United States v. Narviz-Guerra ( 1998 )

Revised August 17, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50298
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
ALVARO NARVIZ-GUERRA and LARRY AUSTIN GRANT,
Defendants-Appellants.
Appeals from the United States District Court
For the Western District of Texas
July 28, 1998
Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:
Defendants Alvaro Narviz-Guerra (“Narviz”) and Larry Grant
(“Grant”) were tried and convicted for possession of marijuana with
the intent to distribute, conspiracy to possess marijuana,
conspiracy to launder monetary instruments, and engaging in a
continuing criminal enterprise. Narviz appeals his conviction
arguing insufficiency of the evidence, lack of verdict unanimity,
improper admission of hearsay, and double jeopardy. Second, he
appeals his sentence arguing that the presentence report was
unreliable. Third, he appeals the forfeiture of his truck
contending that it was improperly forfeited under 18 U.S.C. §
853(a)(2). Grant appeals his conviction arguing that his right to
a speedy trial was violated, that there was insufficient evidence
to convict him of money laundering, and that the trial court failed
to give a compensated witness instruction. He also appeals his
sentence contending that the amount of marijuana for which he was
held responsible was not reasonably foreseeable. We vacate
Narviz’s conviction for conspiracy to possess with the intent to
distribute on the grounds it violates double jeopardy. We affirm
Narviz’s other convictions and his sentence. We also affirm
Grant’s conviction and sentence.
BACKGROUND
In early 1991, Narviz bought Las Moras Ranch, a 534 acre ranch
which had previously been used to breed cattle and harvest pecans
and was bordered by the Rio Grande and Las Moras Creek. Narviz
made Grant foreman. Within six months, the ranch had deteriorated
significantly, and Narviz was running so far behind on payments
that the seller forced Grant off the ranch. Narviz, however,
negotiated a settlement, and Grant returned to the ranch about a
year later.
Narviz and Grant used the ranch to smuggle marijuana from
Mexico into Texas and then moved it from the ranch to distributors
2
for shipping throughout Texas. In November 1993, Ricardo Perez
(“Perez”), a fugitive who knew Narviz from past trafficking and
still maintained contacts with American distributors, joined
Narviz’s organization. Perez contacted Narviz after meeting a
pilot flying loads of marijuana to Narviz. They arranged the
marijuana transactions so that Narviz remained unknown to Perez’s
associates. Narviz set up the deliveries by phone from Mexico
while Perez directed the receipt, storage, and distribution in
Texas. Over the next year and a half, between 12 and 18 loads of
marijuana, weighing 200-600 pounds, were delivered to Perez’s
associates.
In June 1995, the Drug Enforcement Agency (“DEA”) searched
Narviz’s ranch which they found in poor condition. The fences and
pecan trees had deteriorated. The two houses on the ranch were
unlocked; they contained little furniture, had broken windows and
trash strewn about. Moreover, the agents found two bales of
marijuana, marijuana residue, inner tubes, and burlap or fiberglass
bags that had contained marijuana.
In July, the DEA arrested one of Perez’s associates, Tony Hall
(“Hall”), who began cooperating in the investigation. Hall set up
a controlled buy with another associate, Craig Hillis (“Hillis”).
Hillis, too, was arrested and began cooperating. Hillis consented
to a search of his stash house where agents found about 100 pounds
of a 400 pound load that had been delivered between August and
October of 1994.
3
On September 22, 1995, Perez’s wife contacted Hall and said
that she wanted approval to put Narviz in touch with Hall. Three
days later, Grant drove Narviz to a Houston restaurant where they
met with Hall and an undercover agent to discuss the buying and
selling of additional loads. On November 30, Narviz, Hall, and
Grant met again at another restaurant near Houston. As Narviz and
Grant left the restaurant, they were arrested. Narviz was tried
and convicted of conspiracy to possess marijuana with the intent to
distribute, six counts of possession with intent to distribute,
conspiracy to launder monetary instruments, and engaging in a
continuing criminal enterprise. He was sentenced to 360 months in
prison. Grant was tried and convicted of conspiracy to possess
marijuana, two counts of possession with intent to distribute and
one count of conspiracy to launder monetary instruments. He was
sentenced to 188 months. Both appeal their conviction and
sentences.
