UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-11153
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUAN FRANCISCO TREVINO,also known as Kiko Ozuna;
ARMANDO MARTIN TREVINO, also known as Gordo;
PEDRO SANCHEZ, also known as Sanchez;
PABLO DELUNA, also known as Picho;
JORGE ESPINOSA, also known as El Pato;
Defendants-Appellants.
Appeals from the United States District Court
For the Northern District of Texas
(3:95-CR-189-R)
June 30, 1997
Before JONES, STEWART, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
Defendants-appellants, Juan Francisco Trevino, Pablo DeLuna,
Armando Martin Trevino, Jorge Espinoza, and Pedro Sanchez, were
convicted of conspiracy to possess with intent to distribute and to
distribute more than 1000 kilograms of marijuana, 21 U.S.C. §§
841(a)(1) & 846, and sentenced to imprisonment.
*
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opinion should not be published and is not precedent except under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.
The issues presented on appeal are (1) whether the district
court erred in failing to dismiss the original indictment with
prejudice based on the denial of statutory speedy trial rights; (2)
whether there was sufficient evidence to support the convictions of
Juan Trevino, Armando Trevino, and Pedro Sanchez; (3) whether the
district court erred by admitting evidence of an extraneous offense
committed by Pablo DeLuna; (4) whether there was prejudicial
prosecutorial misconduct; (5) whether the district court erred in
giving an Allen charge to the jury; (6) whether the district court
erred in sentencing Juan Trevino, Pedro Sanchez, Jorge Espinoza,
and Armando Trevino. Finding no reversible error, we affirm the
appellants’ convictions and sentences, except that Jorge Espinoza’s
sentence is vacated and his case is remanded for resentencing.
BACKGROUND
Appellants were originally indicted on October 13, 1994, along
with 8 others, Abraham “Benny” Padilla, Abel Lopez, Sr., Abel
Lopez, Jr., Francisco Isaac, Fernando “Vanna” Quiroz, Hipolito
“Polo” Ortiz, Oscar “Pelon” DeLeon, and Edel Isaac, for conspiracy
to possess with intent to distribute and distribution of more than
one thousand kilograms of marijuana and related offenses. On
October 18, 1994, Juan Trevino, Armando Trevino, and Pedro Sanchez
appeared before a judicial officer. On November 18, 1994, the case
was set for trial in January 1995. On January 4, 1995, the case
2
was reset for trial for April 3, 1995. On March 29, 1995, the
court granted Pedro Sanchez’s motion for continuance and the case
was reset for trial in May 1995. On May 16, 1995, the court
granted Armando Trevino’s motion for continuance and reset the
trial for June 16, 1995. On May 26, 1995, Juan Trevino filed a
motion to dismiss for violation of the Speedy Trial Act, 18 U.S.C.
§ 316(c)(1), which provides for trial to be held within 70 days of
the date the defendant first appeared before a judicial officer or
the date of the indictment, whichever is later. On June 15, 1995,
the trial court held a hearing on Juan Trevino’s speedy trial
motion, granted the motion, and dismissed the October 13, 1994
indictment without prejudice stating that it was the court’s fault
that the speedy trial act had not been complied with.
On June 7, 1995, the Government obtained a second indictment
charging that the appellants herein conspired to possess with
intent to distribute and to distribute more than 1,000 kilograms of
marijuana. The indictment alleged that the conspirators acquired
large sums of marijuana from Mexico and transported the marijuana
from Laredo to Dallas, Texas.
At trial, several co-conspirators testified regarding the
operations of the conspiracy. Everado Ramirez, the Government’s
first witness, testified that Tovar Ozuna introduced him to Juan
Trevino who offered him a job of transporting marijuana to Dallas.
Ramirez’s first duty was to store marijuana at his house for
several days and then bring it to Pablo DeLuna’s house, who was to
3
transport it to Dallas. Ramirez was paid $10 per pound of
marijuana that he stored and transported.
The following month, at Tovar Ozuna’s request, Ramirez agreed
to store and deliver marijuana that was to be transported to
Dallas. Tovar’s job for Juan Trevino was to bring marijuana across
the river from Mexico to Ramirez. Tovar delivered about 250 pounds
and Ramirez brought it to Pablo DeLuna’s house where it was to be
stored and later transported to a Border Freight Company 18
wheeler.
Ramirez testified that he participated in similar marijuana
deliveries from Laredo to Dallas about three times a month during
a 12 to 18 month period and that the largest load of marijuana he
had stored was about 600 pounds. After a few months, Ramirez began
to travel with Fernando Quiroz, Pablo DeLuna, and Joe Chavez, to
Dallas to obtain earlier payments. He said he made 15-20 such
trips to Dallas. Ramirez testified that he would check into a
Dallas motel, and page Juan Trevino’s brother, Jose, who would
bring him his payment.
Ramirez testified that on some occasions the marijuana was
unloaded in San Antonio into a car that he followed to Dallas as
instructed by Pablo DeLuna. Ramirez recalled that on one occasion
a Border Freight truck was unloaded at a house. Later, he said,
the conspirators used Suburbans to haul marijuana on private roads
through a large ranch to bypass law enforcement checkpoints.
