United States v. Limones ( 1993 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-8152
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SANTOS LIMONES and JUAN ANTONIO FUENTES,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Texas
(November 29, 1993)
Before REYNALDO G. GARZA, KING and DeMOSS, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Santos Limones and Juan Antonio Fuentes appeal their
convictions for conspiracy to possess cocaine and possession of
cocaine with intent to distribute. Finding no error, we AFFIRM.
I. FACTS
On November 1, 1990, Armando Ramirez, an agent of the Drug
Enforcement Administration, received a phone call from Francisco
"Pancho" Rodriguez Hernandez ("Rodriguez"). Rodriguez called to
provide information about a load of cocaine being transported in a
pickup truck in Eagle Pass, Texas. Acting on that information,
government agents found a load of cocaine in Eagle Pass the next
day. Based on their investigation, agents concluded that Rodriguez
had removed some of the cocaine from the pickup truck before
reporting the load to Agent Ramirez.
Ricardo Almeda-Alvarado ("Almeda"), a convicted drug dealer,
testified for the Government pursuant to a plea bargain agreement.
Almeda admitted that he would receive a more lenient sentence as
part of his plea bargain agreement. Almeda testified that
Rodriguez sent him some cocaine to sell on November 1 or 2. Almeda
took this cocaine to Ft. Worth after a buyer was found for the
cocaine by Juan Antonio Fuentes ("Fuentes"). Almeda also testified
that they were going to sell the cocaine for $18,000 a kilo and
that Fuentes was going to receive $1,000 a kilo for "this deal."
Almeda further testified that Santos Limones ("Limones") helped
transport the cocaine to Ft. Worth. Almeda claimed that Limones
helped him transport cocaine to Ft. Worth on two different
occasions, making two trips on each occasion.
Almeda testified that Limones drove a station wagon with the
cocaine hidden in the sides of the vehicle. Almeda and Fuentes
drove in a separate "lead car". The lead car was driven by Almeda
and Fuentes was the passenger. When the three men arrived in Ft.
Worth, Almeda phoned the purchaser of the cocaine, Jaime Garcia
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("Garcia"). After Garcia arrived, he and Fuentes left in a car
with the cocaine and Almeda and Limones stayed behind. Fuentes and
Garcia returned more than an hour later with the proceeds from the
sale of the cocaine. Almeda, Limones and Fuentes went back to Del
Rio that night and they returned to Ft. Worth a few days later with
another load of cocaine.
II. PROCEDURAL HISTORY
Limones and Fuentes were charged in a two-count indictment
with conspiracy to possess more than five kilograms of cocaine in
violation of 21 U.S.C. sections 841(a)(1) and 846 (count one), and
with possession with intent to distribute more than five kilograms
of cocaine in violation of 21 U.S.C. section 841(a)(1) (count two).
The case went to trial on December 14, 1992 before Judge Prado of
the Western District of Texas, and on December 18, 1992 the jury
convicted Limones and Fuentes on both counts. On February 1, 1993
Limones was sentenced to 210 months imprisonment on counts one and
two, to run concurrently, and to a five-year term of supervised
release. Limones was also ordered to pay $100 in special
assessments. Fuentes was sentenced to 188 months of imprisonment
on counts one and two, to run concurrently, and to a five year term
of supervised release. Fuentes was also assessed $100. Limones
and Fuentes ("appellants") timely appealed to this court.
III. ANALYSIS
The appellants' claim the district court erred in: (1)
refusing to grant a mistrial on four separate occasions; and (2)
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admitting irrelevant and prejudicial hearsay evidence. Fuentes,
alone, claims the district court erred in finding sufficient
evidence to uphold his conviction, and that a fatal variance exists
between the Government's proof and the indictment.
We find that the district court did not err in: (1) refusing
to grant the appellants' motions for mistrial; and (2) finding
sufficient evidence to uphold Fuentes' conviction. Although the
district court erred in admitting irrelevant and prejudicial
evidence, this was harmless error. Finally, a fatal variance does
not exist between the Government's proof and the indictment.
A. Motions for mistrial
The appellants argue that the district court erred in refusing
to grant a mistrial on four separate occasions. They claim the
first error concerned testimony regarding the death of Rodriguez.
