United States v. Nieto ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0225n.06
Filed: March 28, 2007
No. 05-6361
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
CECILIA NIETO, EASTERN DISTRICT OF TENNESSEE
Defendant-Appellant.
/
BEFORE: MARTIN and CLAY, Circuit Judges; and POLSTER,* District Judge.
CLAY, Circuit Judge. Defendant Cecelia Nieto appeals her conviction for conspiracy to
possess with the intent to distribute more than 500 grams of cocaine hydrochloride, aiding and
abetting the possession of cocaine hydrochloride with the intent to distribute, and aiding and abetting
the possession of a firearm in furtherance of a drug trafficking offense. Defendant argues that the
evidence was insufficient to sustain her conviction with respect to all counts, that the district court’s
alleged admission of hearsay evidence requires a new trial, and that the district court committed plain
error by failing to hold a sidebar conference to discuss her objection to hearsay evidence. For the
reasons that follow, we AFFIRM Defendant’s conviction.
*
The Honorable Dan Aaron Polster, United States District Judge for the Northern District
of Ohio, sitting by designation.
BACKGROUND
On January 25, 2005, Defendant was charged in a five-count indictment. The indictment
alleged that Defendant joined a conspiracy to possess with the intent to distribute more than 500
grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 21 U.S.C. § 846; that
Defendant distributed, attempted to distribute, and possessed with the intent to distribute cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2; and that Defendant aided and
abetted the knowing possession of a Raven Arms .25 caliber handgun in violation of 18 U.S.C. §§
924(c) and 2.1 On January 31, 2005, Defendant entered a plea of not guilty to all charges.
A jury trial was held on May 9 and 10, 2005. The government attempted to prove at trial that
Defendant and Miguel Garcia entered into a conspiracy to distribute cocaine hydrochloride in
December of 2004, which lasted until January of 2005. The government produced evidence of two
specific drug deals where Garcia and Defendant cooperated to sell or attempt to sell cocaine.
Additionally, Garcia and his girlfriend, Rebecca Sparks, testified that an ongoing drug distribution
relationship existed between Garcia and Defendant.
1
Specifically, Count One charged Defendant with conspiracy to possess with the intent to
distribute more than 500 grams of cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B) and 21 U.S.C. § 846; Count Two charged that, on or about December 29, 2004, Defendant
aided and abetted the distribution of cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C) and 18 U.S.C. § 2; Count Three charged that, on or about January 6, 2005, Defendant
aided and abetted the possession of cocaine with the intent to distribute in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2; Count Four charged that, on or about January 6, 2005,
Defendant aided and abetted the attempted distribution of cocaine hydrochloride in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2; Count Five charged that, on or about January
6, 2005, Defendant aided and abetted the knowing possession of a loaded Raven Arms .25 caliber
semiautomatic handgun, in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§
924(c) and 2.
-2-
The two specific drug deals occurred on December 29, 2004 and January 6, 2005. On
December 29, 2004, Garcia called Defendant, and after that conversation, Garcia and Sparks went
to Defendant’s house. Defendant was going to sell two ounces of cocaine, in cooperation with
Garcia, who would meet the buyer and conduct the transaction. Defendant, Garcia, and Sparks drove
to the parking lot of a local restaurant in order to meet the buyer. Defendant handed Garcia the
cocaine and a gun. Sparks attempted to talk Garcia out of carrying the firearm, but Garcia insisted
upon carrying the weapon. Defendant drove from the restaurant to a nearby hotel, where Garcia left
Defendant’s car and walked to a carwash located in the immediate vicinity of the hotel. At the
carwash, Garcia briefly visited the car of another individual, to whom he sold two ounces of cocaine.
After the drug deal, Garcia gave Defendant the money he had received from the drug deal, and he
returned the gun to her. Defendant paid Garcia $300 for conducting the transaction. Unbeknownst
to Garcia, Sparks, or Defendant, the buyer worked with the government as a confidential informant,
and he turned the drugs over to the police. The substance that the confidential informant had
purchased was confirmed to be a mixture containing cocaine, which weighed 48.2 grams.
