United States v. Gabriel Parra Lopez ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2254
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District of
* South Dakota.
Gabriel Parra Lopez, *
*
Appellant. *
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Submitted: January 10, 2006
Filed: April 17, 2006
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Before LOKEN, Chief Judge, WOLLMAN, BEAM, ARNOLD, MURPHY, BYE,
RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, and BENTON,
Circuit Judges.
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ARNOLD, Circuit Judge.
A jury convicted Gabriel Lopez and Johnny Cervantes of conspiring to
distribute and possessing with the intent to distribute more than 500 grams of
methamphetamine and aiding and abetting the same, see 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(viii), 846; 18 U.S.C. § 2. Both men appealed their convictions and
sentences. After a panel of our court affirmed, United States v. Lopez, 414 F.3d 954
(8th Cir. 2005), we granted Mr. Lopez's motion for en banc review and vacated the
part of the panel decision addressing the sufficiency of the evidence supporting his
convictions.
Having reviewed the evidence in Mr. Lopez's case, we affirm the judgment of
the district court.1 In doing so, we clarify the proper standard of review for
challenges to the sufficiency of the evidence in conspiracy cases. Although we have
in the past sometimes said that "slight evidence" is all that is necessary to connect an
individual to a conspiracy, see, e.g., United States v. Causor-Serrato, 234 F.3d 384,
388 (8th Cir.2000), cert. denied, 532 U.S. 1072 (2001), we hold that while a
defendant's role in a conspiracy may be minor, the government must offer enough
evidence to prove a defendant's connection to a conspiracy beyond a reasonable doubt
before a conspiracy conviction can be upheld.
I.
Mr. Lopez and Mr. Cervantes came to the attention of a drug task force in
South Dakota after police executed a search warrant and discovered
methamphetamine and marijuana in the residence of one Geneva Green. Ms. Green
told law enforcement officers that Mr. Cervantes and his associates periodically drove
from the west coast to deliver methamphetamine to her. Ms. Green testified that
Mr. Cervantes often "fronted" the drugs to her and she would later pay him with the
proceeds that she made selling the drugs. Ms. Green also told police that Mr. Lopez
had once driven to her residence and collected a large sum of money that she owed
to Mr. Cervantes for drugs.
With Ms. Green's cooperation, the task force set up a controlled buy between
Ms. Green and Mr. Cervantes on March 29, 2003. As Ms. Green wore a recording
device and task force officers watched, Mr. Cervantes and Mr. Lopez arrived in an
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
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SUV at a gas station that Ms. Green and Mr. Cervantes had previously agreed upon
as a meeting place. After some discussion with Ms. Green, Mr. Cervantes and
Mr. Lopez left the gas station in the SUV. They returned a few minutes later, and
Mr. Cervantes gave Ms. Green 600 grams of methamphetamine and said that he
would need the money for the drugs soon. As Mr. Lopez and Mr. Cervantes drove
away, task force agents first retrieved the drugs from Ms. Green and then stopped the
SUV. A trained dog alerted in a way that indicated the presence of drugs in the hood
area of the SUV. Though no drugs were found there, agents discovered that the
vehicle's air breather could be removed easily and was missing its air filter.
Ms. Green told agents that during previous purchases she had seen Mr. Cervantes
retrieve drugs from the SUV's hood area.
Mr. Lopez was charged with conspiring to distribute more than 500 grams of
methamphetamine "[o]n or about between January 1, 2002, and March 26, 2003,"
and aiding and abetting the possession of methamphetamine with the intent to
distribute it. During his trial, Mr. Lopez moved for a judgment of acquittal, which the
district court denied. A jury convicted Mr. Lopez on both counts, and the district
court sentenced him to 151 months in prison.
II.
Mr. Lopez contends that there was insufficient evidence to convict him on the
conspiracy charge. He concedes that the government presented ample evidence of a
conspiracy involving Ms. Green and Mr. Cervantes, but he contends that the
government failed to prove beyond a reasonable doubt that he was a member of that
conspiracy.
A.
This case gives us a chance to revisit our application of the so-called slight
evidence rule. Our first relevant pronouncement on the subject was that "[w]here a
conspiracy is established, but slight evidence connecting a defendant therewith may
still be substantial, and if so, sufficient." Galatas v. United States, 80 F.2d 15, 24
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(8th Cir. 1935) (citing Tomplain v. United States, 42 F.2d 202, 203 (5th Cir. 1930),
cert. denied, 282 U.S. 886 (1930)), cert. denied, 297 U.S. 711 (1936). But we went
on in that case to make clear that the government was still required to prove that
connection beyond a reasonable doubt. See id.
As we began to apply the principles outlined in Galatas, we took care to ensure
that a conspiracy conviction was supported by "substantial evidence tending to prove
the defendant guilty ... beyond a reasonable doubt." Marx v. United States, 86 F.2d
245, 250 (8th Cir. 1936); cf. Walker v. United States, 93 F.2d 383, 392 (8th Cir.
