United States v. Juan Cervantes-Coronado , 443 F. App'x 960 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0745n.06
Nos. 10-5419, 10-5808
FILED
UNITED STATES COURT OF APPEALS Nov 02, 2011
FOR THE SIXTH CIRCUIT
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEALS FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
JUAN J. CERVANTES-CORONADO, (10-5419) ) DISTRICT OF TENNESSEE
ISMAEL ARREGUIN DE LA TORRE, (10-5808) )
)
Defendants-Appellants. )
)
Before: MARTIN, MOORE, and COOK, Circuit Judges
COOK, Circuit Judge. In these consolidated appeals, Juan Jose Cervantes-Coronado and
Ismael Arreguin De La Torre, Defendants-Appellants, challenge the sufficiency of the evidence for
their drug conspiracy convictions. The panel unanimously agrees that oral argument is not needed.
Fed. R. App. P. 34(a). Because we find the evidence sufficient to sustain the convictions, we affirm
the district court’s judgment as to both Appellants.
I.
These cases arise from a multi-month drug-trafficking investigation that began with the 2005
seizure of a large shipment of marijuana in Johnson City, Tennessee. After the seizure, federal
agents learned that individuals involved with the marijuana ring also planned to distribute
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large quantities of methamphetamine in Tennessee and North Carolina. In late 2008, a federal
grand jury returned a superseding indictment charging Cervantes-Coronado and De La Torre with
conspiracy to distribute and possess with the intent to distribute fifty grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Following separate trials, juries
convicted Cervantes-Coronado of the offense charged and De La Torre of the lesser included offense
of conspiracy to distribute and possess with the intent to distribute five grams or more
of methamphetamine.
The government’s case against Cervantes-Coronado centered on events that occurred on
July 31 and August 1, 2007. During that time, Cervantes-Coronado and a female companion
traveled from Alabama to Texas and finally on to Asheville, North Carolina, where Cervantes-
Coronado rented a hotel room at a Crowne Plaza on the evening of August 1. Cervantes-Coronado
paid for the room, number 261, with his unemployment debit card and listed his home address on
the hotel registration form. Co-Defendant drug purchasers Jackie and Tony Trivette (brothers)
received instructions from their unidentified methamphetamine supplier that they could pick up a
shipment of methamphetamine at the Crowne Plaza. Testifying for the government, Tony Trivette
stated that he entered an upstairs hotel room on the evening of August 1 and received a three-to-four-
pound package of methamphetamine from a Hispanic female. The exchange occurred in the
presence of a Hispanic male, who lay on the hotel room bed. Intercepted phone calls showed that
the drug supplier directed the Trivettes to room 261, and surveillance evidence linked the transaction
with that room. The government also presented evidence that the Trivettes’ methamphetamine
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United States v. Cervantes-Coronado; De La Torre
supplier had at least five calls (either outgoing or incoming) with a cell phone frequently used by
Cervantes-Coronado on or about August 1.
Cervantes-Coronado testified on his own behalf at trial, denying the government’s assertion
that he participated in the August 1 transaction. Although he admitted staying at the Crowne Plaza,
he denied witnessing a methamphetamine exchange and instead claimed that his neighbor
(the female companion) met with an unidentified man while he was in the bathroom. Appellant
recalled that, while in the bathroom, he heard a knock at the hotel room’s front door and, upon
leaving the bathroom, he observed a man exiting the hotel. Cervantes-Coronado stated that he made
the trip with his neighbor for social purposes and did not know that she intended to deal drugs.
Apart from the 2007 transaction, the government presented evidence that Cervantes-Coronado sold
methamphetamine to an undercover officer in Alabama in December 2005, and that a confidential
informant arranged to buy methamphetamine from Cervantes-Coronado at his residence in February
2009—the same address used on the hotel registration form in 2007. The government also presented
evidence from the execution of an arrest warrant against Cervantes-Coronado in 2009, during which
agents discovered methamphetamine in Cervantes-Coronado’s possession.