On January 6, 2005, Garcia went to a bar where Defendant was working, and Defendant gave
him five ounces of cocaine. Garcia and Defendant then went to Defendant’s house, where they
picked up a gun. Garcia and Defendant returned to the same carwash, although this time they
caravanned in separate cars. At the carwash, Garcia met the buyer, who was a confidential informant
working with the government. Before Garcia learned that the buyer was a confidential informant,
he and the buyer talked about a drug deal involving a greater quantity of drugs, and Garcia told the
buyer that he and Defendant in the future would sell him a kilogram of cocaine. Garcia was planning
to meet Defendant at the carwash and give her the money received from the sale of the five ounces
-3-
of cocaine and return the gun to her, but he was arrested before this rendevous could occur.
Defendant was arrested at approximately the same time three hundred years away from the carwash.
She had intended to give Garcia $400 for transacting this drug deal.
In addition to these two specific drug transactions, the testimony from Garcia and Sparks at
trial suggested that Defendant was engaged in the business of selling cocaine. Sparks testified that
she had seen Defendant with drugs on numerous occasions, and that everyone knew that Defendant
dealt drugs. Garcia testified that prior to the drug deal on December 29, 2004, he had engaged in
other drug deals with Defendant. He stated that he would get drugs from Defendant every two to
three weeks, in a half-ounce quantity, and that he would only pay for the drugs after he had sold
them.
On May 10, 2005, the jury returned a verdict of guilty as to all counts. The jury found, by
way of a special verdict form, that the government had proven beyond a reasonable doubt that
Defendant was responsible for more than 500 grams of cocaine as alleged in Count One of the
indictment. After a hearing on August 18, 2005, Defendant was sentenced to seventy-eight months
imprisonment on Counts One through Four, to be served concurrently, and sixty months
imprisonment on Count Five, to be served consecutively to the other sentences, for a total sentence
of one hundred and thirty-eight months incarceration, to be followed by four years of supervised
release. On August 23, 2005, Defendant filed a timely notice of appeal
DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
Defendant contends that the evidence adduced at trial was insufficient to support her
conviction with respect to all counts. Whether the evidence at trial was sufficient to support the
-4-
jury’s verdict is an issue that we review de novo. United States v. Kelley, 461 F.3d 817, 825 (6th Cir.
2006). Where a defendant makes a motion for a judgment of acquittal pursuant to Federal Rule of
Criminal Procedure 29, as Defendant did in this case, we ask “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Paige, 470 F.3d 603, 608 (6th
Cir. 2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “When reviewing for the
sufficiency of evidence in support of a jury verdict, this Court views the evidence in the light most
favorable to the prosecution and gives the prosecution the benefit of all reasonable inferences from
the testimony.” United States v. Caver, 470 F.3d 220, 232 (6th Cir. 2006) (quoting United States
v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006)), petition for cert. filed, (U.S. Feb. 28, 2007) (No.
06-9796).
1. Conspiracy
Defendant argues that the evidence was insufficient for the jury to find the necessary
elements of conspiracy. “The elements of conspiracy are (1) an object to be accomplished. (2) A
plan or scheme embodying the means to accomplish that object. (3) An agreement or understanding
between two or more of the defendants whereby they become definitely committed to cooperate for
the accomplishment of the object by the means embodied in the agreement, or by any effectual
means.” Id. (quoting United States v. Gibbs, 182 F.3d 408, 420 (6th Cir. 1999)) (internal quotation
marks and brackets omitted). In order to prove a conspiracy to violate the drug laws, the government
must establish the following elements beyond a reasonable doubt: “(1) an agreement to violate drug
laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.” Id.
-5-
(quoting Gibbs, 182 F.3d at 420). A conspiracy to violate the drug laws does not require a formal
contract; “[a] tacit or mutual understanding among the parties is sufficient.” Id. at 233.
