United States v. Garcia

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4359
JUAN BENITO GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
James C. Fox, District Judge.
(CR-97-13)
Submitted: January 29, 1999
Decided: March 9, 1999
Before WIDENER, ERVIN, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert John McAfee, MCCOTTER & MCAFEE, P.L.L.C., New
Bern, North Carolina, for Appellant. Janice McKenzie Cole, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
Yvonne V. Watford-McKinney, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Juan Benito Garcia was convicted by a jury of conspiracy to pos-
sess with intent to distribute and to distribute marijuana, and aiding
and abetting distribution of marijuana, for which he was sentenced to
concurrent terms of 78 months and 60 months imprisonment, respec-
tively. Garcia appeals, claiming that the district court erred by: (1)
denying his motions for judgment of acquittal as to both counts; (2)
admitting testimony and tape-recorded conversations of a co-
conspirator; (3) admitting hearsay evidence at his sentencing hearing;
and (4) denying him a two-point reduction for having a minor role in
the offense. See U.S. Sentencing Guidelines Manual § 3B1.2 (1997).
Finding each of these claims without merit, we affirm Garcia's con-
victions and sentence.
Garcia was indicted in May 1997 in a three-count indictment
charging him with: (1) conspiracy to possess with intent to distribute
and to distribute marijuana, 21 U.S.C. §§ 841, 846 (1994); (2) distri-
bution of marijuana and aiding and abetting, 21 U.S.C. § 841(a)(1)
(1994), 18 U.S.C. § 2 (1994); and (3) interstate travel in aid of unlaw-
ful activity, 18 U.S.C. § 1952 (1994). At his trial, the Government
offered the testimony of Barton Greene, an unindicted co-conspirator,
who testified regarding Garcia's involvement with Felix Maldonado,
a co-defendant. According to Greene, Maldonado acted as Greene's
marijuana supply source on several occasions between 1992 and
1994. Greene stated that Maldonado referred to a cousin named
"Benny" as his source and that he had seen Benny with Maldonado
many times at social gatherings.
On December 14, 1996, Greene participated in a controlled pur-
chase of 36.8 pounds of marijuana from Maldonado. When they met
at the designated location, Garcia was driving Maldonado's car; Mal-
donado was a passenger. Both were subsequently arrested. Criminal
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record checks revealed that Garcia's aliases included "Benny," "Juan
Benito," and "Juan Benito Garcia."
Garcia claims, first, that the district court erred in denying his
motion for judgment of acquittal as to the conspiracy count because
the evidence of his joining the conspiracy was insufficient to sustain
the conviction. We review the denial of a Fed. R. Crim. P. 29 motion
under a sufficiency of the evidence standard.
See United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992).
To sustain the conviction, the evidence, when viewed in the light
most favorable to the government, must be sufficient for a rational
trier of fact to have found the essential elements of the crime beyond
a reasonable doubt. See Glasser v. United States , 315 U.S. 60, 80
(1942). In making this assessment, the government is entitled to all
reasonable inferences from the facts established to those sought to be
established. See United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982).
"To sustain [a] conspiracy conviction, there need only be a show-
ing that [the] defendant knew of the conspiracy's purpose and some
action indicating his participation." United States v. Collazo, 732 F.2d
1200, 1205 (4th Cir. 1984). Once it has been shown that a conspiracy
exists, the evidence need only establish a slight connection between
the defendant and the conspiracy to support the conviction. See
United States v. Seni, 662 F.2d 277, 285 n.7 (4th Cir. 1981). More-
over, a defendant may be convicted of conspiracy even though he
willfully joined in the plan on only one occasion, so long as he did
so with an understanding of the unlawful nature of the agreement. See
United States v. Roberts, 881 F.2d 95, 101 (4th Cir. 1989). A defen-
dant need not have had knowledge of his co-conspirators, see
Blumenthal v. United States, 332 U.S. 539, 557 (1947); United States
v. Burman, 584 F.2d 1354, 1356 (4th Cir. 1978), or knowledge of the
details of the conspiracy, see Blumenthal, 332 U.S. at 557; Roberts,
881 F.2d at 101. Finally, the testimony of a defendant's accomplices,
standing alone and uncorroborated, can provide an adequate basis for
conviction. See United States v. Burns, 990 F.2d 1426, 1439 (4th Cir.
1993).
Here, Garcia was identified as Maldonado's marijuana supply
source. Greene testified that Garcia was with Maldonado in Novem-
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ber 1996 when Greene and Maldonado discussed a planned sale of
marijuana to Greene. And, Garcia was driving the vehicle at the pre-
arranged meeting place for the controlled purchase the following
month. We find this evidence sufficient to support the conspiracy
conviction.
Next, Garcia contends that, because the district court dismissed
Count III of the indictment (interstate travel in aid of unlawful activ-
ity), he should have been acquitted of Count II (distribution of mari-
juana and aiding and abetting) because there was insufficient proof
that the marijuana had traveled in interstate commerce. However,
Congress has the power, through the Commerce Clause, to criminal-
ize intrastate possession, distribution, and sale of controlled sub-
stances. See United States v. Leshuk, 65 F.3d 1105, 1112 (4th Cir.
