United States v. Gallardo-Trapero

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50096
United States of America,
Plaintiff-Appellee,
VERSUS
Ruben Horacio Gallardo-Trapero, David Christopher Hernandez,
and Luis Quintero De Avila,
Defendants-Appellants.
Appeals from the United States District Court
For the Western District of Texas
August 11, 1999
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This direct criminal appeal arises from the conviction
following jury trial of Appellants Ruben Gallardo, David Hernandez,
and Luis Quintero for conspiracy to distribute and possess with
intent to distribute marijuana in violation of 21 U.S.C. §§ 846,
841(a)(1). For the reasons assigned, we affirm the convictions and
sentences of the Appellants.
I. FACTS
The government’s evidence in this case demonstrated the
1
existence of a drug organization funneling marijuana from
California and Texas to several Midwestern cities. The complicated
facts of this appeal involve numerous drug distributors and
couriers. The government indicted ten co-conspirators as being
part of a single drug conspiracy. Appellants Ruben Horacio
Gallardo-Trapero (Gallardo), David Christopher Hernandez
(Hernandez), and Luis Quintero de Avila (Quintero) were tried
together and convicted for various roles in the drug conspiracy.
Since detailed facts will be recounted in subsequent sections
dealing with Appellants’ specific claims, we will only sketch a
general overview of the drug conspiracy here.
The government’s case relied upon the testimony of the drug
couriers involved in this conspiracy: John Langhout (Langhout) and
Fred and Lucy Miller (the Millers). Langhout and the Millers were
apparently selected because they do not fit any standard drug
courier profiles: Langhout was in his mid-50s when he made these
drug runs while Fred Miller was in his early 70s and Lucy Miller
was in her mid-50s. Langhout and the Millers each made numerous
trips delivering marijuana from southern California and Texas to
Midwestern cities. They were originally drawn into this operation
by an individual named Octavio Rivera (Rivera). John Langhout made
his first drug run for Rivera on March 23, 1994, and took a car
loaded with marijuana from Chula Vista, California, to Chicago and
then Detroit. The Millers also made their first trip for Rivera
(whom they knew by the name Mario) in late March 1994 from Chula
Vista--which is south of San Diego--to Chicago and Detroit as well.
2
For driving the loads of marijuana across the county, the couriers
were usually paid $10,000.
Langhout and the Millers each made numerous deliveries. The
first runs for both Langhout and the Millers originated in southern
California. Later, Langhout and the Millers both made deliveries
that began in Texas. On some occasions, Octavio Rivera would meet
them in the drop-off city. On many other occasions, Langhout and
the Millers delivered the marijuana to specified individuals in
each of these cities. On all of the drug runs, the couriers
communicated with Rivera and his associates by cellular phones and
beepers. The Millers and Langhout would be instructed where to
deliver the marijuana en route as they neared their Midwest
destinations.
The Millers made ten drug runs in all, usually about once a
month. They testified that they had delivered marijuana to David
Hernandez in Detroit and had made other deliveries to Chicago,
Indianapolis, and Piketon, Ohio. The Millers testified that on one
trip to Chicago they contacted Octavio Rivera, apparently after
losing their way, and that Rivera, Hernandez, and Quintero came to
meet them in a pickup truck and led them to the place of delivery.
In addition, Lucy Miller testified that after Octavio Rivera told
them by phone that someone would come to their El Paso hotel with
instructions as to a shipment, Gallardo was the person who came to
their room. In May 1995, after the Millers were stopped for
speeding in Missouri, the police discovered a marijuana shipment in
their vehicle. Upon arrest, they agreed to cooperate with
3
authorities in making a police-monitored delivery in Ohio. They
pleaded guilty in federal court in Ohio and received a prison
sentence of a year and one day.
John Langhout made approximately thirteen drug deliveries
between March 1994 and February 1996. He testified that he made
several drug deliveries to David Hernandez in Detroit and to other
contacts in Indianapolis, Chicago, and Michigan City, Indiana.
Langhout testified that on one trip he and Octavio Rivera traveled
to Indianapolis and picked up marijuana from a previous delivery
that was being returned because of poor quality by the contact
there, Sergio Zamora (Zamora), and that he (Langhout) and Rivera
took this load to Chicago and delivered it to Felipe Gomez
(Gomez).1 Langhout’s early trips originated in southern
California, but he later picked up shipments in El Paso and Laredo,
Texas. In late January 1995, Langhout went to El Paso at the
request of Octavio Rivera, where he met Rivera, Felipe Gomez, and
Ricardo Avila (Avila) in picking up a drug shipment. Langhout
testified that he subsequently made other shipments of drugs for
Rivera that Avila orchestrated.
Langhout testified that at some point Ricardo Avila “stole”
him for a run out of El Paso. Langhout said that Avila, and not
Rivera, was his boss for that shipment which he took to Chicago.
Although Langhout testified that he considered this to be a
separate operation, he also claimed that Octavio Rivera and Ricardo
1
Gomez and Zamora were indicted in this conspiracy but both
pleaded guilty before trial and testified for the government in the
present case.
4
Avila were “associates” and that as a driver he was kept in the
dark about specific information regarding their relationship within
the illicit drug activities. Langhout was arrested on a drug run
in Del Rio, Texas, on October 4, 1995, along with Ricardo Avila.
Langhout agreed to cooperate with the government and, pursuant
thereto, acceded to Gomez’s request to undertake a shipment from
south Texas. The preliminary activity involving this shipment in
McAllen, Texas, led to the arrests of Gomez, Gallardo, and
Quintero.
Langhout testified that he met Gomez and Quintero in McAllen
about the drug run. Langhout testified that he was being “stolen”
again--this time, by Gomez and Quintero from Avila. Gomez also
testified that he was acting under the orders of Roberto and Javier
Lopez. After the marijuana shipment failed to arrive in McAllen
within a few days, Langhout returned to El Paso. When the
marijuana load eventually arrived, Langhout alerted the Drug
Enforcement Administration (DEA) agents and returned to McAllen in
a Lincoln Towncar, ostensibly to pick up the cargo. On February
15, 1996, Langhout gave Gomez possession of the Lincoln Towncar for
the purpose of loading it with marijuana. Under DEA surveillance,
Gomez followed Quintero to a location near the house where the
marijuana was located. Quintero parked the Toyota Camry he was
driving, got into the Lincoln Towncar, and went with Gomez to
Gallardo’s house at 2100 North Eighth Street. Gomez backed the car
into the garage. After approximately twenty minutes, Gomez drove
away in the Lincoln Towncar and Quintero and Gallardo departed in
5
the Toyota Camry. Gomez was arrested when he reached Langhout’s
hotel; the Lincoln Towncar’s trunk contained 454 pounds of
marijuana. Quintero and Gallardo were arrested shortly afterwards.