There was ample evidence from which a jury could conclude that Defendant knowingly
entered into an agreement with Garcia to violate the drug laws, and that Defendant actively
participated in the conspiracy. The evidence demonstrated that Defendant and Garcia engaged in
a partnership to sell drugs. Sparks testified that, after Garcia received a call from a potential
customer, he contacted Defendant, and they drove to complete the drug transaction together. Sparks
also stated that Defendant supplied Garcia with the drugs and a gun. Garcia’s testimony reinforced
Sparks’ testimony, and Garcia additionally testified that after he completed the drug transaction, he
surrendered the money he received for the drugs to Defendant, and was paid for his services. This
business relationship is relevant evidence which tended to show the existence of an agreement. See
id. at 235 (evidence that defendant hired coconspirator to hold drugs for him was relevant to the
existence of a conspiracy).
Garcia’s testimony at trial also evidenced a cooperative relationship between himself and
Defendant. Garcia testified that he and Defendant engaged in regular drug transactions, whereby he
would purchase approximately a half-ounce of cocaine from Defendant every two to three weeks.
See United States v. Brown, 332 F.3d 363, 373 (6th Cir. 2003) (evidence of repeated drug deals tends
to show conspiracy). Garcia also stated that Defendant would provide him with drugs on credit,
which suggests the existence of a conspiracy. See United States v. Henley, 360 F.3d 509, 514 (6th
Cir. 2004) (selling drugs on credit tends to show conspiracy). In sum, there was no shortage of
evidence at trial from which a jury could conclude that Defendant knowingly conspired with Garcia
to violate the drug laws.
-6-
Defendant argues that “[t]he only evidence for distribution other than co-defendant testimony
was that [Defendant] was at the place where Mr. Garcia began to go to his drug transaction and was
300 yards away from where Mr. Garcia was arrested.” Defendant’s Br. at 10 (emphasis added).2
According to Defendant, neither Sparks nor Garcia gave credible testimony. Defendant avers that
Sparks could not be believed because she was offered immunity in exchange for her testimony and
because she was Garcia’s girlfriend; Garcia was incredible because he made potentially inconsistent
statements about whether he was offered a reduction in his sentence in exchange for his plea, and
because his testimony was clouded by his hope of obtaining a lighter sentence. Defendant’s
arguments ignore the well-settled principle that credibility determinations are the jury’s job, and do
not present a basis for overturning a conviction for insufficient evidence. Paige, 470 F.3d at 608
(“‘Attacks on witness credibility are simple challenges to the quality of the government’s evidence
and not the sufficiency of the evidence.’” (quoting United States v. Sanchez, 928 F.2d 1450, 1457
(6th Cir. 1991) (brackets omitted)). Drawing all credibility determinations in favor of the
government, as we must, see id., the testimony of the government’s witnesses furnishes a sufficient
basis for upholding the jury’s verdict.
Defendant also challenges the jury’s finding that she was responsible for more than 500
grams of cocaine. Generally speaking, a defendant is responsible for the drug quantities for which
she is directly involved, and any quantity that is a reasonably foreseeable consequence of the
conspiracy. See Caver, 470 F.3d at 246-47 (upholding jury instruction to this effect); United States
v. Bartholomew, 310 F.3d 912, 923 (6th Cir. 2002) (noting that under the United States Sentencing
2
This statement is not accurate. Because Garcia had pled guilty before trial, he was a co-
conspirator, but not a co-defendant. And although the government offered Sparks immunity, it
never alleged that she was even a co-conspirator, let alone a co-defendant.
-7-
Guidelines “a participant is responsible for other conspirators’ conduct only if that conduct was
reasonably foreseeable to him and in furtherance of the execution of the jointly undertaken criminal
activity” (quoting United States v. Jenkins, 4 F.3d 1338, 1346 (6th Cir. 1993))); see also United
States v. Pinkerton, 328 U.S. 640, 646-48 (1946).
It was not necessary for the government to prove that Defendant or Garcia actually delivered
a kilogram of cocaine to the confidential informant in order for the jury to convict Defendant of
conspiracy to distribute more than 500 grams of cocaine; if Defendant knowingly joined and
participated in an agreement to sell more than 500 grams of cocaine then her conviction was proper.
