United States v. Pena-Rodriguez

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50077
__________________
United States of America,
Plaintiff-Appellee,
versus
Arturo Pena-Rodriguez, E. Wallace, Lloyd Maestas, Bob Alan
Dickinson, a/k/a “Fred”, a/k/a Robert Alan Dickinson, Leonard Gene
Lied, Avelino Gil-Terrazas, Ruben Gallegos, Hector Mendoza-Garcia,
and William Hobert Russell, a/k/a “El Indio”, a/k/a William Hobart
Russell,
Defendants-Appellants.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
______________________________________________
April 10, 1997
Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This case involves an appeal by eight appellants from
convictions for various narcotics offenses related to their roles
in an international narcotics-distribution organization. The
superseding grand jury indictment charged thirty-two defendants
with eight counts and resulted in a three-week trial involving
eighteen defendants. At trial, the government called over 100
witnesses and entered more than 800 exhibits into evidence. Each
of the appellants was convicted on the first count of the
indictment, which alleged a conspiracy to possess with the intent
to distribute marijuana and cocaine in violation of 21 U.S.C. §§
841(a)(1) & 846. In addition, appellants William Hobart Russell
and Leonard Gene Lied were convicted of count eight of the
indictment, which alleged a conspiracy to launder money in
violation of 18 U.S.C. § 1956(a)(1)(A)(I).
The convictions at issue were the result of an investigation
by law enforcement agencies that established the existence of a
large-scale drug conspiracy. The leaders of the organization were
Eduardo Gonzalez-Quirarte (“Gonzalez”) and Avelino Gil-Terrazas
(“Gil”). The organization imported marijuana and cocaine into El
Paso, Texas, and distributed the narcotics to various states
throughout the country, including California, Oklahoma, Indiana,
Florida, Colorado, and New Mexico. The organization transported
its contraband in pickup trucks, horse trailers, and semi-tractors
that contained hidden compartments.
Appellants contest their convictions on various grounds. In
addition, a number of the appellants challenge the district court’s
calculation of their sentences under the applicable Sentencing
Guidelines. For the reasons that follow, we AFFIRM the judgment of
the district court in all respects.
I. Sufficiency of the Evidence
Appellants Leonard Gene Lied, William Hobart Russell, Bob Alan
Dickinson, Ruben Gallegos, Maxwell Gene Wallace, and Arturo Pena-
Rodriguez argue that there is insufficient evidence to support
their convictions for conspiring to possess marijuana or cocaine
2
with the intent to distribute under count one. In addition, Lied
and Russell contend that the evidence was insufficient to support
their convictions under count eight for conspiring to launder
money. In conducting a sufficiency review, we must view the
evidence and the inferences therefrom in the light most favorable
to the jury’s verdict and determine whether “a rational trier of
fact could have found these defendants guilty beyond a reasonable
doubt.” United States v. Velgar-Vivero, 8 F.3d 236, 239 (5th Cir.
1993), cert. denied, — U.S. —, 114 S. Ct. 1865, 128 L.Ed.2d 486(1994).
The elements of a drug conspiracy are: “(1) the existence of
an agreement between two or more persons to violate narcotics law;
(2) the defendant’s knowledge of the agreement; and (3) the
defendant’s voluntary participation in the agreement.” United
States v. Gonzalez, 76 F.3d 1339, 1346 (5th Cir. 1996). Similarly,
a conspiracy to launder money under § 1956(a)(1)(A)(I) requires
proof that “(1) there is a conspiratorial agreement, (2) one
conspirator knowingly commits an overt act by participating in a
financial transaction, (3) the financial transaction involves the
proceeds of an unlawful activity, (4) the conspirator participating
in the transaction had the intent to promote or further that
unlawful activity, and (5) the transaction affected interstate or
foreign commerce.” United States v. Fierro, 38 F.3d 761, 768 (5th
Cir. 1994), cert. denied, — U.S. —, 115 S. Ct. 1431, 131 L.Ed.2d
312 (1995).
This court has recognized that “[a] jury may infer the
3
elements of a conspiracy conviction from circumstantial
evidence....” United States v. Leal, 74 F.3d 600, 606 (5th Cir.
1996). We have also held that “a guilty verdict may be sustained
if supported only by the uncorroborated testimony of a
coconspirator, even if the witness is interested due to a plea
bargain or promise of leniency, unless the testimony is incredible
or insubstantial on its face.” United States v. Bermea, 30 F.3d
1539, 1552 (5th Cir. 1994), cert. denied, — U.S. —, 115 S. Ct.
