United States v. Armando Ibarra , 652 F. App'x 290 ( 2016 )

Case: 15-40484 Document: 00513549142 Page: 1 Date Filed: 06/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40484
FILED
June 15, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
ARMANDO IBARRA, also known as Fat Boy; JULIO CESAR MALDONADO-
GONZALEZ, also known as Burqueti; JORGE LUIS RAMIREZ; ANTONIO
NAVAREZ REYES, also known as Tonio,
Defendants - Appellants
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CR-252-5
Before DAVIS, JONES, and GRAVES, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
All four defendants challenge their convictions for violating 21 U.S.C.
§ 846—conspiracy to possess with an intent to distribute methamphetamine.
Because their numerous arguments for overturning the jury verdict lack merit,
we AFFIRM the defendants’ convictions.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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I.
Christian Salvador distributed methamphetamine in north Texas.
Initially, drug cartels manufactured the methamphetamine in Mexico and
transported it to Dallas as a liquid. In Dallas, Salvador’s workers converted
the liquid into a crystal and delivered the drugs to street-level dealers in
nearby Denton.
Salvador’s organization unraveled when DeAngelo Font was arrested for
dealing methamphetamine in Denton. A drug investigator, Tony Salas, traced
Font’s methamphetamine to Salvador.
After Font’s arrest, police focused their investigation on Salvador’s
organization. In September of 2012, they arrested Matthew Burkhardt who
admitted to selling Salvador’s methamphetamine in Denton. He agreed to
cooperate with investigators by arranging a controlled buy against Salvador. 1
The drug sale between Salvador and Burkhardt was scheduled for
September 13, 2012. On that morning, two members of Salvador’s operation,
Armando Ibarra and Jorge Ramirez, went to Jose Vargas’ home to “pick[] up
some boxes that…contained drugs” to “take…somewhere else[,]” presumably
to the controlled buy’s location.
Later that afternoon, on September 13, Salvador arrived at a Dallas
storage unit with Ramirez and Ibarra for the controlled buy. Police raided the
unit, searched Salvador’s vehicles, and arrested Ramirez, Ibarra, and
Salvador. Inside the storage unit, police found plastic containers filled with
methamphetamine crystals. In the vehicles, police found cans of acetone and a
cardboard box filled with methamphetamine. In total, the police recovered $1.3
million worth of drugs.
1A controlled buy is an operation where the cooperating witness orders a quantity of
drugs, and the police arrest the person who delivers drugs to the location.
2
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After Salvador’s arrest, Salas learned that his methamphetamine was
converted from a liquid to a crystal at a home in Dallas and organized another
raid. When police entered the residence, an overwhelming odor of chemicals
struck them. 2 They observed a conversion lab in the kitchen sitting on a fold-
out table. Police found a driver’s license in the kitchen belonging to Antonio
Reyes located within five feet of the conversion lab. They also recovered
$100,000 worth of methamphetamine at the home.
A grand jury indicted sixteen people for a conspiracy to possess with
intent to distribute methamphetamine in violation of 21 U.S.C. § 846. Eleven
pled guilty; four went to trial: Ibarra, Ramirez, Reyes, and Julio Cesar
Maldonado Gonzalez. 3
At trial, Vargas testified for the government. He said that on September
13 he gave methamphetamine to Ramirez and Ibarra so they could deliver it
elsewhere. Vargas also described how he received his supply of drugs. Vargas
testified that Reyes would provide him methamphetamine hidden in car
batteries.
Reyes also testified. He explained that he lived at the Dallas home with
Aaron Hernandez—Salvador’s partner. According to Reyes, he worked as a
roofer, leaving home at 7:00 a.m. and returning at 7:00 p.m., and so he never
saw drugs or a conversion lab in the home.
However, Reyes admitted that he returned home early on September 11
and noticed an “awful smell.” Reyes said that he had “never smelled that” odor
before and did not “know what it was.” Reyes believed “something wasn’t right”
and told Hernandez that he would move out at the end of the month
2 A pungent chemical smell is released when heat is applied to methamphetamine
during the conversion process.
3 Another defendant, Aaron Hernandez, escaped capture and remains a fugitive.
3
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During trial, Ibarra moved to sever his prosecution arguing that
statements made by other defendants prejudiced him. The district court denied
his motion to sever, and in its jury instructions, told the jury to consider the
evidence against each defendant separately and individually.
Also, Reyes objected to the district court’s “deliberate ignorance” jury
instruction which the court overruled.
The jury convicted all four defendants of violating 21 U.S.C. § 846. To
prove a drug conspiracy, the government must show: the existence of an
agreement between two or more persons to violate narcotics laws; that the
defendant knew of the agreement; and that he voluntarily participated in the
conspiracy. 4
II.
The defendants make four arguments for overturning the jury verdict.