1937), cert. denied, 303 U.S. 644 (1938). In one frequently cited opinion, we tried
to explain how "slight evidence" of involvement in a conspiracy can nevertheless be
substantial: "it is ... possible for the circumstances o[f] an individual's participation
in an established conspiracy to become substantial from their weight and position in
context, though in abstraction they may seem only slight." United States v. Phelps,
160 F.2d 858, 867-68 (8th Cir. 1947), cert. denied, 334 U.S. 860 (1948).
We have not, however, always been very careful in describing the applicable
legal principles. Our statements have tended to migrate somewhat. Even in the years
immediately following Galatas, there were opinions of our court that did not
emphasize the proper burden of proof. See, e.g., McDonald v. United States, 89 F.2d
128, 138-39 (8th Cir. 1937), cert. denied, 301 U.S. 697 (1937). More recently, as the
number of conspiracy cases on our docket multiplied, we have sometimes dispatched
a challenge to a conspiracy conviction with a simple statement that slight evidence
was sufficient for a conviction. See, e.g., United States v. Schmaltz, 562 F.2d 558,
560 (8th Cir. 1977); United States v. Dempewolf, 817 F.2d 1318, 1322 (8th Cir.
1987), cert. denied, 484 U.S. 903 (1987); United States v. Turpin, 920 F.2d 1377,
1384 (8th Cir. 1990), cert. denied, 499 U.S. 953 (1991); United States v. J.H.H.,
22 F.3d 821, 830 (8th Cir. 1994); United States v. Guerrero-Cortez, 110 F.3d 647,
651 (8th Cir. 1997), cert. denied, 522 U.S. 1017 (1997); United States v. Ortiz,
125 F.3d 630, 633 (8th Cir. 1997), cert. denied, 522 U.S. 1132 (1998). In some
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opinions, there are statements that, if read by themselves, might suggest that the
government need not prove a defendant's connection to a conspiracy beyond a
reasonable doubt. For example, in United States v. McMurray, 34 F.3d 1405, 1412-
13 (8th Cir. 1994), cert. denied, 513 U.S. 1179 (1995), we said that "once the
existence of a conspiracy is established, slight evidence connecting a defendant to the
conspiracy is sufficient to support a conviction." See also United States v. Logan,
49 F.3d 352, 360 (8th Cir. 1995); United States v. Agofsky, 20 F.3d 866, 870-71 (8th
Cir. 1994), cert. denied, 513 U.S. 909 & 949 (1994). At other times, however, we
have adverted to slight evidence in one breath and in the next noted that the
government must prove all elements of the crime beyond a reasonable doubt. See,
e.g., United States v. Jiminez-Perez, 238 F.3d 970, 973 (8th Cir. 2001).
The trouble caused by our various statements and those of some other circuits
on the matter of slight evidence in conspiracy cases has been the subject of frequent
and enduring criticism. See, e.g., Brent E. Newton, The Antiquated "Slight Evidence
Rule" in Federal Conspiracy Cases, 1 J. App. Prac. & Process 49 (1999); Note,
Connecting Defendants to Conspiracies: The Slight Evidence Rule and the Federal
Courts, 64 Va. L. Rev. 881 (1978). The essential difficulty with some of our cases
is that they seem to suggest that a person may be convicted of the crime of conspiracy
even when the evidence does not demonstrate, beyond a reasonable doubt, that the
person was a member of a conspiracy. Such a principle is of course irreconcilable
with the long-accepted burden of proof in criminal cases, see In re Winship,
397 U.S. 358, 361-64 (1970), and it is particularly unwarranted in conspiracy law,
where the government has the ability to hold relatively small players responsible for
a wide range of criminal conduct. See United States v. Martinez de Ortiz,
883 F.2d 515, 524 (7th Cir. 1989) (Easterbrook, J., concurring), reh'g granted and
judgment vacated on other grounds, 897 F.2d 220 (7th Cir. 1990). In oral argument
in this case, the government agreed, without reservation, that it had to prove a
defendant's connection to a conspiracy beyond a reasonable doubt. The controversy
here is thus one of language, not law.
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Nonetheless, in case our repeated invocation of the so-called slight evidence
rule has left some doubt about whether we are holding the government to its burden
of proof, we now join the other circuits that have rejected it. See United States v.
Marsh, 747 F.2d 7, 13, 13 n.3 (1st Cir. 1984); United States v. Burgos, 94 F.3d 849,
861-62 (4th Cir. 1996) (en banc), cert. denied, 519 U.S. 1151 (1997); United States
v. Malatesta, 590 F.2d 1379, 1382 (5th Cir. 1979) (en banc), cert. denied,
440 U.S. 962, 444 U.S. 846 (1979); United States v. Durrive, 902 F.2d 1221, 1228-29
(7th Cir. 1990); United States v. Dunn, 564 F.2d 348, 356-57 (9th Cir. 1977); United
States v. Toler, 144 F.3d 1423, 1427, 1427 n.5 (11th Cir. 1998). The correct legal
statement is that a defendant may be convicted for even a minor role in a conspiracy,
so long as the government proves beyond a reasonable doubt that he or she was a
member of the conspiracy. See Burgos, 94 F.3d at 861; Dunn, 564 F.2d at 357;
Marsh, 747 F.2d at 13. Proof of a defendant's involvement in a conspiracy may of
course be demonstrated by direct or circumstantial evidence. United States v.