No drugs were found in the Camry, but Quintero possessed a drug
ledger and Gallardo had several small pieces of paper bearing names
and phone numbers. Gallardo was informed of his Miranda rights but
he talked with the DEA Agents and consented to a search of his
house. There, the agents found 43 bundles of marijuana weighing
638 pounds.
On April 10, 1996, Appellant Hernandez was arrested in
Detroit. In the spring of 1996, an arrest warrant for Hernandez
had been issued in the Western District of Texas in connection with
this conspiracy. Previously, in August 1995, Hernandez had been
stopped in the Detroit airport (after using cash to purchase a one-
way ticket to Orange County, California) and was found to be
carrying approximately $49,000 in cash on his person. Hernandez
had placed the bundles of cash around his lower back and these were
kept in place by his tucked-in shirt.
Gallardo, Hernandez, and Quintero were tried together. Gomez
pleaded guilty and testified against them at trial. The Millers
both served time after they pleaded guilty in federal court in
Ohio. Langhout was never prosecuted for his participation.
Likewise, Avila was never prosecuted following his arrest. Insofar
as the record discloses, neither Octavio Rivera, Roberto Lopez, or
Javier Lopez was ever apprehended or charged in connection with
this conspiracy.
6
II. CONSPIRACY
Appellants Hernandez and Quintero contend that a material
variance existed between their indictment for a single conspiracy,
and the evidence adduced at trial which, they contend, pointed to
the existence of multiple conspiracies. They contend that there
was insufficient evidence tying together all the individuals and
drug transactions brought forward at trial. Fatal variance claims
spring from protections in the Fifth and Sixth Amendments and are
the right “not to be tried en masse for the conglomeration of
distinct and separate offenses committed by others.” Kotteakos v.
United States, 328 U.S. 750, 775 (1946).
Appellants Hernandez and Quintero fashioned this fatal
variance claim as an appeal of the trial court’s denial of their
motions for a judgment of acquittal. They assert that the district
court erred in not granting their motion for a judgment of
acquittal because the evidence precluded a finding that a single
conspiracy existed. Their motion for a judgment of acquittal is
treated as a challenge to the sufficiency of the evidence to
convict. United States v. Medina, 161 F.3d 867, 872 (5th Cir.
1998), cert. denied, 119 S. Ct. 1344 (1999).
This court reviews a claim of insufficient evidence to
determine whether a rational trier of fact could have found that
the evidence proved the essential elements of the crime beyond a
reasonable doubt. United States v. Ramirez, 145 F.3d 345, 350 (5th
Cir. 1998). The evidence presented at trial is viewed in the light
most favorable to the government and with all reasonable inferences
7
made in support of the jury’s verdict. United States v. Thomas,
120 F.3d 564, 569 (5th Cir. 1997), cert. denied, 118 S. Ct. 721
(1998).
We review in two steps the Appellants’ claim of a fatal
variance between the single conspiracy charged in the indictment
and the trial evidence, which they contend relates to multiple
conspiracies. First, we must decide whether the evidence varied
from the indictment’s allegations and whether it supports a
reasonable finding of one conspiracy linking all defendants with
all transactions. Second, if there was such a variance, we must
assess whether that variance affected a substantial right of the
appellants. United States v. Medina, 161 F.3d at 872.
The Appellants claim that the record demonstrates the
existence of at least two distinct conspiracies: one organized by
Octavio Rivera involving narcotics shipments from southern
California and El Paso and Laredo, Texas, to several Midwestern
cities, and a second one in which marijuana was to be shipped from
McAllen, Texas. Quintero suggests that there were actually three
conspiracies: one headed up by Octavio Rivera, one organized by
Ricardo Avila, and a third one centered in McAllen, headed by
Javier and Roberto Lopez and run by Felipe Gomez.
We conclude that there was no material variance between the
indictment and the evidence presented at trial. As the defendants
recognize, the evidence does not demonstrate with absolute
certainty whether the individuals who coordinated the marijuana
shipments were all associates in one organization or whether any of
8
these individuals had, on occasion, struck out on his own as the
head of a separate conspiracy. There is, however, a high degree of
overlap of individuals involved in the drug operations described by
the evidence. The use of the same drug couriers, John Langhout and
Fred and Lucy Miller, is some evidence of a common criminal
enterprise. Langhout made numerous runs for Octavio Rivera from
both California and Texas and delivered the marijuana shipments to
individuals such as David Hernandez (and sometimes Rivera himself)
in various Midwestern locales. Langhout also picked up a shipment
from Ricardo Avila in El Paso which was delivered to Chicago. In
addition, Langhout was recruited by Felipe Gomez and Luis Quintero
to be the driver of the shipment from McAllen which was terminated
by the arrests of several defendants and the seizures of marijuana
and Langhout’s Lincoln Towncar.
Felipe Gomez is another individual who reappears throughout
the record. Gomez was the recipient of a shipment of marijuana in
Chicago from Langhout and Octavio Rivera on one of Langhout’s early
trips. At another time, Gomez picked up Hernandez at the El Paso
airport on Octavio Rivera’s orders and met Langhout in order to
transfer marijuana into Langhout’s car for the drive to Chicago.
Langhout testified that on one occasion he met with Gomez, Octavio
Rivera, and Ricardo Avila in El Paso during his pickup of
approximately 200 pounds of marijuana for a delivery to Chicago for
Rivera. Langhout testified that on another occasion Gomez and
Rivera gave him $60,000 in Chicago to bring back to a contact in
Laredo, Texas. Finally, Gomez was involved with Quintero in
9
organizing a shipment from McAllen, Texas, to Chicago where
Langhout was instructed to transport the cargo and to meet Gomez.
As we stated earlier, this plan was terminated when Gomez was
arrested in Langhout’s rented Lincoln Towncar with 450 pounds of
marijuana in McAllen.