During De La Torre’s trial, the government focused on a September 25, 2007, drug-money
transaction in Johnson City, Tennessee, that began in the parking lot of a Home Depot and ended in
a hotel room at a local Ramada Inn. The government presented evidence that De La Torre arrived
in Johnson City on September 25 and rented the relevant hotel room at the Ramada Inn. Shortly after
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De La Torre checked into the hotel, agents intercepted calls between Tony Trivette and his
unidentified methamphetamine supplier, wherein Trivette and the supplier planned a meeting at the
Home Depot. Telephone records revealed that, moments before the Home Depot rendezvous, the
methamphetamine supplier called the telephone number that De La Torre used for the hotel
registration form. Testifying for the government, Jackie Trivette stated that he arrived at the Home
Depot parking lot expecting to pay a Hispanic courier in exchange for a package of
methamphetamine. Surveillance agents observed De La Torre arrive at the Home Depot parking lot
in a Mercedes-Benz vehicle registered in his name and approach Jackie Trivette. Jackie Trivette
testified that he attempted to pay a Hispanic male (identified by agents as De La Torre) during the
encounter in the Home Depot parking lot, but that the male refused to accept payment, telling
Trivette to follow him to a motel room. Jackie Trivette followed De La Torre to his Ramada Inn
room and placed a plastic bag containing $5,000 on the dresser while De La Torre and co-Defendant
Saturnino Alcaraz watched. A short time later, surveillance agents observed Alcaraz place
something in the trunk of De La Torre’s Mercedes. Although Jackie Trivette denied receiving
methamphetamine on this occasion, he explained that his course of dealing with the unidentified
methamphetamine supplier sometimes involved separate payment and delivery transactions.
Both Appellants moved for a judgment of acquittal after the government rested its case, but
Cervantes-Coronado failed to renew his motion at the close of evidence. The district court denied
both motions.
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United States v. Cervantes-Coronado; De La Torre
II.
Both Appellants claim that the government presented insufficient evidence to sustain a guilty
verdict on their drug conspiracy charges. We generally review sufficiency-of-the-evidence claims
to determine whether “any rational trier of fact could find the elements of the crime beyond a
reasonable doubt,” and, in doing so, view “the evidence in the light most favorable to the
prosecution . . . giving the government the benefit of all inferences that could reasonably be drawn
from the testimony.” United States v. M/G Transp. Servs., Inc., 173 F.3d 584, 589 (6th
Cir. 1999) (emphasis omitted) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Defendants
asserting such claims “bear[] a very heavy burden,” United States v. Vannerson, 786 F.2d 221, 225
(6th Cir. 1986) (internal quotation marks and citation omitted), and an appellate court will only set
aside the judgment if, after viewing the record as a whole, it determines that “the judgment is not
supported by substantial and competent evidence.” United States v. Blakeney, 942 F.2d 1001, 1010
(6th Cir. 1991) (citing United States v. Ellzey, 874 F.2d 324, 328 (6th Cir. 1989)). We review De
La Torre’s appeal under this standard. Yet because Cervantes-Coronado failed to preserve his
sufficiency claim by renewing the motion for acquittal at the close of evidence, our review of his
claim “is limited to determining whether there was a ‘manifest miscarriage of justice.’” United
States v. Childs, 539 F.3d 552, 558 (6th Cir. 2008) (quoting United States v. Price, 134 F.3d 340,
350 (6th Cir. 1998)). “Such a miscarriage of justice occurs only if the record is devoid of evidence
pointing to guilt.” Id.; see also United States v. Street, 614 F.3d 228, 236 (6th Cir. 2010) (describing
the failure to preserve as “nearly fatal” to a sufficiency claim).
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A drug conspiracy conviction requires proof of the following elements: (1) an agreement to
violate drug laws; (2) knowledge and intent to join the conspiracy; and (3) participation in
the conspiracy. United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005). “[P]roof of a formal
agreement is not necessary; ‘a tacit or material understanding among the parties’ will suffice.”
United States v. Avery, 128 F.3d 966, 970–71 (6th Cir. 1997) (quoting United States v. Pearce, 912
F.2d 159, 161 (6th Cir. 1990)). We may infer the existence of a conspiracy from circumstantial
evidence, and we can infer a particular defendant’s participation in the conspiracy from his conduct.
Martinez, 430 F.3d at 330 (citations omitted). Once the government has shown the existence of a
conspiracy, the defendant’s involvement with the conspiracy “need only be slight.” Avery, 128 F.3d
at 971; see also United States v. Henley, 360 F.3d 509, 514 (6th Cir. 2004).
A. Cervantes-Coronado
Cervantes-Coronado argues that the government failed to present any evidence that he knew
of the relevant drug conspiracy on or about August 1, 2007. At most, he claims, the government
established his presence in the hotel room where the drug transaction took place, but he notes that
cases in this circuit have recognized that mere presence with conspirators does not establish
participation in the conspiracy. See, e.g., United States v. Peters, 15 F.3d 540, 544 (6th Cir. 1994);
Pearce, 912 F.2d at 162. While the cases cited by Cervantes-Coronado support the legal contention
he invokes, we reject his assertion that the government only established his presence at the drug deal.