ANALYSIS
A. NARVIZ
1. DOUBLE JEOPARDY
Narviz argues, and the government concedes, that his
conviction on Count One of the indictment must be vacated. Count
One charged Narviz with conspiracy to possess marijuana with the
intent to distribute. Because conspiracy is a lesser included
offense of the continuing criminal enterprise charged in Count
4
Three, his conviction on Count One violates double jeopardy. See
Rutledge v. United States, 517 U.S. 292, 307 (1996); United States
v. Dixon, 132 F.3d 192, 196 (5th Cir. 1997). Though we vacate
Narviz’s conviction on Count One, we do not remand for
resentencing. Where it is clear that the drug conspiracy
conviction did not lead the district court to impose a harsher
sentence for engaging in a continuing criminal enterprise (“CCE”),
there is no need to remand. United States v. Dixon, 132 F.3d at
196. Here, Narviz was sentenced to 360 months for Counts One and
Three with the terms to run concurrently; thus, the sentence for
the CCE is no harsher than it would have been without the drug
conspiracy conviction.
2. VERDICT UNANIMITY
Because Narviz’s trial counsel did not object to the failure
to give a specific instruction requiring unanimity, this Court
reviews for plain error. United States v. Harris, 104 F.3d 1465,
1471 (5th Cir.), cert. denied, 118 S. Ct. 103 (1997).
Narviz points out that he was charged with laundering monetary
instruments under 19 U.S.C. §§ 1956(a)(2)(A) and (h) which
proscribes transporting, transmitting, and transferring a monetary
instrument or funds from or to the United States with the intent to
carry on specified unlawful activity. When the judge instructed
the jury, he told them that the prosecution had to prove beyond a
reasonable doubt that two or more agreed to launder money either by
5
sending it from or to the United States. Narviz argues that this
instruction was error because it is unclear whether Narviz was
convicted of laundering money by sending it to or from the United
States. He contends that our holding in United States v. Gipson,
553 F.2d 453 (5th Cir. 1977) requires a specific unanimity
instruction when a jury could find a defendant guilty on a single
count under multiple theories of liability.
While Narviz accurately summarizes our holding in that case,
Gipson simply does not apply here because Narviz was convicted of
conspiracy and not the actual offense. Rather, we look to our
holding United States v. Dillman, 15 F.3d 384, 391-92 (5th Cir.
1994) which said that where an indictment alleged conspiracy to
commit several offenses, the district court did not err in giving
a general unanimity instruction. The Dillman court explained that
when twelve jurors agree that a defendant agreed to commit a crime,
all jurors do not have to agree about which offense the defendant
personally intended to commit. There need be only one conspiracy
to encompass the particular charged offense. Id. at 392. Here,
the facts fall within Dillman’s reasoning. The judge gave a
general unanimity charge, and the conspiracy to launder money
encompasses moving money both to and from the United States. Thus,
we cannot say that the district court plainly erred in failing to
give a specific unanimity instruction.
3. INSUFFICIENT EVIDENCE
6
Counts Four and Seven allege respectively that on or about
October 1994 and July 20, 1995, Narviz unlawfully and knowingly
possessed marijuana with intent to distribute. Narviz argues that
the record does not show that the government proved any of the
specified conduct. He contends that the government produced no
evidence that Narviz possessed any marijuana on those specific
dates. Rather, the government produced witnesses who testified to
the loads that they, as co-conspirators, handled over the years.
This Court reviews the evidence in the light most favorable
to, and with all reasonable inferences drawn in support of, the
verdict. United States v. Thompson, 130 F.3d 676, 688 (5th Cir.
1997). We must affirm Narviz’s conviction under these counts if
any rational trier of fact could have found the essential elements
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979).
To convict for possession with intent to distribute, the
government must prove (1) knowing, (2) possession, (3) with intent
to distribute. United States v. Lopez, 74 F.3d 575, 577 (5th
Cir.), cert. denied 116 S. Ct. 1867 (1996). Possession may be
joint. United States v. Skipper, 74 F.3d 608, 611 (5th Cir. 1996).
A party to a conspiracy may be held responsible for a substantive
offense that a co-conspirator commits in furtherance of the
conspiracy even if the party did not participate in or have any
knowledge of that offense. Pinkerton v. United States, 328 U.S.
640, 647 (1946). Thus, once the conspiracy and the defendant’s
7
knowing participation therein is proved beyond a reasonable doubt,
a defendant is guilty of the substantive acts his partners
committed in furtherance of the conspiracy. United States v.
Garcia, 917 F.2d 1370, 1377 (5th Cir. 1990). Here, the evidence is
sufficient under these theories.