The ties between individuals involved in the alleged
conspiracy do not end there. Testimony linked Octavio Rivera with
(1) deliveries to Hernandez in Detroit, (2) shipments in
collaboration with Felipe Gomez from El Paso, and (3) shipments
organized in association with Gomez and Ricardo Avila from El Paso.
Langhout testified that he met with Ricardo Avila and Appellant
Quintero in El Paso in order to accept payment from Avila for an
earlier drug run; that he met with Felipe Gomez and Luis Quintero
in McAllen because they were expecting to receive marijuana; and
that on this occasion Quintero said that he wanted Langhout to work
for him instead of for Ricardo Avila in the future.
In reviewing Appellants’ claim of material variance, the
primary factors to be considered in determining whether a single
conspiracy was proven are (1) the existence of a common goal, (2)
the nature of the scheme, and (3) the overlapping of participants
in the various dealings. United States v. Morgan, 117 F.3d 849,
858 (5th Cir. 1997); United States v. Pena-Rodriguez, 110 F.3d
1120, 1126 (5th Cir.), cert. denied, 118 S. Ct. 71, 72 (1997).
Whether the evidence proved the existence of single or multiple
conspiracies is a question of fact for the jury. We must affirm
the jury’s finding that the government proved a single conspiracy
10
“unless the evidence, viewed in the light most favorable to the
government, would preclude reasonable jurors from finding a single
conspiracy beyond a reasonable doubt.” Morgan, 117 F.3d at 858.
Viewing the evidence in the light most favorable to the
government, we are convinced that the evidence presented here would
allow a reasonable juror to find beyond a reasonable doubt that a
single conspiracy existed involving all of the Appellants. There
was a common goal of transporting marijuana to certain Midwestern
cities and the scheme hinged upon the participants’ supplying the
couriers with the drugs and then contacting the couriers along
their route to direct them to their drop off cargo in Detroit,
Chicago, Indianapolis, or Michigan City. As demonstrated above,
there was significant overlap in the participants in the various
dealings. It may be true that certain participants did not know
others involved in the different operations, but “to establish an
overlap, ‘[t]he government does not have to establish that the
sellers and purchasers knew each other or knew what each was
doing.’” United States v. Payne, 99 F.3d 1273, 1280 (5th Cir.
1996) (quoting United States v. Morris, 46 F.3d 410, 416 (5th Cir.
1995)). In addition, the jury instruction given by the district
court was designed to safeguard the Appellants against the
possibility of guilt transference.2 See Pena-Rodriguez, 110 F.3d
2
The district court instructed the jury as follows:
Of course, mere presence at the scene of an alleged
transaction or event, even with knowledge that a crime is
being committed, or mere similarity of conduct among various
persons, and the fact that they may have associated with each
other, does not establish the existence of a conspiracy.
Also, a person who has no knowledge of a conspiracy, but who
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at 1128-29 (similar jury instruction); Morris, 46 F.3d at 417-18
(similar jury instruction).
The Appellants argue that evidence of the existence of
multiple conspiracies came to light when John Langhout testified
that he had been “stolen” by different individuals who wanted him
to work for them and not for others. It is true that Langhout did
testify that Ricardo Avila had “stolen me” from Octavio Rivera even
though Avila had previously been working with (or for) Rivera.
Subsequently, in preparation for the drug run from McAllen,
Langhout testified that Felipe Gomez and Luis Quintero told him
that Ricardo Avila was their enemy and that “Quintero wanted me to
work for him and not work for Ricardo anymore.”
The testimony of record is complex and sometimes inconsistent.
As Langhout stated above, Quintero “wanted me to work for him,” but
Felipe Gomez later testified that he wanted Langhout “[t]o work for
me,” and then Gomez added that he was simply following the orders
of Javier and Roberto Lopez. As to the other incident, Langhout
happens to act in a way which advances some object or purpose
of a conspiracy, does not thereby become a conspirator. You
must determine whether the conspiracy charged in the
indictment existed, and, if it did, whether the defendant was
a member of it. If you find that the conspiracy charged did
not exist, then you must return a not guilty verdict even
though you find that some other conspiracy existed. If you
find that a defendant was not a member of the conspiracy
charged in the indictment, then you must find that defendant
not guilty even though that defendant may have been a member
of some other conspiracy.
The case of each defendant and the evidence pertaining to
that defendant should be considered separately and
individually. The fact that you may find one of the
defendants guilty or not guilty should not control your
verdict as to any other defendant.
12
did testify that he was “stolen” by Ricardo Avila and he testified
on cross-examination that Ricardo Avila and Octavio Rivera operated
separate enterprises. On another occasion, however, Langhout
testified on cross-examination that Avila and Rivera were
“associates” but that he was unclear about any possible hierarchy
because “[a]s a driver they kept me in the dark as much as
possible.”3
Based upon the entire record and viewing the evidence in the
light most favorable to the government, we cannot say that the
evidence would preclude a reasonable juror from finding beyond a
reasonable doubt that each of the Appellants participated in a
3
The colloquy on this point is informative:
DEFENSE ATTORNEY ROBERTS: Do you [Langhout] recall mentioning
to him [Agent Sperry] that, for instance, that Mario Bugarin was
Octavio Rivera’s partner?
LANGHOUT: Yes.
Q. Okay. And I suppose Ricardo Avila would also be one of
Octavio’s partners?
A. Associates, yeah.
Q. Was he a higher level than Octavio?
A. As a driver they kept me in the dark as much as possible.
Q. Okay.
A. I mean Octavio--Ricardo initially, when I first went to El
Paso, Ricardo was a source of marijuana for Octavio. I think they
were cutting out middle men and stuff like that.
Q. And didn’t you discuss earlier in these early trips from
Chula Vista that a man by the name of Raul was the Mexican source
for the marijuana?
A. He was Octavio’s supplier, yes.
Q. And do you recall mentioning Luis Quintero’s name to Agent
Sperry during this debriefing on February 12?
A. No. This debriefing was separate from the McAllen bust.
Q. And it was dealing mainly, I guess, with the Rivera
organization, right?
A. It was dealing with my prior trips before October 4th of ‘95.
Q. Yes. But this would be the Rivera-Avila group, right?
A. Oh, Octavio. Octavio and Rivera.
Q. Octavio Rivera and Ricardo Avila?
A. Ricardo Avila, yes.
13
single conspiracy as charged. Thus, there was no fatal variance
between the indictment and the evidence adduced at trial.