The appellants assert that Limones moved in his Motion in Limine C
to preclude the government from alluding in any manner before the
jury to the nature and cause of Rodriguez's death.1 The appellants
argue that although the Government did not elicit the testimony,
its witness, Almeda gave a "nonresponsive answer" to a question
that so tainted the minds of the jurors that a mistrial should have
been granted.2 Also, during the testimony of Agent Delfino
1
The district court granted the motion, noting that it
would rule on the admissibility of the evidence concerning
Rodriguez's murder when the Government intended to introduce the
evidence.
2
The testimony in question is the following:
PROSECUTOR: I'm--I forgot to ask you this one question.
Mr. Almeda. At the time that you were meeting with Miguel from
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Sanchez, Jr., tapes of his conversation with Almeda were introduced
into evidence. These tapes again referred to Rodriguez's murder.
The appellants assert that a second motion for mistrial was
requested when the Government asked Almeda if he had any concern
for his safety or the safety of his family for having taken the
stand. Almeda answered affirmatively. The appellants argue that
the Government elicited this testimony in bad faith, because it
could not prove that any threats had been made. The appellants
argue that even though the district court instructed the jury to
disregard the question and the answer, no instruction could cure
the prejudicial effect upon the jury.
Limones alone moved for a mistrial when Deputy Marshal James
Lee stated that Almeda had been dealing drugs for "several years .
. . he's been in the business about as long as Mr. Limones has."
Limones acknowledges that the district court properly instructed
the jury to disregard the testimony. However, Limones argues that
the district court's instruction could not remedy the prejudicial
effect because the extrinsic-offense testimony closely resembled
his charged offense. United States v. Beechum, 582 F.2d 898, 914
(5th Cir. 1986)(en banc), cert. denied, 440 U.S. 920 (1979).
Limones further argues that the evidence of the uncharged drug
dealing had a significant probability of substantially affecting
Houston, did you at any time introduce[] [sic] Santos Limones to
that officer?
ALMEDA: I didn't introduce him to him. I just--these
people were coming to verify if I had-- be Mr. Francisco
Rodriguez, and--because they told me they had killed him, Mr.--
whatever Miguel was supposed to be giving--Francisco the cocaine.
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the jury's verdict. United States v. Kimble, 719 F.2d 1253, 1257
(5th Cir. 1983), cert. denied, 464 U.S. 1073 (1984).
The appellants' final motion for mistrial concerned the
testimony of several government witnesses who testified as to the
alleged coconspirator statements introduced into evidence prior to
the district court's mandatory "threshold" finding that a
conspiracy did in fact exist. The Appellants argue that the
district court erroneously ruled that the evidence presented by the
Government gave the court sufficient reason to find a conspiracy.
The appellants argue that the cumulative error during this
trial so tainted the proceedings that the jury was unlikely able to
erase the prejudicial effect from their minds. United States v.
Escamilla 666 F.2d 126, 128 (5th Cir. 1982).
This court will reverse a district court's refusal to grant a
mistrial only for an abuse of discretion. United States v. Baresh.
790 F.2d 392, 402 (5th Cir. 1986). Furthermore, where a motion for
mistrial involves the presentation of prejudicial testimony before
the jury, a new trial is required only if there is a "significant
possibility" that the prejudicial evidence had a "substantial
impact" upon the jury verdict, viewed in light of the entire
record. United States v. Escamilla, 666 F.2d 126, 128 (5th Cir.
1982).
With regard to the appellants' first motion for mistrial, the
Government points out that Almeda's testimony concerning
Rodriguez's death was unresponsive to the question asked. In
contrast to Escamilla, where the testimony in question was the only
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evidence establishing the defendant's guilt, the evidence of
Rodriguez's murder did not contribute to the appellants' drug
convictions. Id. Moreover, the district court asked the appellants
if they wanted a curative instruction for the tape recorded
conversations concerning Rodriguez's murder and the appellants
declined the instruction.
