United States v. Marcos Perez-Trevino ( 2018 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-1289
___________________________
United States of America
Plaintiff - Appellee
v.
Marcos Perez-Trevino
Defendant - Appellant
___________________________
No. 17-1352
___________________________
United States of America
Plaintiff - Appellee
v.
Juan Flores, also known as Alejandro Becerra
Defendant - Appellant
___________________________
No. 17-1718
___________________________
United States of America
Plaintiff - Appellee
v.
Daniela Castellanos
Defendant - Appellant
____________
Appeals from United States District Court
for the Northern District of Iowa - Waterloo
____________
Submitted: January 11, 2018
Filed: May 29, 2018 (Replacement Opinion)
____________
Before COLLOTON, BENTON, and ERICKSON, Circuit Judges.
____________
ERICKSON, Circuit Judge.
Defendants/Appellants Marcos Perez-Trevino (“Perez-Trevino”); Juan Flores,
a/k/a Alejandro Becerra (“Flores”); and Daniela Castellanos (“Castellanos”) were
tried together by a jury in the United States District Court for the Northern District
of Iowa for their roles in a conspiracy to distribute methamphetamine. All three were
found guilty and were sentenced by the court. After carefully considering the several
issues raised by the appellants, we affirm the judgments of the district court.1
1
The Honorable Linda R. Reade, then Chief Judge, United States District
Court for the Northern District of Iowa, adopting reports and recommendations from
the Honorable Jon Stuart Scoles, then United States Chief Magistrate Judge for the
Northern District of Iowa, with respect to the motions to suppress.
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I. BACKGROUND/PROCEDURE
In August 2015, eleven defendants, including the appellants, were charged in
a conspiracy to deliver methamphetamine in and around Marshalltown, Iowa. Several
of the defendants entered guilty pleas, but the appellants chose to proceed to a jury
trial. During the six-day trial, some of the defendants’ original co-conspirators
cooperated with the government and testified, hoping for more favorable sentencing
recommendations.
Prior to trial, Perez-Trevino moved to suppress evidence obtained during an
August 12, 2015, traffic stop in Oklahoma. Perez-Trevino argued that the vehicle
was improperly impounded and the inventory search was unlawful. The motion was
heard by the chief magistrate judge, and Chouteau (Oklahoma) Police Officer Thomas
Scott Fisher testified at the hearing. The chief magistrate judge issued a report and
recommendation that the motion be denied. The district court overruled Perez-
Trevino’s objections, adopted the report and recommendation, and denied the motion.
Castellanos brought a pretrial motion to suppress evidence obtained from the
interception of wire and electronic communications of a cell phone identified as
Target Telephone #16, arguing that the application for the wiretap: (1) lacked
sufficient specificity to establish probable cause, and (2) failed to sufficiently show
the wiretap was necessary as required by 18 U.S.C. § 2518(3)(c). After argument on
the motion without any additional evidence, the chief magistrate judge, finding the
affidavit sufficient, issued a report and recommendation that the motion be denied.
The district court overruled Castellanos’s objections, adopted the report and
recommendation, and denied the motion.
During the five-day trial, the government witnesses testified about information
gleaned during the investigation including evidence obtained from intercepts of
several telephones. The cooperating co-conspirators testified about their own
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participation in the conspiracy and their knowledge of the participation of the three
defendants. Following the procedures outlined in United States v. Bell, 573 F.2d
1040 (8th Cir. 1978), the trial court conditionally admitted hearsay evidence from
alleged co-conspirators. Much of the testimony referenced Mario Murillo-Mora, a
member of the conspiracy to distribute methamphetamine, who was connected by
evidence to each of the defendants, as well as to other members of the conspiracy.
The evidence revealed that the reason the government targeted various electronic
devices, including telephone #16, was their connection to communications to and
from Murillo-Mora related to the distribution of narcotics.
At the end of the government’s case, the court entertained objections to the co-
conspirator hearsay testimony. The court overruled the objections, finding that each
of the admitted statements was made by a co-conspirator in the course of and in
furtherance of the conspiracy. The court denied Perez-Trevino’s request for a jury
instruction on multiple conspiracies and an instruction regarding a mere buyer/seller
relationship.
The jury found Perez-Trevino guilty of conspiracy to distribute 500 grams or
more of a substance containing a detectable amount of methamphetamine, which
contained more than 50 grams of pure methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. Flores and Castellanos were found guilty of
conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 846. The district court sentenced Perez-Trevino to 292 months’
imprisonment and sentenced Flores and Castellanos to 240 months’ imprisonment.
