United States v. Zapata ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-10410
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE INEZ ZAPATA,
HECTOR HERNANDEZ, a/k/a Torcha,
MARCO ANTONIO ZAPATA-RODRIGUEZ, JR.,
JOSE ANGEL CASTILLO,
MARCO ANTONIO ZAPATA, III,
NORMA AUGUSTINA RODRIGUEZ,
Defendants-Appellants.
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No. 94-10628
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EFRAIN PUENTE-CERVANTES,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Texas
(3:93-CR-285-R)
_________________________________________________________________
April 4, 1996
Before KING, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
For these numerous challenges to convictions and sentences on
various drug-related charges, primarily at issue are the
admissibility of evidence regarding three murders, and the effect
of post-verdict relationships between several case agents and
jurors. We AFFIRM.
I.
The appellants were charged in a 30-count superseding
indictment. Jose Inez Zapata, Marco Antonio Zapata, III, Hector
Hernandez, Marco Antonio Zapata-Rodriguez, Jr., Jose Angel
Castillo, and Norma Augustina Rodriguez were tried together in
January 1994; Efrain Puente-Cervantes, that April. Each appellant
was convicted on some charges and acquitted on others, and two
other defendants were acquitted in the January trial.
II.
Five of the six appellants from the January trial contend that
the district court erred by admitting evidence of murders. All
appellants assert that they are entitled to new sentencing hearings
because of post-verdict relationships between two case agents and
two jurors from that trial. In addition, Inez Zapata maintains
that the district court erred by denying his severance motion, that
*
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this opinion should not be published and is not precedent except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.
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the evidence is insufficient to sustain his cocaine conspiracy
conviction, and that the court committed two errors in sentencing;
Norma Rodriguez challenges the sufficiency of the evidence on her
money laundering conviction and charges that the court failed to
make a factual finding necessary for her telephone facilitation
sentence; Hernandez raises three sentencing issues; and Puente
contests several evidentiary rulings, as well as his sentence.
A.
Over objection, the district court admitted evidence of the
July 1993 execution-style murders of three men in Chicago, one of
whom was Esteban Zapata, the cousin of appellant Zapata, Jr.
Castillo, Hernandez, Inez Zapata, Zapata, Jr., and Zapata, III,
contend that the evidence was extrinsic and inadmissible under FED.
R. EVID. 404(b), because the Government failed to connect them to
the murders or to establish that the murders were connected to the
charged offenses.1
The admission of this evidence is reviewed only for abuse of
discretion. E.g., United States v. Coleman, ___ F.3d ___, ___,
1
FED. R. EVID. 404(b) provides in relevant part:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident....
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1996 WL 97096, at *1 (5th Cir. 1996). "To determine whether `other
acts' evidence was erroneously admitted, first we must determine
whether the evidence was intrinsic or extrinsic." Id. "[E]vidence
is intrinsic, when the evidence of the other act and evidence of
the crime charged are inextricably intertwined or both acts are
part of a single criminal episode or the other acts were necessary
preliminaries, to the crime charged." Id. (internal quotation
marks and citation omitted). Such evidence "is admissible to
complete the story of the crime by proving the immediate context of
events in time and place". Id. "Intrinsic evidence does not
implicate Rule 404(b), and consideration of its admissibility
pursuant to Rule 404(b) is unnecessary." Id. at *2 (internal
quotation marks and citation omitted).
We agree with the district court's implicit finding that the
murders were inextricably intertwined with the charged
conspiracies. The Government presented evidence that Esteban
Zapata (as noted, the cousin of Zapata, Jr., and one of the murder
victims) was in charge of the Chicago branch of the Zapata
organization, which distributed approximately 300 kilograms of
cocaine from late 1992 into the spring of 1993; and that, by April
1993, $300,000 in drug proceeds was owed by the Chicago branch to
Zapata, Jr., and co-conspirator Marco Antonio Rodriguez-Hernandez.2
2
Rodriguez-Hernandez was indicted along with the appellants,
but was a fugitive at the time of trial.
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Zapata, Jr., was coming under increasing pressure for payment from
their supplier in Mexico.
