United States v. Palacios ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-1445
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RUBEN PALACIOS a/k/a "Tapon", OSCAR JAVIER PEREZ,
RAMIRO ENRIQUEZ, and ABEL EDUARDO JIMENEZ-LOPEZ
a/k/a Lalo & Changa,
Defendants-Appellants.
No. 93-1617
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BETTY BIGGINS and CLYDE BIGGINS,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Texas
(3:92-CR-279-R(12))
(June 1, 1995)
Before BARKSDALE and PARKER, Circuit Judges, and COBB1, District
1
District Judge of the Eastern District of Texas, sitting by
designation.
Judge.
ROBERT M. PARKER, Circuit Judge:2
Ruben Palacios (Palacios), Oscar J. Perez (Perez), Abel
Eduardo Jimenez-Lopez (Jimenez), Ramiro Enriquez (Enriquez), Betty
Biggins (Ms. Biggins) and Clyde Biggins (Mr. Biggins) appeal from
final judgments of conviction in a criminal case.
On June 17, 1992, Appellants were indicted along with 28 other
defendants on drug conspiracy charges. The indictment also charged
violations of various substantive offenses, including possession of
controlled substances with intent to distribute and money
laundering. Palacios, Perez, Jimenez and Enriquez were tried to a
jury, while Ms. Biggins and Mr. Biggins were tried to the court
during the same trial.
All Appellants were adjudged guilty on most counts: Enriquez
was acquitted on one count of possession of cocaine with intent to
distribute and Ms. Biggins was acquitted of the conspiracy charge.
Appellants were sentenced to terms of imprisonment ranging from 63
months to 360 months. We affirm in part, vacate and remand in
part.
FACTS
Jose Clemente Ortiz (Ortiz) was the leader of a drug
trafficking enterprise with operations primarily in Laredo and
2
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
Dallas, Texas. The Ortiz organization imported, transported and
distributed large quantities of marijuana and cocaine from Mexico
from 1979 until the date of the indictment. Over the two week
trial, the government presented evidence of many discrete sales and
shipments, each involving one or more of the alleged conspirators,
which will be detailed as necessary in the discussions below.
SUFFICIENCY OF THE EVIDENCE
a. Standard of review
In reviewing the sufficiency of the evidence, we view the
evidence in the light most favorable to and draw all reasonable
inferences in support of the jury's verdict. If a rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt, the convictions must stand. United States v.
Cordova-Larios, 907 F.2d 40, 41 (5th Cir. 1990).
b. Jimenez's convictions
Jimenez was charged in three counts of the superseding
indictment. Count 1 charged that he was a participant in a
conspiracy to possess with intent to distribute cocaine and
marijuana. Count 3 alleged that on or about April 14, 1988,
Jimenez possessed in excess of 100 kilograms of marijuana with
intent to distribute. Count 37 alleged that on or about February
18, 1992, he possessed in excess of 100 kilograms of marijuana. He
contends on appeal that the evidence was insufficient to sustain
his convictions for conspiracy or for the substantive possession
charges.
3
In a drug conspiracy prosecution under 21 U.S.C. §§ 841(a)(1)
and 846, the Government must prove beyond a reasonable doubt (1)
the existence of an agreement between two or more persons to
violate the narcotics laws, (2) that the defendant knew of the
agreement, and (3) that he voluntarily participated in the
agreement. United States v. Maltos, 985 F.2d 743, 746 (5th Cir.
1992); United States v. Leed, 981 F.2d 202, 205 (5th Cir. 1993).
To sustain a conviction for possession with intent to
distribute, the Government must show that the defendant (1)
knowingly (2) possessed contraband (3) with the intent to
distribute it. United States v. Villasenor, 894 F.2d 1422, 1426
(5th Cir. 1990); United States v. Garcia, 917 F.2d 1370, 1377 (5th
Cir. 1990). Possession of contraband may be actual or
constructive, and may be proven by either direct or circumstantial
evidence. United States v. Vergara, 687 F.2d 57, 61 (5th Cir.
1982). Constructive possession exists when the defendant has
ownership, dominion and control over the contraband itself, or
dominion and control over the vehicle in which it was concealed.
United States v. Richardson, 848 F.2d 509, 512 (5th Cir. 1988).
The intent to distribute element can be inferred from the
quantity possessed. Vergara, 687 F.2d at 62. Jimenez does not
challenge the fact that the two loads of marijuana attributed to
him were distribution quantities.