Ramirez testified that his association with the conspiracy
4
terminated when Juan Trevino told him not to come around anymore
because he thought they were being watched.
Hipolito “Polo” Ortiz testified that he became involved in the
conspiracy when Benny Padilla offered to pay him $4,000 to drive a
Suburban from Laredo to Dallas with a load of marijuana. Ortiz
worked with Joe Sanchez, Pablo DeLuna, Jorge Espinoza, Fred
Tejeda, Everado Ramirez, Fernando Quiroz, Joe Chavez, and Juan
Trevino in picking up, loading, driving, and delivering marijuana.
He said that some of the marijuana was transported in Border
Freight trucks, especially when the weather was good, because they
made it through checkpoints easier. Ortiz identified two
Government exhibits as photographs of marijuana packages belonging
to Juan Trevino and Abel Lopez.
In May of 1993, Ortiz, Fernando Quiroz, and Abel Lopez, Jr.,
were arrested at a motel in Mesquite, Texas for possessing 300
pounds of marijuana that had been brought up Dallas from Laredo,
Texas. Ortiz testified that this offense was the subject of a
pending state charge against him as well as being part of the basis
for the federal conspiracy indictment in the case at bar to which
he had pleaded guilty.
Juan Barraza testified that he worked for Able Lopez, Sr. and
Abel Lopez, Jr. transporting marijuana and delivering money in the
Dallas area. After about six months, Barraza was sent to Laredo to
deliver $5,000 to Abel Lopez, Sr. Barraza “escorted” 18 wheelers
hauling marijuana from Laredo to Dallas. He identified Jorge
5
Espinoza as one of the truck drivers. Barraza testified that he
knew of 12 or 13 instances when marijuana loads averaging about 500
pounds each were delivered to Dallas by trucks. Barraza admitted
he personally drove trucks loaded with marijuana on two occasions,
for which he was paid $45,000 per trip. Otherwise, Barraza was
paid approximately $3,000 per week for assisting in the operation.
Barraza testified that on one occasion, he Pablo DeLuna, and Selso
Pena were sent to Laredo by Abel Lopez, Jr. to search for marijuana
that Pablo DeLuna left in a field. He said Pablo DeLuna started
out with 500 pounds in Laredo but arrived in Dallas with only half
of the load.
Joe Chavez testified that in or about March of 1993, he became
involved in the conspiracy through Benny Padilla. His initial job
involved loading more than 1000 pounds of marijuana into a Suburban
at a house in Laredo. Chavez said he and Padilla’s brother “Chuko”
took the marijuana to Jorge Espinoza’s mother’s house where they
and Jorge Espinoza’s brother placed the marijuana in a room
containing marijuana-stuffed duffel bags. At Padilla’s request,
Chavez returned to the house and, with “Chuko” and Jorge Espinoza,
loaded the marijuana into a Border Freight truck. The following
morning the truck was driven to Dallas.
Chavez’s next job was to escort Suburbans loaded with
marijuana. Chavez explained that “escorting” called upon him to
drive his car behind or in front of the Suburban, and to interfere
with any law enforcement officer’s attempt to pull the Suburban
6
over. Chavez admitted to passing a state trooper on the shoulder
of the road to divert the officer’s attention from a Suburban
loaded with marijuana. Chavez escorted about 13 loads of marijuana
from Laredo to Dallas, and was paid $600 per load.
Chavez detailed the route the conspirators took and how they
evaded checkpoints: A conspirator would drive a Suburban out of
Laredo on Highway 359. Before reaching Bruni, Texas, the Suburban
driver would take a private road through a ranch and reenter the
public highway after bypassing a checkpoint. Chavez, as “escort”
would drive through the highway checkpoint and wait for the
Suburban at a restaurant in Bruni. Chavez testified that on one
occasion while waiting at the restaurant in Bruni, Armando Trevino
approached and told him to catch up with the Suburban which had
already gone by.
After escorting a marijuana load to Dallas, he would stay with
it at a Dallas area motel where the Suburban would be picked up and
later brought back empty. Chavez testified that he subsequently
learned that the marijuana was being delivered to Juan Trevino in
Dallas. Chavez testified that beginning in July of 1993, he
drove Suburbans rather than escorting them. Chavez made
approximately 13 trips and was paid $6,000 per trip. Before his
first trip, Chavez was shown by Armando Trevino how to drive the
Suburban through the Staggs ranch. Armando Trevino drove Chavez in
his pickup from the exit of the ranch at Highway 2050 through the
ranch to the entrance at Highway 359, a distance of 35 miles.
7
Armando Trevino gave Chavez keys and combinations to get through
cattle guard gates; according to Chavez, Armando Trevino was paid
$35 per pound for permitting use of the ranch. Chavez then made
trips two or three times per week, using the combinations and keys,
and driving loads through the ranch. Chavez testified that he
would drive through the ranch at 6:30-7:00 A.M. in order to avoid
running into the Border Patrol on the road; a Border Patrol shift
change occurred at this time.