Pertaining to the appellants' second and third motions for
mistrial, the district court instructed the jury to disregard
Almeda's testimony regarding his concern for his safety and that of
his family, and U.S. Deputy Marshal Lee's characterization of
Limones as a long time drug dealer. This court has declined to
reverse a district court's refusal to grant a mistrial when the
district court has immediately instructed the jury to disregard the
evidence of extrinsic offenses or other wrongs. See, United States
v. Walker, 621 F.2d 163 (5th Cir.), cert. denied, 450 U.S. 1000
(1980).
Finally, addressing appellants' argument that the
coconspirator statements were not made in the course of and
furtherance of a conspiracy, the term "in furtherance" of a
conspiracy is broadly construed and clearly encompasses the
testimony contained in the taped conversation between Almeda and
Sanchez. See, United States v. Johnson, 872 F.2d 612, 623 (5th cir.
1989). Furthermore, the district court expressly held that the
requirements for the admission of coconspirator statements had been
met. United States v. Fragoso, 978 F.2d 896, 899 (5th Cir. 1992).
The significant evidence of the appellants' guilt renders it
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unlikely that any or all of the testimony complained of had a
substantial impact on the jury's verdict. United States v.
Rodriguez Arevalo, 734 F.2d 612, 615 (11th Cir. 1984). Therefore,
the district court did not abuse its discretion in refusing to
grant the appellants' motions for mistrial.
B. Evidentiary rulings
Limones argues that the district court erred in admitting
evidence that Rodriguez had been murdered by drug-dealing
confederates. Limones argues that this evidence was irrelevant and
extremely prejudicial hearsay because the jury could easily have
inferred that he was involved with the murder.
In reviewing a district court's evidentiary rulings, this
court will reverse only for an abuse of discretion. United States
v. Anderson, 933 F.2d 1261, 1267-68 (5th Cir. 1991). The district
court erred in admitting irrelevant and prejudicial evidence of
Rodriguez's murder. Thus we must determine whether this was
harmless error. FED. R. CRIM. P. 52(a). In view of other
overwhelming evidence of the appellants' guilt, as discussed in the
sufficiency of the evidence section, and the unlikelihood that the
prejudicial evidence had a substantial influence on the outcome of
the trial, we find that the district court's error was harmless.
United States v. Poitier, 623 F.2d 1017, 1021 (Fifth Cir. 1980).
C. Sufficiency of the evidence
Fuentes argues that the Government failed to prove each and
every element of the offenses charged in the indictment. Fuentes
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argues that this court will reverse a conviction when the evidence
is so weak or so contrary to guilt that it would compel a jury to
entertain a reasonable doubt of the defendant's guilt. United
States v. Del Aguila-Reyes, 722 F.2d 155, 157 (5th Cir. 1983).
Fuentes argues that after the conclusion of the Government's
case there was clearly insufficient evidence to find him guilty.
Fuentes argues that the only evidence that proves that he was
involved in a conspiracy to possess cocaine is the uncorroborated
testimony of coconspirator Almeda, a known drug dealer, and an
address book seized from defendant Alberto Trevino Alderete's3
house which had Fuentes' name on it, and Fuentes' business card.
Fuentes also argues that Almeda's testimony is incredible or
otherwise insubstantial on its face. United States v. Osum, 943
F.2d 1394, 1405 (5th Cir. 1991).
Fuentes further argues that the Government failed to show
direct or circumstantial evidence that he was a willing and knowing
participant in the possession of cocaine. Fuentes argues that the
fact that Limones was in possession of the vehicle with the
cocaine, while he was a passenger in the lead car is insufficient
by itself to sustain a conviction against him for the conspiracy to
possess with intent to distribute cocaine, or for possession of
cocaine. United States v. Ascarrunz, 838 F.2d 759 (5th Cir. 1988).
In reviewing challenges to the sufficiency of the evidence,
this court must determine whether a rational trier of fact could
3
Trevino Alderete was originally charged with Fuentes and
Limones, however, after the trial began, he changed his plea to
guilty.
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have found that the evidence established guilt beyond a reasonable
doubt. United States v. Carrasco, 830 F.2d 41, 43 ((5th Cir. 1987).