Further, the substantive counts of the indictment alleged
guilt by aiding and abetting. To sustain a conviction of aiding
and abetting under 18 U.S.C. § 2, the Government must show that the
4
defendant (1) associated with the criminal venture, (2)
participated in the venture, and (3) sought by action to make the
venture succeed. United States v. Menesses, 962 F.2d 420, 427 (5th
Cir. 1992).
Jimenez does not dispute that the government established the
existence of a conspiracy, but rather challenges the sufficiency of
the evidence to establish his knowledge of and participation in the
scheme, or his knowing possession of the marijuana. He points out
that while presence or association with conspirators is one factor
that the jury may rely on, along with other evidence, in finding
conspiratorial activity by a defendant, it is well established that
mere presence at the crime scene or close association with
conspirators, standing alone, will not support an inference of
participation in the conspiracy. United States v. Fitzharris, 633
F.2d 416, 423 (5th Cir. 1980), cert. denied, 451 U.S. 988 (1981).
The government's case against Jimenez was circumstantial. While
circumstantial evidence may be particularly valuable in proving the
existence of the conspiracy, this Court will not lightly infer a
defendant's knowledge of and participation in a conspiracy. United
States v. Jackson, 700 F.2d 181, 185 (5th Cir.), cert. denied, 464
U.S. 842 (1983).
The testimony at trial established the following:
In early 1988, Ortiz sold about 100 pounds of marijuana to
Daryl Smith (Smith). Ortiz and Smith drove to La Retama, a store
owned by Jimenez, where Ortiz went inside and retrieved a sample
for Smith from "Abel." Smith decided to buy it, and left his truck
5
at La Retama to be loaded with the marijuana. Smith came back to
get the truck when a signal was received that it was ready. The
loaded truck was left on the rear parking lot at the store, near
the dumpster. In March of 1992, Ortiz again sold Smith marijuana
that Ortiz said he was getting form "Abel" at La Retama. The
transaction was accomplished in a similar way. In Smith's dealings
with Ortiz, Abel's name came up quite a bit.
The first possession count was based on a particular shipment
of marijuana from Laredo to Dallas, made on April 14, 1988. The
drugs were sent via Brown Express under a bill of lading describing
the contents of the crate as two water pumps. Law enforcement
officers had the crate under surveillance because a drug dog
alerted on it before it left Laredo. When the crate arrived in
Dallas, Pablo Rodriguez (Rodriguez) came to Brown Express and
claimed it. He loaded it into a pickup truck owned by Jimenez, and
drove to a building that had been the former location of La Retama
and was still owned by Jimenez. Jimenez, along with three male
passengers, followed the marijuana-laden pickup truck in Jimenez's
Oldsmobile, conducting what the law enforcement officers referred
to as counter-surveillance. When Jimenez realized police were
watching, he took evasive action, eventually driving off at a high
rate of speed. Rodriguez waited at the old La Retama location for
several hours, during which time the Oldsmobile drove by once.
Rodriguez made some phone calls, and eventually drove the pickup
truck to the current La Retama location. While there he spoke with
Jimenez's wife and made more phone calls. Eventually, Rodriguez
6
was arrested and the truck seized. A plastic bag containing a pair
of sneakers, Rodriguez's wallet and the keys to the truck were
retrieved from Mrs. Jimenez-Lopez.
In addition, there was evidence of seven other such shipments
through Brown Express that were substantially similar to the one
that resulted in Rodriguez's arrest, and some long distance phone
calls between the drivers of two of these shipments and La Retama.
The second possession count was based on an incident involving
586 pounds of marijuana on February 19, 1992. The marijuana was in
a van owned by Jimenez that was parked across from the driveway of
Jimenez's girlfriend's house. On the evening of February 19, a car
owned by Jimenez's girlfriend and driven by a man identified as
Raul, who had been seen at La Retama, drove up to the van and
Palacios got out. Palacios drove the van and Raul drove the other
vehicle, traveling together. The police stopped the van, Palacios
was arrested and taken into custody, and the van and the marijuana
were seized. A short while later, Raul was stopped in the vicinity
of the La Retama.
After Palacios was arrested, Jimenez had a telephone
conversation with Ortiz which was intercepted by a wire tap. During
this phone call, Jimenez referred to Palacios being in jail "with
500, with the stuff," and the two men discussed trying to get
Palacios out of jail.