1825, 131 L.Ed.2d 746 (1995). “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.” Id.With these principles in mind, we find that the following
evidence presented by the government was sufficient to sustain each
of the convictions against the appellants.
A. The Dallas Appellants
The evidence against Lied, Russell, and Dickinson
(collectively “the Dallas Appellants”) consisted primarily of the
testimony of Felipe Madrid, Jr., a co-conspirator, governmental
informant, and owner of United Freight Service (“UFS”), the
corporation through which the Dallas Appellants conducted their
drug-trafficking activities. Madrid testified that in the summer
of 1990 he met with Gonzalez, Gil, and Lied to plan what they were
going to do with “the proceeds of marijuana.” According to Madrid,
he served as an interpreter and middle man for the drug
organization, wherein Gonzalez was the supplier and Lied was
4
Gonzalez’s original distributor in the Dallas area. Madrid
testified that this organization began operating in the fall of
1990.
Madrid described the organization’s standard procedure for
handling a load of marijuana. The process began when Gonzalez
arranged for Madrid to pick up marijuana from various locations in
El Paso with his van. Madrid then took the marijuana to a “stash
house” located on Dale Douglas Street in El Paso where it was
weighed and repackaged in small boxes. The small boxes of
marijuana were then placed in the van and transported to a
warehouse on Rojas Street in El Paso. At the warehouse, Madrid
placed the small boxes of marijuana inside larger boxes, filled the
larger boxes with Styrofoam, and loaded an 18-wheeler with the
larger boxes. Madrid then drove the 18-wheeler to one of two
warehouses rented by the organization in the Dallas area.
More specifically, Madrid testified that on one occasion Gil
gave him a three- to five-pound sample of marijuana that he took to
Lied.1 Madrid also testified that it was standard procedure for
him to give a copy of the recorded weights of shipments of
marijuana to Lied. Those weights were used to determine how much
the particular load of marijuana was worth. In addition, the
weights were relevant because Lied paid Madrid for his work at the
rate of $15 per pound of marijuana that he hauled. Madrid
testified that he had an ongoing discussion with Lied regarding the
1
Samples are used in the drug trade to demonstrate the general
quality of the merchandise, which, in turn, affects the price that
the distributor must pay for the goods.
5
delivery of money to Gonzalez for marijuana. On at least a few
occasions, Lied gave Madrid drug money that he subsequently
delivered to Gonzalez. Moreover, on one occasion in which drug
money was transferred, Madrid testified that he, Gonzalez,
Gallegos, and Lied were all present. The amounts of these drug
payments ranged from $150,000 to $700,000.
Dickinson was the freight manager for UFS. While it is
undisputed that Dickinson handled a sizable amount of legitimate
cargo hauled by UFS, Madrid testified that Dickinson also
participated in the organization’s drug-trafficking activities.
For example, the organization’s stash house on Dale Douglas was
rented in Dickinson’s name. Moreover, Madrid testified that
Dickinson sometimes helped him weigh and repackage the marijuana at
the stash house. Finally, Madrid testified that it was “his
belief” that on several occasions Dickinson drove trucks that he
knew were full of marijuana and picked up drug money. Finally,
Madrid testified that Dickinson sometimes helped him count the
money that they received for marijuana. 2 In this regard, in the
fall of 1991, Dickinson and Madrid complained to each other about
the infrequency and insufficient amounts of Lied’s most recent
payments.
Madrid testified that on one occasion in late December of
1991, he saw Russell at the organization’s warehouse in Forney,
Texas. Russell was talking to several of the organization’s
2
Dickinson was acquitted of money laundering, however, when the
jury failed to reach a verdict on that count. See FED. R. CRIM. P.
29.
6
Dallas-based employees and was aware that Madrid was unloading
marijuana. According to Madrid, Russell’s appearance at the
warehouse coincided with a change in management in the organization
whereby Lied broke off his ties to the organization and Russell
took over Lied’s role as distributor in the Dallas area. Madrid
testified that Russell paid him approximately $20,000 or $30,000
for transporting marijuana on one occasion.
Madrid’s active participation in the organization involving
the Dallas Appellants concluded in April 1992 when he was arrested
and later convicted on an unrelated charge. Madrid testified that
the organization owed him approximately $250,000 in “back pay” at
the time of his arrest. Madrid told his ex-wife, Gloria Stitt,
that any money that he was owed would come from Russell and that
she could keep whatever she could procure for their children.
