United States v. Hidalgo

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 10, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-20971
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
TERRY HIDALGO
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-455-16
--------------------
Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-appellant Terry Hidalgo appeals his conviction of
conspiracy to possess with intent to distribute methamphetamine
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and
846. For the following reasons, we AFFIRM his conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case stems from defendant-appellant Terry Hidalgo’s
involvement in a large methamphetamine trafficking organization
which operated in Michiocan, Mexico; Harris County, Texas; and
Montgomery County, Texas. Three sets of events are at issue in
this appeal, and the government argues that the jury could have
convicted Hidalgo of conspiracy based on any of these events.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 01-50999
-2-
The first set of events occurred in April 2004. At this
point in time, Hidalgo owned two homes–-one in Montgomery County,
Texas, and the other in Lafayette, Louisiana–-and traveled
frequently between the two properties. Mark Wilburn testified at
trial that in April 2004 he took Hidalgo, whom he had known for
about four years, from Hidalgo’s Montgomery County property to
Hidalgo’s home in Lafayette, Louisiana. Wilburn stated that
during this trip, Hidalgo sold one ounce of methamphetamine and
gave Wilburn $600 for the ride to Louisiana.
The second set of events occurred between May 23 and May 25,
2004. According to Wilburn’s testimony, the following
transactions occurred. Hidalgo told Christopher Savoy that
Hidalgo could sell methamphetamine in Louisiana for $2000 an
ounce, and Savoy then picked up some methamphetamine for Hidalgo
to sell. Wilburn and Savoy drove to Hidalgo’s house in Lafayette
and delivered two ounces of methamphetamine to Hidalgo. Although
Hidalgo did not pay for the methamphetamine up-front, he told
Savoy that he could sell one ounce of the methamphetamine to an
individual named Bill for $2000. Before returning to Texas,
Wilburn and Savoy picked up the money Hidalgo owed them and a
half-ounce of methamphetamine.1
The third set of events occurred in June and July 2004. In
early June 2004, Savoy began providing information to the DEA on
1
Hidalgo’s version of the story differs from Wilburn’s.
Hidalgo testified that Wilburn attempted to front Hidalgo a large
amount of methamphetamine, but that Hidalgo only took a small
amount for his personal use. Hidalgo also testified that he
refused to allow Wilburn to sell methamphetamine from his
residence.
No. 01-50999
-3-
the drug organization’s activities.2 Hidalgo and Savoy spoke on
the telephone numerous times about the sale of Hidalgo’s
Montgomery County property. Savoy, Bradford Crain, and Hidalgo
met on June 16, 2004 to discuss the potential sale. Hidalgo
testified that he wanted to sell the property for cash, but the
government alleges that the deal was for $171,000 worth of
methamphetamine (about 114 ounces). The government’s witnesses
testified that on June 16, 2004, Crain gave Hidalgo a down
payment for the property in the form of two and one half ounces
of methamphetamine. Hidalgo testified that he never agreed to
sell his house for drugs and that no payment was ever made.
Savoy wore a recording device to this meeting and the recording
was admitted into evidence and played for the jury. Among other
things, the recording indicates that Hidalgo agreed to sell his
home in exchange for drugs at this meeting. Hidalgo also states
that Savoy was armed during the meeting.
At trial, Hidalgo admitted that he signed the real estate
agreement prepared during the meeting and that the purpose of the
real estate agreement was to disguise the monthly methamphetamine
payment by making it appear that $3000 was being paid monthly.
Evidence also showed that Savoy returned with several others to
view Hidalgo’s Montgomery County property on July 13, 2004.3
Hidalgo and fifteen co-defendants were charged in a
2
Savoy signed a DEA Confidential Source Agreement which
expressly stated that Savoy was not a DEA or government employee
and could not represent himself as one.
3
Dionisio Garcia, also known as Juan Martinez and Saul
Martinez, was the head of the drug trafficking activity in
Houston, Texas.
No. 01-50999
-4-
thirteen-count indictment. The indictment charged Hidalgo in
Count 1 with conspiracy to possess with intent to distribute
fifty grams or more of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(viii), and 846 and in Counts 12 and 13
with conspiracy to commit money laundering and money laundering
in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (a)(1)(B)(i). In
response to Hidalgo’s motion in limine, the district court
ordered the government to approach the bench before referring to
any criminal or drug trafficking organization. Hidalgo asserted
defenses of entrapment and public authority.
After the government rested its case during the jury trial,
the court signed an order of acquittal as to Counts 12 and 13.
