IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-40208
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICARDO CASARES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(L-95-CR-197-1)
_________________________________________________________________
March 7, 1997
Before KING, GARWOOD, and PARKER, Circuit Judges.
PER CURIAM:*
Ricardo Casares appeals his conviction and sentence for
conspiracy to posses marihuana under 21 U.S.C. §§ 841(a)(1),
841(b)(1)(D), and 846. Finding no error, we affirm.
I. BACKGROUND
On June 21, 1995, a small white Ford driven by Jamie
Miranda-Nunez (“Miranda”) was detained at the Interstate 35
checkpoint in Laredo, Texas. A search of the vehicle revealed
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
13.4 kilograms of marihuana, 170.3 grams of cocaine, and $4,900
in counterfeit bills stored inside the gas tank. After initially
denying cognizance of the contraband’s presence, Miranda admitted
his knowledge of the marihuana and agreed to cooperate with the
authorities in their investigation of the matter.
The authorities seized a cellular phone from Miranda during
their investigation. A Drug Enforcement Administration Task
Force officer discovered that the phone had the telephone numbers
of Ricardo Casares (“Casares”) and Joel Hernandez (“Hernandez”)
stored in its memory. Miranda was asked to telephone Casares.
During the ensuing phone conversations, Miranda and Casares
discussed whether Miranda was bringing the contraband, obliquely
referring to it as “junk” or “stuff”, and whether Casares
possessed the money which he owed to Hernandez.
Pursuant to his role in Miranda’s activities, Casares was
indicted on September 6, 1995, on two counts. One count was for
conspiracy to possess with intent to distribute less than 50
kilograms of marihuana under 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(D). The second count was for conspiracy to possess
with intent to distribute less than 500 grams of cocaine under 21
U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C).
Further evidence was introduced at trial to illuminate
Casares’s role in the drug conspiracy activities. First, Miranda
testified that Casares had received a delivery of marihuana in
May 1995 that Miranda had transported for Hernandez. Miranda
2
also noted that he observed Casares’s personal use of cocaine
while he waited at his residence for payment on the delivery.
Second, a law enforcement officer testified that a search of
Casares’s residence on September 25, 1995, revealed bundles of
marihuana, cellophane wrappings similar to the wrappings found on
the packages seized from Miranda on June 21, two scales commonly
used to weigh drugs for distribution, and used syringes.
Casares was found guilty on both charged counts by a jury on
December 8, 1995. After Casares filed a Motion for Judgment of
Acquittal, the trial court vacated his conviction on the count
for conspiracy to possess with intent to distribute less than 500
grams of cocaine.1 The trial court sentenced Casares to serve
thirty-six months in federal prison, followed by a three-year
term of supervised release.
Casares appeals the conviction and sentence to this court,
raising three points of error. Casares claims that: (1) the
evidence was insufficient to support his marihuana conspiracy
conviction; (2) the district court abused its discretion in
admitting extrinsic evidence of narcotics offenses; and (3) the
district court clearly erred in including the cocaine amount as
relevant conduct for his sentencing on the marihuana conspiracy.
II. DISCUSSION
1
The trial court’s basis for this action was the “rule
against multiplicity”. The trial judge had asked the parties to
brief the court on this subject subsequent to Casares’s Motion
for Judgment of Acquittal.
3
A. Sufficiency of the Evidence in Casares’s Conviction
This court reviews challenges to the sufficiency of the
evidence in a criminal case to determine whether a reasonable
trier of fact could have found that the evidence established
guilt beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319 (1979); United States v. Pedroza, 78 F.3d 179, 182
(5th Cir. 1996). We consider all the evidence and all reasonable
inferences drawn from it in the light most favorable to the
jury’s verdict. See Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Johnson, 87 F.3d 133, 136 (5th Cir.
1996).
In order to prove a drug conspiracy, the government must
prove: (1) the existence of an agreement between two or more
persons to violate the narcotics laws; (2) that the defendant
knew of the agreement; and (3) that the defendant voluntarily
participated in the agreement. See United States v. Inocencio,
40 F.3d 716, 725 (5th Cir. 1994).
Casares contends that his mere association with Miranda is
insufficient to support his conviction and that the recorded
phone conversations of June 21 are inconclusive as to whether the
two were talking about marihuana. In particular, he claims that
the references to “junk” and “stuff” were to the counterfeit
money.