II. SUPPRESSION MOTIONS
“When reviewing the denial of a motion to suppress, we review a district
court’s factual findings for clear error and legal conclusions de novo.” United States
v. Evans, 781 F.3d 433, 436 (8th Cir. 2015) (citing United States v. Harris, 747 F.3d
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1013, 1016 (8th Cir. 2014)). We “will affirm the district court’s denial of a motion
to suppress evidence unless it is unsupported by substantial evidence, based on an
erroneous interpretation of applicable law, or, based on the entire record, it is clear
a mistake was made.” United States v. Collins, 883 F.3d 1029, 1031 (8th Cir. 2018)
(quoting United States v. Braden, 844 F.3d 794, 799 (8th Cir. 2016)). We may affirm
on any ground supported by the record. United States v. Murillo-Salgado, 854 F.3d
407, 414 (8th Cir. 2017). For example, in United States v. Wells, 347 F.3d 280, 287
(8th Cir. 2003), we affirmed the denial of a motion to suppress based on the
automobile exception to the warrant requirement rather than on the search-incident-
to-arrest exception on which the district court relied.
A. Perez-Trevino - Search of Automobile and Contents
On August 12, 2015, Officer Fisher noticed a 2000 Oldsmobile Intrigue with
North Dakota license plates traveling north on Highway 69 in Oklahoma. He stopped
the vehicle for a taillight violation. As he approached the vehicle, Officer Fisher
observed two occupants in the car. Perez-Trevino presented an identification card to
Officer Fisher but claimed to be licensed in Texas. Officer Fisher had separate
conversations with Perez-Trevino and the passenger. The two gave conflicting
stories as to their destination: Perez-Trevino indicating Iowa City and the passenger
claiming Marshalltown. Officer Fisher ran Perez-Trevino’s identifying information
and determined that he did not have a valid license.2 A license check for the
passenger revealed that his license was suspended. Officer Fisher arrested Perez-
Trevino for driving without a license. Having been instructed by the chief of police
that stopped vehicles are not to be left abandoned on the roadside, Officer Fisher
arranged to have the vehicle towed. Before the vehicle was towed, Officer Fisher
2
At trial, Officer Fisher testified that Perez-Trevino’s driving license was
suspended in North Dakota, but at the suppression hearing he indicated that Perez-
Trevino was unlicensed.
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prepared to do an inventory search of the vehicle in order to log any valuables.
Officer Fisher testified:
Any time we have arrested someone out of a vehicle or we have made
contact with somebody where a vehicle – where we have become liable
for it because of an action from us, we must impound that vehicle with
the two wrecker services we have on rotation and then we have to
conduct a thorough vehicle inventory.
When Officer Fisher leaned inside the vehicle to begin the inventory, he
smelled raw marijuana “directly over the center console.” He checked the contents
of the center console because, according to his testimony, “[i]t’s a common place,
along with the glove box, for valuables or anything somebody is going to store in the
vehicle.” When he lifted the console, he discovered a plastic bag containing a green
leafy substance, which was later determined to be marijuana. The inventory search
further uncovered various food items and drinks. A one dollar bill containing a clear
substance, later determined to be methamphetamine, was found under the passenger
seat. Located in the back seat was a large cooler. Upon opening the cooler, Officer
Fisher found more food and drinks and a Ziploc bag “containing a large amount of
methamphetamine.” It was later determined that the bag contained 877 grams of
methamphetamine. A list of items found in the search was reported on a
“CHOUTEAU POLICE DEPT. STORED VEHICLE REPORT” which indicated the
vehicle was registered in North Dakota to Marcos and Maria Perez.
The Chouteau Police Department has a published policy for “Impoundment of
Vehicles” that provides guidance for impounding and inventorying vehicles. Among
the several stated reasons for impounding vehicles are safekeeping of evidence and
“public assistance towing.” The public assistance towing section specifically requires
towing “[w]hen, following arrest of the owner/operator or for other reasons, the
vehicle cannot be left at the scene without substantial risk of theft from or damage to
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the vehicle or personal property contained therein.” The policy’s inventory procedure
provides:
1. It is the duty of all officers, who impound motor vehicles, to
perform an inventory of those vehicles.
2. The purpose of this inventory will be to ensure a proper
accounting of all property in or attached to the vehicle in order to
protect the officer from liability of assumed damages and/or
missing property.
3. The officer performing the inventory will conduct a thorough and
uniform inventory of the vehicle and its compartments.
One of the regulations listed in the policy statement provides that “[o]fficers should
take all necessary precautions when towing a vehicle to properly search and inventory
a vehicle. An inventory search is intended to protect the citizen, the officer and the
wrecker company from claims of loss and theft.”
Citing Florida v. Wells, 495 U.S. 1 (1990), Perez-Trevino argues that the
inventory search of the car violated the Fourth Amendment because the Chouteau
Police Department policy did not provide sufficiently standardized criteria for
searching closed containers inside the vehicle. “It is ‘well-settled’ law that ‘a police
officer, after lawfully taking custody of an automobile, may conduct a warrantless
inventory search of the property to secure and protect vehicles and their contents
within police custody.’” United States v. Williams, 777 F.3d 1013, 1015 (8th Cir.
