United States v. Arvizu ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 14 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 99-2108
(D.C. No. CR-97-428-HB)
JUAN MANUEL ARVIZU, (D.N.M.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and COOK **, Circuit Judges.
Mr. Arvizu was convicted of possession with intent to distribute and
conspiracy to possess with intent to distribute more than 100 kilograms of
marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B). He was
sentenced to 97 months imprisonment to be followed by four years of supervised
release. Mr. Arvizu appeals his conviction, claiming that the district court erred
in allowing the government to present evidence at his trial of a continuing
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The Honorable H. Dale Cook, Senior District Judge, United States District
**
Court of the Northern District of Oklahoma, sitting by designation.
conspiracy outside the dates of the indictment. Mr. Arvizu also argues that the
district court erred when it enhanced his sentence by two levels for obstruction of
justice pursuant to U.S.S.G. §3C1.1. Our jurisdiction arises under 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a). We affirm.
A. Evidence of Ongoing Conspiracy
On March 20, 1997, Armando Rios (a co-defendant) was stopped at a
border patrol checkpoint in New Mexico. He consented to a search of his
vehicle, which was found to contain over 500 pounds of marijuana. Mr. Rios
told DEA agents that he was supposed to deliver the marijuana to customers in
California on behalf of Mr. Arvizu. After his arrest, Mr. Rios agreed to make a
controlled delivery to the customers, while remaining in telephone contact with
Mr. Arvizu. After making the delivery, Mr. Rios met with Mr. Arvizu on March
24, at which time he was paid for transporting the marijuana. At that time, Mr.
Arvizu made plans with Mr. Rios to have Mr. Rios transport a 1500 pound load
of marijuana, using the same delivery method as before.
The conspiracy count of the indictment charged Mr. Arvizu in connection
with activity occurring “[f]rom on or about the 16th day of March, 1997, until on
or about the 20th day of March, 1997, said dates being approximate. . . .” Mr.
Arvizu argues that the district court erred in denying his motion in limine to
exclude evidence of his involvement after March 20, specifically evidence
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concerning his March 24 agreement with Mr. Rios to distribute an additional 1500
pounds of marijuana. Mr. Arvizu contends that any discussion concerning
another delivery is necessarily part of a second conspiracy, because the first
conspiracy only included activities occurring until March 20. Thus, he argues, the
evidence should be excluded under Federal Rule of Evidence 404(b).
We review evidentiary rulings and rulings on motions in limine for an
abuse of discretion. See Davoll v. Webb, 194 F.3d 1116, 1136 (10th Cir. 1999).
The district court did not reach the issue of whether the evidence was properly
admissible under 404(b), finding that it was admissible on the basis of the
indictment as direct proof of the conspiracy. This was clearly correct because
Rule 404(b) applies only to evidence of acts that are extrinsic to the charged
crime. See United States v. Green 175 F.3d 822, 831 (10th Cir. 1999). In this
case, evidence of another drug transaction was properly considered as direct
evidence of the conspiracy. See id.; United States v. Pace, 981 F.2d 1123, 1134-
35 (10th Cir. 1992).
The fact that this occurred four days after March 20, 1997 is not an issue.
In United States v. Charley, 189 F.3d 1251 (10th Cir. 1999) we wrote:
We have stated that where, as here, time is not an element of the
offense, and where “the phrase ‘on or about’ is used in an indictment
in connection with a specific date . . . , if the prosecution proves that
the offense was committed within a few weeks of the date, the proof
will be deemed sufficient to hold [the] defendant responsible for the
charge.”
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189 F.3d at 1272-73 (quoting Kokotan v. United States, 408 F.2d 1134, 1138
(10th Cir. 1969); see also United States v. Smith, 806 F.2d 971, 973-74 (10th Cir.
1986) (evidence sufficient to sustain conviction as long as activity occurred
reasonably near the dates alleged in the indictment). Because the new transaction
occurred in such close proximity to the dates charged in the conspiracy, it is
properly considered as direct evidence of the conspiracy.
B. Enhancement for Obstruction of Justice
Mr. Arvizu objects to the district court’s two-level enhancement of his
sentence for obstruction of justice pursuant to U.S.S.G. § 3C1.1. We review the
district court’s factual findings concerning enhancement under § 3C1.1 for clear
error. See United States v. Burch, 153 F.3d 1140, 1144 (10th Cir. 1998).
Certainly, the fact that Mr. Arvizu testified at trial and was later convicted does
not automatically require a finding of perjury. However, Mr. Arvizu did not
simply deny involvement, he also concocted alternative reasons for things such as
his use of pager codes and the purpose of payments to Mr. Rios, all of which the
district court agreed was false. The district court is in the unique position to
observe the defendant at trial, and to decide at sentencing whether he gave
perjured testimony. See United States v. Yost, 24 F.3d 99, 106 (10th Cir. 1994).
Although Mr. Arvizu contends that the court failed to identify the perjurious
statements with the requisite specificity, we find this argument to be without
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merit. The district court specifically adopted the factual findings of the
presentence report, one of which, paragraph 20, specifically enumerated the
perjured testimony. This was sufficient. See United States v. Denetclaw, 96 F.3d
454, 459 (10th Cir. 1996). The district court’s two-level enhancement was not
clearly erroneous.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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