resendiz for methamphetamine he fronted Juarez provided further
evidence of an agreement to distribute. See United States v. Small, 423 F.3d 1164,
1184 (10th Cir. 2005) (explaining that fronting arrangement strongly suggests
expectation individual who receives drugs on credit will redistribute them for profit);
United States v. Nichols, 374 F.3d 959, 961, 969 (10th Cir. 2004), cert. granted,
1
Gallegos complains the government did not prove she agreed to distribute 85
pounds of methamphetamine as alleged in the indictment. But it didn’t have to. See
United States v. Anaya, 727 F.3d 1043, 1050-51 & n.4 (10th Cir. 2013), cert. denied,
135 S. Ct. 419 (2014) (explaining government need not prove defendant “knew of
every type or amount of drug trafficked” to support conspiracy conviction).
Moreover, the government presented sufficient evidence to prove Gallegos personally
took part in drug deals involving more than two ounces of methamphetamine, which
is more than the 50 grams for which the jury found the conspiracy responsible for
sentencing purposes. See 21 U.S.C. 841(b)(1)(A) (authorizing prison sentence of ten
years to life when amount of methamphetamine possessed with intent to distribute
exceeds 50 grams).
7
judgment vacated, 543 U.S. 1113, opinion reinstated, 410 F.3d 1186 (10th Cir. 2005)
(hypothesizing that evidence of fronting arrangement would have allowed reasonable
jury to find existence of agreement to distribute between defendant and supplier).
The same evidence also was sufficient to prove Gallegos knew of the
conspiracy’s objectives and knowingly and voluntary involved herself in the
conspiracy. Based on Gallegos’ phone call to Resendiz—during which she used code
to request delivery of a half-ounce of methamphetamine to the apartment she shared
with Juarez because Juarez had people “waiting”—a reasonable jury could conclude
Gallegos was privy to the conspiracy’s goal of distributing methamphetamine. And
from Gallegos’ repeated actions in furtherance of this goal, e.g., calling Resendiz to
order methamphetamine, accepting delivery of methamphetamine when Juarez was
unavailable, and making payments for methamphetamine on Juarez’s behalf, a
reasonable jury could also infer her knowing and voluntary involvement. See United
States v. Bell, 154 F.3d 1205, 1208 (10th Cir. 1998) (explaining jury may presume
defendant who acts in furtherance of conspiracy’s goals is knowing participant).
Finally, evidence of Gallegos’ participation in the fronting arrangement also
demonstrated interdependence. See United States v. Acosta-Gallardo, 656 F.3d 1109,
1124 (10th Cir. 2011); Small, 423 F.3d at 1185 (citing United States v. Roberts, 14
F.3d 502, 511 (10th Cir. 1993)) (reasoning fronting arrangement creates situation of
mutual dependence because seller’s ability to front drugs depends on receipt of
money due). Further, Gallegos benefitted from her role in the arrangement even if she
did not profit from it financially because her participation aided the endeavors of her
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common-law husband. Aplt. Br. at 29. See United States v. Hamilton, 587 F.3d 1199,
1209-10 & n.6 (10th Cir. 2009) (finding sufficient evidence of interdependence when
defendant’s loyalty to half-brother, rather than desire to profit financially, motivated
him to assist in illegal drug business).
We conclude the government presented sufficient evidence to prove Gallegos
purchased methamphetamine, not merely for her personal use, but as part of a
conspiracy to distribute it. And because Gallegos’ challenges to the sufficiency of the
evidence supporting her convictions for possession with intent to distribute and use
of a communication facility rely entirely on the alleged lack of evidence supporting
her conspiracy conviction, we reject those challenges as well.
B. Variance
In a related argument, Gallegos contends the government’s evidence failed to
prove the conspiracy charged in the indictment, i.e., the evidence varied from the
indictment. See United States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir. 2008)
(explaining variance arises when indictment charges single large conspiracy but
government proves only existence of multiple smaller conspiracies at trial). In the
context of a conspiracy conviction, we treat a variance claim as a challenge to the
sufficiency of the evidence establishing that each defendant was a member of the
same conspiracy. Id.
Because Gallegos did not raise her variance claim below, we review only for
plain error. See United States v. Bailey, 327 F.3d 1131, 1142 (10th Cir. 2003). To
show plain error, Gallegos must demonstrate (1) an error, (2) that is clear or obvious
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under current law, and (3) that affected her substantial rights. If Gallegos makes such
a showing, we may reverse only if (4) the error seriously affected the fairness,
integrity, or public reputation of the proceedings. United States v. Cooper, 654 F.3d
1104, 1117 (10th Cir. 2011).
Gallegos contends the government proved—if anything—that she conspired
with Juarez alone, rather than with the members of the larger conspiracy. Gallegos
argues this alleged variance created “a substantial ‘spillover’ effect” by permitting
the jury “to associate [her] with crimes for which there was no evidence of her
involvement (i.e., dealing with a Mexican drug cartel to acquire huge quantities of
meth, shipping into the United States, operating a distribution network with interstate
and even international scope, and distributing 85 pounds of meth).” Aplt. Br. at 30.
