United States v. Cardenas ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4585
JAIME RAMON CARDENAS, a/k/a
Teofilo Coronel Tapia,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4587
ENRIQUE RAMIREZ,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-99-62-V)
Submitted: April 20, 2001
Decided: May 10, 2001
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. CARDENAS
COUNSEL
Randolph Marshall Lee, LAW OFFICES OF RANDOLPH MAR-
SHALL LEE, Charlotte, North Carolina; Joseph T. Vodnoy, Joseph
F. Walsh, Los Angeles, California, for Appellants. Mark T. Calloway,
United States Attorney, Gretchen C.F. Shappert, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jaime Ramon Cardenas and Enrique Ramirez appeal their convic-
tions for conspiracy with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 846 (1994). We affirm.
I
Following his arrest on cocaine charges, Christopher Moss
informed investigators that he also dealt in methamphetamine. He
identified David Walker as one of his suppliers and said that Walker
previously had accepted vehicles as payment for drug debts. Moss
testified that Walker was interested in trading methamphetamine for
Moss’ 1995 Chevrolet truck. Walker testified that he, in turn,
intended to obtain the methamphetamine from Cardenas, from whom
he had bought drugs in the past. Previously, on nine or ten occasions,
Walker had paid Cardenas for drugs with vehicles. This time, Carde-
nas was interested in trading methamphetamines for the Moss truck.
Walker and Moss negotiated the exchange of Moss’ truck for fif-
teen grams of methamphetamine. Some of the negotiations took place
by telephone. Moss recorded those conversations, which were intro-
duced at trial. On September 29, 1999, Walker took Moss a sample
UNITED STATES v. CARDENAS 3
of the methamphetamine he intended to supply Moss. Moss found the
sample satisfactory, and he agreed to consummate the deal the next
day.
On September 30, Cardenas gave Walker the drugs. Cardenas was
driving a car in which Ramirez was the passenger. Cardenas and
Ramirez followed Walker to a convenience store to await his return
with the truck. Walker then left in his car to go to the Moss residence.
On his way, he hid the methamphetamine beside a pine tree on a road
near Moss’ home. Walker left his car at the Moss residence, where
he picked up the truck and its title. Walker then drove the truck to the
convenience store, where he met the car occupied by Cardenas and
Ramirez. The men proceeded to the parking lot of a textile mill,
where Cardenas accepted the truck as payment for the methamphet-
amine. Ramirez drove the truck to a movie theater parking lot. Carde-
nas drove Walker back to the Moss home, then drove to the theater
parking lot, where Ramirez was waiting. Walker and Moss then left
to pick up the drugs that Walker had hidden.
Officers stopped Ramirez and Cardenas soon after they left the
movie theater parking lot. When questioned, Ramirez falsely stated
that someone named Juan had asked him to drive the truck. However,
he did not know Juan’s last name. Ramirez, Cardenas, and Walker
were charged in a one-count indictment with conspiracy to distribute
methamphetamine. Walker pleaded guilty and testified at trial, as did
Moss. Ramirez and Cardenas now challenge their convictions.
II
Cardenas claims that the district court’s admission of certain "prior
bad acts" evidence violated Fed. R. Evid. 404(b). Specifically, Carde-
nas contends that admitting the following evidence was unduly preju-
dicial: (1) testimony that he sold Walker approximately 200 pounds
of marijuana beginning in 1995; (2) testimony that he sold cocaine
and methamphetamine to Walker not only on September 30, 1999, but
on four other occasions that year; (3) testimony that in 1996 and
1997, Cardenas stored large quantities of marijuana and methamphet-
amines at the residence of Brian Duncan; (4) Duncan’s testimony that
he was arrested in 1997 for possession of sixty-five pounds of mari-
4 UNITED STATES v. CARDENAS
juana, which Cardenas had supplied to him; and (5) in January 1998,
Cardenas was arrested in possession of eighteen pounds of marijuana.
Because there was no objection at trial to admission of the evi-
dence, our review is for plain error. United States v. Olano, 507 U.S.
725, 731-32 (1993). To find plain error: (1) there must be error; (2)
the error must be plain; (3) the error must affect substantial rights; and
(4) the error must seriously affect the fairness, integrity, or public rep-
utation of the judicial proceedings. Id. at 733-37; United States v.
Rolle, 204 F.3d 133, 138 (4th Cir. 2000).
Rule 404(b) permits evidence of other crimes, wrongs, or acts to
be introduced to establish motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake. Fed. R. Evid. 404(b).
Rule 404(b) is an inclusionary rule, excluding only evidence whose
sole purpose is to prove criminal disposition. United States v. San-
chez, 118 F.3d 192, 195 (4th Cir. 1997). "[E]vidence is admissible
under [Rule] 404(b) if it is (1) relevant to an issue other than charac-
ter, (2) necessary, and (3) reliable." Id. (internal quotation marks
omitted). Moreover, under Rule 404(b), relevant evidence may be
excluded if its probative value is "substantially outweighed by the
danger of unfair prejudice." United States v. Bailey, 990 F.2d 119,
122 (4th Cir. 1993).