Stitt, a paid governmental informant, enlisted the aid of her
brother, Henry Garcia, to procure some of the money owed Madrid by
the organization. Garcia wrote Madrid a letter in which Garcia
stated that “El Indio wants me to ask what you want done with your
cake....” Madrid testified that “El Indio” was Russell’s nickname
and that “cake” was code for “money” in the organization. Madrid
subsequently sent Stitt to pick up the money from Garcia. Garcia
gave Stitt a box containing large denominations of cash totaling
$60,000. Stitt turned the box and the money over to the
government, and at trial she testified consistently with Madrid
about these events.
From such evidence, the jury could rationally have concluded
7
beyond a reasonable doubt that each of the Dallas Appellants
knowingly and voluntarily participated in a conspiracy to possess
with the intent to distribute marijuana. The foregoing evidence
was also sufficient to sustain the convictions of Lied and Russell
for engaging in a conspiracy to launder money. Specifically,
Madrid testified that he received large sums of drug money from
Lied and delivered those proceeds to Gonzalez. Furthermore,
significant evidence was presented that Russell transferred $60,000
in drug proceeds to Garcia as “backpay” for the work Madrid had
done on behalf of the organization. See United States v. Flores,
63 F.3d 1342, 1361 (5th Cir. 1995), cert. denied, — U.S. —, 117 S.
Ct. 87, 136 L.Ed.2d 43 (1996); United States v. Puig-Infante, 19
F.3d 929, 937-42 (5th Cir.), cert. denied, — U.S. —, 115 S. Ct.
180, 130 L.Ed.2d 115 (1994).
B. The Oklahoma Appellants
The evidence to sustain convictions presented against
Appellants Wallace and Pena-Rodriguez (collectively “the Oklahoma
Appellants”) came primarily from the testimony of two co-
conspirators and governmental informants, Clifford W. Mengers and
Randall Bowers. Mengers testified that he was a professional truck
driver and small-time drug dealer in Oklahoma. On one occasion,
Wallace called Mengers and asked for his help in backing up a horse
trailer near Wallace’s garage. The horse trailer, which Mengers
understood had come from El Paso, had Texas license plates and a
hidden compartment that contained marijuana. Mengers testified
that he observed Wallace and Jose Gomez remove marijuana from the
8
trailer’s hidden compartment.3
Mengers also testified that Wallace told him on several
occasions that Wallace was expecting to receive cocaine from a man
named Arthur. Mengers testified that it was his understanding that
“Arthur” was Appellant Pena-Rodriguez because Pena-Rodriguez was
the only Arthur that Mengers knew. On one occasion, in fact,
Mengers found several kilograms of cocaine in the trunk of
Wallace’s car, which was being stored in Mengers’s garage.
Randall Bowers testified that in 1990, Jose Gomez and he drove
a horse trailer containing 350 pounds of marijuana to Wallace’s
house. Bowers noted that both Wallace and Pena-Rodriguez helped
Gomez and him unload the trailer. Bowers also testified that he
delivered a load of marijuana to Pena-Rodriguez in early 1991. As
compensation for his work, Pena-Rodriguez gave Bowers use of a
fancy Chevrolet pickup truck known as “the Boss.”
The foregoing evidence was sufficient for a rational jury to
conclude beyond a reasonable doubt that Wallace and Pena-Rodriguez
knowingly and voluntarily participated in a conspiracy to possess
with the intent to distribute marijuana and cocaine.
C. Ruben Gallegos
Appellant Gallegos was a part owner of the Truck Center of El
Paso along with his brother, Art Gallegos, and Eduardo Gonzalez.
3
Evidence that the horse trailer came from El Paso and contained
a hidden compartment indicates that this marijuana was part of the
larger conspiracy charged in the indictment. Moreover, a variety
of evidence in the record ties Jose Gomez, a charged co-
conspirator, to other participants in the conspiracy, including
Randall Bowers.
9
According to the government’s theory of the case, Gallegos’s role
in the organization consisted primarily of providing vehicles for
the shipment of marijuana and cocaine, as well as constructing
false fuel tanks that were used to store contraband during its
transportation. Gallegos had the distinction of being the only
appellant who was the subject of testimony by both of the
government’s star witnesses, Felipe Madrid, Jr. and Randall Bowers.
Bowers testified that he transported some false fuel tanks
that were constructed in California to El Paso and gave them to
Gallegos. When Bowers delivered the tanks, Gallegos told him that
some of the other tanks used by the organization for smuggling had
leaks in them. Gallegos knew this to be the case because he had
tested the tanks with water and the tanks leaked. Gallegos
expressed concern both that diesel fuel was leaking from the tanks
onto the pavement and that fuel was entering into the compartment
that stored contraband. Despite this quality control concern,
Gallegos accepted the tanks from Bowers.