In December of 1993, Joe Chavez first met with DEA Special
Agent Armando Ramirez at the DEA office in Laredo to find out how
to recover money that had been seized; Chavez had been stopped for
a traffic violation and $4,000 cash and jewelry had been seized.
Chavez returned to the DEA office later that month, however, and
became a confidential informant. He did so because “he had a
feeling that this thing . . . was going to be going down.”
In addition to the testimony of the conspirators, the
Government also introduced evidence of the arrests of the
conspirators and the seizures of marijuana and other inculpatory
contraband from them. First, DEA Special Agent Victor Routh, the
lead case agent, testified that in May 1993 Fernando Quiroz, Abel
Lopez, and Hipolito Ortiz were arrested at a hotel in Mesquite,
Texas and that 300 pounds of marijuana in their possession was
seized.
Evidence of the September 8, 1993 arrest of Jose and Javier
Sanchez was also introduced. Laredo Police Officer Jesus
8
Montemayor testified that on September 7, 1993, he received a phone
call from an anonymous tipster who stated that two individuals
would be leaving Laredo the following day in a particular vehicle
and that it was highly probable that the vehicle would be carrying
marijuana. Officer Montemayor responded by setting up surveillance
on a maroon Suburban parked near a mobile home. On September 8,
1993 the Suburban occupied by Jose and Javier Sanchez was stopped
shortly after it departed and 622 pounds of marijuana was found in
it. The Suburban was specially equipped with air shocks on the
rear axle in order to disguise the heavy load. This arrest and
seizure tended to corroborate Joe Chavez’s testimony that he loaded
the marijuana from a pickup truck into the Suburban the night
before the arrest, that he left the keys with the Sanchez, and
that he planned to “escort” the load to Dallas.
Border Patrol agent Darren Matthews testified that on October
5, 1993, appellants Jorge Espinoza and Pete Sanchez were arrested
while driving a Border Freight 18 wheeler on Interstate 35
approximately 15 miles north of Laredo. Two hundred eighty-two
pounds of marijuana stuffed in duffle bags was found inside the
trailer of the truck. Both Sanchez and Espinoza told Border Patrol
agent Matthews that they were not aware of the marijuana. In
testifying about the arrest of Sanchez and Espinoza, Joe Chavez
stated that Benny Padilla had told him to load up the Suburban and
take it down to the Border Freight terminal. Chavez further
testified that he, Espinoza, and Sanchez transported the marijuana
9
from the Suburban to the Border Freight 18 wheeler on the night of
the arrest.
DEA agents Jackson and Ramirez testified as to the second
arrest of Jose and Javier Sanchez that occurred on December 7,
1993. Pursuant to a tip from Joe Chavez that a Suburban containing
marijuana would exit from the Staggs ranch heading toward Bruni,
Texas, Jackson and Ramirez intercepted the vehicle occupied by Jose
and Javier Sanchez and seized 309 pounds of marijuana, a key, and
a piece of paper on which gate lock combinations were written.
On December 29, 1993, pursuant to a random check by the U.S.
Customs Service, a vehicle driven by Juan Trevino was stopped and
$47,984 was found. When the vehicle was stopped, Juan Trevino
twice denied that he had more than $10,000 in currency. Trevino
pleaded guilty to a currency violation, and the money was
forfeited.
On January 24, 1994, Joe Chavez informed DEA Special Agent
Armando Ramirez about a delivery of marijuana to be made in Dallas
on January 26. Agent Ramirez, acting undercover, assisted Chavez
in loading approximately 463 pounds of marijuana into a Suburban
from a mobile home in Laredo. Upon arrival in Dallas, agents
arrested Ricky Trevino and Abel Lopez, Jr. when they attempted to
pick up the marijuana from Joe Chavez. Chavez testified that some
of the confiscated marijuana was destined for or “belonged to” Juan
Trevino.
Pursuant to this arrest, the Government seized an
10
address/phone book belonging to Joe Chavez that was left on a table
in a bar at the Holiday Inn where the arrest took place. The book
contained the Staggs ranch phone number and a cellular phone number
assigned to Armando Trevino. The book also contained a phone
number listed next to the name “Kiko,” Juan Trevino’s alias. The
number was assigned to “Sanwana Trevino” at an address that the
lien abstracts showed to be in the name of Juan Trevino. Other
conspirators’ names, addresses and phone numbers also appeared in
the book.
Louisiana State Trooper Jim Stephens testified that on March
27, 1994, while patrolling Interstate 20, he witnessed suspicious
activity of the occupants of a vehicle with Texas license plates at
a rest area in Lincoln Parish, Louisiana. Trooper Stephens also
saw an empty car with Kentucky license plates. After exiting the
rest area, Stephens set up a stationary radar on the shoulder of
Interstate 20. Shortly thereafter, the car with the Kentucky
license plates exited the rest area and passed Stephens, which was
followed within a mile by the car with the Texas license plates he
had observed at the rest area. Stephens followed and eventually
stopped the Texas vehicle because of the odd way it was being
driven. Pablo DeLuna was a passenger in this car. Stephens,
suspecting something was amiss, radioed to have the Kentucky car
stopped. Stephens’ suspicion was further aroused by the discovery
of a spare tire in the trunk that did not match the car and a cap
on the back seat of the car that was imprinted with the words
11
“Stone’s Garage Dixon, Kentucky.” Stephens requested a K-9 unit.