DEA agents searched a stash house Craig Hillis used and seized
97 pounds of marijuana from a freezer in the garage. The marijuana
was part of a load that Narviz supplied and had delivered to Hillis
between August and October 1994. Hillis, as a co-conspirator,
continuously possessed the 97 pounds. Thus, Narviz’s conviction on
Count Four stands.
For the same reasons, Narviz’s conviction on Count Seven also
stands. At trial, the government showed that DEA agents searched
another stash house and seized 183 pounds of marijuana on July 20,
1995. On July 14, Tony Hall had received 300 pounds of marijuana
that Narviz had sent through a co-defendant and took it to that
same stash house. We hold, therefore, that the jury had sufficient
evidence to convict Narviz of possessing marijuana on or about July
20, 1995.
4. HEARSAY TESTIMONY
We review a district court’s evidentiary rulings for abuse of
discretion. United States v. Parks, 68 F.3d 860, 867 (5th Cir.
1995), cert. denied, 116 S. Ct. 825 (1996).
The district court permitted three witnesses, Perez, Agent
8
Hildreth, and Agent Boyette, to testify over Narviz’s hearsay
objection concluding the testimony fell within the co-conspirator
exception to the hearsay rule. FED. R. EVID. 801(d)(2)(E) states “a
statement is not hearsay if. . . the statement is offered against
a party and is. . . a statement by a co-conspirator of a party
during the course and in furtherance of the conspiracy.” For the
Rule to apply, the proponent of the testimony must show: 1) the
conspiracy existed; 2) the statement was made during the course of
and in furtherance of the conspiracy; and 3) the co-conspirator and
the defendant are members of the conspiracy. United States v.
Asibor, 109 F.3d 1023, 1032 (5th Cir. 1997). The proponent must
establish these elements by a preponderance of the evidence.
Bourjaily v. United States, 483 U.S. 171, 175 (1987). Further, in
the case of a non-testifying con-conspirator, the proponent must
adduce independent evidence of a concert of action in which the
defendant was a participant. Asibor, 109 F.3d at 1033.
a. Perez
Narviz complains Perez made two statements which he argues are
objectionable. First, Perez testified that he was arrested in 1987
with 75 pounds of marijuana that a co-conspirator, Tim McCaskill,
supplied. When the government asked about the origin of the 75
pounds, Perez testified that it had come from Narviz. Second,
Perez testified that he met a pilot who said that he was flying
marijuana from Mexico’s interior for Narviz. Narviz argues that
9
the government failed to show that either McCaskill or the pilot
belonged to the same conspiracy as Narviz. Narviz further objected
to Perez’s testimony concerning McCaskill on the grounds that Perez
had no personal knowledge.1
A court may evaluate the testimony itself to determine whether
the co-conspirator exception to the hearsay rule has been met.
United States v. Burton, 126 F.3d 666, 671 (5th Cir. 1997). Here,
we look to Perez’s testimony to determine if it falls within the
exception. We hold that it does. Perez testified that before his
1987 arrest, he met twice with Narviz in McCaskill’s presence to
buy marijuana McCaskill was holding for Narviz. Thus, McCaskill
and Narviz are members of the same conspiracy2 and the admitted
statements were made in furtherance of that conspiracy.
As for the pilot, we again examine the testimony itself to
determine whether it was properly admitted. We conclude that the
pilot and Narviz were members of the same conspiracy because the
pilot was flying marijuana for Narviz. Moreover, the pilot’s
statement was made in furtherance of that conspiracy. Thus, the
testimony was admissible under FED. R. EVID. 801(d)(2)(E).
b. Agents Hildreth and Boyette
1
We do not address this objection because the testimony is
admissible under the co-conspirator exception to the hearsay rule.
2
We point out that for the co-conspirator exception to apply,
“same conspiracy” does not have to be the same conspiracy as
charged n the indictment. United States v. Arce, 997 F.2d 1123,
1128 (5th Cir. 1993).
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DEA Agent Hildreth testified that he got a break in his
investigation when Tony Hall, who was then an informant, received
a call from Perez’s wife asking for help. Narviz argues that the
co-conspirator exception does not apply because neither Perez’s
wife nor Hall were co-conspirators. Hall, at the time Perez’s wife
telephoned, was a cooperating witness, and Perez’s wife was never
shown to be a member of the conspiracy.