In addition, the Government presented evidence that Zapata,
Jr., fronted marijuana to Daniel Ortegon (Hernandez's cousin); that
Ortegon's associates in Florida had to lower the price of the
marijuana because of its poor quality; and that, as a result,
Ortegon, through Hernandez, owed Zapata, Jr., between $50,000 and
$60,000. Ortegon's attempts to satisfy his debt by returning the
marijuana, by turning over his Florida customers to Hernandez, or
by obtaining 200 kilograms of cocaine for Zapata, Jr., were
unsuccessful. Ortegon testified that in an intercepted telephone
conversation, which was played for the jury, Zapata, Jr., and
Hernandez discussed, in code, sending Ortegon to Mexico to be
executed for his drug debt. Instead, Ortegon's debt and the
Chicago debt were satisfied in a package deal: Ortegon testified
that, in June 1993, Hernandez told him that "they" had a problem in
Chicago, "one of them" was a cousin of Zapata, Jr., and that
Zapata, Jr., wanted Hernandez to go to Chicago and "take care of
it".
Esteban Zapata and two other individuals involved in the
Chicago branch of the Zapata organization were found murdered,
execution-style, in Chicago on July 12, 1993. There was no
evidence of forced entry, no sign of a struggle, and no evidence
that robbery was a motive for the murders. The investigating
officer testified that eyewitnesses had identified an individual
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seen leaving Esteban Zapata's apartment just after shots were
fired, but that individual was not named.3 In early August 1993,
a Nebraska police officer stopped a vehicle driven by Zapata, Jr.,
in which Hernandez was a passenger. On obtaining identification
from Hernandez, the officer saw a piece of paper in Hernandez's
wallet with the name "Esteban Zapata" written on it; failing to
note any significance, the officer returned the wallet and paper to
Hernandez. A few hours later, the officer was asked to locate the
piece of paper; he obtained the wallet, but the paper was missing.
The evidence of the murders completed the story about the
Chicago operations of the Zapata organization, which were
inextricably intertwined with the Dallas operations of that
organization; explained the intercepted conversations among the co-
conspirators; and corroborated the testimony of Ortegon and other
Government witnesses. Moreover, the murders and the reason they
were ordered -- retribution for failing to pay the conspiracy for
drugs -- was highly relevant to establish the existence of the
conspiracy and the nature of its operations. Accordingly, because
that evidence was intrinsic, the district court was not required to
analyze its admissibility under FED. R. EVID. 404(b), and it did not
abuse its discretion by admitting it.
B.
The verdicts for the first trial were rendered in late January
3
At sentencing, there was evidence that Hernandez was the
individual identified.
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1994, with sentencing in mid-April and mid-May of that year; the
Puente verdict was rendered in late April 1994, with sentencing
that June. That September, after the appellants had filed notices
of appeal, the district court informed counsel that he had received
information about relationships between two of the jurors in the
January trial, and two of the case agents who testified at trial
and/or sentencing. The appellants moved for a new trial.
At an evidentiary hearing in January 1995, a juror and a DEA
agent admitted having an affair from mid-February until April 1994.
Another juror and an FBI agent admitted having sexual intercourse
on February 11, 1994. (The FBI agent previously had denied the
relationship, and he refused to answer questions about it at the
evidentiary hearing until instructed to do so by the court.)
The district court denied the motion for new trial, finding
that the agents and jurors first had personal contact on January
28, following the verdict, in the jury room; that the intimate
relationships did not develop until mid-February; and that the
relationships had "nothing to do with sentencing". The appellants
from the first trial contend that the relationships between the
agents and the jurors so impaired the integrity of the fact-finding
process as to deny due process, and assert that the credibility
findings at sentencing might have been different had the court
known about those relationships and the FBI agent's lies. Puente
(tried separately) contends that his conviction should be reversed
because he should have been informed about the relationships
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between the agents and jurors in the January trial, for use in
impeachment of one of the agents, who testified for the Government
at his trial and was its only witness at sentencing.
The district court's refusal to grant a new trial is reviewed
only for abuse of discretion, United States v. Ruggiero, 56 F.3d
647, 653 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 397,
486 (1995). Puente has not shown that the undisclosed
relationships affected the outcome of his trial. See, e.g., United
States v. Bagley, 473 U.S. 667, 682 (1985). Nor were any of the
appellants' sentences affected. After hearing evidence about the
relationships, the district court found that they had no effect on
its credibility findings at sentencing.