Garcia testified that Defendant said that she and Garcia would be able to get a kilogram of cocaine
to deliver to the confidential informant. The jury could have believed Garcia, whose testimony was
sufficient to establish a conspiracy to distribute more than 500 grams of cocaine. Any attack on
Garcia’s credibility is an inappropriate basis for a challenge to the sufficiency of the evidence.
Paige, 470 F.3d at 608.
2. Possession with the Intent to Distribute
Defendant next challenges the sufficiency of the evidence with respect to her convictions for
aiding and abetting the possession of cocaine with the intent to distribute. Under 21 U.S.C. §§
841(a) and (b)(1)(C) (which requires no minimum quantity of cocaine), the elements of the offense
are that “(1) the defendant knowingly; (2) possessed a controlled substance; (3) with intent to
distribute.” United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995). “[T]he essential elements
of aiding and abetting are (1) an act by the defendant that contributes to the commission of the crime,
and (2) an intention to aid in the commission of the crime.” United States v. Davis, 306 F.3d 398,
412 (6th Cir. 2002).
-8-
A reasonable jury could find that Defendant aided and abetted the possession of cocaine with
the intent to distribute on December 29, 2004. Sparks testified that, on December 29, 2004,
Defendant drove Garcia to the place where the drug transaction occurred, and that Defendant handed
Garcia the drugs. Garcia testified to the same, and also stated that he remitted the money received
from the buyer to Defendant. From this evidence, the jury could find that Defendant contributed to
the commission of the crime of possession of cocaine with the intent to distribute, and that she had
the specific intent to facilitate the crime of possession of cocaine with the intent to distribute.
Likewise, a reasonable jury could find that Defendant satisfied the elements of aiding and
abetting the possession of cocaine with the intent to distribute on January 6, 2005. Garcia testified
that it was Defendant who gave him the drugs, and that Defendant followed him to the place where
the drug transaction was to occur. Garcia also stated that he planned to remit the money from the
drug sale to Defendant, who would pay him for his efforts. From this evidence, the jury could find
that the elements of aiding and abetting the possession of cocaine with the intent to distribute were
satisfied.
3. Possession of a Firearm in Furtherance of a Drug Trafficking Crime
Defendant also contends that the evidence was insufficient for the jury to find that she aided
and abetted the possession of a firearm in furtherance of a drug trafficking crime. A defendant is
guilty of possessing a firearm in furtherance of a drug trafficking crime if the defendant “during and
in relation to any . . . drug trafficking crime . . . , in furtherance of any such crime, possesses a
firearm.” 18 U.S.C. § 924(c)(1). The government must demonstrate that the defendant intended to
use the firearm to “advance, promote, or facilitate” the drug crime. Paige, 470 F.3d at 609 (citing
Untied States v. Mackey, 265 F.3d 457, 461-62 (6th Cir. 2001)); United States v. Rios, 449 F.3d
-9-
1009, 1012 (9th Cir. 2006). A firearm is used “in furtherance of” a drug crime when it is
“strategically located so that it is quickly and easily available for use.” Mackey, 265 F.3d at 462
(holding that “an illegally possessed, loaded, short-barreled shotgun in the living room of the crack
house, easily accessible to the defendant and located near the scales and razor blades” was possessed
“in furtherance of” a drug transaction).
In the present case, the evidence was sufficient for a reasonable jury to find that Defendant
aided and abetted the possession of a firearm in furtherance of a drug trafficking crime. Garcia
testified that on January 6, 2005 he and Defendant went to Defendant’s house to pick up the Raven
Arms .25 caliber semiautomatic handgun before engaging in a drug transaction. The fact that
Defendant provided the gun to Garcia so that he could arm himself in preparation for the drug deal
is sufficient for a jury to find that Defendant aided and abetted a violation of § 924(c). Defendant
again argues that the evidence adduced at trial was insufficient to support her conviction because
Garcia was allegedly incredible. As discussed above, however, credibility challenges cannot render
otherwise sufficient evidence legally infirm. See Paige, 470 F.3d at 608.
B. HEARSAY TESTIMONY
Defendant argues that a new trial is required because the district court improperly admitted
hearsay testimony. Defendant has waived this argument. “[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed waived.” United
States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999). Defendant cites only a single case, Crawford v.