We agree with the government that the testimony is not
hearsay. A statement is hearsay only if it is being offered to
prove the truth of the matter. FED. R. EVID. 801(c). Here, Agent
Hildreth’s testimony was not given to show the truth of what
Perez’s wife said; rather, the purpose of the testimony was to show
why Hildreth resumed his investigation. Thus, the court did not
abuse its discretion in permitting Hildreth to testify.
Finally, Narviz objects to two allegedly hearsay statements
Agent Boyette made. Boyette testified that he told Grant that
Customs, during a three year investigation, had received
information that Narviz was involved in narcotics smuggling.
Boyette also testified that after arresting and debriefing four
people, investigators were led to Narviz’s ranch. Again, we find
that the district court did not abuse its discretion in admitting
the testimony. The arrest and debriefing statement, like
Hildreth’s testimony, is not hearsay because it is not offered to
prove the truth of the arrests and debriefings. Instead, the
testimony is used to explain why investigators went to Narviz’s
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ranch. As for Boyette’s warning to Grant, the testimony was
offered to refute Grant’s implication at trial that he knew nothing
about Narviz’s illegal activities. While Boyette’s testimony may
have been prejudicial3, Narviz only argues that the testimony was
inappropriate because it was hearsay. The testimony is not hearsay
because the testimony was offered to show what Grant knew not
whether Customs was actually investigating Narviz. Again, the
district court did not abuse its discretion in admitting either
Hildreth’s or Boyette’s testimony.
5. UNITED STATES SENTENCING GUIDELINES
This Court reviews the district court’s factual findings as to
the relevant quantity of drugs under the clearly erroneous
standard. United States v. Montes, 976 F.2d 235, 240 (5th Cir.
1992).
In making sentencing determinations, a district court may
consider a wide range of evidence and must be afforded wide
discretion in the sources of information it uses. United States v.
Kimbrough, 69 F.3d 723, 734 (5th Cir. 1995). However, the
information upon which a judge relies must have “a sufficient
indicia of reliability to support its probable accuracy.” U.S.
SENTENCING GUIDELINES MANUAL §6A1.3(a) (1995). While a PSR generally
bears sufficient indicia of reliability, United States v. Alfaro,
3
We do not address whether the testimony was prejudicial because
all issues not briefed are waived. Cinel v. Connick, 15 F.3d 1338,
1345 (5th Cir. 1994).
12
919 F.2d 962, 966, “[b]ald, conclusionary statements do not acquire
the patina of reliability by mere inclusion in the PSR.” United
States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993).
Narviz’s presentence report (“PSR”) holds him responsible for
10,074 kilograms of marijuana. The probation officer states in the
PSR that the total is based primarily on information contained in
various debriefings, recorded meetings and telephone calls, and on
the amount of marijuana seized in the different arrests of the co-
conspirators. She further states that “[a]lthough the Government
has information from cooperating individuals that the defendant was
involved in narcotics trafficking activities. . . over a period. .
. of years, this information has not been corroborated with any
specificity. Therefore, the defendant is accountable for only
those amounts of drugs that have been substantiated[.]” However,
as Narviz points out, the debriefings, recorded meetings, and
telephone calls upon which the probation officer relied are not
attached to the PSR. Nor is there an explanation of how the PSR
was corroborated. In short, there is no way for this Court to know
whether the PSR contains sufficient indicia of reliability.
We hold, though, that even if the PSR is unreliable, the
resulting error is harmless. Assuming arguendo that Narviz’s
sentence were based only on the amounts proven at trial, his
sentence would not change. The PSR holds Narviz responsible for
10,074 kilograms of marijuana, which results in a offense level of
40. See U.S. SENTENCING GUIDELINES MANUAL § 2D1.5 (1995). Narviz
13
concedes that the government proved that he was responsible for
4,802 kilograms at trial. That amount, however, would give him an
offense level of 38, which is a two point reduction. Id. What
Narviz ignores is that his offense level was raised two points for
obstruction of justice. Narviz does not appeal the upward
adjustment for obstruction of justice, and all issues not briefed
are waived. Cinel, 15 F.3d at 1345. Thus, even with the two point
reduction, Narviz’s offense level is 40, which would have resulted
in a sentence of 292-365 months.4 See U.S. SENTENCING GUIDELINES
MANUAL Ch. 5 Pt. A (1995). Because Narviz’s sentence falls within
this range, any error resulting from reliance on the PSR is
harmless. See United States v. Misher, 99 F.3d 664, 671 (5th Cir.
1996), cert. denied sub nom, Cobb v. United States, 118 S. Ct. 73(1997).