In making this determination, this court considers the direct and
circumstantial evidence in a light most favorable to the
government, and accepts all reasonable inferences which tend to
support the jury's verdict. Id. at 43-44. To establish the offense
of a drug conspiracy, the Government must prove beyond a reasonable
doubt that a conspiracy existed, that the accused knew of the
conspiracy, and that he voluntarily joined it. United States v.
Rodriguez-Mireles, 896 F.2d 890, 892 (5th Cir. 1990). To establish
the offense of possession of a controlled substance with intent to
distribute, the government must prove knowing possession of the
contraband with intent to distribute. United States v. Romero-
Reyna, 867 F.2d 834, 836 (5th Cir. 1989).
Fuentes' argument is basically that the evidence is
insufficient because Almeda's testimony should not have been
believed. The fact that Almeda is a known drug dealer, however,
goes to the weight rather than the sufficiency of the evidence.
See, United States v.Greenwood, 974 F.2d 1449, 1458 (5th Cir.
1992), cert. denied sub nom., ___U.S.___, 113 S. Ct. 2354 (1993).
Evidence at trial established that Fuentes was directly
involved in the plan to transport the cocaine to Ft. Worth. The
evidence also established that Fuentes found a buyer for the
cocaine. Specifically, on November 1, Fuentes called his buyer and
told him that "we [are] going over to Ft. Worth and take [sic] some
cocaine and sell it over there." Upon Limones, Almeda and Fuentes'
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arrival in Ft. Worth, Fuentes called Garcia, the buyer of the
cocaine. Subsequent to this phone call, Limones, Almeda and
Fuentes met with Garcia at the J&J Auto Clinic. When they first
arrived at the Auto Clinic, Garcia was already there and Fuentes
was the first one to talk to Garcia. Garcia and Fuentes left in a
car with the cocaine while Almeda and Limones stayed behind. They
returned more than an hour later with the proceeds from the sale of
the cocaine. It was further established that Fuentes was going to
receive $1,000 for "this deal."
Contrary to Fuentes' argument, evidence corroborating Almeda's
testimony was introduced at trial. Employees from the Ft. Worth
Holiday Inn and Motel 6, testified that Garcia rented a room at the
Holiday Inn on or near the day in question and that Almeda rented
a room at the Motel 6 on November 13 and 17, and December 12, 1990.
Telephone bills and an address book containing Fuentes' name and
phone number, and Fuentes' business card further corroborate
Almeda's testimony.
Therefore, sufficient evidence exists to uphold Fuentes'
conviction on both counts.
D. Variance between the Government's proof and the
indictment
Fuentes argues that a fatal variance exists between the
indictment which charged "multiple conspiracies" and any actual
proof of his involvement. Fuentes argues that at issue in his case
was the sale of approximately 49 kilograms of cocaine in Ft. Worth.
Fuentes argues that the testimony of 96 kilograms of cocaine seized
in Eagle Pass, Texas and the 539 kilograms discovered in Normandy
11
and Del Rio, Texas were evidence of "independent activities" which
should not have been introduced into evidence. According to
Fuentes, most of the evidence elicited at trial dealt with two
other discrete conspiracies. Fuentes argues that although there
may have been some evidence of his involvement with the Ft. Worth
venture, there was no evidence linking him to the Eagle Pass or Del
Rio ventures.
"We have held that a variance between the offense charged in
the indictment and the proof relied upon at trial constitutes
reversible error if it affects the substantial rights of the
defendant." United States v. Hernandez, 962 F.2d 1152, 1158 (5th
Cir. 1992), cert. denied, ___U.S.___, 113 S. Ct. 2429 (1993).
Furthermore, "[w]e have long held that when the indictment alleges
the conspiracy count as a single conspiracy, but the ``government
proves multiple conspiracies and a defendant's involvement in at
least one of them, then clearly there is no variance affecting that
defendant's substantial rights.'" United States v. Jackson, 978
F.2d 903 (5th Cir. 1992) (citing, United States v. Richerson, 833
F.2d 1147, 1155 (5th Cir. 1987)). At the very least, the
Government established that Fuentes was involved in the Ft. Worth
conspiracy. Therefore, the district court correctly held that
Fuentes' substantial rights were not affected.
IV. CONCLUSION
For the reasons stated above, Limones and Fuentes' convictions
are AFFIRMED.
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