United States v. Moreno ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-20334
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MORENO; RICHARD HUGLY,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CR-H-93-172-2)
_________________________________________________________________
June 27, 1996
Before JONES, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Appellants Richard Hugly and Juan Moreno were convicted
of conspiring to traffic in and of possessing cocaine. The
district court sentenced them, inter alia, to life in prison. They
now appeal their convictions and sentences. Finding no error, we
affirm.
*
Pursuant to Local Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in Local Rule 47.5.4.
Hugly and Moreno were found guilty of conspiring to
distribute a large quantity of cocaine. Hugly was the leader of
the conspiracy. He negotiated the cocaine sales and directed the
pricing, movement, storage, and delivery of the cocaine. Moreno
was his second-in-command. He was responsible for assisting Hugly
in negotiating sales, for counting the proceeds, for diluting and
measuring cocaine, and for delivering it. The conspiracy included
other members who guarded, transported, and delivered cocaine.
Hugly and Moreno were caught as part of an undercover
“sting” in which one of their associates, Christopher Nagar, agreed
to cooperate with the Drug Enforcement Administration. The DEA
devised a two-part plan in which Nagar would purchase up to 20
kilograms of cocaine from Hugly’s and Moreno’s operation. In May
1992, Nagar purchased a one kilogram “sample” of cocaine from them.
Subsequently, Nagar negotiated the purchase of 15-20 more kilograms
of cocaine from Hugly and Moreno, although he was unable to
complete this transaction.
Hugly and Moreno were indicted and convicted of
conspiring to possess with the intent to distribute in excess of 5
kilograms of cocaine, in violation of 21 U.S.C. §§ 841 and 846, and
of aiding and abetting each other in possessing with intent to
distribute over 500 grams of cocaine, in violation of 18 U.S.C. §
2 and 21 U.S.C. § 841. The district court sentenced them each to
life in prison, a $50,000 fine, and 5 years’ supervised release.
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Hugly and Moreno timely appealed their convictions and
sentences.
A. Hugly
Hugly argues on appeal that his convictions are barred by
double jeopardy; the evidence was insufficient to support his
convictions; the district court erred in not giving a multiple
conspiracy instruction to the jury; and the district court erred in
sentencing him.
First, Hugly argues that his convictions are barred by
the double jeopardy clause of the Fifth Amendment because prior to
his trial, the government had secured four summary forfeitures
totaling $48,000 taken from his apartment, bank accounts, and
person. Like this court, the Supreme Court has rejected this
argument. United States v. Ursery, ___ U.S. ___, ___ S.Ct. ___,
1996 WL 340815 (1996). See also United States v. Arreola-Ramos, 60
F.3d 188 (5th Cir. 1995).
Second, Hugly contends the evidence was insufficient to
support his convictions for conspiracy and possession. Hugly did
not, though, renew his motion for acquittal at the close of all the
evidence. Thus, we review his convictions only for a manifest
miscarriage of justice. United States v. Inocencio, 40 F.3d 716,
724 (5th Cir. 1994).
No manifest miscarriage of justice occurred in Hugly’s
conviction for conspiracy; the evidence showed he was not merely
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associated with Moreno, but also conspired with him. See United
States v. Rodriguez-Mireles, 896 F.2d 890, 892 (5th Cir. 1990)
(setting forth elements of conspiracy). The government introduced
wiretapped telephone calls in which Nagar negotiated the purchase
of one kilogram, and later of 15-20 kilograms, of cocaine with both
Hugly and Moreno. Nagar also testified that he met both Hugly and
Moreno at Hugly’s apartment in buying the one kilogram of cocaine.
There, Hugly instructed Moreno to take Nagar to the organization’s
“stash house” to complete the transaction. Further, Frederick
Washington, the guard at the stash house, testified that Hugly was
the leader of the conspiracy and that Moreno was his second-in-
command. Michael Verizzi also testified that he had bought cocaine
from Hugly and Moreno on several occasions. Thus, Hugly’s
conviction for conspiracy was not manifestly unjust.
Similarly, the conviction for cocaine possession does not
rise to the level of manifest injustice. See United States v.
Polk, 56 F.3d 613, 619-20 (5th Cir. 1995) (setting forth elements
of possession). That conviction follows from his conspiracy
conviction. Given that the jury reasonably convicted Hugly of
conspiring to distribute cocaine, it is not unjust for him to be
convicted of constructively possessing the cocaine distributed by
the conspiracy. See United States v. Quiroz-Hernandez, 48 F.3d
858, 865 (5th Cir. 1995).
Third, Hugly argues that the district court erred in not
giving a multiple conspiracy instruction to the jury; Hugly
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contends that if he did participate in a conspiracy, it was a
different one from that charged in the indictment. Hugly, though,
did not request such an instruction at trial. Therefore, we review
his argument for plain error. United States v. Alford, 999 F.2d
818, 824 (5th Cir. 1993); Fed. R. Crim. Pro. 52(b). That standard
is not met. See United States v. Richerson, 833 F.2d 1147, 1155-56
(5th Cir. 1987) (failure to give multiple conspiracy instruction
generally does not constitute plain error). Initially, Hugly has
not shown there is an evidentiary basis to support a multiple
conspiracy charge. He has not identified the evidence he claims
shows that he and Moreno were involved in a different conspiracy
than the one charged. Also, we reject Hugly’s argument because it
is merely a reiteration of his sufficiency-of-the-evidence claim.
As discussed above, it is not manifestly unjust to infer that Hugly
had engaged in one common criminal enterprise with Moreno to
distribute cocaine.