At oral argument, the appellants acknowledged that their
sentences were based primarily on evidence presented at trial, thus
conceding that the district court's credibility findings at
sentencing had no effect on their sentences. Therefore, they ask
primarily that we "send a message" to the FBI and the DEA by
granting new sentencing hearings. That is not our role. Instead,
it is to determine whether the district court abused its discretion
by denying a new trial. Clearly, it did not.
C.
Inez Zapata contends that he was unfairly prejudiced by the
denial of his severance motion, because of the gross disparity in
the evidence against him and his co-defendants (including the
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Chicago murders), which made it impossible for the jury to separate
the evidence applicable to each defendant. "In conspiracy cases,
the general rule is that persons indicted together should be tried
together." United States v. Fields, 72 F.3d 1200, 1215 (5th Cir.
1996).
"Severance is a matter left to the sound discretion of the
trial court, and a defendant is not entitled to severance unless he
can demonstrate specific compelling prejudice that actually results
in his having received an unfair trial." United States v. Capote-
Capote, 946 F.2d 1100, 1104 (5th Cir. 1991), cert. denied, 504 U.S.
942 (1992); see FED. R. CRIM. P. 14. "[N]either a disparity in the
amount of evidence against each defendant nor a supposition that
the evidence against other defendants `spilled over' and prejudiced
the defendant constitute compelling prejudice." Fields, 72 F.3d at
1215.
The jury was instructed to consider the evidence against each
defendant separately. It apparently had no difficulty following
that instruction, inasmuch as it acquitted two defendants on all
charges, and each of the others, including Inez Zapata, were
convicted on some counts and acquitted on others. See Fields, 72
F.3d at 1215 (stating that district court remedied any prejudicial
effect by instructing jury to limit its consideration of the
evidence to the appropriate defendant); United States v. McCord, 33
F.3d 1434, 1452 (5th Cir. 1994) (stating that acquittal of each
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defendant on at least one count reflects that jury was able to sort
and consider separately evidence applicable to each count and each
defendant), cert. denied, ___ U.S. ___, 115 S. Ct. 2558 (1995).
There was no abuse of discretion.
D.
Next, Inez Zapata asserts that the evidence is insufficient to
support his cocaine conspiracy conviction. In reviewing a
sufficiency of the evidence challenge, we view the evidence in the
light most favorable to the verdict to determine whether a
reasonable jury could find that the evidence establishes guilt
beyond a reasonable doubt. E.g., United States v. Gonzalez-
Rodriguez, 966 F.2d 918, 920 (5th Cir. 1992). For a narcotics
conspiracy charge, the government must prove beyond a reasonable
doubt: (1) that two or more persons agreed to violate the
narcotics laws; (2) that each alleged conspirator knew of the
conspiracy and intended to join it; and (3) that each alleged
conspirator participated in the conspiracy. E.g., United States v.
Flores-Chapa, 48 F.3d 156, 161 (5th Cir. 1995).
Although the evidence of Inez Zapata's participation in the
cocaine conspiracy was not as overwhelming as that of his
participation in the marijuana conspiracy, which he does not
challenge on appeal, it was, nevertheless, sufficient. For
example, the evidence includes intercepted telephone conversations
in which Inez Zapata made arrangements for the purchase of cocaine;
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and in which Zapata, Jr., discussed a cocaine and marijuana
transaction with Hernandez, and told Hernandez that he would be out
of town, but that his brother, Inez Zapata, or his son, Zapata,
III, could take care of the transaction while he was away.
E.
Norma Rodriguez, who was married to Inez Zapata, challenges
the sufficiency of the evidence to support her money laundering
convictions under 18 U.S.C. § 1956(a)(1)(A)(i), based on her use of
cash (approximately $1200 over several months) to purchase money
orders to pay cellular telephone bills for herself and Zapata, Jr.