On another occasion, Bowers picked up a load of cocaine from
Avelino Gil’s house. Bowers met with Avelino and Norma Gil while
waiting for his truck to be loaded. During the ensuing discussion,
Gallegos entered the room and announced that “it was ready.”
Bowers testified that he understood this statement to mean that the
altered fuel tanks were ready. Bowers also testified that when
Gallegos entered, he was covered with “bondo” dust. Other
testimony in the record established that bondo was used to seal the
false fuel tanks used by the organization after the tanks were
10
filled with contraband.
Madrid testified that on one or two occasions, when Gonzalez
was not available, Gallegos coordinated the pick up of a load of
marijuana. Moreover, Gallegos was present when Madrid (on Lied’s
behalf) transferred $700,000 in drug money to Gonzalez, and
Gallegos saw the suitcase that contained the money. Finally, on
the day that Madrid was arrested, he had a number of calling cards
in his possession. The names and numbers on these cards were in
code, presumably to protect the subjects’ identities. Madrid
testified that one of these cards contained the coded names and
phone numbers corresponding to Gallegos, Gil, and Gonzalez.
Again, this evidence was sufficient for a rational jury to
conclude beyond a reasonable doubt that Gallegos knowingly and
voluntarily participated in a conspiracy to possess with the intent
to distribute narcotics.
II. Multiple Conspiracies
Appellants Lied, Dickinson, Russell, Wallace, and Gallegos
argue that a fatal variance existed between the indictment, which
alleged a single conspiracy, and the proof at trial, which
established the existence of two or more separate and independent
conspiracies. Appellants claim that they were prejudiced by the
transference of guilt created by voluminous evidence of illegal
activity implicating unrelated defendants with whom they were
tried. See Kotteakos v. United States, 328 U.S. 750, 774, 66 S.
Ct. 1239, 90 L.Ed 1557 (1946); United States v. Sutherland, 656
F.2d 1181, 1196 (5th Cir. 1981), cert. denied, 455 U.S. 949, 102 S.
11
Ct. 1451, 71 L.Ed.2d 663 (1982). In other words, the appellants
argue that the prosecution violated “the[ir] right not to be tried
en masse for the conglomeration of distinct and separate offenses
committed by others.” Kotteakos, 328 U.S. at 775.
To prevail on this claim, the appellants must prove that (1)
a variance existed between the indictment and the proof at trial,
and (2) the variance affected their substantial rights. United
States v. Morris, 46 F.3d 410, 414 (5th Cir.), cert. denied, — U.S.
—, 115 S. Ct. 2595, 132 L.Ed.2d 842 (1995). “To determine whether
a variance existed between the indictment and the proof at trial,
the number of conspiracies proved at trial must be counted.” Id.
at 415. Whether the evidence shows one or multiple conspiracies is
a question of fact for the jury. United States v. Guerra-Marez,
928 F.2d 665, 671 (5th Cir.), cert. denied, 502 U.S. 917, 112 S.
Ct. 322, 116 L.Ed.2d 461 (1991). “The principal considerations in
counting conspiracies are (1) the existence of a common goal, (2)
the nature of the scheme, and (3) the overlapping of participants
in the various dealings.”4 Morris, 46 F.3d at 415. A jury’s
finding that the government proved a single conspiracy must be
affirmed unless the evidence viewed in the light most favorable to
the government would preclude reasonable jurors from finding a
4
This circuit has also looked to a different set of factors to
count the number of conspiracies proven at trial. These factors
include: “(1) the time period involved, (2) the persons acting as
co-conspirators, (3) the statutory offenses charged in the
indictment, (4) the nature and scope of the criminal activity, and
(5) the places where the events alleged as the conspiracy took
place.” United States v. Thomas, 12 F.3d 1350, 1357 (5th Cir.),
cert. denied, 511 U.S. 1095, 114 S. Ct. 1861, 128 L.Ed.2d 483(1994).