2015) (quoting United States v. Rehkop, 96 F.3d 301, 305 (8th Cir. 1996)). The
search “must comply with ‘standardized police procedures.’” Id. at 1016 (quoting
United States v. Mayfield, 161 F.3d 1143, 1145 (8th Cir. 1998)). “The police are not
precluded from conducting inventory searches when they lawfully impound the
vehicle of an individual that they also happen to suspect is involved in illegal
activity.” United States v. Pappas, 452 F.3d 767, 771 (8th Cir. 2006) (quoting United
States v. Marshall, 986 F.2d 1171, 1175-76 (8th Cir. 1993)). We conclude that the
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Chouteau Police Department towing policy contained sufficiently standardized police
procedures for Officer Fisher to inventory the contents of the vehicle and its
compartments.
We do not decide whether the Chouteau inventory policy provided Officer
Fisher with authority to open the cooler. Instead, we affirm the denial of the motion
to suppress because, at the time he opened the cooler, Officer Fisher had sufficient
probable cause to search the vehicle and its contents under the “automobile
exception” to the Fourth Amendment warrant requirement. Accord United States v.
Winters, 221 F.3d 1039, 1042 (8th Cir. 2000) (“Trooper Busch then smelled raw
marijuana. This created probable cause to search the car and its containers for
drugs.”). “Under the automobile exception, officers may search a vehicle without a
warrant if they have probable cause to believe the vehicle contains evidence of
criminal activity.” United States v. Davis, 569 F.3d 813, 817 (8th Cir. 2009) (quoting
United States v. Cortez-Palomino, 438 F.3d 910, 913 (8th Cir. 2006) (per curiam).
Prior to searching inside the cooler, Officer Fisher had obtained contradictory
statements from the car’s occupants as to their destination, discovered the plastic bag
containing the marijuana, and found the dollar bill containing apparent drug residue.
This was sufficient probable cause to search inside the cooler. Accord Davis, 569
F.3d at 817-18 (“If there had been any doubt about whether the smell of smoldering
cannabis constituted probable cause to search the vehicle, such doubt was obviated
by the discovery of a bag of marijuana in Davis’s pocket.”).
B. Castellanos - Wiretap of Target Telephone #16
Daniela Castellanos argues that the district court erred in denying her motion
to suppress evidence gained from the wiretap of Target Telephone #16. In 18 U.S.C.
§ 2518, Congress defined the procedure that must be followed for the “interception
of wire, oral, or electronic communications.” 18 U.S.C. § 2518(10)(a) provides:
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Any aggrieved person in any trial, hearing, or proceeding in or before
any court, department, officer, agency, regulatory body, or other
authority of the United States, a State, or a political subdivision thereof,
may move to suppress the contents of any wire or oral communication
intercepted pursuant to this chapter, or evidence derived therefrom, on
the grounds that –
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted
is insufficient on its face; or
(iii) the interception was not made in conformity with the order of
authorization or approval.
“The remedies and sanctions described in [chapter 18] with respect to the interception
of electronic communications are the only judicial remedies and sanctions for
nonconstitutional violations of this chapter involving such communications.” 18
U.S.C. § 2518(10)(c). An “aggrieved person” is defined at 18 U.S.C. § 2510(11) as
“a person who was a party to any intercepted wire, oral, or electronic communication
or a person against whom the interception was directed.” In paragraph No. 2 of her
motion to suppress the wiretap evidence, Castellanos alleges: “During the period of
time the wiretap authorization was in place, the government contends that Ms.
Castellanos was heard on or a party in some of the phone calls and text messages
involving target telephone 16.”
Castellanos contends that her motion should have been granted because the
affidavit attached to the warrant application did not contain sufficient facts to support
a finding of probable cause or of necessity as required by 18 U.S.C. § 2518(3)(a-c).
We address each asserted error separately, United States v. Thompson, 690 F.3d 977,
984-87 (8th Cir. 2012), and hold that the district court did not err in denying the
motion to suppress.
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1. Probable Cause
Section 2518 requires a two-step probable cause analysis. First, there must be
probable cause that an individual has committed, is committing, or is about to commit
a crime listed in 18 U.S.C. § 2516. 18 U.S.C. § 2518(3)(a). Second, the application
must show probable cause that “particular communications” relating to the specific
offense will be obtained from the interception of the communication. 18 U.S.C. §
2518(3)(b). “We have long held” that the probable cause standards in section 2518
“are co-extensive with the constitutional requirements” of the Fourth Amendment.
United States v. Gaines, 639 F.3d 423, 430 (8th Cir. 2011) (quoting United States v.
Leisure, 844 F.2d 1347, 1354 (8th Cir. 1988)). This guides us in our review of the
district court’s probable cause analysis. We also recognize, however, that the
particularity requirements of section 2518(3)(b) are defined by the statute. Id. at 431-
32 (citing United States v. Donovan, 429 U.S. 413, 416, 428 (1977)). The first step
is not disputed as § 2516(1)(e) lists any offense involving “the manufacture,
importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic
drugs, marihuana, or other dangerous drugs, punishable under any law of the United
States.”