The conviction required proof that Rodriguez "(1) knowingly
conducted a financial transaction; (2) which involved the proceeds
of an unlawful activity; and (3) with the intent to promote or
further that unlawful activity". United States v. Morris, 46 F.3d
410, 423 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 2595
(1995). Rodriguez contends that the Government failed to prove the
second and third elements.
The evidence included intercepted telephone conversations in
which Rodriguez discussed drug transactions and in which she warned
other individuals of the presence of police in the neighborhood.
At trial, Rodriguez admitted that she was aware of her husband's
(Inez Zapata) drug use, and had obtained drugs for his personal
use; she admitted also that, in addition to purchasing money orders
to pay Zapata, Jr.'s, cellular telephone bills, she rented cars for
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Zapata, Jr., and Zapata, III, and obtained credit cards for Zapata,
Jr.
The jury was entitled to reject Rodriguez's innocent
explanations for her conduct, to infer that she was well aware of
the drug-dealing activities of Zapata, Jr., Zapata, III, and her
husband, and to infer that she knew that the funds used to pay the
cellular telephone bills were proceeds of that activity. In light
of the evidence of the pervasive use of cellular telephones, by
Rodriguez and Zapata, Jr., as well as others, to conduct the drug-
dealing activities of the Zapata organization, the jury could have
inferred also that Rodriguez paid the cellular telephone bills with
the intent to promote drug-dealing.
F.
Puente maintains that the district court erred by admitting
drug ledgers seized from others and photographs of weapons, because
the Government failed to connect the evidence to him. "Admission
of evidence is reviewed for abuse of discretion, and even if abuse
is found, the error is reviewed under the harmless error doctrine."
United States v. Capote-Capote, 946 F.2d at 1105; FED. R. EVID.
103(a).
The district court did not abuse its discretion by admitting
evidence related to Puente's co-conspirators. "[P]roof of the
existence of the charged conspiracy is not confined to the acts of
the defendant[] on trial", United States v. Sepulveda, 710 F.2d
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188, 189 (5th Cir. 1983), because, as the district court instructed
the jury, if the defendant is a member of the alleged conspiracy,
the statements and acts of other members of the conspiracy, done in
furtherance of it, may be considered against the defendant.
G.
Puente claims next that the district court erred by allowing
jurors to consider English translations of intercepted telephone
conversations conducted in Spanish, prior to their being admitted
into evidence. "Whether the jury should have the use of
transcripts is a matter left to the sound discretion of the trial
judge." United States v. Rena, 981 F.2d 765, 767 (5th Cir. 1993).
Because the English translations were admitted into evidence, which
Puente does not challenge, the district court did not abuse its
discretion by allowing the jurors to use the translations prior to
admission, while they listened to the tapes.
H.
Puente asserts also that the district court erred by admitting
a DEA agent's testimony that a cooler delivered to Puente by
Zapata, Jr., contained five kilograms of cocaine, because the
testimony was based on speculation. Because Puente was able to
cross-examine the agent about the basis for his belief that the
cooler contained cocaine (intercepted telephone conversations and
surveillance), and about the fact that the agent did not see the
contents of the cooler, the admission of the testimony did not
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affect Puente's substantial rights. See FED. R. EVID. 103(a).
I.
Puente's final contention is that the district court erred at
sentencing by admitting the hearsay testimony of a DEA agent
regarding statements made by co-defendant Castillo with respect to
the quantity of drugs attributable to Puente, and that it
erroneously overruled his request for a continuance of the
sentencing hearing to obtain Castillo's testimony, thereby denying
him his constitutional right of confrontation. There was no error.
"In making its determination of the [quantity of drugs] to be
attributed to [a defendant], the district court is not limited to
the quantity proved at trial nor is it limited to evidence
admissible at trial." United States v. Morris, 46 F.3d at 425.
The right to confrontation "is substantially limited at a
sentencing hearing; the district court may even base its findings
on out-of-court statements". United States v. Sherrod, 964 F.2d
1501, 1507 (5th Cir.), cert. denied, 506 U.S. 1041 (1992), and
cert. denied, 507 U.S. 953, 975 (1993). And, "[a]t sentencing, the
district court may consider hearsay testimony which it finds
reliable". United States v. Rodriguez, 62 F.3d 723, 725 n.9 (5th
Cir. 1995).