Trial then continued as to Count 1. The court did not instruct
the jury as to the public authority defense, even though it had
been requested by Hidalgo. The court used the pattern jury
instruction regarding entrapment. The jury convicted Hidalgo of
conspiracy to possess with intent to distribute methamphetamine,
and the district court sentenced Hidalgo to 100 months’
imprisonment and four years’ supervised release. The district
court denied Hidalgo’s motion for new trial. Hidalgo now
appeals.
II. DISCUSSION
Hidalgo raises several challenges on appeal. First, he
argues that the evidence was insufficient to support his
conviction. Second, he contends that he was entrapped, and no
evidence existed from which the jury could conclude that he was
not. Third, he urges that the pattern jury instruction on
No. 01-50999
-5-
entrapment misstates the law and should not have been used by the
district court. Fourth, he argues that the prosecutor committed
reversible error by displaying a chart during the opening and
closing arguments, and that as a result the district court should
have granted his motion for new trial. Fifth, he contends that
the district court erred by not including a public authority
defense in the jury charge, despite evidence at trial to support
it. Finally, he challenges the admission of a tape recording of
the June 16th meeting into evidence.
A. Sufficiency of the Evidence
Because Hidalgo moved for judgment of acquittal at the close
of the evidence, this court reviews a challenge to the
sufficiency of the evidence by “‘viewing the evidence and the
inferences that may be drawn from it in the light most favorable
to the verdict’ and determining whether ‘a rational jury could
have found the essential elements of the offenses beyond a
reasonable doubt.’” United States v. Valdez, 453 F.3d 252, 256
(5th Cir. 2006) (quoting United States v. Pruneda-Gonzalez, 953
F.2d 190, 193 (5th Cir. 1992)), cert. denied, 127 S. Ct. 456
(2006). The jury alone weighs the evidence and makes credibility
determinations. United States v. Jaramillo, 42 F.3d 920, 923
(5th Cir. 1995). The evidence need not “exclude every rational
hypothesis of innocence or be wholly inconsistent with every
conclusion except guilt” so long as “a reasonable trier of fact
could find the evidence establishes guilt beyond a reasonable
doubt.” Pruneda-Gonzales, 953 F.2d at 193. Nonetheless, this
court “must reverse a conviction if the evidence construed in
No. 01-50999
-6-
favor of the verdict ‘gives equal or nearly equal circumstantial
support to a theory of guilt and a theory of innocence of the
crime charged.’” Jaramillo, 42 F.3d at 923 (quoting United
States v. Menesses, 962 F.2d 420, 426 (5th Cir. 1992)).
In order to prove conspiracy to possess with intent to
distribute methamphetamine, the government must prove beyond a
reasonable doubt that: (1) the defendant and one or more persons
agreed to violate the narcotics laws, (2) the defendant knew of
the conspiracy, and (3) the defendant voluntarily participated in
the conspiracy. United States v. Rosa-Fuentes, 970 F.2d 1379,
1381-82 (5th Cir. 1992). Evidence of an overt act is not
required to prove a drug conspiracy. United States v. Ramirez-
Velasquez, 322 F.3d 868, 880 (5th Cir. 2003). An agreement may
be either explicit or implicit, and the fact finder may infer an
agreement from “a concert of action.” United States v. Mann, 161
F.3d 840, 847 (5th Cir. 1998). A fact finder can infer an
agreement to join a conspiracy “from the performance of acts that
further its purpose” even though not every act “that assists in
the accomplishment of the objective of the conspiracy is a
sufficient basis to demonstrate his concurrence in that
agreement.” United States v. Alvarez, 610 F.2d 1250, 1255 (5th
Cir. 1980). An individual’s “[m]ere presence at the scene of a
crime or close association with a co-conspirator will not support
an inference of participation in a conspiracy.” United States v.
Tenorio, 360 F.3d 491, 495 (5th Cir. 2004).
Hidalgo argues that while the evidence does show a large
methamphetamine organization and conspiracy, the government
No. 01-50999
-7-
failed to present evidence from which the jury could conclude
beyond a reasonable doubt that Hidalgo as an individual knew of
or voluntarily participated in the conspiracy. Nonetheless, the
evidence presented at trial is sufficient to support Hidalgo’s
conviction for conspiracy to possess with intent to distribute
methamphetamine. The evidence presents multiple ways that
Hidalgo could have committed conspiracy.