1995). Accord United States v. Patterson, 140 F.3d 767, 772 (8th
Cir.), cert. denied, ___ U.S. ___, 67 U.S.L.W. 3237 (U.S. Oct. 5,
1998) (No. 98-5483); United States v. Edwards , 98 F.3d 1364, 1369
(D.C. Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3687, 3692
(U.S. Apr. 14, 1997) (No. 96-1492) United States v. Kim, 94 F.3d
1247, 1249 (9th Cir. 1996); United States v. Tucker, 90 F.3d 1135,
1140 (6th Cir. 1996); United States v. Rogers , 89 F.3d 1326, 1338
(7th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3369 (U.S. Nov.
18, 1996) (No. 96-6365); United States v. Lerebours, 87 F.3d 582,
584-85 (1st Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3465(U.S. Jan. 6, 1997) (No. 96-6075); United States v. Wacker, 72 F.3d
1453, 1475 (10th Cir. 1995).
Next, Garcia claims that the district court erred in admitting
Greene's testimony regarding statements made to him by Maldonado
implicating Garcia.
Specifically, Garcia alleges that the statements should not have
been admitted under Fed. R. Evid. 801(d)(2)(E) because Greene was
acting as a police informant and had solicited the statements from
Maldonado.
We review the district court's evidentiary rulings for an abuse of
discretion. See United States v. Brooks, 111 F.3d at 371. Rule
801(d)(2)(E) permits the admission of co-conspirator statements if the
government can prove, by a preponderance of the evidence, that the
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statements were made in furtherance of and during the course of the
conspiracy. See United States v. Neal, 78 F.3d 901, 904-05 (4th Cir.
1996); United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992).
Because Maldonado's statements were made during the course of and
in furtherance of the conspiracy to sell marijuana to Greene, the state-
ments fall within the hearsay exception under Rule 801(d)(2)(E), not-
withstanding the fact that Greene had withdrawn from the conspiracy
and begun cooperating with police. See Neal, 78 F.3d at 905 (holding
that co-coconspirator's incriminating statements to a government
informant were admissible under Rule 801(d)(2)(E)).
Garcia also claims that the district court should have excluded tape-
recorded conversations between Greene and Maldonado because they
were cumulative of Greene's in-court testimony and confused the
jury. See Fed. R. Evid. 403. Greene testified that all but one of the
telephone conversations he had with Maldonado were tape-recorded
and summarized the content of those conversations. The tapes were
then played for the jury. We find that the tapes were neither cumula-
tive of Greene's testimony nor confusing to the jury such that they
should have been excluded under Rule 403.
Next, Garcia challenges the district court's reliance, at sentencing,
on hearsay statements made by Robert Maldonado in attributing 148
pounds of marijuana to him. In determining facts relevant to sentenc-
ing, district courts are not limited to consideration of evidence which
would be admissible at trial. See 18 U.S.C.§ 3661 (1994). Section
6A1.3(a) of the Guidelines, which provides that otherwise inadmissi-
ble evidence may be considered so long as the information contains
"sufficient indicia of reliability to support its probable accuracy," does
not restrict the court's ability to consider reliable hearsay. See United
States v. Bowman, 926 F.2d 380, 381 (4th Cir. 1991) (finding reliable
uncorroborated testimony of confidential informant). See also United
States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 1992) ("[F]or sen-
tencing purposes, hearsay alone can provide sufficiently reliable evi-
dence of quantity" of drugs attributable to a defendant). The
sentencing court may even consider uncorroborated hearsay, so long
as the defendant is provided an opportunity to rebut or explain it. See
United States v. Falesbork, 5 F.3d 715, 722 (4th Cir. 1993).
Here, the Government presented the testimony of Sergeant David
Gonzalez that Maldonado had named Garcia as his primary source of
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marijuana during a post-arrest interview in 1994. Maldonado also told
Gonzalez that he had obtained a total of 148 pounds of marijuana
from Garcia. At Garcia's sentencing hearing, Maldonado denied that
Garcia was his source and denied transporting the marijuana attri-
buted to him in his own presentence report. Nevertheless, the district
court adopted the facts presented in the presentence report. We find
that Gonzalez' testimony had a "minimal indicia of reliability" and,
because Garcia was given the opportunity to rebut the evidence, the
district court did not err in admitting his testimony.
Finally, Garcia claims that the district court improperly denied him
a two-level reduction for having a minor role in the offense. See U.S.
Sentencing Guidelines Manual § 3B1.2 (1997). We review a district
court's factual determination of a defendant's role in an offense for
clear error. See United States v. Perkins, 108 F.3d 512, 518 (4th Cir.
1997). A defendant's role in the offense is determined by the entirety
of his relevant conduct, not simply by actions encompassed by the
count of conviction. See United States v. Fells , 920 F.2d 1179, 1184
(4th Cir. 1990). A reduction for "minor" participants is "intended to
cover defendants who are plainly among the least culpable of those
involved." See USSG § 3B1.2, comment. (n.1). In determining
whether a defendant had a minor or minimal role in the offense "the
critical inquiry is . . . not just whether the defendant has done fewer
`bad acts' than his codefendants, but whether the defendant's conduct
is material or essential to committing the offense." United States v.
Palinkas, 938 F.2d 456, 460 (4th Cir. 1991), vacated, 503 U.S. 931(1992), reinstated, 977 F.2d 905 (4th Cir. 1992). Garcia fails to estab-
lish that his actions within the conspiracy made him less culpable than
his other co-conspirators. Thus, the district court's decision to refuse
the adjustment was not clearly erroneous.
Accordingly, we affirm Garcia's convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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