III. INSUFFICIENT EVIDENCE
Appellant Gallardo maintains that the district court erred in
denying his motion for judgment of acquittal based on the
insufficiency of the evidence.
As stated above, this court reviews a claim of insufficient
evidence to determine whether a rational trier of fact could have
found that the evidence established the Appellant’s guilt and each
essential element of the crime beyond a reasonable doubt. Ramirez,
145 F.3d at 350. The evidence presented at trial is viewed in the
light most favorable to the Government and with all reasonable
inferences made in support of the jury’s verdict. Thomas, 120 F.3d
at 569.
A conviction for conspiracy to possess and distribute a
controlled substance, 21 U.S.C. §§ 846, 841(a)(1), requires proof
beyond a reasonable doubt that demonstrates (1) the existence of an
agreement between two or more persons to violate the narcotics
laws, (2) the defendant’s knowledge of the agreement, and (3) the
defendant’s voluntary participation in the conspiracy. Ramirez,
145 F.3d at 350; Thomas, 120 F.3d at 569. Mere presence or
association with actual conspirators “standing alone, will not
support an inference of participation in the conspiracy.” United
States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992). However, in
meeting its burden, the government may rely on circumstantial
14
evidence tying the defendants together in order to prove
conspiracy: “The agreement may be tacit, and the jury may infer
its existence from circumstantial evidence.” United States v.
Crooks, 83 F.3d 103, 106 (5th Cir. 1996).
Addressing Appellant Gallardo’s arguments here required a
thorough consideration of the evidence in the record, but we are
ultimately persuaded that the evidence sufficiently supports the
jury’s verdict. Our function is to assess whether any rational
juror could conclude beyond a reasonable doubt that the government
proved its case, and “we need not be persuaded that the evidence
excludes every reasonable hypothesis of innocence.” United States
v. Velgar-Vivero, 8 F.3d 236, 239 (5th Cir. 1994), cert. denied,
511 U.S. 1096 (1994).
The evidence clearly supports such findings that Gallardo
resided at the house at 2100 North Eighth Street in McAllen where
a search after Gallardo’s arrest turned up 638 pounds of marijuana.
Likewise, despite Gomez’s testimony to the contrary, there was
substantial evidence that he knew the house was Gallardo’s home.
DEA Special Agent Anthony Santos testified that after advising
Gallardo of his Miranda rights, Gallardo told him that he and his
wife and his family resided at the house. DEA Special Agent Jack
Arnold also testified that his investigation led him to conclude
that a personal relationship existed between Gallardo and Maria
Mesa and that they resided at the house. Felipe Gomez testified
that he had been to this particular house twice before and that
Ruben Gallardo was there both times. After his arrest, Agent
15
Santos testified that Gallardo consented to a search of the house
and that Gallardo told him that marijuana would be found in the
garage of the house. The search subsequently turned up 43 bundles
of compressed marijuana which weighed 638 pounds in total.
Other testimony and evidence presented at trial ties Gallardo
to this conspiracy. Lucy Miller identified Gallardo at trial as an
individual who came to the Millers’ hotel room in El Paso after
Octavio Rivera informed them that someone would meet them there to
transfer marijuana for a drug run. In addition, the two
individuals arrested with Gallardo in McAllen each had something
that linked them with Gallardo: Felipe Gomez had a slip of paper
with Gallardo’s name and a phone number on it, and Luis Quintero
had a drug ledger which listed bundles of marijuana that
corresponded to the markings on the bundles in Gallardo’s garage.
Written on the six small pieces of paper that Gallardo had when he
was arrested were phone numbers of “Quintero” and “Felipe.” There
were also two phone numbers for “Ricardo Avila” which matched the
numbers for Ricardo Avila given by John Langhout during his
testimony. Langhout gave a cellular phone number for Avila and
another number which he said that “[Avila] and Octavio [Rivera]
shared.”
In combination, this evidence constitutes a sufficient basis
from which a reasonable juror could find beyond a reasonable doubt
that the government had established Gallardo’s guilt of the
essential elements of the crime charged.
16
IV. PROSECUTORIAL MISCONDUCT
The Appellants contend that Assistant U.S. Attorney Juanita
Fielden made improper statements during her closing argument in an
attempt to bolster her own credibility and that of the federal DEA
agents who testified during trial. Appellants argue that AUSA
Fielden exceeded the proper bounds of a closing argument when she
claimed that people working for the United States--here, DEA agents
and herself, a federal prosecutor--would not lie on the witness
stand because of the risk of jeopardizing their careers.
Appellants argue that these assertions improperly tied the federal
officials’ testimony to the authority of the United States and
“vouch[ed] for the credibility of government witnesses on the basis
of their status as government employees.”
During the trial, Fred Miller testified as a cooperating
witness for the government. On cross examination, Mr. Miller was
questioned about his cooperation with the government and what
benefits he received in return. As we noted earlier, the Millers
were arrested in Missouri carrying marijuana they received in El
Paso. They then cooperated with federal authorities by making a
monitored delivery in Piketon, Ohio. The Millers were indicted in
federal court in Ohio and although it is not absolutely clear from
the record what they were charged with, it appears from statements
made by Mr. Miller on cross examination and by the trial judge
during a sidebar conference that they were charged with a drug
conspiracy crime. The indictment undoubtedly related to the
marijuana in their vehicle, which they possessed because of their
17
participation in the conspiracy at issue in the present case.
Significantly, the Millers cooperated with the federal prosecutors
in Ohio and received reduced sentences for that cooperation. They
were sentenced to a year and a day; Fred Miller served nine months
in prison while Lucy Miller served seven months in a federal
penitentiary.
In the present case, the defense attorneys questioned Mr.
Miller about whether he had been offered anything in return for his
testimony for the government. Although Mr. Miller’s answers were
confusing at times because it was unclear which case he was asked
about (his Ohio prosecution or the present case), he testified that
he received a reduced sentence in Ohio for his testimony but he
denied that he was informed that he would not be prosecuted in the
present case in Texas federal court. Miller stated clearly on two
separate occasions that he had not received any promises from AUSA
Fielden in return for his testimony in the present case. On
redirect, Ms. Fielden asked, “Mr. Miller, have I promised you
anything in return for your testimony?” Fred Miller’s response:
“No, ma’am.”
