United States v. Regina Arceo , 50 F. App'x 793 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2214
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Southern
v. * District of Iowa.
*
Regina Arceo, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 5, 2002
Filed: November 12, 2002
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Before WOLLMAN, FAGG, and LOKEN, Circuit Judges.
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PER CURIAM.
A jury convicted Regina Arceo of conspiracy to distribute and possess with
intent to distribute methamphetamine, and found Arceo was responsible for five
hundred grams or more of mixtures and substances containing methamphetamine or
more than fifty grams of methamphetamine. See 21 U.S.C. §§ 846, 841(a)(2) (2000).
The district court* sentenced Arceo to imprisonment for 235 months. Arceo appeals
her conviction and sentence, and we affirm.
*
The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
Arceo first challenges the sufficiency of the evidence. We review this issue
de novo, examining the evidence in the light most favorable to the verdict and
accepting as established all reasonable inferences supporting the verdict. United
States v. Hernandez, 299 F.3d 984, 988 (8th Cir. 2002). We must uphold the jury
verdict unless a reasonable jury could not have found all the offense’s elements
beyond a reasonable doubt. Id. To convict Arceo of conspiracy to distribute
methamphetamine, the Government had to prove there was an agreement to distribute
methamphetamine, Arceo knew of the conspiracy, and she intentionally joined the
conspiracy. Id.Evidence at trial showed undercover police officer Steve Gonzales was making
controlled purchases of methamphetamine from Mark Sheese, and Sheese unwittingly
introduced Gonzales to his drug associates, Arceo and Jennifer Regenos. At trial,
Sheese testified that Arceo would obtain methamphetamine from her source, bring
it to Regenos’s residence, distribute half to Regenos and half to Sheese, and receive
payment from them after they sold the drugs. Sheese testified that between thirty-six
and forty pounds of methamphetamine were distributed in this way. Arceo made
numerous statements on tape corroborating that she was the source of the
methamphetamine, and admitting to the nature of her business relationship with
Sheese and Regenos.
Arceo argues she did not knowingly become a part of the methamphetamine
conspiracy engaged in by Regenos and Sheese. According to Arceo, she was
Regenos’s nanny, and merely acquainted with Sheese. Sheese’s testimony and
Arceo’s statements on tape show the existence of a conspiracy and Arceo’s knowing
participation in it, however. We cannot review the jury’s credibility assessment of
Sheese’s testimony. Id. at 989. We thus conclude the jury could reasonably find
Arceo guilty beyond a reasonable doubt.
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Arceo next asserts the district court should have declared a mistrial after the
Government elicited coconspirator hearsay. We review this issue for abuse of
discretion. United States v. McDougal, 137 F.3d 547, 556 (8th Cir. 1998). During
direct examination of Officer Gonzales, Gonzales described Arceo’s attempts to
obtain methamphetamine for him after she could not get it from her usual source.
Officer Gonzales stated Arceo met with Robbie Gomez in a parking lot, and Gonzales
overheard Gomez say, “Just . . . tell them that I told you to go there, and if you have
any problems, get a hold of me.” Arceo then returned to Gonzales and told him she
had a place they could go to obtain the drugs. Arceo also told Gonzales that Gomez
owed her $900 for some methamphetamine she had fronted him, and she had told
Gomez she would erase the debt if his contact could provide them with
methamphetamine. Arceo objected to Gomez’s statement, stating it wrongly implied
Arceo had a criminal relationship with him and he was not named as a coconspirator.
The Government asked the district court to admit the evidence not for the truth of the
matter asserted, but to explain Arceo’s actions in taking Gonzales to the last location
where Arceo attempted to obtain drugs. The Government also asked the district court
to give the jury a limiting instruction. Stating admissibility was a close question, the
district court struck the testimony. The district court agreed with the Government that
the evidence was isolated and not prejudicial in light of the substantial other evidence
in the record. The district court declined to grant a mistrial, and gave Arceo the
choice of either having a instruction read to the jury directing them to disregard the
testimony or having the Government not refer to the matter in its closing argument.
Arceo chose the latter option. Arceo now asserts the district court was required to
give a jury instruction.
Gomez’s statement was not hearsay and was admissible against Arceo if the
Government proved by a preponderance of evidence that Gomez and Arceo were in
a conspiracy and the statement was made during the course and in furtherance of the
conspiracy. United States v. Bell, 573 F.2d 1040, 1043, 1044 (8th Cir. 1978). If the
court decides the Government failed to show the statement was made by a
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coconspirator during the course and in furtherance of a conspiracy, the court must
declare a mistrial, unless a cautionary jury instruction to disregard the statement will
cure any prejudice. Id.Because Arceo declined the district court’s offer to instruct the jury to
disregard the statement, Arceo waived the issue. See Arkansas State Highway
Comm’n v. Arkansas River Co., 271 F.3d 753, 760 (8th Cir. 2001); Starks v. Rent-A-
Center, 58 F.3d 358, 361-62 (8th Cir. 1995). Besides, Gomez’s statement was
admissible because the Government presented sufficient evidence that Gomez was
involved in the conspiracy. Gonzales testified Arceo told him Gomez owed her $900
for methamphetamine she had fronted him. Because the Government submitted
evidence rendering the statement admissible, the district court’s remedy did not
prejudice Arceo. Also, the testimony about Gomez’s statement was admissible to
explain Arceo’s later course of conduct, so the district court was not required to
follow the Bell procedure. McDougal, 137 F.3d at 557. The district court properly
declined to grant a mistrial or give the instruction refused by Arceo.
Arceo last contends the district court committed clear error in finding the
conspiracy involved more than five kilograms (eleven pounds) of methamphetamine,
resulting in a base offense level of 36 under U.S.S.G. § 2D1.1(c)(2). We disagree.
Sheese testified Arceo was the source of more than thirty pounds of
methamphetamine distributed by him and Regenos. The district court found Sheese’s
testimony credible and corroborated by Arceo’s statements on tape, and found Arceo
directly responsible for dealing in over five kilograms of methamphetamine. Thus,
contrary to Arceo’s assertion, the record is specific enough to support the drug
quantity finding. Because Arceo personally supplied more than five kilograms of
methamphetamine to the conspiracy, Arceo’s argument that the amount was not
reasonably foreseeable to her is without merit. The district court’s drug quantity
finding is not clearly erroneous. United States v. Torres, 258 F.3d 791, 794 (8th Cir.
2001).
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We thus affirm Arceo’s conviction and sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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