Based on the recording, the jury could have determined that
the June 16th transaction evidenced a conspiracy offense because
Hidalgo satisfied the agreement element when he agree to sell his
Montgomery County residence in exchange for monthly
methamphetamine payments. The jury could also have concluded
that Hidalgo’s statements during the meeting indicate both his
knowledge of the conspiracy and that he was a willing
participant. Other evidence at trial also supports this theory
of conspiracy, including Crain’s testimony that he gave Hidalgo
two ounces of methamphetamine as a down payment. Hidalgo’s
intent to distribute the methamphetamine may be inferred because
the down payment was a large amount of methamphetamine and the
agreement required monthly payments of a large quantity of
methamphetamine. See United States v. Moreno, 185 F.3d 465, 471
(5th Cir. 1999) (holding that intent to distribute narcotics may
be inferred from a large quantity of narcotics or narcotics of
particularly high value).
Additionally, the jury could have believed that Hidalgo
joined the conspiracy prior to the June 16th meeting, during one
of Wilburn’s two trips to Louisiana. Testimony at trial stated
No. 01-50999
-8-
that during the first trip, Wilburn gave Hidalgo one ounce of
methamphetamine which Hidalgo then sold, and that during the
second trip, Wilburn and Savoy fronted Hidalgo two ounces of
methamphetamine, which Hidalgo told Savoy that he would sell for
$2000 an ounce. Wilburn testified that he accompanied Hidalgo to
sell part of the methamphetamine and that a day or two later
Hidalgo paid Wilburn and Savoy for the fronted methamphetamine.
The evidence thus shows that the arrangement between Hidalgo and
Wilburn was a means of effectively distributing the drugs, not
just a transaction between a buyer and seller. See United States
v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991) (holding that
although evidence of a buyer-seller relationship alone is not
enough to support a conspiracy conviction, evidence of an
agreement for something other than the exchange of drugs for
money, such as to obtain drugs for distribution, can support a
conspiracy conviction).
Hidalgo’s lack of familiarity with some of the key members
of the larger drug trafficking organization does not bar his
conspiracy conviction. A defendant does not need to personally
know all of the members of a conspiracy. See United States v.
Garcia-Abrego, 141 F.3d 142, 155 (5th Cir. 1998) (holding that to
be convicted of engaging in a criminal conspiracy, the defendant
does not need to know the exact number or identity of all the co-
conspirators).
Hidalgo also attacks the credibility of Wilburn’s and
Crain’s testimony based on inconsistencies between their
testimony and the transcript of the June 16, 2004, meeting, but
No. 01-50999
-9-
inconsistencies in testimony do not equate to insufficient
evidence. The uncorroborated testimony of a co-conspirator can
be sufficient evidence to convict as “long as the testimony is
not factually insubstantial or incredible.” United States v.
Medina, 161 F.3d 867, 872-73 (5th Cir. 1998). “Testimony is
incredible as a matter of law only if it relates to facts that
the witness could not possibly have observed or to events which
could not have occurred under the laws of nature.” See United
States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994). The facts
testified to by Crain and Wilburn could have been observed by
them. Thus, because Hidalgo has not shown Wilburn’s or Crain’s
testimony to be incredible, the jury could choose to believe the
testimony of either. Id.
Finally, Hidalgo argues that he did not conspire with anyone
because Savoy, as an informant, could not be a co-conspirator.
But the jury could have inferred from the evidence a conspiracy
existed between Hidalgo and others, such as Wilburn. See United
States v. Manotas-Mejia, 824 F.2d 360, 365 (5th Cir. 1987)
(holding that a conspiracy may exist among those individuals not
acting as informants for the government, even though a government
informant is involved in the plan). The jury could also have
inferred that a conspiracy formed between Hidalgo and Savoy
before Savoy became a government informant.
B. Entrapment Defense
At trial, Hidalgo asserted the defense of entrapment.
Hidalgo claims that the evidence is insufficient to support a
jury finding that he had not been entrapped. “When a jury, which
No. 01-50999
-10-
was fully charged on entrapment, rejects the defendant’s
entrapment defense, the applicable standard of review is the same
as that which applies to sufficiency of the evidence.” United
States v. Rodriguez, 43 F.3d 117, 126 (5th Cir. 1995). Thus,
this court must view every fact in the light most favorable to
the guilty verdict. United States v. Wise, 221 F.3d 140, 154
(5th Cir. 2000).
Entrapment is an affirmative defense, and to be successful,
the defendant must establish (1) government inducement and
(2) lack of predisposition to engage in criminal conduct. United
States v. Thompson, 130 F.3d 676, 688 (5th Cir. 1997). Although
Hidalgo maintains that the government entrapped him, a
defendant’s testimony generally does not establish entrapment “as
a matter of law because, absent unusual circumstances, the jury
is almost always entitled to disbelieve that testimony.”
Rodriguez, 43 F.3d at 127.