At sidebar, the defense attorneys produced a letter that AUSA
Fielden had sent on October 10, 1996, to the attorneys for the
defendants in the present case.4 The prosecutor’s letter, sent
4
The letters do not show that they were “cc’d” to anyone.
Although the question of whether the Millers’ attorney had received
a copy arose at oral argument before this court, it appears that
the Millers were not represented by counsel during this trial
although they had been represented by public defenders in federal
court in Ohio.
18
pursuant to Giglio v. United States, 405 U.S. 150 (1972), informed
the defense attorneys that the government witnesses Fred and Lucy
Miller “in exchange for their co-operation and testimony, they will
not be prosecuted for their involvement in this conspiracy.”
Following this sidebar conference, defense attorney Roberts asked
Mr. Miller on recross whether he had been promised anything by AUSA
Fielden in exchange for his testimony in this case. Mr. Miller
denied that Fielden had ever promised not to prosecute him in
return for his testimony.
Because of the possible discrepancy between Mr. Miller’s
testimony and AUSA Fielden’s Giglio letter, Fielden was called as
a defense witness about the letter. On the witness stand, Fielden
admitted that she had written the letter but denied that she had
ever communicated to Lucy and Fred Miller that they would not be
prosecuted. In response to a question asked by defense attorney
Salas, AUSA Fielden stated:
That was never communicated to them. That was a letter
addressed to you. I never communicated with them. The
only time that I talked to Fred and Lucy Miller prior to
their testimony was on Monday . . . October 14th, in my
office. At that time we discussed their testimony. They
did not ask, and I did not discuss any immunity from
prosecution whatsoever.
In sum, Ms. Fielden asserted that she wrote the letters on October
10, 1996, and sent them to Appellants’ attorneys before she had
spoken with the Millers and that when she did talk with the Millers
on October 14, 1996, she did not communicate any arrangement like
the one she had described in the letters.
Appellants maintain that AUSA Fielden improperly attempted to
19
bolster the credibility of her testimony and that of the DEA agents
who testified by invoking the authority of the United States and
cloaking that testimony in the mantle of the federal government.
During Fielden’s closing argument, she stated (between defendants’
objections): “I repeat, do you think that agents for the federal
government and a prosecutor for the federal government, for the
United States of America, are going to risk their career and get on
the stand and commit * * * would get on the witness stand and
commit perjury and risk their career. It’s not going to happen,
ladies and gentlemen.”5
5
That entire passage of the oral argument took place in the
following manner:
MS. FIELDEN: These letters that I wrote--and I did write these
letters. Now, they have accused every government witness of lying,
every government witness was lying that got on the stand, Steve
Sperry, Steve Mattas, Jack Arnold, Kerry Keeter, Tony Santos,
Michael Smith, Langhout, Millers, Gomez, Zamora. And I guess they
didn’t address the El Paso PD. But everybody is lying, and now
they are accusing me of lying also. * * *
I got on the stand, and what I told you was that I wrote this
letter October 10. I did not talk to Fred and Lucy Miller until
October 14. And that the subject –
MR. ROBERTS: Your honor, counsel is testifying at this point.
She did not testify to that.
THE COURT: Objection is overruled. She did testify.
MS. FIELDEN: I did not speak to these people until October 14th.
The subject of whether or not they were going to be prosecuted did
not come up. This letter was written and sent to these people on
October 10th, before I even laid eyes on Fred and Lucy Miller.
Let’s talk about some of the other things we’ve got here. The
other witnesses that they talk about, they were all lying except
when they felt they said something beneficial to their client and
then they were telling the truth. Are they going to have it both
ways? Either they’re lying or they’re telling the truth. But do
you think that all those agents, and do you think a prosecutor for
the United States is going to put their career on the line and get
up and commit--
MR. ROBERTS: Your Honor, she is testifying as to her own
credibility now in argument.
THE COURT: She’s what?
MR. ROBERTS: She is bolstering her own credibility as a witness
20
AUSA Fielden’s comments merit close attention because “it is
particularly improper, indeed, pernicious, for a prosecutor to seek
to invoke his personal status as the government’s attorney or the
sanction of the government itself as a basis for convicting a
criminal defendant.” United States v. Goff, 847 F.2d 149, 163 (5th
Cir. 1988) (citing United States v. Garza, 608 F.2d 659, 663 (5th
Cir. 1979)). As this court has pointed out, “The power and force
of the government tend to impart an implicit stamp of believability
to what the prosecutor says.” United States v. Garza, 608 F.2d
659, 663 (5th Cir. 1979) (quoting Hall v. United States, 419 F.2d
582, 583-84 (5th Cir. 1969)).
This court’s review of an assertion of prosecutorial
misconduct takes place in two steps. First, we must initially
decide whether or not the prosecutor made an improper remark.
and a prosecutor, arguing here today, and giving her personal
affirmation of her honesty.
THE COURT: She’s doing nothing more than responding to attacks
by you, Mr. Lopez and Mr. Salas. Perfectly proper. Your objection
is overruled. Go ahead.
MR. ROBERTS: Thank you.
MS. FIELDEN: I repeat, do you think that agents for the federal
government and a prosecutor for the federal government, for the
United States of America, are going to risk their career and get on
the stand and commit –
MR. ROBERTS: Your honor, I will renew the argument as to the
other agents.
THE COURT: No, you don’t argue with me. You object.
MR. ROBERTS: I’m sorry, your Honor. I would renew the objection
as to her testifying that federal agents would not lie as being
improper argument outside the record.
THE COURT: She didn’t say that. You’re the one saying that.
Anyway, your objection is overruled.
MR. ROBERTS: Thank you.
MS. FIELDEN: -- would get on the witness stand and commit
perjury and risk their career. It’s not going to happen, ladies
and gentlemen.
21
United States v. Munoz, 150 F.3d 401, 414 (5th Cir. 1998). If an
improper remark was made, we must then evaluate whether the remark
affected the substantial rights of the defendant. Id. at 415;
Garza, 608 F.2d at 663.