12
single conspiracy beyond a reasonable doubt. Id.Appellants argue that a functional analysis of the proof at
trial establishes the existence of at least two separate and
independent conspiracies.5 These conspiracies were purportedly
identified and described by the government’s two star witnesses,
Bowers and Madrid, neither of whom mentioned the other in his
testimony. According to the appellants, the following factors
indicate that Bowers and Madrid described two separate and
independent conspiracies: (1) the “Bowers conspiracy” distributed
both cocaine and marijuana, whereas the “Madrid conspiracy”
distributed only marijuana; (2) the Bowers conspiracy packaged its
narcotics at “stash houses” located on Thunder Road and Gage Road
in El Paso, whereas the Madrid conspiracy packaged its drugs on
Dale Douglas and Rojas Streets in El Paso; (3) the Bowers
conspiracy transported its drugs in vehicles with false
compartments, whereas the Madrid conspiracy transported its
vehicles in unaltered vans and semi-trailers; (4) the Bowers
conspiracy distributed its drugs to Indiana, New Mexico, Oklahoma,
and California, whereas the Madrid conspiracy distributed its drugs
to Dallas; and (5) the Bowers conspiracy operated from May 1987
through 1993, whereas the Madrid conspiracy operated only from the
summer of 1991 until April 1992. In sum, the appellants argue that
the two conspiracies packaged different drugs at different places
5
See Morris, 46 F.3d at 415 & n.2 (noting that this court has
moved away from a structural and formal examination of the criminal
enterprise toward a more functional and substantive analysis).
13
and distributed them to different locations at different times.
In contrast, the government argues that the proof at trial,
viewed in the light most favorable to the verdict, was sufficient
for a rational jury to find a single conspiracy beyond a reasonable
doubt. The government contends that this court’s past application
of each of the factors it has deemed relevant to counting
conspiracies supports the government’s position in this case.
First, the government claims that each member of this conspiracy
had the common goal of deriving personal gain from the procurement
and distribution of controlled substances.6 Second, the government
contends that the nature of this conspiracy was such that its
success “depended on the continued willingness of each member to
perform his function.”7 Finally, the government contends that “[a]
single conspiracy exists where a ‘key man’ is involved in and
6
See id. (noting that this court has defined a common goal so
broadly that the requirement may have “become a mere matter of
semantics”) (quoting United States v. Richerson, 833 F.2d 1147,
1153 (5th Cir. 1987)).
7
Id. at 416 (quoting Richerson, 833 F.2d at 1154). In concluding
that the nature of a criminal scheme evidenced a single conspiracy,
the Morris court explained:
If the sellers discontinued selling, there would be no
cocaine for [the distributor] and the purchasers to buy.
The necessity of a steady cocaine supply to feed a
distribution effort is beyond question. Likewise, the
distribution effort is critical to the success of the
suppliers. If the purchasers ceased to buy, there would
be no reason for [the distributor] to buy from the
sellers, and hence no reason for the sellers to acquire
the cocaine. Thus, although the sellers and the
purchasers may not have had a direct relationship with
each other, each was necessary for the continued success
of the venture.
Id. (internal quotations and citations omitted).
14
directs illegal activities, while various combinations of other
participants exert individual efforts toward a common goal.”8
According to the government, Gonzalez and Gil, the organization’s
alleged kingpins, were the “key men” in this conspiracy.
A thorough review of the record establishes that Gonzalez and
Gil were, in fact, the leaders of an organization based in El Paso
that was supplying marijuana and cocaine to various distributors in
California, Oklahoma, Indiana, Florida, Colorado, New Mexico, and
Texas. The evidence also establishes that appellant Gallegos
helped Gonzalez and Gil in their efforts to supply narcotics to
other appellants on several occasions. Other than a common source
of supply, however, the evidence does not establish any
interdependence between Gonzalez’s and Gil’s various distributors.
Complicating our inquiry, moreover, is the fact that Gonzalez and
Gil, the “key men” allegedly tying the conspiracy together, were
fugitives from justice who were not present at trial. In any
event, we pretermit a finding on the existence of a variance
because even if one is assumed, we conclude that the appellants
cannot establish that any variance that existed affected their
substantial rights.
In Kotteakos v. United States, 328 U.S. at 766, the Supreme
Court found that a group of defendants had been sufficiently
prejudiced by a variance to justify reversal. In reaching its
decision, the Court emphasized the size and complexity of the
conspiracies involved. More important, however, the Court found
8
Id. (quoting Richerson, 833 F.2d at 1154).
15
that prejudice inhered in the trial because of “[t]he dangers of
transference of guilt from one to another across the line
separating conspiracies.” Id. at 774. The Court concluded that
“[i]n the final analysis judgment in each case must be influenced
by conviction resulting from examination of the proceedings in
their entirety, tempered but not governed in any rigid sense of
stare decisis by what has been done in similar situations.” Id. at
762.