Finally, a search of Jimenez's home yielded a note that said
"no dope on credit," business cards with Ortiz's name and pager
number, and $17,000 in cash. In a search of Jimenez's office at La
7
Retama, police seized notes with names and phone numbers for Ortiz,
Enriquez and Palacios.
Jimenez asserts that a rational trier of fact could not have
found beyond a reasonable doubt that he participated in the
conspiracy, or that he "possessed" the contraband in the two
substantive counts. He relies on arguments that question the
credibility of some testimony, (e.g., Was Jimenez actually the
driver of the Oldsmobile doing counter surveillance on the truck
full of marijuana?) and the inferences drawn from other testimony
(e.g., Did people repeatedly borrow Jimenez's vehicles, use his
office at La Retama and make calls from his business phone without
his knowledge that they were dealing in drugs?). The cumulative
force of the evidence was sufficient on each count of conviction.
SINGLE OR MULTIPLE CONSPIRACIES
The indictment in this cause alleged a single conspiracy,
headed by Ortiz, existing from March 1988 to June 1992. Enriquez
and Jimenez argue that a material variance exists between the
offense charged in the indictment and the proof educed at trial,
which reflected multiple conspiracies. The jury was correctly
instructed, both during the trial and in the written charge, that
they could not find the defendants guilty if the proof established
multiple conspiracies. We will affirm the jury's finding that the
government proved a single conspiracy unless the evidence and all
reasonable inferences examined in the light most favorable to the
government, would preclude reasonable jurors from finding a single
conspiracy beyond a reasonable doubt. United States v. De Varona,
8
872 F.2d 114, 118 (5th Cir. 1989).
A material variance occurs when there is a variation between
proof and indictment, but does not modify an essential element of
the offense charged. United States v. Thomas, 12 F.3d 1350, 1357
(5th Cir. 1994). A conviction will not be reversed for such a
variance in the evidence unless "(1) the defendant establishes that
the evidence the government offered at trial varied from what the
government alleged in the indictment, and (2) the variance
prejudiced the defendant's substantial rights." United States v.
Puig-Infante, 19 F.3d 929, 935-36 (5th Cir. 1994).
In determining whether the government proved a single
conspiracy or multiple conspiracies, two separate tests have been
set forth. In Puig-Infante, 19 F.3d at 936, the following factors
were held determinative: "1) whether there was a common goal, 2)
the nature of the scheme, and 3) whether the participants in the
various dealings overlapped." (citing United States v. Jackson, 978
F.2d 903, 911 (5th Cir. 1992)). In Thomas, 12 F.3d at 1357, we
articulated five elements that guide in our determination of this
question: "(1) the time period involved, (2) the persons acting as
co-conspirators, (3) the statutory offenses charged in the
indictment, (4) the nature and scope of the criminal activity, and
(5) the places where the events alleged as the conspiracy took
place." (citing United States v. Lokey, 945 F.2d 825, 831 (5th Cir.
1991)). Finally, in analyzing whether the nature of a scheme
points to a single conspiracy, we ask whether "the activities of
one aspect of the scheme are necessary or advantageous to the
9
success of another aspect of the scheme or to the overall success
of the venture." United States v. Elam, 678 F.2d 1234, 1246 (5th
Cir. 1982).
Jimenez contends that the activities in which he was a
participant were not connected to the other drug transactions
proved up at trial. He argues that although the nature of the
scheme for each group was to sell contraband, one group did not
depend on another.
Enriquez takes a similar position, arguing that the evidence
tied him to a cocaine conspiracy in November 1991 that was
unrelated to the March 1988 - June 1992 conspiracy alleged in the
indictment. Enriquez was the owner of Amigo Paint and Body Shop.
Horacio Gutierrez (Gutierrez), who was hired as the manager of
Amigo Paint and Body in February 1992, testified that Enriquez
bragged to him that he was selling up to 80 kilograms of cocaine a
week. Gutierrez testified that Ortiz, whom they called El Cabezon
or "the big man," was frequently at Amigo Paint and Body Shop and
was supplying Enriquez with the cocaine that he sold. He also
described a trip that Jimenez and Enriquez made to Laredo to pick
up a thousand pounds of marijuana. The deal went sour and Jimenez
kept the whole thousand pounds. Other cocaine dealers testified
that they got cocaine from Raymond Lopez, who was supplied by Ortiz
up until November 1991, when Enriquez began supplying their
cocaine.