Fourth, Hugly argues that the district court clearly
erred in finding he was responsible for leading a conspiracy that
handled over 200 kilograms of cocaine, and thus erred in sentencing
him to a base offense level of 38. We disagree. At trial,
Washington testified that he had transported cocaine many times for
the conspiracy and, on one occasion, had transported 100-200
kilograms of cocaine. Also, Nagar testified that he had negotiated
the purchase of 15-20 kilograms of cocaine from the conspiracy. In
addition to these amounts, the government’s pre-sentencing
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investigation documented that the conspiracy distributed 226 more
kilograms of cocaine. Therefore, the district court’s finding that
the conspiracy had distributed over 200 kilograms of cocaine was
not clearly erroneous.
Hugly’s arguments to the contrary are unpersuasive.
Washington’s uncertainty about the precise amount of cocaine
transported does not make the district court’s finding clearly
erroneous. The district court found that Washington’s testimony
was credible, that his uncertainty was understandable given the
scope of his activities for the conspiracy, and that the other
evidence corroborated his testimony. Also, we reject Hugly’s
argument that the district court applied an incorrect evidentiary
standard in finding the conspiracy distributed over 200 kilograms.
While the court did use the phrase “reasonable probability” in one
sentence, the court subsequently found that “the evidence was
beyond a reasonable doubt that this enterprise engaged in multiple
hundred kilos of cocaine during the course of its life” (emphasis
added).
Fifth, Hugly argues that the district court clearly erred
in finding he led an organization of five or more members, and thus
erred in increasing his sentence by four base levels under U.S.S.G.
§ 3B1.1(a). Hugly contends he led a conspiracy of only three
persons -- himself, Moreno, and Washington -- and that his other
associates were merely independent contractors. Shielded by the
clear error standard, the court’s finding to the contrary is
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correct. The evidence could readily be interpreted as proving that
others such as Verizzi, Steve Simon, and Paul Nell were wholesalers
for Hugly, and that Walton was his associate.
Sixth, Hugly argues the district court clearly erred in
finding that the thirteen firearms found at the stash house were
connected to the conspiracy, and thus erred in increasing his
sentence by two levels under U.S.S.G. § 2D1.1(b)(1). We disagree.
That section’s commentary states that the court should enhance a
sentence for weapons possession “unless it is clearly improbable
that the weapon was connected to the offense.” U.S.S.G. § 2D1.1,
Comment n.3. Hugly does not dispute that thirteen weapons,
including an UZI and three automatic rifles, were found at the
stash house. It is not clearly improbable they were there to
protect the cocaine. The district court’s sentencing enhancement
was thus appropriate.
Seventh, Hugly argues that the district court abused its
discretion in not conducting an evidentiary hearing before finding
that he had obstructed justice and increasing his sentence by two
levels under U.S.S.G. § 3C1.1. Under the guidelines, the conduct
of a hearing is discretionary. United States v. Pologruto, 914
F.2d 67, 68-69 (5th Cir. 1990); U.S.S.G. § 6A1.3 At trial,
Washington testified that Hugly offered him $30,000 to change his
testimony, and Nagar testified that Hugly attempted to intimidate
him into changing his testimony. At the sentencing hearing, the
district court allowed Hugly to file a sworn affidavit denying that
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he had committed those actions. Accordingly, the district court
did give Hugly the opportunity to present all relevant information
regarding his sentence. The district court thus did not abuse its
discretion in determining that a hearing was not necessary.
B. Moreno
Moreno first argues that the district court plainly erred
in failing to order a mistrial because some jurors inadvertently
saw him and Hugly in the custody of the U.S. marshals wearing
handcuffs. The district court determined, however, that Moreno had
suffered no prejudice from the incident. The court also told the
jury that it could not infer “any suggestion of guilt” from seeing
the defendants-appellants in custody. Thus, the incident did not
rise to the level of plain error. See Wright v. State of Texas,
533 F.2d 185, 188 (5th Cir. 1976).
Moreno contends incorrectly that the court’s instruction
was untimely. Moreno’s trial lasted only two days, and the jury
received the instruction the morning after the incident. This
minimal delay could not have prejudiced Moreno. Additionally,
Moreno’s arguments that the situation was incurable and that the
jury disregarded the court’s instruction are contrary to this
circuit’s decisions. The Fifth Circuit has held that a juror’s
inadvertent observation of a defendant being transported in
shackles is not inherently prejudicial, United States v. Escobar,
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674 F.2d 469, 479-80 (5th Cir. 1982), or incurable, Wright, 533
F.2d at 187-88.
Second, Moreno contends that the district court erred in
finding, for sentencing purposes, that he was involved in
distributing over 200 kilograms of cocaine. See U.S.S.G. §
1B1.3(a). Moreno asserts that he did not know Hugly was
distributing over 200 kilograms of cocaine, that he could not have
reasonably foreseen the conspiracy would be distributing such a
large amount, and that he should only be sentenced based on the 5
kilograms of cocaine he actually delivered. We disagree. The
evidence at trial showed that Moreno was Hugly’s second-in-command
and was responsible for assisting him in negotiating sales, for
counting money, for diluting and measuring cocaine, and for making
deliveries. Moreno also was knowledgeable about the cocaine
shipments received by Hugly and their quantities, and was often
present when Hugly negotiated sales at his apartment. Given
Moreno’s relationship with Hugly, the district court did not err in
finding that Moreno knew or could have reasonably foreseen that the
conspiracy was distributing over 200 kilograms of cocaine.
Moreno additionally lists as a third appellate issue his
belief that the court improperly increased his base sentencing
level for his role in the offense. Because he did not brief this
issue, it was waived.
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For the foregoing reasons, the convictions and sentences
of Hugly and Moreno are AFFIRMED.
10