J.
Inez Zapata charges that the district court erred by basing
his sentence on 200 kilograms of cocaine distributed by others,
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claiming there was no factual finding that he was part of a
jointly-undertaken scheme to distribute cocaine. Needless to say,
the sentencing "court's findings about the quantity of drugs on
which a sentence should be based are factual findings which we
review for clear error". United States v. Mitchell, 964 F.2d 454,
457 (5th Cir. 1992).
The district court credited the case agent's testimony at
sentencing regarding the quantity of cocaine attributable to Inez
Zapata; although the sentence was based only on the 200 kilograms
that the PSR concluded were reasonably foreseeable to Inez Zapata,
the district court found, based on the agent's testimony, that the
actual quantities were higher than those reflected in the PSR. By
crediting the agent's testimony as to the 200 kilograms of cocaine,
the district court adopted the PSR's conclusion regarding Inez
Zapata's ability to foresee the distribution of 200 kilograms of
cocaine. Moreover, the court's specific rejection of Inez Zapata's
objection to the amount of cocaine charged in the PSR satisfies
FED. R. CRIM. P. 32. See United States v. Golden, 17 F.3d 735, 737
(5th Cir. 1994).
K.
Inez Zapata claims next that the two-level increase in his
offense level for possession of a weapon, pursuant to U.S.S.G. §
2D1.1(b)(1), was erroneous because there was no evidence that he
possessed any weapons, and it was not foreseeable to him that
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weapons were stored in the home of his brother, Zapata, Jr.;
Hernandez adopted this claim. "The district court's decision to
apply § 2D1.1(b)(1) is essentially a factual determination
reviewable under the clearly erroneous standard." United States v.
Rodriguez, 62 F.3d at 724.
There was ample evidence to support the finding that Inez
Zapata was involved with weapons, including evidence of his
managerial role and his presence at his brother's residence, from
which several weapons were seized. Another example is an
intercepted telephone conversation in which Inez Zapata referred to
getting his machine gun. The evidence also supports the
enhancement for Hernandez, because of his involvement in the
Chicago murders, as discussed infra.
L.
Rodriguez asserts that her sentence for telephone facilitation
should be vacated because the district court made no finding as to
drug quantity or type, and there was insufficient evidence to
support any such finding. But, even assuming that the court erred
by failing to make a finding as to drug quantity and type, any
error is harmless, because this count was grouped with the money
laundering counts, and Rodriguez's sentence was based on the
guidelines for the latter. See Williams v. United States, 503 U.S.
193, 203 (1992) (if party defending sentence persuades court of
appeals that district court would have imposed same sentence absent
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erroneous factor, remand is not required).
M.
Hernandez contends that the district court erred by adding
three points to his criminal history score, pursuant to U.S.S.G. §
4A1.1(d) and (e), for commission of the instant offenses less than
two years after release from imprisonment. Even assuming error, it
was harmless because, even without the addition of these points,
Hernandez's criminal history points exceeded the total necessary
for classification as a Category VI offender; therefore, his
guideline range would have been the same. See U.S.S.G. Sentencing
Table; Williams, 503 U.S. at 203.
N.
Hernandez asserts also that the evidence does not support his
three-level upward departure, pursuant to U.S.S.G. § 5K2.1
(permitting upward departure if death resulted from offense), based
on findings that he committed the Chicago murders and that they
were connected to the offenses of conviction. "The district court
is given wide discretion to decide whether aggravating factors
exist to support an upward departure" under § 5K2.1. United States
v. Davis, 30 F.3d 613, 615 (5th Cir. 1994), cert. denied, ___ U.S.
___, 115 S. Ct. 769 (1995).
The findings were based on the testimony at trial and an FBI
agent's testimony at sentencing that Hernandez had been identified
by two witnesses as one of three men leaving the murder scene. As
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stated, the district court may rely on hearsay in sentencing;
moreover, it was entitled to reject the testimony of Hernandez's
alibi witnesses that Hernandez was in Texas at the time of the
murders. The findings were not clearly erroneous; accordingly, the
upward departure was not an abuse of discretion.
III.
For the foregoing reasons, the judgments are
AFFIRMED.
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