Here, the evidence complained of was admissible. It was relevant
to the issue of Cardenas’ intent to distribute drugs. Further, the testi-
mony was necessary because it completed the story of the scope of
the conspiracy. See United States v. Kennedy, 32 F.3d 876, 885 (4th
Cir. 1994). The testimony was reliable and, in light of the testimony
of police officers, Moss, and Walker concerning activities surround-
ing the September 30 drug deal, was not unduly prejudicial. In short,
there was no plain error in admitting the evidence.
III
Cardenas next argues that the district court erred when it failed to
instruct the jury that he could not be convicted if the jury found that
he had conspired only with Moss, whom Cardenas characterizes as a
government agent. Because such an instruction was not requested at
trial, Olano requires review for plain error. The indictment charged
UNITED STATES v. CARDENAS 5
that Walker, Ramirez, Cardenas, and others participated in the con-
spiracy. As there was clearly a conspiratorial relationship among
these three men, there was no need for the court to instruct the jury
that there can be no conspiracy between a single defendant and a gov-
ernment agent.
IV
Cardenas claims that he was denied his Sixth Amendment right to
the effective assistance of counsel because his attorney failed to
object to the admission of the Rule 404(b) evidence and failed to
request a jury instruction that Cardenas could not be convicted if he
conspired only with a government agent. We note our finding that the
court committed no plain error in admitting the evidence in question
or refusing the jury instruction. Thus, the record does not conclusively
demonstrate that counsel was ineffective, and the Sixth Amendment
claim should be brought, if at all, in a collateral proceeding pursuant
to 28 U.S.C.A. § 2255 (West Supp. 2000). See United States v. White,
238 F.3d 537, 539 n.1 (4th Cir. 2001).
V
Officers searching the car Cardenas was driving on September 30
seized from the glove compartment a newspaper article concerning
the arrest of methamphetamine traffickers in an unrelated case. Coun-
sel objected to introduction of the article as irrelevant and prejudicial.
The district court determined that the article was admissible. The
court gave a limiting instruction, telling the jury that the article was
admitted only for the purpose of shedding light on the knowledge or
intent of any person the jury found had possession of or access to the
article.
The article was a minor piece of evidence when viewed in light of
the overwhelming evidence against Cardenas and Ramirez. This, cou-
pled with the court’s limiting instruction, renders any error in admit-
ting the error harmless. United States v. Brooks, 111 F.3d 365, 371
(4th Cir. 1997) (standard of review); United States v. Hernandez, 975
F.2d 1035, 1039 (4th Cir. 1992).
6 UNITED STATES v. CARDENAS
VI
Ramirez challenges the sufficiency of the evidence against him.
We will uphold a jury’s verdict of guilt if there is substantial evidence
in the record to support it. Glasser v. United States, 315 U.S. 60, 80
(1942). In determining whether the evidence is substantial, we view
the evidence in the light most favorable to the Government, and
inquire whether there is evidence that a reasonable trier of fact could
accept as adequate and sufficient to support a finding of guilt beyond
a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996) (en banc). In evaluating the sufficiency of the evidence, we
do not review the credibility of witnesses, and we assume that the jury
resolved all contradictions in the evidence in the Government’s favor.
United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998), cert.
denied, 525 U.S. 1141 (1999).
To obtain a conspiracy conviction under 21 U.S.C. § 846, the Gov-
ernment must prove (1) an agreement between two or more people to
engage in conduct that violates a federal drug law, (2) the defendant’s
knowledge of the conspiracy, and (3) his knowing and voluntary par-
ticipation in the conspiracy. United States v. Wilson, 135 F.3d 291,
306 (4th Cir. 1998). A defendant’s connection to the conspiracy need
only be slight to support a conviction, Burgos, 94 F.3d at 861, and the
slight connection may include a variety of conduct besides selling
narcotics. Id. at 859. Nor is it necessary that the defendant know all
the co-conspirators or all the details of the conspiracy. Id. at 861.
Here, Walker testified that Ramirez was present on seven or eight
occasions when Walker picked up drugs from Cardenas, and that the
drugs always were in plain view of Ramirez. Ramirez was a necessary
part of the September 30, 1999, drug transaction because he drove the
truck that Cardenas bought with methamphetamines. His lying to offi-
cers about driving the truck for someone named Juan suggests that he
was well aware of the illegal transaction. We conclude that the evi-
dence was sufficient to sustain the Ramirez conviction.
VII
We accordingly affirm the convictions. We dispense with oral
argument because the facts and legal contentions are adequately pre-
UNITED STATES v. CARDENAS 7
sented in the materials before us and argument would not aid the deci-
sional process.
AFFIRMED