The evidence established that the common goal of all the co-
conspirators was the sale of marijuana and cocaine. With regard to
10
the overlap of participants factor (or the "persons acting as co-
conspirators" factor in the Thomas test) the evidence supports the
allegation that Ortiz was a central figure, while various
combinations of other defendants furthered his illegal activities
in different ways at different times. The evidence concerning
nature and scope of the criminal activity or scheme (factor (2)
under Puig-Infante, (4) under Thomas) supports a finding that all
activities charged against all defendants advanced a single drug
distribution network. The relatively lengthy time period, March
1988 - June 1982, lends itself to the beginning and ending of
multiple conspiracies, and must be closely scrutinized. Government
witness Daryl Smith noted during his testimony concerning the
various people, places, vehicles and operating procedures in the
Ortiz organization, "there's nothing consistent in this business."
Nonetheless, the evidence in this case supports a finding of a
single ongoing drug distribution scheme run by Ortiz. Finally, the
conspiracy charged involved the movement of drugs in wholesale
quantities from Laredo, Texas to Dallas, Texas and the re-
distribution of drugs from Dallas stashhouses. Nothing about the
location of the alleged activities leads us to believe that there
were multiple conspiracies.
Under either the Thomas test or the Puig-Infante test, there
is sufficient evidence to support the jury conclusion that
appellants were participants in the one conspiracy alleged in the
indictment.
Even if there was more than one conspiracy proven, the
11
resulting variance from the indictment is not reversible error
unless the defendants' substantial rights were prejudiced. Since
the evidence in this case was sufficient to prove each defendant's
participation in at least one of many related transactions, we find
that no such prejudice occurred. United States v. Faulkner, 17 F.3d
745, 762 (5th Cir. 1994).
PEREZ'S DOUBLE JEOPARDY CLAIM
Perez was characterized as a gofer who worked for another co-
conspirator named Juan Chapa (Chapa), who is Perez's brother-in-
law. All the alleged acts by Perez occurred in 1989. Since late
1989 Perez has been incarcerated in a federal prison for what he
contends is the same conspiracy. That conviction arose out of an
attempt by Rebecca Valencia-Ponce to broker 2,000 pounds of
marijuana between an undercover DEA agent and purchasers, which
included Perez and Chapa in Laredo, Texas. Perez, Chapa, and two
other people not included in the present indictment were charged
with conspiring together and with "other persons unknown to the
grand jury" to violate 21 U.S.C. § 846.33
The essential allegations are:
Laredo indictment
On or about October 10, 1989, in the Southern District of
Texas and within the jurisdiction of the Court,
Defendants Juan Manual Chapa, Rebecca Valenica-Ponce,
Amaro Medina, and Oscar Javier Perez-Ramos did knowingly
and intentionally conspire and agree together and with
other persons unknown to the Grand Jurors to knowingly
and intentionally possess with intent to distribute a
quantity in excess of 100 kilograms of marihuana, a
Schedule I controlled substance. [Violation: Title 21,
United States Code, Sections 846, 841(a)(1), and
841(b)(1)(B).]
12
The district court denied Perez's motion to dismiss his
conspiracy count on double jeopardy grounds, and made findings
pursuant to United States v. Marable, 578 F.2d 151 (5th Cir. 1978),
which sets out a five factor test identical to the one used in
Thomas. The court found that the conspiracies covered different
times, the first being a single day, October 10, 1989, the second
covering a four-year period from March 1988 - June 1992. Second,
Perez and Chapa were the only two people who were indicted in both
cases. The district court found,
[s]pecifically, the Laredo indictment does not name Jose
Ortiz who is alleged to be the head of the organization
in the Dallas indictment. There is no indication that
Ortiz was involved in the incident involved in Laredo and
no indication that he or any of the lieutenants working
under him had any connection with the incident in Laredo.
Third, although both indictments involve alleged conspiracies in
violation of § 846, the court found that the facts underlying the
Laredo indictment were not charged in the Dallas indictment, nor
was any evidence concerning that transaction presented in court
during the trial of this case. Fourth, the district court
considered the nature and scope of each indictment: Laredo involved
Dallas indictment
From at least March 1988, the exact date being unknown to
the Grand Jury, and continuing thereafter until on or
about June 17, 1992, in the Northern District of Texas
and elsewhere,... 4. Juan Chapa,... 8. Oscar Javier
Perez... defendants, did knowingly, willfully and
unlawfully combine, conspire, confederate and agree
together, with each other and with diverse other persons
known and unknown to the Grand Jury, to commit certain
offenses against the United States...All in violation of
Title 21 United States Code, Sections 846, 841(b)(1)(A),
and 841 (B)(1)(B).
