United States v. Crispin Herra-Herra , 860 F.3d 1128 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3410
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Crispin Herra-Herra
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 11, 2017
Filed: June 27, 2017
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Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
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BEAM, Circuit Judge.
Crispin Herra-Herra appeals his conviction, following a jury trial for
conspiracy to distribute methamphetamine. Herra-Herra also appeals his 151-month
sentence as substantively unreasonable. We affirm the district court.1
1
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
I. BACKGROUND
The evidence at trial established that federal agents discovered Herra-Herra's
involvement in a methamphetamine distribution conspiracy while investigating a
particular Mexico-based drug trafficking organization. By virtue of a tracking device
that was placed on a co-conspirator's vehicle, as well as a "ping" tracking device for
the phone of another co-conspirator, officers discovered that Herra-Herra was
involved in a multi-layered conspiracy to distribute multiple pounds of
methamphetamine into the Omaha area. Herra-Herra arrived in Omaha in November
2014, shortly before his arrest in December 2014. In the short time Herra-Herra was
in Omaha prior to his arrest, he helped to maintain a stash house on Lawndale Drive.
Drug-packaging paraphernalia was found during a search of the house, and several
pounds of methamphetamine were found buried in the back yard. Surveillance
indicated that Herra-Herra had access2 to the inside of this house, and he was there
by himself at least once. Surveillance pictures showed Herra-Herra and another co-
conspirator shoveling snow at the Lawndale house.
On December 9, 2014, Herra-Herra and a co-conspirator spent about two hours
in another house, believed by law enforcement to be Herra-Herra's residence, at 3706
Q Street in Omaha. The co-conspirator was carrying a child's backpack over his
shoulder when he arrived, and he later left with the same backpack. About an hour
later, the co-conspirator was arrested during a traffic stop, and officers recovered
approximately $169,000 of shrink-wrapped, taped, and rubber-banded bundles from
the backpack. When officers conducted a search, pursuant to a warrant, of Herra-
Herra's residence on Q Street later that same day, they found a vacuum sealing
machine, bags, and tape, similar to the materials used to package the $169,000 in
2
In its brief, the government states on more than one occasion that Herra-Herra
had a key to the stash house on Lawndale, but our review of the trial transcript
indicates no testimony to that effect, and the government has not pointed us to any
such evidence in the record.
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currency. There was also evidence that Herra-Herra used and owned multiple phones,
which an agent testified was indicative of drug-dealing activity. All of the foregoing
circumstantial evidence was established by way of testimony from three case agents,
a co-conspirator, and the landlord who owned one of the houses used in the
conspiracy.
The case was tried before a jury on February 16 and 17, 2016. The jury
received the case at 2:52 p.m. on February 17, and ended the day without a verdict,
but resumed deliberations on February 18. Shortly before 3:00 p.m. on February 18,
the jury submitted the following question: "What happens if we don't come to a
verdict?" The district court gave counsel the option of giving an Allen3 charge or
instructing the jury that if it could not come to a verdict, the government would
decide whether to retry the defendant or dismiss the case. The government voted for
the former and Herra-Herra advocated for the latter. The court gave the jury the latter
instruction. Shortly thereafter, at 3:25 p.m., the jury informed the court it was
deadlocked. The court asked counsel if they preferred an Allen charge or for it to
declare a mistrial. Again, the government chose the former and Herra-Herra chose
the latter. Noting that the jury had been out twenty-four hours after a day-and-a half
trial, the court chose to give the jury an Allen charge. After the Allen charge, the jury
returned a guilty verdict at 10:10 a.m. the next morning, February 19. The jury
deliberated for roughly three hours after receiving the Allen charge.
At sentencing, the presentence investigation report found Herra-Herra
responsible for 25.3 kilograms of methamphetamine, but the district court held Herra-
Herra responsible for only 11.7 kilograms, resulting in a Guidelines sentencing range
of 151 to 188 months. Herra-Herra asked the district court to depart to the mandatory
minimum of 120 months, but the district court declined the request and sentenced
Herra-Herra to the bottom of the range, 151 months in prison. Herra-Herra appeals,
3
Allen v. United States, 164 U.S. 492 (1896).
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arguing the district court erred in giving the Allen charge and failing to declare a
mistrial; that there was insufficient evidence to support his conviction; and that his
sentence was unreasonable.
II. DISCUSSION
A. Jury Deliberations
"An Allen-charge is a supplemental jury instruction that advises deadlocked
jurors to reconsider their positions." United States v. Walrath, 324 F.3d 966, 970 (8th
Cir. 2003) (quoting United States v. Glauning, 211 F.3d 1085, 1086 n.2 (8th Cir.
2000)). An Allen charge is neither inherently coercive nor prejudicial. United States
v. Aldridge, 413 F.3d 829, 832 (8th Cir. 2005). Nor does a defendant have a right to
an instruction telling the jury of a right to reach no decision. United States v. Arpan,
887 F.2d 873, 876 (8th Cir. 1989) (en banc). An Allen charge is allowable so long
as the instruction is not impermissibly coercive, which is determined by (1) the
instruction's content; (2) the length of the deliberation after the instruction; (3) the
total length of deliberations; and (4) any other indicia of coercion. Walrath, 324 F.3d
at 970. Although Herra-Herra asked that the district court declare a mistrial instead
of giving the Allen charge, the government alleges that Herra-Herra did not object to
the Allen charge at the time it was given and we should review for plain error.