6. FORFEITURE
21 U.S.C. § 853 permits the forfeiture of a person’s property
if he has been convicted of a federal drug crime which is
punishable by more than a year’s imprisonment. Here, the jury
found Narviz’s truck was forfeit because it was “used, or intended
to be used, in any manner or part, to commit, or to facilitate the
commission of, [a drug crime]”, 21 U.S.C. § 853(a)(2), and because
it afforded Narviz control over a continuing criminal enterprise,
21 U.S.C. § 853(a)(3). On appeal, Narviz only contests the
4
This sentence applies to a defendant with an offense level of
40 and a criminal history that falls within category I.
14
forfeiture under (a)(2). Because the forfeiture is sufficient
under § 853(a)(3), we affirm.
B. GRANT
1. COMPENSATED WITNESSES
Grant argues that the government’s case against him was based
largely on three compensated witnesses, who were paid either in
terms of travel expenses or in lenient sentence recommendations.
As a result, he was entitled to a compensated witness instruction;
however, the trial court only generally instructed the jury on the
effect of a plea agreement. Because Grant failed to raise this
claim at trial, this Court reviews for plain error. United States
v. Lopez, 923 F.2d 47, 49 (5th Cir. 1991).
For a compensated witness’ testimony to be admissible, it must
meet four requirements: 1) the government may not encourage or
deliberately use perjured testimony; 2) the government must
completely and timely disclose to the accused the fee arrangement
it made with the informant; 3) the accused must have an adequate
opportunity to cross-examine the informant and government agents
about any compensation agreement; and 4) the trial court must give
a careful instruction to the jury pointing out the compensated
witness’ suspect credibility. United States v. Rizk, 833 F.2d 523,
525 (5th Cir. 1987).
While the judge did not give an instruction pointing out the
witnesses’ suspect credibility, he did instruct the jury to
15
carefully, cautiously weigh the testimony of those who have entered
into a plea agreement.5 It is up to the jury to evaluate the
credibility of compensated witnesses, United States v. Garcia
Abrego, 141 F.3d 142, 151 (5th Cir. 1998), and the judge’s
instruction allowed the jury to do so. Any error, then, in failing
to give a specific instruction does not rise to the level of plain
error.
2. SPEEDY TRIAL ACT
This Court reviews the factual findings supporting a Speedy
Trial Act ruling for clear error and the legal conclusions de novo.
United States v. Grosz, 76 F.3d 1318, 1323 (5th Cir.), cert.
denied, 117 S. Ct. 167 (1996); United States v. Tannehill, 49 F.3d
1049, 1051 (5th Cir.), cert. denied, 116 S. Ct. 167 (1995).
Under the Speedy Trial Act (“the Act”), a defendant must be
tried within seventy days of indictment or of the day the defendant
first appears before the judge or magistrate, whichever is later.
18 U.S.C. § 3161(c)(1). If more than seventy days pass, the
indictment is dismissed upon the defendant’s motion. 18 U.S.C. §
3162(a)(2). Delay resulting from any pretrial motion through the
conclusion of the hearing or other prompt disposition of the motion
is excluded from calculation. 18 U.S.C. § 3161(h)(1)(F). All the
5
The judge instructed that “[t]he testimony of one who provides
evidence against a defendant as an informer pursuant to the terms
of a plea agreement, or for personal advantage or vindication, must
always be examined and weighed by the jury with greater care and
caution than the testimony of ordinary witnesses.”
16
time between filing the motion and concluding the hearing is
excluded whether or not a delay in holding the hearing is
reasonably necessary. Henderson v. United States, 476 U.S. 321,
330 (1986).
Grant argues that ninety non-excludable days elapsed between
the time he was indicted (December 5, 1995) and the time he moved
to dismiss the indictment pursuant to the Act (November 26, 1996).
Thus, the trial court should have dismissed his indictment. We
disagree.
As stated above, the Act begins counting seventy non-
excludable days from the day of indictment or the day the defendant
first appears in court, whichever is later. While Grant was
indicted December 5, 1995, he did not make his first appearance
until January 5, 1996. Because his first appearance was later than
the indictment, Grant’s calculation includes more than twenty
improperly counted days. Thus, fewer than seventy excludable days
elapsed.
3. INSUFFICIENT EVIDENCE
Grant argues that he was improperly convicted of money
laundering. For the government to convict him, it must prove that
he transferred money to or from the United States with the intent
of promoting or carrying on of marijuana distribution. See 18
U.S.C. § 1956(a)(2). He concedes that he asked another to transfer
money from Mexico to the U.S. to pay for the ranch; however, he
17
contends that there is insufficient evidence showing that he knew
that ranch was being used for illegal activity.