This court has “long held that when the indictment alleges the
conspiracy count as a single conspiracy, but the government proves
multiple conspiracies and a defendant’s involvement in at least one
of them, then clearly there is no variance affecting that
defendant’s substantial rights.” United States v. Faulkner, 17
F.3d 745, 762 (5th Cir.), cert. denied, — U.S. —, 115 S. Ct. 193,
130 L.Ed.2d 125 (1994) (internal quotations and citations omitted).
We have also pointed out, however, that we have never held this
general rule to be absolute. Id. In this regard, we have
acknowledged that such an absolute rule would be hard to square
with Kotteakos. Id. at 762 n.20.
In United States v. Faulkner, we elaborated on the requisites
of establishing a fatal variance in this circuit:
[The] doctrine regarding variance between an indictment
alleging a single conspiracy and proof of separate
conspiracies is but one subset of the general concerns of
improper joinder and severance. We therefore conclude
that where the indictment alleges a single conspiracy and
the evidence establishes each defendant’s participation
in at least one conspiracy[,] a defendant’s substantial
rights are affected only if the defendant can establish
reversible error under general principles of joinder and
severance.
16
Id. at 762 (footnote omitted). Thus, we look to the law of joinder
and severance to determine whether the appellants’ substantial
rights were affected in this case.
In this regard, Rule 14 of the Federal Rules of Criminal
Procedure provides that a court may order a severance “[i]f it
appears that a defendant or the government is prejudiced by a
joinder of offenses or of defendants in an indictment or
information or by such joinder for trial together....” FED. R.
CRIM. P. 14. A denial of a motion for severance is reviewed for an
abuse of discretion. Faulkner, 17 F.3d at 759. To satisfy this
standard of review, the defendant “bears the burden of showing
specific and compelling prejudice that resulted in an unfair trial
and such prejudice must be of a type against which the trial court
was unable to afford protection.” Id. (internal quotations and
citations omitted). Any possibility of prejudice, moreover, must
be balanced against the public’s interest in the efficient
administration of justice. United States v. Hernandez, 962 F.2d
1152, 1158 (5th Cir. 1992). “The rule, rather than the exception,
is that persons indicted together should be tried together,
especially in conspiracy cases.” United States v. Pofahl, 990 F.2d
1456, 1483 (5th Cir.), cert. denied, — U.S. —, 114 S. Ct. 266, 126
L.Ed.2d 218 (1993).
A number of factors lead us to conclude that the appellants
did not suffer specific and compelling prejudice resulting in a
fatal variance. First, the evidence was sufficient to prove each
appellant’s participation in at least one conspiracy. See Part I,
17
supra; Faulkner, 17 F.3d at 762. In addition, the district court’s
multiple conspiracy jury instruction safeguarded the appellants
against the possibility of guilt transference.9 This court has
found similar instructions sufficient to cure any possibility of
prejudice in other cases. See, e.g., Faulkner, 17 F.3d at 759;
Guerra-Marez, 928 F.2d at 672.
We are also persuaded that evidence exists that the jury was,
in fact, able to follow the evidence and reach a fair and impartial
verdict against each appellant. See United States v. Diaz-Munoz,
9
The district court’s instruction provided:
You are instructed that proof of several separate
conspiracies is not proof of a single, overall conspiracy
unless one of the several conspiracies which is proved is
the conspiracy charged in Count One of the indictment.
What you must do is determine whether the single
conspiracy charged in Count One existed between two or
more defendants. If you find no such conspiracy existed,
then you must acquit all of the defendants as to that
charge. However, if you are satisfied that the
conspiracy alleged in Count One existed, you must
determine who were the members of that conspiracy.
You are further instructed that proof of several
separate conspiracies is not proof of a single, overall
conspiracy unless one of the several conspiracies which
is proved is the conspiracy charged in Count Eight of the
indictment. What you must do is determine whether the
single conspiracy charged in Count Eight existed between
two or more defendants. If you find no such conspiracy
existed, then you must acquit all of the defendants as to
that charge. However, if you are satisfied that the
conspiracy alleged in Count Eight existed, you must
determine who were the members of that conspiracy.
If you find that a defendant was a member of another
conspiracy, but not the one charged in Count One or the
one charged in Count Eight of the indictment, then you
must acquit that defendant as to that count. In other
words, you must find that he or she was a member of the
conspiracy charged in the indictment and not some other
separate conspiracy.