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Far from a passive bystander, the government’s evidence showed that (1) Cervantes-
Coronado traveled a great distance to come to Asheville, North Carolina, on or about the date of the
exchange; (2) he checked into the hotel room on the date of the exchange using his home address
for the hotel registration form and his unemployment debit card for payment; (3) he observed the
transaction from the hotel room bed; and (4) the cell phone he frequently used during this time
period registered at least five calls with the methamphetamine supplier on the date of the exchange.
The government also established that the address used on the hotel registration form in 2007 matched
the address used by Cervantes-Coronado for a planned methamphetamine transaction in 2009, that
he possessed methamphetamine at the time of his 2009 arrest, and that he sold methamphetamine
to undercover law enforcement officials in 2005. This evidence readily satisfies the agreement,
intent, and participation prerequisites for a conspiracy conviction, see Martinez, 430 F.3d at 330, and
precludes us from finding the record “devoid of evidence pointing to guilt” as required to show a
manifest miscarriage of justice, see Childs, 539 F.3d at 558.
We note that in the context of his sufficiency argument Cervantes-Coronado obliquely
objects to the district court’s admission of evidence that he committed other drug crimes. Cervantes-
Coronado concedes, however, that he opened the door for the government’s presentation of some
of this evidence. Because Cervantes-Coronado’s brief does not directly challenge the district court’s
evidentiary rulings, does not identify the matter in his statement of issues, and treats the issue in a
cursory manner without citation to any traditional legal authorities, we deem it forfeited. See, e.g.,
United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006) (declining to consider an issue that did
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not appear in the statement of issues and received only “perfunctory” treatment in the brief). As a
sufficiency argument, Cervantes-Coronado’s objection lacks merit because sufficiency analysis
entails consideration of both proper and improper evidence. United States v. Lopez-Medina, 461
F.3d 724, 750 (6th Cir. 2006); United States v. Quinn, 901 F.2d 522, 530–31 (6th Cir. 1990).
B. De La Torre
De la Torre argues that the government’s case relies entirely on uncorroborated circumstantial
evidence. Specifically, De La Torre challenges four aspects of the government’s evidence against
him: (1) his testifying co-Defendants did not identify him in court; (2) the government’s concession
that no exchange took place in the Home Depot parking lot; (3) Jackie Trivette’s testimony that the
man in the hotel room encounter (purportedly De La Torre) told him that he did not have any
methamphetamine; and (4) the fact that the government never searched his Mercedes or hotel room.
Ample evidence, however, supported the jury’s conclusion that De La Torre intentionally joined and
participated in the methamphetamine conspiracy.
The government’s evidence placed De La Torre at the scene of the expected drug transaction
(the Home Depot parking lot) shortly after his check-in at the hotel and the methamphetamine
supplier’s call to Tony Trivette that set the meeting place. Jackie Trivette’s testimony established
that the young man (identified by agents as De La Torre) refused to accept the money in the parking
lot, but instead told Jackie to follow him to a hotel. Jackie Trivette left the money on the dresser in
De La Torre’s hotel room, in De La Torre’s presence, and agents later saw co-Defendant Alcaraz
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place an object in De La Torre’s Mercedes. The government further linked the telephone number
that De La Torre used to reserve the hotel room with phone calls made by the methamphetamine
supplier within minutes of the Home Depot rendezvous. Neither the circumstantial nature of this
evidence nor the lack of corroboration warrants a judgment of acquittal. See, e.g., United States v.
Stewart, 628 F.3d 246, 255 (6th Cir. 2010) (recognizing that coconspirator’s uncorroborated
testimony may support conspiracy conviction); Henley, 360 F.3d at 514 (noting that “slight” proof
can tie a defendant to a conspiracy). This evidence does more than place De La Torre at the scene
of a money exchange; it shows him both arriving at a pre-ordained location for a drug transaction
and providing instructions for the Trivettes to make payment in a secure location. It also permits
the reasonable inference that De La Torre coordinated the Home Depot meeting with the
methamphetamine supplier.
Considering this evidence in the light most favorable to the government and drawing all
reasonable inferences in the government’s favor, we conclude that a rational factfinder could find
beyond a reasonable doubt that De La Torre committed the drug conspiracy offense.
III.
For these reasons, we AFFIRM the district court’s judgment as to both convictions.
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