13
a single transaction taking place on a single day, while the Dallas
case involved extensive transactions over a four-year period.
Fifth, the Laredo incident was limited to Laredo, while the Dallas
indictment involved a number of locations, including Mexico,
Dallas, Laredo, and other places.
Perez contends that the transaction which led to his earlier
conviction was one of the smaller drug deals which made up the
overarching conspiracy charged in the Dallas indictment. It
occurred during the time alleged in the Dallas indictment. In
fact, it occurred during 1988-89 which is the only part of the
Dallas conspiracy that Perez participated in, due to his 1989
conviction. The statutory offenses were the same. The overt act
alleged in the first indictment was possession with intent to
distribute in excess of 100 kilograms of marihuana. No overt act
was alleged in the second indictment, but the evidence at trial
established that the possession and distribution of marihuana and
cocaine were the violations on which that indictment was based.
The sale occurred in Laredo, which is also included in the Dallas
indictment. Finally, Perez contends the difference in players that
the trial court focused on was not a real difference.
There is no dispute that the district court applied the
correct legal analysis and considered the proper factors in
determining whether the present charge violated the double jeopardy
violation. The factual conclusion reached by the court below that
the two charges did not arise out of the same conspiracy is not
clearly erroneous, so we must affirm Perez's conspiracy conviction.
14
JURY INSTRUCTIONS ON PEREZ'S MONEY LAUNDERING CHARGE
Perez was charged in count 12 of the indictment with violating
or aiding and abetting in the violation of 31 U.S.C. § 5324(1) and
(3). The evidence showed that he was one of two individuals that
structured a $16,880 transaction by going into two banks on the
same day, each time buying a cashier's check for less than $10,000.
The statutes that Perez was charged with violating, 31 U.S.C.
§ 5324(1) and (3), provide that:
No person shall for the purpose of evading the reporting
requirements of § 5313(a) with respect to such
transaction --
(1) cause or attempt to cause a domestic
financial institution to fail to file a report
required under § 5313(a)...or
(3) structure or assist in structuring, or
attempt to structure or assist in structuring,
any transaction with one or more domestic
financial institution.
The trial court instructed the jury that in order to establish
a violation of 31 U.S.C. § 5324(1), the government must prove:
First, that the Defendant Oscar Javier Perez
knowingly and willfully caused or attempted to cause a
domestic financial institution to fail to file a Currency
Transaction Report, IRS Form 4789; and
Second, that the Defendant Oscar Javier Perez did so
for the purpose of the evading the reporting requirements
of section 5313(a).
The jury instructions articulated the elements of § 5324(3) as:
First, that the Defendant Oscar Javier Perez
knowingly and willfully structured or assisted in
structuring a transaction involving at least $10,000 in
currency for deposit into a financial institution; and
Second, that the purpose of the structuring was to
avoid the requirement of filing a Currency Transaction
Report, IRS Form 4789.
"Knowingly and willfully" were defined as "the defendant knew of
15
the reporting requirement and specifically intended that the
required reports not be filed."
The jury convicted Perez only of aiding and abetting a
violation of § 5324. The district court's charge on aiding and
abetting required proof:
First, that each element of the offenses which the
defendant...is accused of aiding and abetting was
committed by the persons as charged in the indictment;
and
Second, that the defendant...willfully participated
in them, as if it were something that he wished to bring
about.
"Willfully" was defined in the general instruction section of
the charge to mean "that the act was committed voluntarily and
purposely with the specific intent to violate the law."
Perez challenges these jury instructions, relying on the
recent Supreme Court decision in Ratzlaf v. United States,
___U.S.___, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), which held that
in order to convict under § 5324, the government must prove that
the defendant knew that structuring was unlawful. This case was
tried prior to the Supreme Court ruling in Ratzlaf and the jury
instructions given were in accord with the Fifth Circuit law in
effect at the time of the trial. Perez did not object to the
charge given or request that the trial court include a Ratzlaf-type
instruction. His failure constitutes a forfeiture of his right to
appeal this issue under FED. R. CRIM. P. 30. See United States v.