The K-9 dog arrived and alerted to a jacket on the backseat of the
car.
Meanwhile, the Kentucky car was stopped by Louisiana State
Trooper Brown about 21 miles east of where Trooper Stephens stopped
the Texas car. Brown found a bale of marijuana in the spare tire
well of the car. The spare tire found in the Texas car matched the
Kentucky car stopped by Brown.
Other evidence was introduced at trial to corroborate the
unindicted co-conspirators’ testimony. Frank Staggs, the owner of
the ranch that the Suburbans passed through to evade border
checkpoints testified that in 1993 the caretaker of the ranch was
Armando Trevino. Staggs identified the numbers on Government’s
exhibit 29 (the paper seized from Jose Sanchez on December 7, 1993)
as the combinations to two gate locks on the east side of the
ranch. The Government, in addition to Joe Chavez’s address book
confiscated pursuant to the arrest of Abel Lopez, Jr. and Ricky
Trevino, introduced telephone and motel records involving the
conspirators.
Following their convictions, Armando Trevino was sentenced to
188 months imprisonment; Pablo DeLuna was sentenced to 405 months
imprisonment; Pedro Sanchez was sentenced to 63 months
imprisonment; Juan Trevino was sentenced to 264 months
imprisonment; Jorge Espinoza was sentenced to 120 months
imprisonment. Each appellant was sentenced to five years of
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supervised release following his prison term. The appellants
timely appealed their convictions and sentences.
DISCUSSION
A. SPEEDY TRIAL ACT
As a threshold issue, we must determine whether the district
court erred in failing to dismiss the original indictment with
prejudice based on denial of speedy trial rights. 18 U.S.C. §
3162(a)(2) provides:
In determining whether to dismiss the case with or without
prejudice, the court shall consider, among others, each of
the following factors: the seriousness of the offense; the
facts and circumstances of the case which led to the
dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of
justice.
In the present case, the charged offenses were obviously quite
grave. See United States v. Taylor, 487 U.S. 326, 338
(1988)(controlled substance offenses are serious offenses); United
States v. Johnson, 29 F.3d 940 (5th Cir. 1994) (conspiracy to
possess with intent to distribute 262 pounds of marijuana was
serious). See also United States v. Melguizo, 824 F.2d 370, 371
(5th Cir.), cert. denied, 487 U.S. 1218 (1987)(potential 10 year
sentence is sufficient indication that offense was serious).
The facts and circumstances leading to the dismissal included
13
the following: The trial judge stated that he was solely
responsible for not commencing a trial within the Speedy Trial
Act’s deadline. The record evidence does not describe the delay to
anyone other than the district judge. Under the circumstances of
this case, reprosecution did not seriously impact the
administration of the Speedy Trial Act in particular, or the
administration of justice in general. We conclude that the
district court did not commit reversible error in dismissing the
first indictment without prejudice.
B. SUFFICIENCY OF THE EVIDENCE
Appellants, Juan Trevino, Armando Trevino, and Pedro Sanchez,
challenge the sufficiency of the evidence to sustain their
convictions for conspiracy to possess with intent to distribute and
to distribute marijuana. To establish a drug conspiracy under 21
U.S.C. §§ 841(a)(1) and 846, the Government must prove: 1) the
existence of an agreement between two or more persons to violate
federal drug laws; 2) the defendant's knowledge of the agreement;
and 3) the defendant's voluntary participation in the agreement.
United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991). See
also United States v. Gonzalez, 79 F.3d 413, 423 (5th Cir. 1996).
“The Government is not required to prove the existence of the
conspiracy and the agreement between the co-conspirators and the
defendant by direct evidence, but may present circumstantial
evidence, such as the co-conspirator's concerted actions, from
14
which the jury can infer that a conspiracy existed.” Id. The
existence of the agreement, the defendant's knowledge of the
agreement, and the defendant's participation in the conspiracy may
be inferred from the "'development and collocation of
circumstances.'" Id. (citing United States v. Lentz, 823 F.2d
867, 868 (5th Cir.), cert. denied, 484 U.S. 957, 108 S.Ct. 354, 98
L.Ed.2d 380 (1987) (quoting United States v. Vergara, 687 F.2d 57,
61 (5th Cir. 1982)). The mere presence at the scene of the crime
or close association with co-conspirators will not alone support an
inference of conspiracy but are factors that the jury may consider
in finding conspiratorial activity. Id. (citing United States v.
Magee, 821 F.2d 234, 239 (5th Cir. 1987)).