In assessing whether statements made by a prosecutor were
improper, it is necessary to look at them in context. United
States v. Washington, 44 F.3d 1271, 1278 (5th Cir. 1995). While
AUSA Fielden could respond to the defense attorneys’ statements in
her closing argument, she cannot base her arguments on facts not in
evidence or cloak her witnesses in the protective mantle of the
United States government. A prosecutor can argue that “‘the fair
inference from the facts presented is that a witness has no reason
to lie.’” Munoz, 150 F.3d at 414 (quoting Washington, 44 F.3d at
1278). However, a prosecutor’s closing argument cannot roam beyond
the evidence presented during trial: “Except to the extent [the
prosecutor] bases any opinion on the evidence in the case, he may
not express his personal opinion on the merits of the case or the
credibility of witnesses.” Garza, 608 F.2d at 663.
A majority of this panel is of the opinion that Fielden’s
remarks were improper because they referred to facts not in
evidence and invoked the aegis of a governmental imprimatur.6 This
panel unanimously agrees, however, that AUSA Fielden’s remarks did
not affect the substantive rights of the Defendants.
In determining whether Fielden’s comments prejudiced the
6
Judge Higginbotham disagrees, being of the opinion that the
remarks were little more than the prosecutor making a fair
inference from the facts presented.
22
Defendants’ substantive rights, we assess “‘(1) the magnitude of
the statement’s prejudice, (2) the effect of any cautionary
instructions given, and (3) the strength of the evidence of the
defendant’s guilt.’” Munoz, 150 F.3d at 415 (quoting United States
v. Tomblin, 46 F.3d 1369, 1389 (5th Cir. 1995)). As this court has
concluded in this context, “Proper supervision requires us at least
to balance the need to protect the integrity of federal trials
against the practical interest in giving finality to an accurate
and fair verdict; we cannot by our supervisory power reverse a
conviction for trial error that was harmless.” United States v.
Jones, 839 F.2d 1041, 1050 (5th Cir.), cert. denied, 486 U.S. 1024
(1988).
We conclude that the prosecutor’s remarks during closing
argument did not prejudicially affect the substantive rights of the
defendants. As to the first factor, “[t]he magnitude of the
prejudicial effect is tested by looking at the prosecutor’s remarks
in the context of the trial in which they were made and attempting
to elucidate their intended effect.” United States v. Fields, 72
F.3d 1200, 1207 (5th Cir.), cert. denied, 519 U.S. 807 (1996).
Given the strident advocacy on both sides of this case and the
numerous witnesses, pieces of evidence, and issues placed before
the jury, we cannot say that the prosecutor’s statements
overshadowed what had come before and unduly prejudiced the
Appellants’ case. In addition, the district court helped to
mitigate any prejudicial effect by instructing the jury to base
their decision solely upon the testimony and evidence presented:
23
In reaching your decision to the facts, you may
consider only the evidence admitted in the case. The
term evidence includes the sworn testimony of the
witnesses and the exhibits admitted in the record.
Remember that any statements, objections or arguments
made by the lawyers are not evidence in the case.
We presume that such instructions are followed “unless there is an
‘overwhelming probability that the jury will be unable to follow
the instruction and there is a strong probability that the effect
[of the improper statement] is devastating.’” United States v.
Tomblin, 46 F.3d 1369, 1390 (5th Cir. 1995) (quoting United States
v. Barksdale-Contreras, 972 F.2d 111, 116 (5th Cir. 1992), cert.
denied, 506 U.S. 1084 (1993)). Finally, in light of our review of
Appellants’ sufficiency of the evidence claims, we find that the
remark by the government during closing argument does not outweigh
the strength of the multifaceted evidence and testimony presented
during trial. Viewing the statement in the context of the entire
case, we conclude the argument of the prosecutor did not prejudice
the Appellants’ substantive rights.
V. “MERE PRESENCE” COMMENTS DURING CLOSING ARGUMENT
Appellant Quintero contends that the government’s statements
about conspiracy law and “mere presence” during closing argument
constituted prejudicial prosecutorial misconduct. Since defense
counsel did not object to the prosecutor’s statements, we must
review Appellant’s claim based upon plain error. United States v.
Crooks, 83 F.3d 103, 107 (5th Cir. 1996).
We begin by noting that the government failed to respond in
its brief to this point of error raised by Appellant Quintero.
24
This fact does not preclude our review of this issue. United
States v. Pryce, 938 F.2d 1343, 1351 (D.C. Cir. 1991) (Randolph,
J., concurring). Nevertheless, we feel compelled to observe that
the government’s failure to address legal issues raised by
appellants is looked upon with disfavor because it imposes
“unnecessary burdens” on the courts. United States v. Rosa, 434
F.2d 964, 966 (5th Cir. 1970) (per curiam).
Appellant Quintero makes two arguments. First, he contends
that AUSA Fielden committed prejudicial prosecutorial misconduct in
her closing argument at trial by suggesting that mere presence
among drug conspirators is enough to make an individual part of a
conspiracy and that this suggestion was an “end run” around
conspiracy law. Second, Quintero claims that Fielden’s closing
argument was also improper because it alluded to facts that were
not in evidence.
In her closing argument, AUSA Fielden stated:
Members of the jury, there is one concept that I want you
to keep in mind when you go back, one concept that has
not been addressed here. You don’t bring innocent people
to a dope deal. Dopers don’t create witnesses who can
come in and testify against them in court. The people
who come to dope deals, whether it’s storing,
transporting, buying or selling dope, are people who they
can trust and who are part of their organization. You
don’t create a witness list. You don’t bring innocent
people to dope deals. Keep that in mind throughout this.
She reiterated this point at the very end of her closing argument:
“You don’t take innocent people to drug deals, ladies and
gentlemen. You don’t take innocent people around millions and
millions and millions of dollars worth of marijuana if they are not
part of the conspiracy.”
25
It is undoubtedly true that an individual’s mere presence
around a drug deal or around drug conspirators does not make that
individual a member of the conspiracy. United States v. Paul, 142
F.3d 836, 840 (5th Cir. 1998). At the same time, “‘[a] jury may
find knowledgeable, voluntary participation from presence when the
presence is such that it would be unreasonable for anyone other
than a knowledgeable participant to be present.’” Id. (quoting
United States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir. 1985)
(en banc)).
As noted, since no objection was made by the defendants to
these statements,7 we must review them for plain error. The
appellate court must determine (1) whether there was an error, that
is, a deviation from a legal rule, (2) whether that error was
plain, which means obvious, and (3) whether the error affected the
defendant’s substantial rights, which means that it was prejudicial
and affected the outcome of the trial. United States v. Hernandez-
Guevara, 162 F.3d 863, 870 (5th Cir. 1998), cert. denied, 119 S.