We address each in turn:
A. VENUE
Each defendant argues that the evidence was insufficient to establish
venue in the Eastern District of Texas. This issue was given to the jury, which
found that the government established venue. We “review the denial of a
motion for judgment of acquittal de novo. We will affirm a verdict if, viewing
all the evidence in the light most favorable to the government, a rational jury
could conclude, from the evidence presented at trial, that the government
established venue by a preponderance of the evidence.” 5
The defendants argue that the government did not show that they
committed an overt act in the Eastern District. 6 In a conspiracy case, venue is
4 United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir. 2008).
5 United States v. Mendoza, 587 F.3d 682, 686 (5th Cir. 2009).
6 The defendants’ various other arguments against venue are without merit, including
Reyes’ claim that Burkhardt’s testimony cannot be used because he became an informant
after being arrested; Gonzalez’ assertion that Salas did not identify at trial the street-level
4
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proper “in any district where the agreement was formed or an overt act
occurred.” 7 An overt act “can be based on evidence of any single act that
initiated, perpetuated, or completed the crime.” 8 Moreover, venue is proper as
to any member of the conspiracy, so long as one co-conspirator committed one
overt act there. 9
Enough evidence existed for the jury to find that an overt act occurred in
the Eastern District. While the defendants’ conduct primarily occurred in
Dallas, their actions supported an organization that sold methamphetamine in
Denton, which is in the Eastern District. 10
Specifically, the defendants converted methamphetamine that was
supplied to Salvador’s organization’s street-level dealers in Denton. For
example, police arrested Font for selling Salvador’s methamphetamine in
Denton. 11 Similarly, Burkhardt admitted that he sold methamphetamine in
Denton for Salvador. Thus, ample evidence proved that defendants joined a
conspiracy that committed overt acts in Denton.
B. DRUG CONSPIRACY
Ramirez and Reyes argue that the evidence was insufficient to establish
their guilt in various respects. We review sufficiency of the evidence challenges
under a familiar standard:
dealers who sold methamphetamine for Salvador; Gonzalez argument that the street-level
dealers for Salvador were only arrested in Denton but actually sold their drugs only in other
jurisdictions.
7 United States v. Rodriguez-Lopez, 756 F.3d 422, 429-30 (5th Cir. 2014).
8 Mendoza, 587 F.3d at 686.
9 See id. at 430; Mendoza, 587 F.3d at 686.
10 See, e.g., id. at 687 (holding an overt act occurred in the Eastern District of Texas,
because the defendant supplied methamphetamine to an uncharged third-party who sold it
at the street level in the Eastern District).
11 Ibarra’s argument that this statement is inadmissible hearsay is without merit
because Salas merely described his personal investigation rather than some out-of-court
statement.
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We review a challenge to the sufficiency of the
evidence supporting a conviction by reviewing all
evidence in the light most favorable to the verdict to
determine whether a rational trier of fact could have
found that the evidence established the essential
elements of the offense beyond a reasonable doubt. 12
i.
Ramirez argues the government did not prove that he had knowledge of
the conspiracy. However, this argument is belied by the record.
The government provided more than enough evidence for a rational jury
to find that Ramirez knew about the drug conspiracy. First, Ramirez was
arrested at the storage unit where police found $1.3 million worth of
methamphetamine. 13 Second, Ramirez admitted that he moved a large
cardboard box containing methamphetamine from the storage unit. 14 Third,
coded text messages on Salvador’s phone revealed Ramirez’s picture and stated
that Ramirez picked up acetone and drugs on September 13. Finally, Vargas
confirmed that Ramirez picked up drugs from him to transport them for sale.
Thus, the evidence was more than sufficient for the jury to find that Ramirez
had knowledge of the conspiracy.
ii.
Reyes argues that the government did not prove that he participated in
the conspiracy. A defendant’s participation in the conspiracy may be inferred
12 United States v. Haines, 803 F.3d 713, 734-45 (5th Cir. 2015).
13 Cf. United States v. Delgado, 672 F.3d 320, 334 (5th Cir. 2012) (en banc) (recognizing
that possession of a large quantity of drugs supports the defendant’s participation in the
conspiracy).
14 While Ramirez claimed that he did not know the box’s contents, this is unlikely
because the box was secured by only a folding flap, and it contained eight plastic containers,
each holding a kilogram of methamphetamine.
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from circumstantial evidence. 15 Moreover, the defendant need not “know all
the details of the unlawful enterprise or have a major role.” 16
Here, too, more than enough evidence existed for a rational jury to find
that Reyes participated in the drug conspiracy. Reyes admitted at trial that he
lived in the Slater-residence where the conversion lab was found. Moreover,
police found his driver’s license within five feet of the conversion lab located
conspicuously in the kitchen. Also, Vargas testified that Reyes gave him
methamphetamine. 17 Thus, the jury could reasonably infer that Reyes
participated in the conversion of methamphetamine in his home.