In reviewing for sufficiency of the evidence, we must affirm
if a rational trier of fact could have found that the evidence
established the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Jaras, 86 F.3d
383, 386 (5th Cir. 1996). We thus consider the evidence, all
reasonable inferences drawn therefrom, and all credibility
determinations in the light most favorable to the prosecution.
Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86
L.Ed. 680 (1942); Jaras, 86 F.3d at 387; United States v.
Resio-Trejo, 45 F.3d 907, 910-11 (5th Cir. 1995). Our role does
not extend to weighing the evidence or assessing the credibility of
15
witnesses. Glasser, 315 U.S. at 80, 62 S.Ct. at 469; Jaras, 86
F.3d at 387. The evidence need not exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt, and the jury is free to choose
among reasonable constructions of the evidence. Jaras, 86 F.3d at
387; Salazar, 66 F.3d at 728; Resio-Trejo, 45 F.3d at 911
(quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982)
(en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398,
76 L.Ed.2d 638 (1983)).
As for Juan Trevino, the record reflects sufficient testimony
and other evidence introduced at trial from which a jury could
infer that there was an agreement to traffic marijuana, that Juan
Trevino had knowledge of the agreement, and that Juan Trevino
voluntarily participated in the conspiracy: (1) Everado Ramirez
testified that he stored and delivered loads of marijuana from
Laredo to Dallas for Juan Trevino ; (2) Hipolito Ortiz testified
that he drove loads of marijuana for Benny Padilla from Laredo to
Dallas that Pablo DeLuna and Benny Padilla said were to be
delivered to Juan Trevino; (3) Joe Chavez testified that he made
numerous trips to Dallas escorting loads of marijuana or driving
loads himself that Benny Padilla told him were destined for Juan
Trevino and that the marijuana seized pursuant to the arrest of
Jose and Javier Sanchez was one of the cargoes that was intended
for Juan Trevino; (4) cash in the amount of $47,984 was seized from
16
Juan Trevino on December 29, 1993 and became the subject of
Trevino’s guilty plea for currency violations; and (5) the
appearance of Juan Trevino’s nickname in a conspirator’s address
book next to a phone number assigned to one of his residences.
By the same token, there is abundant evidence supporting
Armando Trevino’s conviction: (1) Frank Staggs testified that in
1993 Armando Trevino was the caretaker of the Staggs ranch; (2) Joe
Chavez testified that Armando Trevino showed him how to evade
Border Patrol detection while transporting loads of marijuana by
passing through the Staggs ranch; that Armando Trevino gave gate
keys and lock combinations to Chavez; and that on one occasion
Armando Trevino appeared in Hebronville, Texas and directed Chavez
to catch up with a drug cargo vehicle that he was escorting to
Dallas; (3) Chavez also testified that Armando Trevino was paid
$35 per pound for the transit of marijuana through the ranch;
(4)Jose and Javier Sanchez were apprehended with a cargo of
marijuana on December 7, 1993 after passing through the Staggs
ranch; (5) telephone records indicated numerous calls made between
the fall of 1992 and the summer of 1994 from Benny Padilla to the
Staggs Ranch and to Armando Trevino’s cellular number; and (6)
Armando Trevino’s nickname was inscribed in Joe Chavez’s address
book beside Trevino’s cellular phone number and the Staggs ranch
number.
The evidence introduced at trial inculpating Pedro Sanchez was
less extensive but nevertheless sufficient to require affirmance of
17
his conviction. Border Patrol agents apprehended Sanchez on
October 5, 1993 as he was driving a Border Freight 18 wheeler with
282 pounds of marijuana in the trailer. Joe Chavez testified that
Pedro Sanchez assisted him and Jorge Espinoza in loading the cargo
of 282 pounds of marijuana into the trailer of the Border Freight
18 wheeler the night Sanchez was arrested.
Sanchez claims that the Government did not adequately prove
the knowledge and voluntary participation elements of the offense.
He argues that Joe Chavez’s testimony was untruthful in general and
insufficient in particular to establish that Sanchez knowingly and
voluntary participated in loading marijuana into the Border Freight
18 wheeler.
Sanchez testified that on the night he was arrested he arrived
at the Border Freight terminal in Laredo at about midnight and that
while he was talking to Ernesto Castro, the security guard on duty,
Joe Chavez approached and asked him whether he knew anyone from
Carrizo Springs; that he responded that he did not; that that was
the extent of the conversation with Chavez; and that he had not met
Joe Chavez before. Sanchez further testified that when he got to
the terminal, the trailer was already loaded and that he did not
inspect the cargo. Sometime thereafter, Sanchez testified, Jorge
Espinoza arrived and for about 20 minutes Espinoza inspected the
cargo inside the trailer while Sanchez remained inside the cab of
the 18 wheeler. After this inspection, Sanchez said Espinoza
entered the cab of the 18 wheeler and they immediately departed.
18
Sanchez relies on the testimony of Ernestro Castro, the Border
Freight security guard, who testified as a defense witness on
Sanchez’s behalf, to support his argument that the Government did
not prove that he had knowledge of the conspiracy, or that he
voluntarily participated in the conspiracy, and that the testimony
of Joe Chavez was untrustworthy.