Our analysis focuses on the second step. The application for the wiretap
warrant identified Target Telephone #16 as subscribed to Geoffrey Forney of Des
Moines, Iowa, and used by Mario Murillo-Mora. The application sought
authorization for intercepting “wire and electronic communications” of several named
individuals, including Murillo-Mora, and several unknown males and females who
had been communicating with Murillo-Mora and other co-conspirators on prior
authorized electronic communication interceptions. Castellanos was not one of the
individuals identified in the application. An application for authorizing a wiretap
must identify “the person, if known, committing the offense and whose
communications are to be intercepted.” 18 U.S.C. § 2518(1)(b)(iv). The Supreme
Court has interpreted the statute as not requiring the government “to identify an
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individual in the application unless it has probable cause to believe (i) that the
individual is engaged in the criminal activity under investigation and (ii) that the
individual’s conversations will be intercepted over the target telephone.” United
States v. Donovan, 429 U.S. 413, 423 (1977) (citing United States v. Kahn, 415 U.S.
143 (1974)). A wiretap application must, however, “name an individual if the
Government has probable cause to believe that the individual is engaged in the
criminal activity under investigation and expects to intercept the individual’s
conversations over the target telephone.” Id. at 428. A district court’s grant of an
application for a wiretap is appropriate if it is the result of a “practical, common-sense
decision” that “considering the ‘totality-of-the-circumstances . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.’” Thompson, 690 F.3d at 984-85 (quoting Illinois v. Gates, 462 U.S. 213, 238
(1983)). “In determining probable cause we are bound to consider only the facts
contained within the four corners of the affidavit.” United States v. Milton, 153 F.3d
891, 894 (8th Cir. 1998) (citing United States v. Gladney, 48 F.3d 309, 312 (8th Cir.
1995)).
The application for the wiretap authorization order specifically names more
than twenty individuals, in addition to several yet unidentified target subjects
suspected in the conspiracy to distribute narcotics, based on investigations from prior
court-authorized wiretaps. The government sufficiently identified all of the
individuals it had probable cause to believe were involved in criminal activity.
The application informed the court of the type of evidence law enforcement
expected to recover from the targeted telephone. It states:
In particular, these wire and electronic communications are expected to
include conversations of an evidentiary nature revealing:
1) The details of carrying out the above-named offenses;
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2) The identity of individuals as yet unknown who are
involved in these offenses and the extent of their
involvement;
3) The times and places where illegal transactions will occur;
4) The amounts, prices, etc., of illegal narcotics/controlled
substances which have been and are being possessed and
distributed by these individuals;
5) The identity of the source of these illegal drugs and the
extent of the source’s involvement;
6) The manner in which money derived from the sale of
illegal narcotics/controlled substances is utilized,
concealed and dispensed;
7) The arrangement and verification of meetings between
individuals involved in the above-named offenses;
8) The nature and scope of the continuing conspiracy; and
9) The role of each person participating in the conspiracy.
Attached to the application is an affidavit of Bryan J. Furman, a Task Force
Officer with the Drug Enforcement Administration (“DEA”) in Cedar Rapids, Iowa.
At the time he prepared the affidavit, Officer Furman had over twenty years
experience in law enforcement and had been with the DEA for over five years. His
experience provided him with knowledge of the language and terminology used by
illegal narcotics dealers to disguise their illegal activity. The affidavit informs the
court of the facts which led the investigators to Target Telephone #16. For example,
Murillo-Mora was known to be operating mostly out of the Marshalltown, Iowa, area
and was using multiple telephones to communicate with co-conspirators to facilitate
the drug trafficking. Murillo-Mora was identified as using Target Telephone #16 to
conduct business with other known co-conspirators using targeted telephones already
subject to court-authorized wiretaps. Transcripts of specific conversations involving
the facilitation of narcotics deliveries are included in the affidavit.
The affidavit contains more than twenty-five pages, including nineteen separate
paragraphs, detailing information known to the Task Force that supported the
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application to intercept communications from Target Telephone #16. Castellanos
contends that because Furman repeatedly used the phrase “I believe” to introduce his
factual references, the statements are not facts that the magistrate can rely on but are
instead mere beliefs, hunches, and speculative opinions. Such hyper-technical parsing
of phrasing is inconsistent with the evidence and common sense. While it might
have been more appropriate for Officer Furman to have written “it is my opinion,
based on my experience in law enforcement and narcotics investigations,” rather than
“I believe,” his choice of words did not negate the factual information he related to
the court in the affidavit.
Based on all of the circumstances, we conclude that the district court’s grant
of authority to intercept communications to and from Target Telephone #16 was the
result of a “practical, common-sense decision” that there was a “fair probability that
contraband or evidence” of criminal activity would be found. E.g., Thompson, 690
F.3d at 984-85. The application and affidavit contained sufficient facts to establish
probable cause.
2. Necessity
In addition to finding probable cause, in order to issue a warrant for a wiretap,
the court must find that “normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.”