C. DELIBERATE IGNORANCE INSTRUCTION
Reyes argues that the district court erred by giving the jury a deliberate
ignorance instruction. 18 We review a district court’s jury instruction for an
abuse of discretion, and any error is subject to harmless error review. 19 The
15 United States v. Greenwood, 974 F.2d 1449, 1457 (5th Cir. 1992) (“Because secrecy
is the norm in an illicit conspiracy, the elements of the offense may be established solely by
circumstantial evidence.”).
16 United States v. Chon, 713 F.3d 812, 819 (5th Cir. 2013).
17 Both Ramirez and Reyes argue that Vargas was an unreliable witness. According
to Ramirez and Reyes, Vargas is unreliable because he failed to identify them during his
initial interview but then pointed them out at trial, which occurred after Vargas had pled
guilty. This argument is unavailing. See, e.g., United States v. Martinez-Garcia, 560 F. App’x
253, 260 (5th Cir. 2014) (“As long as it is not factually insubstantial or incredible, the
uncorroborated testimony of a co-conspirator, even one who has chosen to cooperate with the
government in exchange for non-prosecution or leniency, may be constitutionally sufficient
evidence to convict.”). Moreover, “[w]e must accept all credibility choices made by the trier of
fact.” Haines, 803 F.3d at 734-45.
18 The district court instructed the jury: “You may find that a defendant had
knowledge of a fact if you find that the defendant deliberately closed his eyes to what would
otherwise have been obvious to him. While knowledge on the part of a defendant cannot be
established merely by demonstrating that a defendant was negligent, careless, or foolish,
knowledge can be inferred if a defendant deliberately blinded himself to the existence of a
fact. A defendant must subjectively believe that there is a high probability that a fact exists
and the defendant must take deliberate actions to avoid learning of that fact.”
19 United States v. Fuchs, 467 F.3d 889, 900 (5th Cir. 2006); United States v. Edelkind,
525 F.3d 388, 397 (5th Cir. 2008) (“Any [deliberate ignorance instruction] error is subject to
harmless error review.”).
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deliberate ignorance instruction should be “given when a defendant claims a
lack of guilty knowledge and the proof at trial supports an inference of
deliberate indifference.” 20
Reyes asserts that the deliberate ignorance instruction was error,
because at trial, he admitted to actual knowledge of the unlawful activity.
However, Reyes never admitted to actual knowledge of unlawful
methamphetamine conversion. 21 Reyes stated explicitly that he never saw a
conversion lab in the residence. Also, he claimed that he never saw drugs at
the home. While admitting that he noticed an “awful smell” which made him
think “something wasn’t right,” he never claimed that he knew this smell
derived from something unlawful. Instead, Reyes said that he “never smelled
that [odor] and I don’t know, I don’t know what it was.” Thus, his general
assertion that “something wasn’t right” is insufficient to show Reyes admitted
to actual knowledge of methamphetamine conversion in the home, and the
instruction was proper.
D. MOTION TO SEVER TRIAL
Ibarra argues that the district court erred when it denied his motion to
sever his trial. We review the district court’s denial of a motion to sever for an
abuse of discretion. 22
First, Ibarra argued that the admission of his codefendant’s statements
violated Bruton v. United States, 391 U.S. 123 (1968). Under Bruton, the
admission of a statement by one codefendant, which implicates another
20 Id.
21 If Reyes had admitted to actual knowledge of methamphetamine conversion, this
would make any error in giving the deliberate ignorance instruction harmless. See United
States v. Gonzalez, 612 F. App’x 246, 247 (5th Cir. 2015) (“Any error in giving such an
instruction is harmless if substantial evidence showing actual knowledge was adduced at
trial.”).
22 United States v. Whitfield, 590 F.3d 325, 356 (5th Cir. 2009).
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codefendant, violates the Sixth Amendment, if admitted in a joint trial and the
person making the statement did not take the stand. 23
Ibarra asserts that Salas’ testimony that Ramirez admitted to
“assist[ing] in loading the big box located in the back of the pickup” implicated
him. According to Ibarra, Ramirez statement “indicated that others were
involved in handling [the box,]” which could have included him. However,
Ramirez statement that he “assisted in loading” the box was general and did
not explicitly or implicitly reference Ibarra. Thus, admission of Ramirez
statement did not implicate Ibarra and violate his Sixth Amendment right.
Second, Ibarra argues that he was prejudiced by the “spill-over” effect of
evidence against other defendants. However, a “spillover effect, by itself, is an
insufficient predicate for a motion to sever.” 24 Because Ibarra’s spillover is
insufficient to justify a motion to sever, the district court did not abuse its
discretion.
III.
For these reasons, we AFFIRM the judgment of the district court.
23 391 U.S. at 135-36.
24 United States v. Bieganowski, 313 F.3d 264, 287 (5th Cir. 2002).
9