Castro only testified, however, that he saw Sanchez and Chavez
conversing for three to five minutes but that he did not hear what
they were talking about. Castro testified that from his guard
shack where he was stationed he was relatively close to the 18
wheeler that Pete Sanchez drove (he described this distance to be
about the same as the length of the courtroom), and that he neither
saw anyone enter the trailer of Sanchez’s 18 wheeler nor did he
hear the trailer door being opened. He further testified, however,
that the yard was dark; that there was only one light and that he
remained in his guard shack during the time that Sanchez and Chavez
were present.
Sanchez argues that Chavez's testimony failed to demonstrate
that he had knowledge that marijuana was being transported on
October 5, 1993, or that he voluntarily participated in the
transport. Review of the record, however, clearly reveals
sufficient evidence for a reasonable inference of Sanchez’s
knowledge and voluntary participation. Sanchez does not dispute
the facts that he met Chavez at the Border Freight terminal, that
he drove the truck away with Espinoza, or that the vehicle
19
contained a cargo of marijuana. These facts plus Chavez’s
testimony that Sanchez helped load the marijuana were sufficient to
support a reasonable inference of knowing and voluntary
participation. A conviction may be based on the testimony of one
accomplice, even when uncorroborated, if the testimony is
substantial on its face. Jaras, 86 F.3d at 387; United States v.
Gibson, 55 F.3d 173, 181 (5th Cir. 1995); United States v.
Gadison, 8 F.3d 186, 190 (5th Cir. 1993). Sanchez’s real complaint
is that the testimony of his co-conspirator was inherently
unreliable or "incredible," and thus cannot form the basis for
establishing knowledge and voluntary participation, because Chavez
demonstrably lied on the witness stand. At trial the jury assessed
the credibility of Sanchez, Chavez, and Castro; obviously, with
respect to any material conflicts, it placed more value on Chavez’s
testimony. We may not invade the jury's province by substituting
our own credibility determinations for those of the jury. Jaras,
id; United States v. Lopez, 74 F.3d 575, 578 (5th Cir. 1996).
Chavez's testimony does not rise to the level of "incredibility"
because of the introduction of contrary testimony. See Jaras, id.
(citing United States v. Casel, 995 F.2d 1299, 1304 (5th Cir.),
cert. denied, 510 U.S. 978, 114 S.Ct. 472, 126 L.Ed.2d 424 (1993))
("To be found 'incredible' as a matter of law, the witness'
testimony must be factually impossible.") (citing United States v.
Lindell, 881 F.2d 1313, 1322 (5th Cir. 1989), cert. denied, 496
20
U.S. 926, 110 S.Ct. 2621, 110 L.Ed.2d 642 (1990) and United States
v. Silva, 748 F.2d 262, 266 (5th Cir. 1984))). As the jury could
reasonably credit Chavez's testimony regarding Sanchez's
involvement in the offense notwithstanding Sanchez’s and Castro’s
testimony, we find that sufficient evidence was adduced at trial to
support the jury's finding that Sanchez was guilty of the crime
charged.
C. EXTRINSIC EVIDENCE
DeLuna asserts that the district court erred in admitting into
evidence his March 1994 arrest in Louisiana and the corresponding
seizure of 54 pounds of marijuana. DeLuna contends that the
evidence was extrinsic and its admission violated Federal Rule of
Evidence 404(b).2
DeLuna’s contention lacks merit. “An act is not extrinsic,
and Rule 404(b) is not implicated, where the evidence of that act
and the evidence of the crime charged are inextricably
intertwined.” United States v. Garcia, 27 F.3d 1009, 1014 (5th
Cir.), cert. denied, 115 S.Ct. 531 (1994)(quoting United States v.
Torres, 685 F.2d 921, 924 (5th Cir. 1982)).
The evidence of DeLuna’s participation in the transit of a
bale of marijuana in Louisiana in March of 1994 was not extrinsic
evidence because it was inextricably intertwined with the evidence
2
Rule 404(b) provides in part: “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.”
21
of the charged criminal conspiracy going on at that time and was
relevant to DeLuna’s knowledge and voluntary participation in the
conspiracy. See Garcia, id. Under all of the circumstances of
record, it could reasonably be inferred that the 54-pound bale of
marijuana seized was part of a larger load of marijuana that was
transported from Laredo to Dallas. DeLuna does not contest the
evidence indicating that he assumed a central role throughout the
charged conspiracy by driving, storing, loading, and delivering
loads of marijuana and instructing others in connection with the
conspiracy. In fact, Joe Chavez indicated that DeLuna continued to
actively involve himself in the charged conspiracy by storing 200
pounds of marijuana at his house shortly preceding DeLuna’s
Louisiana arrest in March of 1994. Under the circumstances, a
reasonable inference may be drawn that DeLuna’s involvement in
transportation of marijuana in March 1994 was part of the ongoing
charged conspiracy. Prior to this DeLuna had been involved in
numerous shipments of marijuana from Laredo to Dallas. DeLuna was
arrested and the marijuana was seized 300 miles from Dallas on
Interstate 20, the primary east-west artery serving that city. The
driver of the vehicle that DeLuna occupied was identified at trial
by the Louisiana State Trooper as Selso Pena. Juan Barraza linked
Selso Pena to the conspiracy during Barraza’s testimony describing
his own extensive involvement in the charged conspiracy. Barraza
testified that Pena assisted him and Pablo DeLuna in searching for
22
marijuana in a field near Laredo, Texas in late January 1994. The
method employed in transporting the drugs in the March, 1994
episode was consistent with the manner used repeatedly during the
charged conspiracy, i.e., two vehicles were used, with one carrying
the drugs and the other serving as an escort or decoy. Louisiana
State Trooper Stephens testified that the vehicle in which DeLuna
was an occupant, the “escort” vehicle, was being operated in a
strange manner. He testified that before he stopped it, the
vehicle’s speed was erratic and it was swerving all over the road.