But even assuming the existence of a variance that constitutes clear and
obvious error, we find little risk of any “spillover” here, let alone one so prejudicial
as to satisfy the third prong of the plain-error test. See United States v. Rosales-
Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (explaining error affects defendant’s
substantial rights for purposes of plain-error test if defendant demonstrates
reasonable probability result of proceeding would have been different but for alleged
error).
To determine whether a variance prejudiced the defendant in the context of an
alleged conspiracy, we focus on the possibility of jury confusion and the strength of
the evidence proving the defendant’s involvement in the smaller conspiracy. See
Carnagie, 533 F.3d at 1241, 1244. In assessing the possibility of jury confusion, we
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consider, among other things, the number of defendants tried together and the number
of separate conspiracies proved. We also look to the complexity of the evidence and
the jury’s ability to distinguish the evidence against one defendant from the evidence
against his or her co-defendants. See id. at 1242.
Here, Gallegos was tried with only three other defendants and the government
proved a maximum of three individual conspiracies. Moreover, the jury could have
easily distinguished the evidence against Gallegos, who assisted in procuring
methamphetamine in smaller quantities for her common-law husband, from the
evidence against her co-defendants Moreno and Aguilar, who purchased
methamphetamine from Zamarripa by the pound. And overwhelming evidence
established Gallegos’ involvement in a smaller conspiracy with Juarez and Resendiz
to distribute at least fifty grams of methamphetamine. Under these circumstances,
Gallegos cannot show a reasonable probability the result of her trial would have been
different but for the alleged variance. Thus, she fails to satisfy the third prong of our
plain-error test.
She also fails to satisfy the fourth prong. Given the overwhelming evidence
establishing Gallegos’ involvement in the smaller conspiracy, we conclude the
alleged variance did not seriously affect the fairness, integrity, or public reputation of
the proceedings. See United States v. Gonzalez Edeza, 359 F.3d 1246, 1251 (10th Cir.
2004) (interpreting fourth prong of plain-error test to prohibit reversal when evidence
of defendant’s guilt on charged crime or closely related crime is “‘overwhelming’
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and ‘essentially uncontroverted’” (quoting Johnson v. United States, 520 U.S. 461,
470 (1997))).
Gallegos’ failure to meet the third and fourth prongs of our plain-error test is
fatal to her claim. See United States v. Algarate-Valencia, 550 F.3d 1238, 1243 & n.3
(10th Cir. 2008) (declining to address first prong of plain-error test when defendant’s
failure to satisfy third prong was determinative of claim). Even if a variance
occurred, it does not warrant reversal of Gallegos’ conspiracy conviction.
III. Gallegos fails to show the admission of Cox’s testimony warrants reversal.
Next, Gallegos argues the district court erred in admitting Cox’s testimony
regarding Moreno’s post-arrest request for an attorney. Gallegos’ failure to object to
Cox’s testimony again triggers plain-error review. See United States v. Rice, 52 F.3d
843, 845 (10th Cir. 1995) (applying plain-error review to unpreserved Doyle2 claim).
Gallegos maintains the jury viewed evidence of Moreno’s post-arrest request
for an attorney as indicative of his guilt, and then imputed evidence of Moreno’s guilt
to her. But even if the jury viewed Cox’s testimony as evidence of Moreno’s guilt,
Gallegos fails to demonstrate that admission of his testimony prejudiced her
substantial rights. As discussed, the government presented distinct evidence against
Moreno and Gallegos, giving the jury little reason to paint the two with the same
broad brush. Moreover, in light of the overwhelming evidence of Gallegos’
2
In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the United States Supreme Court
concluded the use of the petitioners’ post-arrest silence for impeachment purposes
violated their due process rights. See also Wainwright v. Greenfield, 474 U.S. 284,
286-87, 295 (1986) (applying Doyle to prosecutor’s comment on respondent’s post-
arrest request for attorney).
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involvement in at least the smaller conspiracy, Gallegos cannot show the admission
of Cox’s testimony about her co-defendant affected the outcome of her own trial even
if the jury somehow considered it as evidence of her guilt. Thus, Gallegos fails to
satisfy our plain-error test. See Rosales-Miranda, 755 F.3d at 1258; Algarate-
Valencia, 550 F.3d at 1243 & n.3.
IV. We reject Gallegos’ claim of cumulative error.
Finally, for the reasons discussed above, we find Gallegos’ cumulative-error
claim unpersuasive. Even if we assume the alleged variance and the Doyle violation
constituted clear and obvious errors under current law, Gallegos fails to show that the
effect of those errors—whether considered individually or cumulatively—warrants
reversal of her convictions under plain-error review. See United States v. Caraway,
534 F.3d 1290, 1302 (10th Cir. 2008) (noting defendant asserting cumulative
unpreserved error must “overcome the hurdles necessary to establish plain error”).
CONCLUSION
We conclude that when viewed in the light most favorable to the government,
the evidence was more than sufficient to support Gallegos’ convictions. And given
the strength of this evidence, Gallegos’ claims regarding the alleged variance and the
admission of Cox’s testimony fail under the third and fourth prongs of plain-error
review. Gallegos’ convictions are affirmed.
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