18 U.S.C. § 2518(3)(c). “This necessity requirement prevents the government from
routinely using wiretaps ‘as the initial step in an investigation.’” United States v.
Colbert, 828 F.3d 718, 725 (8th Cir. 2016) (quoting United States v. Thompson, 210
F.3d 855, 858-59 (8th Cir. 2000)). “But as we have repeatedly held, the necessity
requirement does not mandate that the government ‘exhaust all possible techniques
before applying for a wiretap.’” Id. (quoting United States v. Macklin, 902 F.2d 1320,
1326-27 (8th Cir. 1990)). “The government is simply not required to use a wiretap
only as a last resort.” Macklin, 902 F.2d at 1327 (citing United States v. Matya, 541
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F.2d 741, 745 (8th Cir. 1976)). The issuing judge determines “in a commonsense
manner” whether the necessity requirement is met. Id. (citations omitted). We may
reverse this determination of fact only if it is clearly erroneous. Thompson, 690 F.3d
at 986 (quoting Macklin, 902 F.2d at 1327)).
This is not a case in which the government decided to use a wiretap at the
beginning of its investigation of criminal activity. Officer Furman’s affidavit
contains sixty-eight paragraphs providing details of various investigative techniques
used prior to requesting the wiretap of Target Telephone #16. Investigators utilized
prior wiretaps, confidential sources, controlled purchases, physical surveillance,
undercover agents, search warrants, interviews, and trash searches, among other
strategies. Investigators interviewed suspects and utilized grand jury subpoenas to
the extent possible. The affidavit adequately explains the limited success of specific
investigative techniques, the likely lack of success of certain strategies, and the
possible dangers related to particular investigative tactics. The affidavit indicates that
the application was based on the conclusion that “[t]he only reasonable method of
developing the necessary evidence of violations is to intercept telephonic and
electronic communications as requested.”
Officer Furman’s affidavit contains sufficient facts to support a finding that the
necessity requirement of § 2518(3)(c) was met. The district court determination on
this issue is not clearly erroneous.
III. PEREZ-TREVINO’S MOTION FOR JUDGMENT OF ACQUITTAL
We review de novo a denial of a motion for judgment of acquittal, “evaluating
the evidence in the light most favorable to the verdict and drawing all reasonable
inferences in its favor.” United States v. Almeida-Olivas, 865 F.3d 1060, 1062 (8th
Cir. 2017) (quoting United States v. Wright, 739 F.3d 1160, 1167 (8th Cir. 2014)).
The conviction will not be disturbed unless “no reasonable jury could have found the
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defendant guilty beyond a reasonable doubt.” Id. (quoting United States v. Serrano-
Lopez, 366 F.3d 628, 634 (8th Cir. 2004)). To prove a conspiracy, “the government
need not prove a formal agreement existed, but rather ‘a tacit understanding’ between
the parties.” United States v. Parker, 871 F.3d 590, 600-01 (8th Cir. 2017) (quoting
United States v. May, 476 F.3d 638, 641 (8th Cir. 2007)). “We will not reverse the
verdict if the evidence is sufficient for a jury to find beyond a reasonable doubt that
the defendant participated in the conspiracy.” Id.“To convict [Perez-Trevino] for conspiracy to distribute more than 500 grams
of a mixture and substance containing methamphetamine, ‘the government must
prove: (1) that there was a conspiracy, i.e., an agreement to distribute the
[methamphetamine]; (2) that [Perez-Trevino] knew of the conspiracy; and (3) that
[he] intentionally joined the conspiracy.’” Almeida-Olivas, 865 F.3d at 1062 (quoting
United States v. Sanchez, 789 F.3d 827, 834 (8th Cir. 2015) (second alteration in
original)). Perez-Trevino argues that there was insufficient evidence for a jury to find
proof beyond a reasonable doubt that he knew of the conspiracy or intentionally
joined it. He cites United States v. Carper, 942 F.2d 1298 (8th Cir. 1991), and United
States v. Cox, 942 F.2d 1282 (8th Cir. 1991), to support his argument for acquittal.
In Cox, we reiterated that “[a] conspiracy conviction requires a showing that the
alleged individuals joined together to further an agreed-to criminal purpose: here,
distribution of cocaine.” 942 F.2d at 1285 (citations omitted). Because the
government’s evidence failed to “explain why various unnamed individuals
accompanied Cox,” we reversed his conspiracy conviction. Id. at 1285-86. We
specifically explained: “Without some evidence that the accompanying individuals
agreed to take cocaine for distributive purposes, we do not see how a rational trier of
fact could find beyond a reasonable doubt that a conspiracy existed for that purpose.”
Id. at 1286. In Carper, we reversed Juliette Stark’s conviction because the evidence
never identified her unnamed source for methamphetamine. 942 F.2d at 1302. We
noted that, without speculating that Carper was her source, the evidence tended “to
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prove Juliette Stark is guilty of a crime, but not conspiracy with Carper to distribute
methamphetamine.” Id.