Considering all of these factors, we conclude that the evidence of
DeLuna’s acts in March, 1994 were not extrinsic, and Rule 404(b) is
not implicated, because that evidence and the other evidence of the
crime charged are so similar and inextricably intertwined as to
form a part of the same ongoing conspiracy.
D. PROSECUTORIAL MISCONDUCT
Armando Trevino contends that the trial court committed plain
error in allowing the government to comment on his presumption of
innocence, to argue that it had secret knowledge of his guilt, to
argue that he victimized the jury by putting them through a two-
week trial, and to comment on his failure to testify. Juan Trevino
contends that the prosecutor improperly argued to the jury that the
attorney for a key defense witness did not believe the witness’s
statement that Juan Trevino was not involved in the conspiracy.
Armando Trevino’s contention is manifestly without merit. He
23
asserts that the prosecutor’s statement at closing argument that
“we’re going to spend two years of investigation and two weeks of
trial to get these guys” constitutes plain error. A prosecutor’s
remarks to the jury constitute reversible error only when they are
so improper so as to effect the appellants’ substantial rights.
United States v. Lowenberg, 853 F.2d 295, 301 (5th Cir. 1988). In
determining whether improper remarks affect a defendant's
substantial rights, the court should consider: (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. United States v. McPhee, 731 F.2d 1150,
1152 (5th Cir. 1984). "A conviction should not be set aside if
the prosecutor's conduct . . . did not in fact contribute to the
guilty verdict and was, therefore, legally harmless." United
States v. Beckett, 706 F.2d 519, 520 (5th Cir. 1983). See also
United States v. Rodriguez, 43 F.3d 117, 124 (5th Cir.), cert.
denied, 115 S.Ct. 2260 (1995) (“To warrant reversal of a
conviction, prosecutorial misconduct must be so pronounced and
persistent that it casts serious doubts upon the correctness of the
jury’s verdict.”)(citation omitted). Moreover, “the closing
argument must be analyzed in the context of the entire trial to
determine whether it affected substantial rights of the accused.”
Rodriguez, id. (citing United States v. Young, 470 U.S. 1, 11, 105
S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985)).
24
Applying the above precepts to Armando Trevino’s contention,
we find that the prosecutor’s remarks clearly do not rise to a
level that requires reversal. Abundant evidence was introduced at
trial demonstrating Armando Trevino’s role as an active participant
in an extensive drug conspiracy. Further, the prosecutor’s remarks
were not exceedingly prejudicial. Significantly more egregious
remarks have not formed the basis for reversal by this court. See
e.g., United States v. Frascone, 747 F.2d 953, 957-58 (5th Cir.
1984)(where the prosecutor’s remarks at closing “[l]et me point out
something to you, Ladies and Gentleman. I take an oath to see that
justice is done. They take an oath to represent their client
zealously” did not form the basis for reversal).
Similarly, Juan Trevino’s argument is not persuasive. His
assignment of error is based on remarks made by the prosecutor
during her closing argument concerning a letter from defense
witness Fernando Quiroz’s attorney to Quiroz that was introduced to
impeach Quiroz’s testimony that he had been offered a four-year
plea agreement for his cooperation. In admitting the letter into
evidence, the court required that the following sentence be
deleted: “Remember that at the last interview we had with
assistant U.S. attorney Simms [sic] that interview ended with you
lying to her about her questions regarding [Juan Trevino].” The
balance of the letter suggested that Quiroz would greatly benefit
by cooperating with the Government and that it was possible that
25
his sentence could be reduced to four and one-half to six years.
The prosecutor’s remarks made in closing argument in reference to
the letter that Juan Trevino asserts constituted reversible error
were as follows:
[T]here’s a letter in evidence that I want you folks to read
from his lawyer trying to convince him to tell the truth. And
you know what the sticking point is? I may not be quoting
this verbatim, I don’t see that letter right now, he wants it
in writing that I’ll help him out and that I’ll get him out of
jail before he has to testify. That’s his problem. That’s
what Fernando Quiroz wants and we wouldn’t agree to it.