Mendoza, 421 F.3d 663, 668 (8th Cir. 2005). When reviewing the sufficiency of the
evidence to support a conspiracy conviction, we will affirm if the record, viewed most
favorably to the government, contains substantial evidence supporting the jury's
verdict, which means evidence sufficient to prove the elements of the crime beyond
a reasonable doubt. United States v. Crenshaw, 359 F.3d 977, 987 (8th Cir. 2004)
(citing Glasser v. United States, 315 U.S. 60, 80 (1942), superseded on other grounds
as stated in Bourjaily v. U.S. 483 U.S. 171, 181 (1987), and Jackson v. Virginia,
443 U.S. 307, 313-320 (1979)).
B.
Having determined the proper way to review Mr. Lopez's conviction, we now
consider whether, viewed in a light most favorable to the government, there is
sufficient evidence in the record to support a finding beyond a reasonable doubt that
Mr. Lopez participated in the conspiracy with Mr. Cervantes and Ms. Green. We are
confident that there is. At trial, Ms. Green testified that Mr. Lopez traveled from the
west coast to her house to collect a large amount of cash (about $15,000) that she
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owed Mr. Cervantes for drugs. She further testified that Mr. Cervantes frequently
supplied her with methamphetamine. Although Mr. Lopez's testimony contradicted
Ms. Green's, we are obliged to defer to the jury's determination of the credibility of
the witnesses. See United States v. Kenyon, 397 F.3d 1071, 1076 (8th Cir. 2005).
There was other evidence tending to connect Mr. Lopez to the conspiracy.
Although the controlled buy occurred three days beyond the dates of the conspiracy
laid in the indictment, the jury could nevertheless have considered the evidence
relating to that buy in reaching its verdict on the conspiracy charge. The indictment
charged that the conspiracy occurred "on or about" the period between January 1,
2002, and March 26, 2003, and the court instructed the jury (without objection) that
the government did not have to prove the exact date of the alleged offenses, so long
as it proved beyond a reasonable doubt "that the offenses were committed on date or
dates reasonably near the date alleged." This is a proper statement of law. See United
States v. Turner, 975 F.2d 490, 494 (8th Cir. 1992), cert. denied, 506 U.S. 1082;
United States v. Brody, 486 F.2d 291, 292 (8th Cir. 1973) (per curiam), cert. denied,
417 U.S. 949 (1974); cf. United States v. Zelinka, 862 F.2d 92, 97-98 (6th Cir. 1988).
Thus, the jury could have determined that the conspiracy actually continued to
March 29.
In addition, even if the conspiracy did terminate on March 26, "[e]vidence of
a conspirator's post-conspiracy activity is admissible if probative of the existence of
a conspiracy or the participation of an alleged conspirator, even though [it] might
have occurred after the conspiracy ended." United States v. Stephenson, 924 F.2d
753, 764 (8th Cir. 1991) (internal quotations and citations omitted), cert. denied,
502 U.S. 813 & 916 (1991). The fact that Mr. Lopez was accompanying
Mr. Cervantes at a pre-arranged methamphetamine transaction a mere three days after
the end of the conspiracy charged in the indictment, raises doubts about his testimony
that he had no knowledge of Mr. Cervantes's drug-dealing and that he had never met
or seen Ms. Green before then. Although the evidence from the controlled buy was
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not admissible to demonstrate Mr. Lopez's general criminal character, the jury could
have considered it for the matter of motive, intent, and absence of mistake on his part
when he collected the money from Ms. Green. See Fed. R. Evid. 404(b).
The evidence that we have rehearsed was clearly sufficient to convince the jury
beyond a reasonable doubt that Mr. Lopez was guilty of conspiring to distribute
methamphetamine. We therefore affirm the conspiracy conviction.
III.
Mr. Lopez also challenges the sufficiency of the evidence to support his
conviction for possession with intent to distribute methamphetamine. Mr. Lopez was
driving the SUV when it arrived at the location of the controlled buy. He
accompanied Mr. Cervantes when they briefly left the gas station and returned with
the methamphetamine given to Ms. Green. Although Mr. Lopez testified that he
knew nothing about the methamphetamine and that he was on the way to Chicago to
visit relatives on the date in question, when he and Mr. Cervantes left the gas station
they were driving away from Chicago. Other witnesses contradicted some additional
aspects of Mr. Lopez's testimony. He said that he had a suitcase with him for the trip,
but police testified that they found no suitcase in the SUV. Mr. Lopez also testified
that on the morning of March 29 he had checked out of the motel in which he was
staying, but the government presented evidence that he and Mr. Cervantes had not
checked out of their room that day. The jury could reasonably have rejected
Mr. Lopez's testimony and determined beyond a reasonable doubt that he did, in fact,
know about the methamphetamine recovered in the controlled buy. See Kenyon,
397 F.3d at 1076. We therefore affirm his conviction for possession with intent to
distribute methamphetamine or aiding and abetting the same.
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IV.
Because the evidence in this case support's the jury's verdicts, we affirm
Mr. Lopez's conviction and sentence.
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