As the trial court summarized in its order denying the motion for acquittal,
substantial evidence supported the finding that a conspiracy to distribute
methamphetamine existed, Perez-Trevino knew of the conspiracy, and he
intentionally participated in the conspiracy. Witnesses, who included six co-
conspirators, confirmed the existence of a dynamic conspiracy, in which several
individuals participated. Perez-Trevino, along with Murillo-Mora and Flores,
participated as higher-level suppliers of methamphetamine, supplying some of the
same customers. Perez-Trevino was caught several times with substantial amounts
of methamphetamine in his possession. Perez-Trevino resided with other co-
conspirators, exchanged multiple telephone calls with co-conspirators, including
Murillo-Mora and Jessica Ceniceros, and purchased a vehicle from one of the co-
conspirators. Perez-Trevino used Ceniceros’s garage to store two pounds of
methamphetamine. In exchange, Ceniceros kept a quarter of a pound to sell for
herself. Vania Guadarrama, a member of the conspiracy who testified at trial,
purchased methamphetamine from a source known as El Bote, who also supplied
methamphetamine to Perez-Trevino. Guadarrama testified that she purchased
methamphetamine from Perez-Trevino. There was also evidence that Perez-Trevino
“fronted” methamphetamine to Guadarrama and later went to her residence to collect
an undischarged debt.
Substantial evidence supports the jury verdict. Cox and Carper are clearly
distinguishable. The record contains evidence that Perez-Trevino had direct and
substantial contact with several known, identified conspirators. Further, the evidence
shows that these contacts were for the purpose of facilitating the distribution of
methamphetamine in and around Marshalltown, Iowa. Accord United States v.
Garcia, 569 F.3d 885, 889 (8th Cir. 2009) (“A reasonable jury evaluating this
evidence could find that [defendant] was an actual participant in the
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methamphetamine-distribution conspiracy.”). The district court correctly denied the
motion for judgment of acquittal.
VI. PEREZ-TREVINO’S PROPOSED MULTIPLE CONSPIRACY
INSTRUCTION
“The ‘issue of whether the defense produced sufficient evidence to sustain a
particular instruction, such as a multiple conspiracy instruction, is generally a
question of law subject to de novo review.’” United State v. Maza, 93 F. 3d 1390,
1398 (8th Cir. 1996) (quoting United States v. Jackson, 67 F.3d 1359, 1367 (8th Cir.
1995)); see also United States v. Hull, 419 F.3d 762, 769 (8th Cir. 2005). When the
evidence supports the existence of a single conspiracy, a court does not err in denying
a request for a multiple conspiracy instruction. In United States v. Delgado, 653 F.3d
729, 735-36 (8th Cir. 2011) (citations omitted) (internal quotation marks omitted), we
summarized:
A single conspiracy is composed of individuals sharing common
purposes or objectives under one general agreement. In evaluating
whether a variance occurred, we look to the totality of the circumstances
and give the verdict the benefit of all reasonable inferences that can be
drawn from the evidence. A variance based on multiple conspiracies
justifies reversal only if a “spillover” of evidence from one conspiracy
to another prejudices the defendant’s substantial rights.
A single conspiracy is not converted to multiple conspiracies simply because different
defendants enter a conspiracy at different times or perform different functions. Maza,
93 F.3d at 1398 (citing United States v. Baker, 855 F.2d 1353, 1357 (8th Cir. 1988).
Nor does “the fact that different individual defendants contributed a portion of the
total drugs to suppliers or participated in numerous separate transactions . . . convert
a single conspiracy to multiple conspiracies.” Id. at 1398-99 (citing United States v.
Spector, 793 F.2d 932, 935 (8th Cir. 1986). A single conspiracy can be proven even
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though the participants and their activities change over time. United States v. Slagg,
651 F.3d 832, 840 (8th Cir. 2011). This is true even if some participants are unknown
to other conspirators or uninvolved in some transactions. United States v. Longs, 613
F.3d 1174, 1176 (8th Cir. 2010). Drug dealers who sometimes compete with one
another may in fact be members of the same conspiracy. Slagg, 651 F.3d at 842;
Delgado, 653 F.3d at 736 (citing United States v. Jeffers, 570 F.3d 557, 568 (4th Cir.
2009)).
As indicated above, the evidence at trial easily supports a finding that Perez-
Trevino knowingly participated in the single conspiracy alleged at trial. The trial
court did not err in denying the motion for a jury instruction on multiple
conspiracies.3
V. DEFENDANTS’ OBJECTIONS TO THE ADMISSION OF TESTIMONY
“We review the district court’s admission of evidence for an abuse of
discretion, affording ‘deference to the district judge who saw and heard the
evidence.’” United States v. Melton, 870 F.3d 830, 837 (8th Cir. 2017) (quoting
United States v. Two Elk, 536 F.3d 890, 900 (8th Cir. 2008)). “An evidentiary ruling
is harmless if the substantial rights of the defendant were unaffected, and the error
had no, or only a slight, influence on the verdict.” Id. (quoting United States v.