18
632 F.2d 1330, 1337 (5th Cir. 1980) (recognizing that the inquiry
regarding prejudice involves whether the jury can “keep separate
the evidence that is relevant to each defendant and render a fair
and impartial verdict as to him?”). Although the jury did not
acquit any of the defendants at trial, it was unable to reach a
verdict on two counts, which were eventually dismissed pursuant to
Rule 29 of the Federal Rules of Criminal Procedure. Cf. Faulkner,
17 F.3d at 759. One of the charges on which the jury hung was the
money laundering charge against Gallegos under count eight of the
indictment. The relevant evidence on this count included Madrid’s
testimony that he transferred a suitcase containing approximately
$700,000 in drug proceeds to Gallegos in the presence of Gonzalez
and Lied. Madrid testified that Gallegos saw the suitcase but “not
necessarily” the money inside. Given this evidence, the jury’s
failure to reach a verdict on this count supports an inference that
it was able to consider each defendant and each charge separately.
Finally, we note that the verdicts against the appellants in
this case did not turn on particularly complex evidence that was
likely to confuse the jury. The government implicated the
appellants by relying almost exclusively on the direct testimony of
co-conspirators and governmental informants. Such testimony was
precise in establishing that each of the appellants knew of and
participated in a drug conspiracy. While the appellants attempted
to discredit the reliability of these witnesses at every stage of
the proceedings, their strategy did not work. Instead, the jury
chose to believe the government’s witnesses and return guilty
19
verdicts. There was no danger that the criminal acts of some would
be carried over to the others because the culpability of each was
clearly and distinctly proved. In circumstances such as these,
when a pure credibility determination was at issue, we are not
inclined to disturb a decision that was quite properly and directly
within the jury’s province.
III. Fourth Amendment Search
At trial, appellant Lloyd Phillip Maestas moved to suppress
evidence attained during a February 27, 1994 search of his ranch in
New Mexico because the material facts alleged in the affidavit for
the search warrant were based on stale information. The district
court found that the information upon which the affidavit was based
indicated a long-standing, ongoing pattern of criminal activity.
The district court, therefore, concluded that the warrant was
supported by probable cause and denied Maestas’s suppression
motion. On appeal, Maestas contends that the district court’s
decision constituted reversible error.
This court engages in a two-step review of a district court’s
denial of a defendant’s motion to suppress. United States v.
Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992). The first step
requires the court to determine whether the good-faith exception to
the exclusionary rule applies. See United States v. Leon, 468 U.S.
897, 922-23, 104 S. Ct. 3405, 82 L.Ed.2d 677 (1984). The second
step requires the court “to ensure that the magistrate had a
substantial basis for ... concluding that probable cause existed.”
Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 76
20
L.Ed.2d 527 (1983) (internal quotation omitted). If the good-faith
exception applies, the court need not reach the question of
probable cause. Satterwhite, 980 F.2d at 320; see also United
States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988) (“Principles of
judicial restraint and precedent dictate that, in most cases, we
should not reach the probable cause issue if a decision on the
admissibility of the evidence under the good-faith exception of
Leon will resolve the matter”).10
In Leon, the Supreme Court established the good-faith
exception, holding “that evidence obtained by law enforcement
officials acting in objectively reasonable good-faith reliance upon
a search warrant is admissible in the prosecution’s case-in-chief,
even though the affidavit on which the warrant was based was
insufficient to establish probable cause.” Craig, 861 F.2d at 821
(citing Leon, 468 U.S. at 922-23). “Issuance of a warrant by a
magistrate normally suffices to establish good faith on the part of
law enforcement officers who conduct a search pursuant to the
warrant.” Id. Law enforcement officers cannot establish objective
good faith, however, when the warrant is “based on an affidavit ‘so
lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable.’” Id. (quoting Leon, 468
10
We have indicated that “[t]he only instances in which this maxim
should not be followed are those in which the resolution of a
‘novel question of law ... is necessary to guide future action by
law enforcement officers and magistrates.’” Craig, 861 F.2d at 820-
21 (quoting Gates, 462 U.S. at 264 (White, J., concurring)).
Moreover, we recognized in Craig that “whether the facts alleged in
the affidavit were so dated that they failed to establish probable
cause at the time the warrant was issued” does not raise a novel
question of law. Id. at 821.
21
U.S. at 923). See, e.g., United States v. Jackson, 818 F.2d 345,
350 & n.8 (5th Cir. 1987) (concluding that a “bare bones” affidavit
did not justify good-faith reliance on a warrant); United States v.
Barrington, 806 F.2d 529, 531-33 (5th Cir. 1986) (same).
To prevail on his fourth amendment claim, Maestas must
establish that the facts alleged in the affidavit were so dated
that no reasonable officer could have believed that the affidavit
established probable cause to search his ranch. Craig, 861 F.2d at
822. In addressing a similar staleness claim in United States v.
Craig, we explained:
Two considerations have consistently appeared in this
court’s opinions on the issue of staleness. First, if
the information of the affidavit clearly shows a long-
standing, ongoing pattern of criminal activity, even if
fairly long periods of time have lapsed between the
information and the issuance of the warrant, the
information need not be regarded as stale. Second, the
nature of the evidence sought is also relevant. Courts
are more tolerant of dated allegations if the evidence
sought is of the sort that can reasonably be expected to
be kept for long periods of time in the place to be
searched.