4
Miranda testified at trial, however, that the references to
“junk” and “stuff” actually alluded to the marihuana. The
uncorroborated testimony of a co-conspirator will support a
conviction, provided that the testimony is not incredible or
otherwise insubstantial on its face. See United States v.
Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994). Miranda’s credible
testimony, together with the government’s corroborating physical
evidence, sufficiently establishes beyond a reasonable doubt that
Casares had an agreement to violate the narcotics laws, that he
knew of the agreement, and that he voluntarily participated in
the agreement.
B. Admission of Extrinsic Evidence
This court reviews evidentiary rulings of a district court
with respect to intrinsic or extrinsic evidence for abuse of
discretion. See United States v. Coleman, 78 F.3d 154, 156 (5th
Cir. 1996). Casares argues that the trial judge abused his
discretion in admitting evidence with regard to Casares’s May and
September 1995 marihuana trafficking activities, as well as
allowing Miranda to testify about Casares’s personal use of
cocaine.
Federal Rule of Evidence 404(b) excludes evidence of
extrinsic offenses to prove that a defendant acted in conformity
5
with his character. FED. R. EVID. 404(b).2 Evidence of extraneous
acts is “intrinsic”, however, when those acts are “inextricably
intertwined” with the crime charged. See United States v.
Coleman, 78 F.3d at 156. Casares’s drug trafficking in May and
September was sufficiently intertwined with the events of June 21
that the evidence was admissible.
Furthermore, the admission of evidence pertaining to
Casares’s personal use of cocaine was likewise within the
discretion of the judge. This court applies a two-part test in
assessing claims of error under 404(b): (1) whether the evidence
is relevant to an issue other than the defendant’s character, and
(2) whether the probative value of the evidence is substantially
outweighed by the danger of undue prejudice. See United States
v. Broussard, 80 F.3d 1025, 1039-40 (5th Cir. 1996) (citing
2
Rule 404(b) sets out, in pertinent part:
Rule 404. Character Evidence Not Admissible to Prove
Conduct; Exceptions; Other Crimes
(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon
request by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, or during trial if
the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at
trial.
6
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en
banc)).
The district court allowed the evidence of Casares’s
personal use of cocaine as corroborative testimony showing the
relationship between Miranda’s statements and evidence collected
by law enforcement officials. The trial judge, in view of all
the evidence, did not abuse his discretion in assessing that the
probative value of the personal use testimony was not
substantially outweighed by its undue prejudice.
C. Inclusion of the Cocaine in Sentencing Factors
Casares argues that his base offense level under the Federal
Sentencing Guidelines was erroneously determined to be twenty.
Casares contends that the base offense level should have been
sixteen because the trial court should not have included the
amount of cocaine with the amount of marihuana in determining the
base offense level.
This court will uphold a district court’s determination of a
defendant’s relevant conduct for sentencing purposes unless it is
clearly erroneous. See United States v. Puig-Infante, 19 F.3d
929, 942 (5th Cir. 1994). Even if we were to consider Casares to
have been acquitted of the cocaine charge (which is a
questionable way of viewing an acquittal such as the one at issue
here), nevertheless the sentencing judge can properly consider
acquittal-based conduct as relevant conduct for sentencing
7
purposes. See United States v. Watts, 117 S. Ct. 633, 637-38
(1997); United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th
Cir. 1989). The 170.3 grams of cocaine seized on June 21, 1995,
was significantly suggestive of possession with intent to
distribute that the judge could consider the amount in setting
Casares’s base offense level.3
III. CONCLUSION
For the foregoing reasons, the decision of the district
court is AFFIRMED.
3
In fact, the jury had determined that Casares was guilty
beyond a reasonable doubt of the cocaine-related charge.
Acquitted conduct must necessarily have been proved only by a
preponderance of the evidence in order to be considered with
regard to sentencing. See United States v. Watts, 117 S. Ct. at
638.
8