Worman, 622 F.3d 969, 976 (8th Cir. 2010)). We will affirm the district court’s
decision unless we find an abuse of discretion that is both clear and prejudicial. E.g.,
United States v. Womack, 191 F.3d 879, 883 (8th Cir. 1999).
3
There is no indication that Perez-Trevino was inhibited from arguing his lack
of knowledge of, or participation in, the conspiracy as it was alleged at trial. A trial
court does not err in denying a proposed instruction when the instructions as a whole
adequately advise the jury of the law and permit the parties to argue appropriately to
the jury. See United States v. Thunder, 745 F.3d 870, 874 (8th Cir. 2014) (citing
United States v. Christy, 647 F.3d 768, 770 (8th Cir. 2011)).
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A. Flores/Castellanos - Hearsay Co-conspirators
To admit “statements of co-conspirators against a defendant ‘the government
must prove by a preponderance of the evidence that (1) a conspiracy existed; (2) the
defendant and the declarant were members of the conspiracy; and (3) the declaration
was made during the course of and in furtherance of the conspiracy.’” Womack, 191
F.3d at 883 (quoting United States v. Guerra, 113 F.3d 809, 813 (8th Cir. 1997)); Fed.
R. Evid. 801(d)(2)(E). In Bell, we provided guidance to district courts for ruling on
objections to the admission of out-of-court statements of co-conspirators. We
outlined a procedure that included conditionally admitting the evidence and then
ruling on the objections at the close of the government’s case. 573 F.2d at 1044. The
procedural steps are made outside of the jury’s presence, and the court makes its
admissibility ruling on the record before submitting the case to the jury. Id.The trial court properly followed the Bell procedure, conditionally admitting
the statements and then taking up the objections at the close of evidence. The
evidence objected to on hearsay grounds included the following:
1) A statement by witness Rachel Berrones in which she testified that
Murillo-Mora said he was upset with Castellanos because he had given
Castellanos money to wire to Mexico and she told him the money was
stolen. He expressed to Berrones his view that Castellanos lied and
spent the money.
2) A statement by witness Rogelio Avalos-Sanchez concerning what
Murillo-Mora said regarding Flores’s involvement in the organization.
The testimony indicated Flores was Murillo-Mora’s driver until they
ended their friendship because they were not agreeing on business and
Murillo-Mora wanted to go his separate way.
3) Testimony by Avalos-Sanchez as to what Murillo-Mora told him about
using Castellanos to transfer money.
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The trial court overruled all of the objections, concluding that a preponderance of the
evidence supported a finding that a conspiracy existed, the statements were made by
conspirators, and the statements provided information furthering the conspiracy. We
hold that the district court did not abuse its discretion by admitting the evidence under
rule 801(d)(2)(E) because the statements furthered the conspiracy by identifying co-
conspirators and their roles. Accord United States v. Camacho, 555 F.3d 695, 703
(8th Cir. 2009) (recognizing that the “district court made the appropriate Bell inquiry
and we cannot say that its findings are erroneous” and holding that the district court’s
ruling was not an abuse of discretion).
B. Flores - Letters
Flores challenges the admission of testimony by co-conspirator Frances Gasca.
During cross-examination of Gasca, Flores’s attorney asked about two letters Gasca
sent to Flores while she was in pretrial detention. The government was unaware of
the correspondence between Gasca and Flores before the questioning began. While
answering the questions regarding her letters to Flores, Gasca attempted to explain
that she was responding to communications she had received from Flores. Her
explanation was truncated by defense counsel. On redirect, the government’s counsel
asked Gasca to explain what she wanted to explain during cross-examination. Gasca
began, “I wrote that because he wrote a letter to Daniela Castellanos saying for me
to tell everybody that . . .,” at which time Flores’s counsel interrupted with an
objection for lack of foundation. The court, apparently sensing a failure in the
foundation, directed the government to “break that down a little bit so that we don’t
have an objection.” The following redirect ensued:
Q. You were housed with Ms. Castellanos at some point in time?
A. Yes.
Q. And during that time did she show you letters from Juan Flores?
A. Yes.
Q. And did you read those letters?
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A. Yes.
Q. And what did he write to Ms. Castellanos in those letters?
A. To say that –
MR. BELL: Objection, foundation as to who wrote the letter.
THE COURT: Objection overruled. You may answer.
A. To say that – to tell them that I was – he was only taking me to D
to have sex with and that he was just my ride and that there was
no involvement of meth.
Q. So Mr. Flores wrote Ms. Castellanos a letter trying to tell you
what to say in court today?
A. That was a while ago, but, yes.
Gasca then testified that she saw that letter with her own eyes. During recross-
examination, Flores’s attorney elicited the following testimony:
Q. Now, as I understand your response to Ms. Williams’s questions
about writing this letter to Juan, you indicated that you did not
receive any letter from Juan; it was somebody else who allegedly
received it?