Id. at 822-23 (internal quotations and citations omitted).
The affidavit in the instant case was not so lacking in
indicia of probable cause as to render good-faith reliance on a
warrant issued pursuant to it entirely unreasonable. The affidavit
included information provided by Bowers that set forth the
existence of a large-scale and ongoing drug-distribution
enterprise. According to Bowers, Maestas’s ranch was used by the
organization as a distribution point for the shipment of marijuana
and cocaine to California, Oklahoma, and Indiana. Bowers claimed
that these drugs were transported in the hidden compartments of
22
horse trailers, pickup trucks, and semi-tractors. Approximately
six months prior to execution of the contested search warrant,
Bowers accompanied federal agents to New Mexico where he pointed
out Maestas’s ranch and identified several vehicles on the property
that Bowers had used to transport drugs.
The affidavit also contained the contemporary observations of
government agents that tended to corroborate the information
provided by Bowers. Aerial surveillance of Maestas’s ranch three
days before the contested search produced photographs of several
horse trailers and a semi-tractor that were consistent with
vehicles described by Bowers. In addition, when Maestas was
arrested the day before the contested search, the officers
executing Maestas’s arrest warrant observed in plain view a number
of vehicles fitting Bowers’s description. The officers also
observed extra saddle fuel tanks (allegedly used by the
organization to store contraband) in plain view on the property.
Finally, on the day preceding the contested search, a related
search of Gil’s property produced a horse trailer with a false
compartment that was registered to “Maestas Farms.”
Maestas argues that the corroborative evidence gathered by the
government contemporaneously with its application for a search
warrant should be discarded because the evidence is consistent with
the innocent activities of a legitimate rancher. This argument is
unavailing. Both the Supreme Court and this circuit have
recognized that “innocent behavior frequently will provide the
basis for a showing of probable cause.” Gates, 462 U.S. at 243
23
n.13; see also United States v. Mendez, 27 F.3d 126, 129 (5th Cir.
1994). Taken together, the information provided by Bowers and the
contemporary, corroborative evidence gathered by the government
were sufficient for a reasonable officer to believe that the
challenged warrant was based on probable cause. Thus, the good-
faith exception applies, and the district court did not err in
denying Maestas’s motion to suppress.
IV. Conclusion
We have considered the other points of error raised by the
appellants and have concluded that they are without merit. First,
Mendoza-Garcia’s double jeopardy claim based on Grady v. Corbin,
495 U.S. 508, 510, 110 S. Ct. 2084, 109 L.Ed.2d 548 (1990), is
rejected because Grady was overruled by United States v. Dixon, 509
U.S. 688, 703-04, 113 S. Ct. 2849, 125 L.Ed.2d 556 (1993).11
Second, the appellants’ contention that the district court’s
instructions to the jury impermissibly amended the indictment by
broadening the charged offense from a conspiracy to possess with
the intent to distribute “marijuana and cocaine” to a conspiracy to
possess with the intent to distribute “marijuana or cocaine” is
rejected. We have held that “a disjunctive statute may be pleaded
conjunctively and proved disjunctively.” United States v. Johnson,
11
To prevail on his double jeopardy claim after Dixon, Mendoza-
Garcia must establish that his conviction violates the same offense
rule announced in Blockburger v. United States, 284 U.S. 299, 304,
52 S. Ct. 180, 76 L.Ed. 306 (1932). Mendoza-Garcia cannot make
this showing. A long line of Supreme Court authority has
established “the rule that a substantive crime and a conspiracy to
commit that crime are not the ‘same offence’ for double jeopardy
purposes.” United States v. Felix, 503 U.S. 378, 389, 112 S. Ct.
1377, 118 L.Ed.2d 25 (1992).
24
87 F.3d 133, 136 n.2 (5th Cir. 1996) (quoting United States v.
Pigrum, 922 F.2d 249, 253 (5th Cir.), cert. denied, 500 U.S. 936,
111 S. Ct. 2064, 114 L.Ed.2d 468 (1991) (internal quotations and
citations omitted)). Finally, we have considered the arguments
raised by the appellants challenging their Guideline-based
sentences and have concluded that they also are without merit.
For the foregoing reasons, the convictions and sentences of
the appellants are AFFIRMED.
25