Washington, 541 U.S. 36 (2004),3 and her application of law to facts consists of a single sentence:
3
Defendant misquotes Crawford, attributing to the case language that appears nowhere
within it. One possibility is that counsel is quoting the Westlaw summary of Crawford, which is
identical to the quotation in counsel’s brief. Of course, only the holding of a Supreme Court case
-10-
“In the instant case, the agent for the Government was testifying to was [sic] a Confidential
Informant had told him.” Defendant’s Br. at 12. This cursory treatment of the hearsay issue is
insufficient to preserve the argument on appeal.
C. REFUSAL TO CONDUCT A SIDEBAR CONFERENCE
Defendant argues that the district court committed plain error by failing to hold a sidebar
conference to discuss her hearsay objection. We generally review the district court’s conduct during
trial for abuse of discretion. United States v. Hynes, 467 F.3d 951, 957 (6th Cir. 2006) (citing
McMillan v. Castro, 405 F.3d 405, 409 (6th Cir. 2005)). Where the defendant fails to object to the
district court’s conduct at trial, however, our review is limited to plain error. Id. at 957-58 (citing
United States v. Owens, 159 F.3d 221, 227 (6th Cir. 1998)). In order to demonstrate plain error, a
defendant must show: “(1) error, (2) that is plain, and (3) that affects substantial rights. If all three
conditions are met, [the Court] may then exercise [its] discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Baker, 458 F.3d 513, 517 (6th Cir. 2006) (quoting Johnson v. United States, 520
U.S. 461, 466-67 (1997)) (internal citations, quotations marks and brackets omitted).
We conclude that Defendant has again waived her argument on appeal. We reiterate that
“issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” Layne, 192 F.3d at 566. Defendant again relies upon a single
case, United States v. Day, 956 F.2d 124, 124-25 (6th Cir. 1992), where the court held that a new
trial was not warranted by the fact that the district court “scathing[ly]” criticized the defendant’s
counsel at a sidebar conference because the record demonstrated that the sidebar conference occurred
is binding precedent upon this Court. Westlaw summaries do not carry the force of law.
-11-
outside the jury’s hearing. Defendant’s application of law to facts is also perfunctory. She states that
“[s]ince the District Court does not allow sidebars, the [hearsay evidence referenced above] came
in anyway. . . . In the instant case, the attorney for Appellant had to argue his objection before the
jury. The case should be remanded for re-trial and [sic] allow for sidebars.” Defendant’s Br. at 12-
13. This argument fails to address any element of the plain-error standard (or identify that standard
itself), and cites only a single case of tangential relevance. Lacking both persuasive legal authority
and developed argumentation, Defendant’s argument fails to clear even the low threshold of waiver.
Even if we were to consider Defendant’s argument, however, we would find it lacking in
merit. Defendant cannot demonstrate plain error. We recognize that the practice of holding sidebar
conferences is encouraged. See United States v. Gallo, 763 F.2d 1504, 1531-32 (6th Cir. 1985)
(“[U]nder our supervisory power we strongly ‘suggest that if the trial court needs to confer with
counsel about rulings to be made from the bench the safe course is to excuse the jury or retire to
chambers and let the reporter record what takes place.’” (quoting United States v. Brumley, 560 F.2d
1268, 1281 (5th Cir. 1977))). Moreover, the district court’s decision to conduct voir dire and discuss
Defendant’s hearsay objection within earshot of the jury is not model trial practice. Even granting
the unlikely assumption that the district court’s conduct constituted an error that was plain, however,
Defendant cannot not show that allowing the jury to hear the voir dire examination and counsels’
hearsay arguments affected her substantial rights. Defendant points to nothing in the voir dire
examination of Detective Beverly that was likely to cause her prejudice, and we can likewise not
discern anything in the record that posed a danger to Defendant’s substantial rights. Thus, Defendant
cannot demonstrate plain error.
CONCLUSION
-12-
For the foregoing reasons, we AFFIRM Defendant’s conviction.
-13-