A. Yes.
Q. And when you – has Juan ever written to you other than – has
Juan ever written a letter to you?
A. He sent me a card.
Q. When?
A. I don’t remember, but it was maybe February.
Q. And what did he – did he handwrite anything on it or did he just
sign it?
A. He wrote – I can’t recall exactly what he wrote, but he signed it
as well.
* * *
Q. Okay. And how many times did you see this letter that is alleged
to have been sent by Juan to Ms. Castellanos?
A. Like once or twice.
* * *
Q. And when you saw this letter in the jail, that was in the Linn
County Jail?
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A. Yes.
Q. When you saw it, was the envelope already open?
A. Yes.
Q. Okay. Were you present when the envelope was opened?
A. Was I? No.
Q. Since you had never seen anything that Juan had written before,
I’m assuming you couldn’t identify whether that was his writing
or not in that letter, correct.
A. Correct.
Q. And you have no idea if that was what was in the letter – in the
envelope when it came or whether somebody replaced it with
something else?
A. Well, I saw letters prior to that that he wrote that had the same
writing.
Q. From who?
A. Daniela, from Juan.
Q. But you never independently obtained his writing to verify?
A. No.
Q. And you’re certainly not a handwriting expert?
A. What?
Q. You’re certainly not a handwriting expert?
A. No.
By the time Flores was done with his recross-examination of Gasca, he had elicited
the necessary foundation. The testimony informed the jury that Gasca was not a
handwriting expert and provided a basis for Gasca’s lay belief that the letters were
from Flores. The jury then had the information it needed to appropriately weigh the
testimony. Even if the admission of the testimony were the result of an abuse of
discretion, the error would be harmless considering the mass of evidence supporting
Flores’s conviction and the lack of any indication that Flores’s substantial rights were
prejudiced. E.g., Melton, 870 F.3d at 837.
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VI. SENTENCING
In reviewing a district court’s sentence we “first ensure that the district court
committed no significant procedural error.” United States v. Salazar-Aleman, 741
F.3d 878, 880 (8th Cir. 2013) (quoting United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc)). “We then consider whether the sentence is substantively
reasonable.” Id. “Regardless of whether the final sentence is inside or outside the
Guidelines range, we review a defendant’s sentence under a deferential abuse-of-
discretion standard.” United States v. Boykin, 850 F.3d 985, 988 (8th Cir. 2017)
(citing United States v. Goodale, 738 F.3d 917, 924 (8th Cir. 2013)).
A. Flores
Flores argues that his sentence is substantively unreasonable because the court
attributed improper amounts of methamphetamine to him, denied his motion for
downward departure, and failed to properly consider his history and character. At
sentencing, the court informed the parties that it considered every factor under 18
U.S.C. § 3553(a). Based on the evidence at trial, the court calculated that Flores
“should be held accountable for 2,265.9 grams of ice methamphetamine, resulting in
a score of 36.” The court then found obstruction of justice because Flores tried to
influence the testimony of a witness and he used a false name and birth certificate in
an attempt to confuse law enforcement. This resulted in a two-level upward
adjustment to 38. Flores had a criminal history of I. The Guideline range for the
offense was 235 to 293 months. The court sentenced Flores to the statutory
maximum of 240 months, a sentence near the low end of the Guideline range. In
explaining the sentence the court noted Flores’s substantial criminal behavior even
while under court supervision and his high risk to recidivate.
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The sentence is within the correctly-calculated Guideline range. Nothing in the
record supports a finding that the sentence is substantively unreasonable. The court
did not abuse its discretion in sentencing Flores to 240 months’ incarceration.
B. Castellanos
Castellanos challenges her 240-month sentence on three grounds. She first
asserts that the court attributed too much methamphetamine to her. She also contends
that the court miscalculated her criminal history score. Finally, she argues that the
court erred by failing to apply a two-level decrease to her offense, pursuant to
U.S.S.G. § 3B1.2, as a minor participant.
At sentencing the district court heard arguments regarding the evidence relating
to the amount of methamphetamine attributable to Castellanos, including evidence
that Castellanos had delivered five pounds of methamphetamine on one occasion.
The record supports the court’s conclusion that Castellanos be held accountable for
over 4.5 kilograms of methamphetamine (“ice”), specifically 4,819.5 grams, putting
the base offense level at 38. The record supports the court’s decision that Castellanos
did not meet her burden of proof for the two-level reduction for minor role in a
conspiracy. The court further noted that the calculation of 240 months would be the
same even with the reduction. The court also did not err in calculating Castellanos’s
criminal history score by including two prior felony convictions for driving while
barred. See United States v. Philips, 633 F.3d 1147, 1148 (8th Cir. 2011) (per
curiam). The statutory maximum of 240 months is well below the Guideline range of
292 to 365 months. Nothing in the record supports a conclusion that the sentence is
substantively unreasonable. The court did not abuse its discretion in sentencing
Castellanos to 240 months’ incarceration.
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VII. CONCLUSION
We affirm the judgments of the district court.
______________________________
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