Having examined the transcript, we are not as sure as the government about Herra-
Herra's lack of objection, as his counsel twice voiced his preference for the options
other than the Allen charge. On the other hand, counsel did not object further when
the district court announced that it would, indeed, give the Allen charge.
Nonetheless, because the ultimate outcome is not affected by our standard of review,
we will review this matter for an abuse of discretion. Id.
Herra-Herra challenges the second and third Walrath factors. The jury
deliberated approximately three hours following the Allen instruction. Herra-Herra
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contends such a time span is "more significant" than other cases where this court has
found no coercion, and cites cases where the juries deliberated less than an hour
following the charge. E.g., United States v. Dawkins, 562 F.2d 567, 570 (8th Cir.
1977) (holding that a mere 45 minutes of deliberation demonstrated a lack of
coercion). However, in United States v. Whatley, 133 F.3d 601, 604-05 (8th Cir.
1998), we found that a deliberation time of four hours after giving the charge showed
that the jury carefully considered the case rather than arriving at its conclusion
because of coercion. Under the circumstances of the instant case, we find that the
roughly three hours of deliberation subsequent to the instruction does not indicate
coercion. Glauning, 211 F.3d at 1087 ("The jury's two hours of deliberation after the
charge . . . raises no inference of coercion.").
Herra-Herra also takes issue with the jury's total deliberation time,
approximately twelve hours for a one-and-a-half-day trial. He contends this
demonstrates the charge had a coercive effect on the jury. However, in Glauning we
found that sixteen to eighteen hours of deliberation time for a two-day trial, in the
absence of any other evidence of coercion, demonstrated that the charge was not
coercive. Id. at 1086-87. The amount of total deliberation time here (twelve hours)
demonstrates that the jury carefully considered the case. On that basis, we again find
that the Allen charge was not impermissibly coercive, and the district court did not
abuse its discretion in giving the charge as opposed to granting a mistrial as requested
by Herra-Herra.
B. Sufficiency of the Evidence
Herra-Herra next argues there was insufficient evidence to support his
conviction and specifically argues the government only showed he was guilty of
associating with bad actors. We review the sufficiency of the evidence to sustain a
conviction de novo, viewing the evidence in the light most favorable to the jury's
verdict, drawing all reasonable inferences in favor of the verdict and reversing only
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if no reasonable jury could find all the elements beyond a reasonable doubt. United
States v. Cole, 721 F.3d 1016, 1021 (8th Cir. 2013). In order to convict Herra-Herra
of conspiracy to distribute methamphetamine, the government needed to prove that
(1) a conspiracy existed; (2) Herra-Herra knew of the conspiracy; and (3) he
intentionally became a part of the conspiracy. United States v. Ruiz-Zarate, 678 F.3d
683, 689 (8th Cir. 2012). To establish the existence of a conspiracy the government
must prove that there was an agreement among individuals to accomplish an illegal
purpose. United States v. Crossland, 301 F.3d 907, 913 (8th Cir. 2002).
Circumstantial evidence alone can prove the existence of the agreement, and an
express agreement is unnecessary–a conspiracy may consist of simply a tacit
understanding. Id.
Although the evidence was far from overwhelming because Herra-Herra had
arrived on the scene approximately three weeks before being arrested, there was
sufficient evidence for the jury to find Herra-Herra guilty of the charged conspiracy.
He had access to, and helped maintain, the stash house where three pounds of
methamphetamine were found buried in the backyard. There was sufficient evidence
for the jury to find that Herra-Herra assisted a co-defendant in wrapping and
packaging approximately $169,000 in methamphetamine proceeds. At the house
where Herra-Herra was living, agents found materials used to package the currency.
Herra-Herra used and owned multiple phones, as is typical of a person involved in
drug distribution. The jury considered Herra-Herra's arguments that the government
was trying to convict him of guilt by association and rejected them. Given our
standard of review, there was enough circumstantial evidence at trial to establish that
there was a drug conspiracy, that Herra-Herra knew of the conspiracy, and that he
intentionally became a part of it.
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C. Sentence
Herra-Herra challenges the substantive reasonableness of his sentence. We
review sentences under the abuse-of-discretion standard. United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009) (en banc). "[I]t will be the unusual case when we
reverse a district court sentence–whether within, above, or below the applicable
Guidelines range–as substantively unreasonable." Id. at 464 (quoting United States
v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)). Sentences within the advisory
Guidelines range are presumed reasonable, however. United States v. San-Miguel,
634 F.3d 471, 475 (8th Cir. 2011). This presumption is rebuttable, but the burden is
on a defendant to show his sentence should have been lower considering the factors
enumerated in 18 U.S.C. § 3553(a). United States v. Bolden, 596 F.3d 976, 984 (8th
Cir. 2010).
The 151-month sentence, within the advisory Guidelines range, is
presumptively reasonable on appeal and nothing in the record rebuts this
presumption. The district court considered and denied Herra-Herra's request for a
below-Guidelines sentence. Although his sentence is higher than some of his co-
conspirators, he was the only co-conspirator not to make a plea deal with the
government and his sentence does not result in an unwarranted disparity. He has
failed to show the district court abused its discretion by sentencing him to 151 months
in prison.
III. CONCLUSION
We affirm the district court.
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