The jury could have inferred from the evidence an absence of
government inducement.4 The government may use undercover agents
and informants to provide the avenue for the commission of an
offense, Sorrells v. United States, 287 U.S. 435, 441 (1932), but
the agents may not “implant in an innocent person’s mind the
disposition to commit a criminal act, and then induce commission
of the crime so that the Government may prosecute.” Jacobson v.
United States, 503 U.S. 540, 548 (1992). A successful entrapment
4
The parties disagree regarding whether Hidalgo waived the
argument that the government induced him by not fully briefing
the issue in his principal brief, but we need not reach this
issue because we conclude that the jury could have inferred an
absence of government inducement from the record.
No. 01-50999
-11-
defense requires that the government actually spur the individual
to commit the crime. See Thompson, 130 F.3d at 690. If any
inducement results solely from a private citizen, the entrapment
defense does not apply. United States v. Barnett, 197 F.3d 138,
143 (5th Cir. 1999).
The evidence provides many bases from which the jury could
have inferred that no government inducement occurred. First, as
discussed above, the jury could have decided that Hidalgo joined
the conspiracy during either of Wilburn’s trips to Lafayette,
both of which occurred before Savoy became a government informant
in June. The entrapment defense does not apply when the
inducement originates from a private citizen, such as Wilburn.
See id. Even if the jury determined that Hidalgo joined the
conspiracy at or near the time of the June 16th meeting, the jury
may have determined that no entrapment occurred because the
government did nothing more than present an opportunity for
Hidalgo to commit the offense. See Thompson, 130 F.3d at 690.
The jury could have determined that Hidalgo was predisposed
to commit conspiracy to possess with intent to distribute
methamphetamine from the testimony concerning his activities with
Wilburn and the recording of the June 16th meeting, both of which
show his knowledge and experience with drug activity and his
willing participation. This would render the entrapment defense
inapplicable. See United States v. Reyes, 239 F.3d 722, 739 (5th
Cir. 2001) (holding that a defendant’s ready and willing
participation in the activity, desire for profit, knowledge or
experience with a particular type of criminal activity, and past
No. 01-50999
-12-
criminal history may indicate a defendant’s predisposition to
commit the charged crime). Accordingly, the evidence is
sufficient to support a jury finding that Hidalgo was not
entrapped.
C. Entrapment Instruction
Hidalgo argues that the pattern jury instruction used by
this circuit for entrapment misstates the law because the
language does not clearly express that the disposition to commit
an offense must exist prior to the defendant’s contact with the
government. This court rejected that argument in United States
v. Hernandez, 92 F.3d 309, 311 (5th Cir. 1996). Accordingly,
Hidalgo’s argument is foreclosed by circuit precedent. Hogue v.
Johnson, 131 F.3d 466, 491 (5th Cir. 1997).
D. Motion for New Trial
Hidalgo contends that the district court abused its
discretion by denying his motion for new trial despite the
prosecution’s improper use of a chart reflecting the hierarchy of
a criminal organization in the opening and closing arguments.
The district court found any error from the display of the chart
to be harmless because the complicated nature of the chart made
it difficult to understand in the brief period of time it was
displayed. The chart was not admitted into evidence, and the
district court instructed the jury to consider only the evidence.
Because the jury is presumed to follow its instructions,
Richardson v. Marsh, 481 U.S. 200, 211 (1987), we hold the
district court did not abuse its discretion in denying Hidalgo’s
motion for new trial. See also United States v. Akpan, 407 F.3d
No. 01-50999
-13-
360, 368 (5th Cir. 2005) (referring to the presumption that
juries follow the instructions of the court).
E. Public Authority Defense
Hidalgo testified that during Savoy’s May trip to Louisiana,
Savoy showed Hidalgo a badge and police scanner and told Hidalgo
that he was a task-force officer in a reverse sting. Savoy was
not a task-force officer, but Hidalgo argues that the evidence
regarding Savoy’s portrayal of law enforcement was sufficient to
require the district court to include a public authority defense
in the jury charge. To avail himself of the public authority
defense, Hidalgo had to show that a government official
authorized him to engage in the defense. See United States v.
Spires, 79 F.3d 464, 466 n.2 (5th Cir. 1996).
This court cannot overturn a conviction “for failure to
instruct the jury on a defense unless the requested but omitted
instruction has an evidentiary basis in the record which would
lead to an acquittal.” United States v. Spires, 79 F.3d 464, 466
(5th Cir. 1996). We decline to consider whether an evidentiary
basis for this defense existed as Hidalgo waived his right to the
public authority instruction. The trial transcripts reveal that
Hidalgo’s attorney agreed with the district court that the
evidence did not present elements of the public authority
defense.