This Court reviews the evidence in the light most favorable
to, and with all reasonable inferences drawn in support of, the
verdict. United States v. Thompson, 130 F.3d 676, 688 (5th Cir.
1997). We must affirm Grant’s conviction under these counts if any
rational trier of fact could have found the essential elements
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979).
Because Grant admits that he directed ranch payments to be
transferred from Mexico to the U.S., the only question is whether
there is sufficient evidence to show that Grant knew of the ranch’s
illegal purpose. He contends that the evidence is insufficient.
Six months after Grant became ranch foreman in 1991, he was kicked
off because the buyer6 had not made regular payments. He did not
return until early 1993. Moreover, the first direct event linking
the ranch to marijuana distribution occurred in October 19947 after
Grant ceased to be foreman.
Grant’s argument fails because he does not point this Court to
6
The government alleges that Narviz used a straw man, Francisco
Garcia, to purchase the ranch. The evidence showed, though, that
Narviz made the payments.
7
In October 1994, an potential buyer unexpectedly stopped by the
ranch. He testified that he could smell marijuana and that he
observed eight Hispanic men with backpacks and bedding in the ranch
house.
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any evidence which would contradict the government’s evidence that
he was connected with marijuana distribution. For instance, while
Grant claims he was not the foreman in October 1994, he fails to
substantiate his argument with evidence in the record. Nor does he
point this Court to any evidence that would show that his sole
capacity at the ranch was foreman. On the other hand, the
government’s evidence shows that six months after Grant became
foreman, all the cattle were gone and the trees showed signs of
neglect. Further, routine oil changes had not been done on the
equipment, and fences had deteriorated or been removed altogether.
Twenty months after Grant returned, the ranch still had no pecans
or cattle, and the stock pens, irrigation ditches, and two houses
were neglected.
The government also presented evidence that David Powell, a
co-conspirator, had picked up a marijuana load at the ranch for
Juan Martinez. Moreover, when Grant’s house was searched after his
arrest, agents found an envelope with the name “Juan Martinez”
penciled on it. While this evidence is thin, we review in the
light most favorable to the verdict. We cannot say that a rational
trier of fact could not have found beyond a reasonable doubt that
Grant laundered money.
4. UNITED STATES SENTENCING GUIDELINES
The district court’s finding of fact are reviewed for clear
error, and its application of those facts to the guidelines are
19
reviewed de novo. United States v. Moore, 997 F.2d 55, 60 (5th
Cir. 1993). Under the sentencing guidelines, a defendant is
accountable for all relevant conduct including the foreseeable acts
of his co-conspirators. United States v. Sotelo, 97 F.3d 782, 799
(5th Cir. 1996); UNITED STATES SENTENCING GUIDELINES MANUAL §
1B1.3(a)(1)(B). In attributing the acts of co-conspirators to a
particular defendant, those acts must be reasonably foreseeable and
within the scope of the criminal activity. United States v. Smith,
13 F.3d 860, 867 (5th Cir. 1994).
Grant argues that the 9,028 kilograms attributed to him were
not reasonably foreseeable. He contends that there was no evidence
that he was involved in the drug conspiracy from 1991-94. Rather,
he claims involvement beginning in September 1995. Because 400
pounds were delivered between September and November 1995, he
claims responsibility only for that amount.
Grant’s argument here is similar to his insufficiency of the
evidence argument. Again, he fails to present any evidence to
support his argument that he was not involved from 1991-94.
However, we do have evidence before us that while Grant was foreman
the ranch was severely neglected. Further, the government
presented evidence that in October 1994, a potential buyer, who had
contracted to purchase the ranch, made an unexpected visit. The
visit made him suspicious that illegal drug activity was occurring
at the ranch. When he reported these suspicions, Grant replied
that he “would see about it”. Grant, however, sued to void the
20
sale contract with the buyer and to bar him from the ranch. With
this evidence before us, and with nothing to contradict it, we hold
that the 9,028 kilograms of marijuana was foreseeable and thus,
affirm Grant’s sentence.
CONCLUSION
For the foregoing reasons, we VACATE Narviz’ CONVICTION on
count one. Otherwise, we AFFIRM Narviz’s CONVICTIONS on the
remaining counts and his SENTENCE. As for Grant, we AFFIRM both
his CONVICTIONS and SENTENCE.
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