Olano, ___U.S.___, 113 S.Ct. 1770, 1777 (1993). However, if Perez
can show that the charge, as a whole, was so deficient as to affect
his substantial rights, we may nevertheless reverse the conviction.
16
Id. at 1778.
The government argues that in convicting Perez of aiding and
abetting, the instruction required the jury to find that he acted
with intent to violate the law, and was therefore correct. The
jury was told that it must find that Perez acted willfully, and
willfully was defined as acting with "specific intent to violate
the law." Although the charge was incomplete under Ratzlaf, we
cannot say it was so deficient that it affected his substantial
rights.4
Additionally, Perez seeks to extend Ratzlaf to attack his
conviction on a money laundering count under 18 U.S.C. §
1956(a)(1)(B)(ii), which prohibits conducting a financial
transaction that in fact involves the proceeds of a specified
unlawful activity knowing that the transaction is designed to
avoid a transaction reporting requirement under state or federal
law. This argument has no merit, because mental state required by
the money laundering statute is knowledge that the transaction
involves proceeds of criminal activity and intent to avoid a
reporting requirement (whether that avoidance carries criminal
penalties or not). The jury was accurately instructed relative to
this charge.
In a related argument Perez contends that the evidence was
insufficient to establish that he knew that the money that was the
4
Because the complained of charge did not affect Perez's
substantial rights, it is unnecessary for us to determine if the
error was "plain" under United States v. Calverley, 37 F.3d 160(5th Cir. 1994).
17
subject of his money laundering conviction had come from illicit
drug dealing. This issue was never raised in the trial court, so
this Court need only determine whether there was a plain error
which affected Perez's substantial rights. United States v.
Calverley, 37 F.3d 160, 162 (5th Cir. 1994). After reviewing the
evidence in the record, we find that Perez's money laundering
conviction is adequately supported by the evidence and there was no
plain error.
For the foregoing reasons we find that Perez's conviction
for structuring and his conviction for money laundering must be
affirmed.
BIGGINS'S MOTION TO SUPPRESS
On February 1, 1992, at 2:40 p.m. a kilo of cocaine was
delivered by a member of the Ortiz conspiracy to the barbecue
restaurant owned by Clyde Biggins. Mr. Biggins was not present at
that time and Betty Biggins was in charge of the restaurant. DEA
agents had the delivery person under surveillance and within
minutes of the delivery armed law enforcement officers entered and
secured the restaurant. They had no search warrant. The police
told Ms. Biggins that they had information that a cocaine
transaction had just occurred and that she had two choices: she
could either consent to a search or the police could get a warrant.
Betty Biggins responded that she did not think there were any drug
deals going on and the police were free to look around. The police
seized cocaine and $18,000 in currency as a result of the search.
Both Biggins filed motions to suppress the evidence seized
18
during the search. Ms. Biggins testified at the suppression
hearing and denied having ever been asked to consent to a search.
The trial court found that testimony not credible and denied the
motions, finding that Ms. Biggins had given a valid consent to
search. On appeal both Biggins contend that while Ms. Biggins
literally consented, she did so in fear of the officers or in
acquiescence to a claim of authority to search.
Whether the consent to search was voluntary or was the product
of duress or coercion is a question of fact to be determined from
the totality of all the circumstances. Schneckloth v. Bustamonte,
412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). The
trial court's determination that the consent was valid under the
circumstances described by the evidence is not clearly erroneous.
CLYDE BIGGINS MONEY LAUNDERING CONVICTION
The Superseding Indictment charged Mr. Biggins in connection
with the aborted delivery of cocaine with an attempt to transfer
$18,000 knowing that the "property involved the proceeds of a
specified unlawful activity and which in fact involved the proceeds
of a specified unlawful activity, that is, the sale and
distribution of narcotic drugs and controlled substances, with the
intent to promote the carrying on of said specified unlawful
activity" in violation of 18 U.S.C. § 1956(a)(1)(A)(i). Mr.
Biggins testimony and other evidence suggested that he obtained the
funds through gambling rather than the distribution of drugs. Also
in evidence was testimony that less than one month before the
seizure of the funds, he had bought and then sold a kilogram of
19
cocaine, giving rise to an inference that he obtained $18,000 from
his recent sale of the same amount of the same product. Viewing
the record in the light most favorable to the government, we find
the evidence sufficient to support the trial court's guilty
verdict.