F. Admission of Tape Recording
Hidalgo argues that the district court improperly admitted
the tape recording of the June 16th meeting for two reasons:
(1) the foundation was inadequate and (2) it violated the
No. 01-50999
-14-
Confrontation Clause. We review the district court’s evidentiary
rulings for abuse of discretion, United States v. Cheramie, 51
F.3d 538, 540 (5th Cir. 1995), and alleged violations of the
Confrontation Clause de novo, United States v. Delgado, 401 F.3d
290, 299 (5th Cir. 2005).
Tape recordings may be admitted into evidence if they are
reliable. See Thompson, 130 F.3d at 683. To show reliability,
the government must establish that (1) a competent individual
operated the recording device, (2) the recording equipment was in
sufficient working order, (3) there were no material deletions,
additions, or alterations to the recording, and (4) the speakers
could be identified. United States v. Stone, 960 F.2d 426, 436
(5th Cir. 1992). Yet, even if all these requirements have not
been met, “the trial judge retains broad discretion to
independently determine that the recording accurately reproduces
the auditory experience.” Id. at 436.
All the prerequisites to admitting a recording have been
established. See Stone, 960 F.2d at 436. The evidence indicates
that the equipment was in sufficient working order when Savoy
used it and that Agent Sowell, a competent individual experienced
in the use of this type of equipment, operated it. Despite
Hidalgo’s contention that Savoy altered the recording to
manipulate the conversation, the recording device showed it
operated without interruption during the time it was in Savoy’s
possession. Further, the evidence indicated Savoy did not even
know how to use the equipment. Finally, the speakers in the
recording could be identified.
No. 01-50999
-15-
Hidalgo’s contention that the admission of the recording was
error because portions of it were inaudible is also unfounded.
Reversal of the admission of a recording due to inaudibility
should occur only if “‘the inaudible parts are so substantial as
to make the rest more misleading than helpful.’” Thompson, 130
F.3d at 683 (quoting Gorin v. United States, 313 F.2d 641, 652
(1st Cir. 1963)). After a thorough review of the record, we
conclude that the inaudible portions were not substantial and did
not result in misleading the jury. Accordingly, the government
satisfied the foundational requirements for admitting the tape.
The admission of testimonial hearsay is barred under the
Confrontation Clause unless the witness “was unavailable to
testify, and the defendant had a prior opportunity for cross-
examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
The Confrontation Clause applies only to testimonial statements.
Davis v. Washington, 126 S. Ct. 2266, 2274-75 (2006). A
testimonial statement “is typically ‘[a] solemn declaration or
affirmation made for the purpose of establishing or proving some
fact’” and includes “statements that were made under
circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later
trial.’” Crawford, 541 U.S. at 51-52.
The voices of Hidalgo, Crain, and Savoy can all be heard on
the recording. Of those three individuals, only Savoy did not
testify at trial and therefore was unavailable for cross-
examination. Even if Savoy’s statements are testimonial, they
are not barred by the Confrontation Clause because they were
No. 01-50999
-16-
offered not for truth, but instead for context and evidence of
knowledge. The Confrontation Clause does not bar testimonial
statements when they are offered for some purpose other than the
truth of the matter asserted. Id., 541 U.S. at 59 n.9; see also
United States v. Acosta, 475 F.3d 677, 683 (5th Cir. 2007)
(holding that the Confrontation Clause did not bar the use of a
testimonial statement when it was offered to show that a
witness’s trial testimony was not a recent fabrication).
In Cheramie, this court held that an unavailable witness’s
recorded statements did not violate the Confrontation Clause
because the statements were part of a reciprocal and integrated
conversation between the informant and the defendant and
necessary to provide a context for the defendant’s statements.
51 F.3d at 541. Here, the jury needed to hear Savoy’s statements
to understand the meaning of Hidalgo’s responses. Additionally,
Savoy’s statements within the conversation showed that Hidalgo
had knowledge of the unlawful plan–that Crain would pay for the
property with drugs, not money. Hidalgo’s knowledge of the
unlawful agreement is an element of the conspiracy offense. See
Rosa-Fuentes, 970 F.2d at 1382. Because Savoy’s statements were
offered to establish context and Hidalgo’s knowledge and intent
to participate in the unlawful plan, rather than the truth of the
matter asserted, the Confrontation Clause does not bar Savoy’s
statements. See Crawford, 541 U.S. at 59 n.9; see also
Tennessee v. Street, 471 U.S. 409, 414 (1985).
III. CONCLUSION
For the foregoing reasons, we AFFIRM Hidalgo’s conviction.