7
Mr. Salas, Appellant Gallardo’s attorney, objected to another
statement by AUSA Fielden on the basis that no evidence had been
presented that supported Fielden’s assertion:
MS. FIELDEN: What I found interesting about Mr. Quintero is he’s
showing up all over the place. For somebody . . . who is merely
present. Remember, they don’t take innocent people to dope deals.
But you have him, John Langhout places him in El Paso with Ricardo
Avila paying off a drug deal.
MR. SALAS: Objection, your Honor. There was no testimony to
that effect.
THE COURT: I remember that as a matter of fact. Objection is
overruled.
The district court was correct; John Langhout did testify that
Ricardo Avila owed him $4000 for one of his trips to Chicago and
that when he met Avila at a mall in El Paso to receive this
payment, Luis Quintero was in the car with Avila.
26
Ct. 1375 (1999). The Supreme Court has said that such errors
should lead to reversals only if the error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 736 (1993).
We are not persuaded by Appellant Quintero’s contention that
AUSA Fielden’s remarks misled the jury as to conspiracy law by
suggesting that mere presence indicates complicity. Even if her
remarks constituted error, we conclude that Ms. Fielden’s
statements were not “plain” error because they did not clearly
purport to be an explanation of law. AUSA Fielden did not clearly
tie the statements to the legal elements of a drug conspiracy.8
Moreover, “the magnitude of the prejudicial effect of the
statement[],” United States v. Vaccaro, 115 F.3d 1211, 1215 (5th
Cir. 1997), cert. denied, 118 S. Ct. 635 (1998), was so minimal
that it could not have affected Quintero’s substantial rights.
Appellant Quintero also claims that AUSA Fielden’s closing
argument touched upon evidence outside the trial record because no
evidence was presented which demonstrated that those present during
a conspiracy are always members of the conspiracy. It is true that
“[a] prosecutor may not directly refer to or even allude to
evidence that was not adduced at trial.” United States v. Murrah,
888 F.2d 24, 26 (5th Cir. 1989).
8
In an earlier part of her closing argument, AUSA Fielden
described conspiracy in the following fashion: “Under conspiracy
law we anticipate the judge will tell you that the government must
show that each defendant agreed in some fashion to act towards that
goal, to do something to further that marijuana trafficking
operation, that the defendants knew of the purpose of the
operation, and they joined with the intent of furthering it.”
27
However, part of AUSA Fielden’s statements arguably referred
to “people who come to dope deals” as actual participants in drug
handling activities that constitute more than mere presence during
those activities. She referred to individuals who have a more
involved role: “The people who come to dope deals, whether it’s
storing, transporting, buying or selling dope, are people who [drug
conspirators] can trust and who are part of their organization.”
This court has held that participation in a conspiracy can be
inferred from presence when it would be “unreasonable for anyone
other than a knowledgeable participant to be present,” Paul, 142
F.3d at 840 (citation omitted).
Assuming that some of the prosecutor’s remarks impliedly
referred to “evidence” not presented at trial, however, we do not
think they did so with sufficient force or clarity to affect
Appellant Quintero’s substantial rights. In evaluating whether
Appellant’s substantial rights were affected by the government’s
closing argument, we consider the following factors: “(1) the
magnitude of the prejudicial effect of the statements; (2) the
efficacy of any cautionary instruction; and (3) the strength of the
evidence of the defendant’s guilt.” Vaccaro, 115 F.3d at 1215. We
are not convinced that Ms. Fielden’s statements were prejudicial
because, as we noted above, she arguably limited part of her
remarks to those individuals who had a role in storing,
transporting, buying, or selling the marijuana. In addition, the
district court specifically instructed the jury that statements by
28
the attorneys are not evidence9 and that an individual’s presence
around a drug conspiracy or drug conspirators does not make that
person a member of the conspiracy.10
In sum, we hold that the statements made by AUSA Fielden in
her closing argument did not affect Appellant Quintero’s
substantial rights and do not warrant reversal.
VI. SENTENCING ISSUES
Each Appellant claims that the district court erred when it
imposed his sentence. Appellants Gallardo and Hernandez argue that
the district court erred in overruling their objections to the
denial of a two-level downward adjustment in their sentences based
on their minor participation in the offense pursuant to § 3B1.2 of
the Sentencing Guidelines. Appellant Quintero contends that the
district court erred in basing his sentence on an amount of
marijuana that exceeded the amount seized in McAllen, Texas, when
Quintero, Gomez, and Gallardo were arrested.
We review the district court’s application and interpretation
of the sentencing guidelines de novo. United States v. Garcia, 86
F.3d 394, 400 (5th Cir. 1996), cert. denied, 519 U.S. 1083 (1997).
We review the district court’s factual findings at the sentencing
9
In its charge to the jury, the district court stated:
In reaching your decision to the facts, you may consider only
the evidence admitted in the case. The term evidence includes
the sworn testimony of the witnesses and the exhibits admitted
in the record. Remember that any statements, objections or
arguments made by the lawyers are not evidence in the case.
10
This section of the jury instruction is reproduced in
footnote 2, supra.
29
hearing for clear error. Id.
A. Gallardo
Appellant Gallardo claims that the district court erred in
overruling his objection to the denial of a two-level downward
adjustment for his minor participation in the drug conspiracy. At
sentencing, Gallardo argued that contrary to the characterization
in the Presentence Investigation Report, he was not a “right-hand
man” to various drug brokers. Rather, Gallardo claimed that he had
a minor role because he only provided the stash house for the
marijuana in McAllen. The district court denied this objection to
the presentence report and the request for a two-level downward
adjustment.
Appellant Gallardo asserts that in denying his request for a
two-level reduction as a minor participant in this conspiracy, the
district court erred by failing to articulate the basis for its
finding. This court has held that the district court must “state
for the record the factual basis upon which it concludes that a
requested reduction for minor participation is, or is not,
appropriate.” United States v. Melton, 930 F.2d 1096, 1099 (5th
Cir. 1991). At the same time, this court has “rejected the
proposition that a court must make a ‘catechismic regurgitation of
each fact determined’; instead, we have allowed the district court
to make implicit findings by adopting the PSR.” United States v.
Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994). See also Garcia, 86
F.3d at 401 (“The district court can implicitly make such findings
30
by adopting the presentence report.”).
We find that the district court made the necessary findings by
adopting the presentence report. The district judge stated at the
sentencing hearing and in the signed judgment that he agreed with
and adopted the factual findings in Appellant Gallardo’s
presentence report. We affirm the district court’s denial of
Gallardo’s request for a two-level downward reduction.
B. Hernandez
Appellant Hernandez also argues that the district court erred
in overruling his objection to the denial of a two-level downward
adjustment for his minor participation in the drug conspiracy. The
presentence report on Hernandez prepared by a U.S. Probation
Officer recommended a three-level increase under U.S.S.G. § 3B1.1
for Appellant’s role as a manager or supervisor in this drug
conspiracy. Hernandez objected to this three-level upward
departure and, in turn, requested a two-level reduction as a minor
participant in the drug distribution conspiracy. At sentencing,
the district court agreed with Hernandez that he should not be
given a three-level increase but denied his request for a two-level
reduction as a minor participant.
Appellant Hernandez, like Gallardo, argues that in denying his
request for a two-level reduction as a minor participant in this
conspiracy, the district court erred by failing to articulate the
basis for its finding. Although defense counsel argues that if
Hernandez was not a manager or organizer then his role was
31
necessarily minor, that view is without merit. This court has held
that the downward departures outlined in § 3B1.2 are “designed to
be applied infrequently, as many offenses are committed by actors
of ‘roughly equal culpability’ . . . .” United States v. Nevarez-
Arreola, 885 F.2d 243, 245 (5th Cir. 1989)(quoting U.S.S.G. §
3B1.4, comment.). In addition, we have ruled that a “downward
adjustment under section 3B1.2 is generally appropriate only where
a defendant was ‘substantially less culpable than the average
participant.’” United States v. Brown, 54 F.3d 234, 241 (5th Cir.
1995) (quoting United States v. Buenrostro, 868 F.2d 135, 138 (5th
Cir. 1989), cert. denied, 495 U.S. 923 (1990)).
We find that the district court made the necessary findings to
deny Appellant’s request for a two-level reduction. Here, we are
able to determine how the district court resolved these issues.
Cf. Carreon, 11 F.3d at 1231 (where court was left to “second guess
the basis for the district court’s calculation”). The district
judge was clear in setting out Appellant Hernandez’s role here:
I’m not sure that I would use the example of the
wheel conspiracy to describe this particular case. But
it is obvious that Mr. Hernandez’s role in the offense
was as a receiver and then purchaser and then
redistributor of marijuana, and that’s how he fit in,
just like other people [defense counsel] mentioned like
. . . Ute Serrano was another one. She was up in
Michigan City. And you had Sergio Zamora. He was down
in Indianapolis, I believe. And your man was the
customer, so to speak, in Detroit. And what he did with
the marijuana after it got to him, we can only speculate.
But that was his participation in this conspiracy.
Given that the district court found that the applicable amount of
marijuana attributable to Hernandez was 567 kilograms, the judge
denied the request for the two-level downward departure: “I
32
certainly don’t think that he is entitled to an adjustment downward
for having a minor role or less in the offense, but by the same
token, I can’t see him as being qualified as a manager-supervisor,
organizer or leader. That just doesn’t fit, doesn’t fit his
position in this conspiracy.” We conclude that the district court
properly and sufficiently articulated the basis for its denial of
Appellant’s request for a downward departure.
C. Quintero
Appellant Quintero claims that the district court erred in
basing his sentence on an amount of marijuana that exceeded the
amount seized in McAllen when he was arrested. The presentence
report attributed 3,643.97 kilograms of marijuana to Quintero which
would establish a base offense level of 34. At the sentencing
hearing, however, the district court reduced Quintero’s base level
to 32 which applies for amounts of marijuana between 1,000 and
3,000 kilograms. The district judge observed that “from what I
heard in the trial it’s beyond dispute that his relevant conduct
was involved with at least 1,000 kilograms of marijuana.”
In a drug conspiracy case, sentencing must take into account
the drugs with which the defendant was directly involved but also
those that can be attributed to him as part of his “relevant
conduct” under § 1B1.3 of the Sentencing Guidelines. United States
v. Puig-Infante, 19 F.3d 929, 942 (5th Cir.), cert. denied, 513
U.S. 864 (1994). Relevant conduct includes “all reasonably
foreseeable acts and omissions of others in furtherance of the
33
jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B)
(Nov. 1995).11 The district court’s determination of relevant
conduct is a factual finding that we review for clear error. Puig-
Infante, 19 F.3d at 942.
Here, there is ample evidence that Appellant Quintero’s
relevant conduct involved more than 1000 kilograms of marijuana.
The amount seized in McAllen totaled 495 kilograms (1092 pounds).
Moreover, John Langhout testified that he met with Quintero and
Felipe Gomez in McAllen prior to their arrest and that he
(Langhout) was told that Quintero had an additional 2000 kilograms
stored in Reynosa, Mexico. The presentence report on Quintero
concluded that he was a main source for the marijuana shipped from
southern Texas. Two instances from the presentence report are
representative of the depth of Quintero’s involvement. On one of
John Langhout’s drug deliveries, Quintero was the source for
approximately 181 kilograms (400 pounds) of marijuana that Ricardo
Avila transferred to Langhout in El Paso. Ricardo Avila also
indicated that Quintero took him and another individual to an
apartment in Chicago where Quintero gave them approximately 45
kilograms (100 pounds) from the approximately 408 kilograms (900
pounds) stored there.
At sentencing, the district court “adopt[ed] the factual
findings” in the presentence report except that instead of the
3,643.97 kilograms attributed in the report to Appellant Quintero,
11
Since sentencing occurred on February 27, 1997, we use the
Sentencing Guidelines in effect at that time. United States v.
Kimler, 167 F.3d 889, 893 (5th Cir. 1999).
34
the district court found that only between 1,000 and 3,000 could be
attributed to Quintero. Since we conclude that these findings were
not clearly erroneous, we affirm the district court’s calculation
of marijuana attributable to Quintero.
VII. CONCLUSION
For the foregoing reasons, we AFFIRM the convictions and
sentences of Appellants Gallardo, Hernandez, and Quintero.
35