APPLICATION OF SENTENCING GUIDELINES
a. Standard of review.
Jimenez, Enriquez and Palacios all challenge their sentences
based on the quantity of drugs attributed to them. A district
court's findings about the quantity of drugs involved in an offense
are factual findings subject to a clearly erroneous standard of
review. United States v. Rivera, 898 F.2d 442, 445 (5th Cir.
1990). In resolving any reasonable dispute concerning a factor
important to the sentencing determination, the court may consider
relevant information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable accuracy. United States v. Michael, 894 F.2d 1457, 1459
(5th Cir. 1990).
b. Jimenez and Enriquez
Jimenez's base offense level was calculated at 32, based on
the conclusion that he was involved with at least 1,000 kilograms,
but less than 3,000 kilograms of marijuana. See U.S.S.G.
2D1.1(c)(6). The district court sentenced Enriquez according to an
offense level of 40 based on a finding that at least 50 kilograms
of cocaine were attributable to him. Jimenez and Enriquez ask us
20
to reverse and remand their cases for resentencing because the
court did not make express findings on what drug quantities were
tied directly to them and what drug quantities were attributable to
them as "reasonably foreseeable acts and omissions of others in
furtherance of jointly undertaken criminal activity." U.S.S.G.
1B1.3(a)(1)(B). This Court recently remanded a case for
resentencing, instructing the district court to determine (1) when
the defendant joined the conspiracy, (2) what drug quantities were
within the scope of the defendant's conspiratorial agreement, and
(3) of these drug quantities, which were reasonably foreseeable.
United States v. Carreon, 11 F.3d 1225 (5th Cir. 1994). Such a
remand is unnecessary in this case. The testimony at the sentencing
hearing attributed over 4,204 pounds (1,910 kilograms) of marijuana
directly to Jimenez, without reference to amounts that were
otherwise foreseeable to him in this conspiracy. Gutierrez's
testimony that Enriquez bragged about dealing 80 kilograms a week,
if credited by the court, was enough to support the "more than 50
kilogram" conclusion that was the basis of Enriquez's sentence. A
Carreon finding is inapposite in these situations.
Jimenez also argues that the trial court erred in enhancing
his offense by four levels based on his role as organizer and
leader, under U.S.S.G. 3B1.1(a). The evidence supports the
conclusion that Jimenez directed the activities of Rodriguez,
Palacios and Raul, and that the criminal activity connected with
this conspiracy involved five or more participants or was otherwise
extensive. This argument has no merit.
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c. Palacios
The district court attributed approximately 24,5005 kilograms
of marijuana to Palacios. Palacios contends that the record
supports only 15 kilograms of cocaine (counted as 3000 kilograms of
marijuana) and 713 kilograms of marihuana. The government concedes
that the record does not support the trial court finding that
24,536 kilograms of marijuana were attributable to Palacios.
However, they contend that we should uphold his sentence because by
making some assumptions about the testimony in the record
(specifically crediting certain allegations in the presentence
report at the high end of the ranges given instead of the low end)
we could find 15,841 kilograms of marijuana. They argue that
because Palacios's offense level was taken from the category that
includes a range of 10,000 to 30,000 kilograms of marijuana, and
the sentence imposed was at the lowest end of the applicable
guideline range, the district court would have imposed the same
sentence even if it had not erred in calculating the amount of
drugs attributable to Palacios. We decline to substitute our
judgment for that of the trial court, either in making the factual
determination of drug quantities or in imposing a sentence on the
recalculated amounts. The trial court's factual determination is
5
To obtain a base level offense for drug offenses involving
differing drug types, the Guidelines require the drugs to be
converted to equivalent amounts of marihuana. U.S.S.G. 2D1.1,
comment (n.10)(Nov. 1992). The converted quantities are then
totalled to arrive at the base level offense. Palacios's
presentence report alleged that 100 kilograms of cocaine and 4536
kilograms of marijuana were attributable to Palacios. Using the
Guidelines' cocaine-to-marihuana conversion factor, 100 kilograms
of cocaine equates to 20,000 kilograms of marihuana.
22
clearly erroneous. The sentence must be vacated and Palacios's
case remanded for resentencing.
CONCLUSION
Having considered the other points of error urged by the
Appellants, we find they have no merit. Palacios's sentence is
VACATED and REMANDED for resentencing. All other convictions and
sentences are AFFIRMED.
23