That’s what he’s upset about. It doesn’t have anything to do
with loyalty to his buddies and just coming in here and
telling the truth. He could not get what he wanted and he’s
lied. And his attorney is trying to talk to him about do
something here [sic]. You are in trouble. Help yourself out.
Tell them the truth. Don’t insist on this conspiracy stuff
....
It is difficult to infer anything prejudicial or harmful to Juan
Trevino’s case from these remarks. In the context of the above
remarks Juan Trevino’s name was not mentioned. The jury was not
shown or told of the deleted portion of the letter written by
Quiroz’s attorney. Consequently, we are not persuaded by Trevino’s
contention that the prosecutor’s remarks “effectively” communicated
to the jury that Quiroz’s attorney believed that Quiroz had lied to
the U.S. attorney about Juan Trevino. Moreover, as with respect to
Armando Trevino, copious evidence was introduced at trial
supporting Juan Trevino’s conviction.
26
E. THE ALLEN CHARGE
Armando Trevino and Pedro Sanchez contend that the district
court erred in giving an “Allen” charge to the jury.3 This
contention is meritless. The standard of review is abuse of
discretion. United States v. Lindell, 881 F.2d 1313, 1320-21 (5th
Cir. 1989); United States v. Nichols, 750 F.2d 1260, 1266 (5th Cir.
1985). We examine the Allen charge for compliance with two
requirements: "(1) the semantic deviation from approved 'Allen'
charges cannot be so prejudicial to the defendant as to require
reversal, and (2) the circumstances surrounding the giving of an
approved 'Allen' charge must not be coercive." Lindell, id.
(citing United States v. Bottom, 638 F.2d 781, 787 (5th Cir. 1981)
(citing United States v. Bailey, 468 F.2d 652 (5th Cir. 1972),
aff'd en banc, 480 F.2d 518 (5th Cir.1973))).
The charge used by the trial court meets the first criteria;
it substantially comports with the pattern modified Allen charge
language repeatedly approved by this Court. See, e.g., United
States v. Nguyen, 28 F.3d 477, 485 (5th Cir. 1994); United States
v. Pace, 10 F.3d 1106, 1122 (5th Cir. 1993); United States v.
Lindell, 881 F.2d 1313, 1321 (5th Cir. 1989); United States v.
Kelly, 783 F.2d 575, 576-77 (5th Cir.), cert. denied, 479 U.S. 889
3
The term "Allen charge" refers to Allen v. United States, 164
U.S. 492 (1896). It is used in reference to supplemental
instructions urging a jury to forego their differences and come to
a unanimous decision.
27
(1986).
In evaluating the totality of the circumstances surrounding
the use of the charge, we proceed on a case by case basis.
Lindell, 881 F.2d at 1321. In this case, the jury retired to
deliberate on a Thursday at 4:00 p.m. On the following day at 2:05
p.m. the jury sent a note stating that they were deadlocked. Over
the objections of defense counsel, the modified Allen charge was
given to the jury. The jury returned its verdict finding all five
of the appellants guilty on the conspiracy count the following
Monday at 8:54 a.m. In the context of this case, we perceive no
evidence of coercion to justify reversal. The district court
informed the jury that each juror should remain true to his or her
own conscience, that they could take as much time as they needed to
reach a verdict, and expressed no opinion as to what kind of
verdict the court preferred. Moreover, contrary to appellants’
assertion, the fact that a verdict is rendered relatively soon
after an Allen charge is given is not necessarily evidence of a
coercive atmosphere. See United States v. Bottom, 638 F.2d 781,
788 (5th Cir. 1981)(three hour time span between Allen charge and
verdict was not unduly short).
F. SENTENCING
Juan Trevino, Armando Trevino, Pedro Sanchez, and Jorge
Espinoza all assign points of error involving their sentencing.
Because we find no merit in Juan Trevino’s, Armando Trevino’s, and
28
Pedro Sanchez’s sentencing arguments, we reject them without
further comment.
With regard to Jorge Espinoza, the district court attributed
2100 pounds of marijuana in sentencing him. A district court’s
findings about the quantity of drugs attributed to a defendant are
factual findings subject to a clearly erroneous standard of review.
United States v. Rivera, 898 F.2d 442, 445 (5th Cir. 1990).
At Espinoza’s sentencing, the district court based its 2100
pound finding solely on DEA agent Routh’s recollection of trial
testimony that Espinoza transported 7 shipments of marijuana which
averaged 300 pounds. One of the seven loads counted against
Espinoza was the shipment of October 5, 1993, which resulted in the
arrest of Espinoza and Pedro Sanchez and the seizure of 282 pounds
of marijuana. Espinoza does not contest the estimated per load
weight of 300 pounds used to calculate the amount of drugs
attributable to him. He does assert, however, that in addition to
the load seized pursuant to his arrest on October 5, 1993, the
record does not support that he participated in six other shipments
of drugs. Espinoza specifically attacks Routh’s recollection of
the trial testimony of Joe Chavez, Juan Barraza, and Hipolito
Ortiz.
As both Espinoza and the Government concede, the testimony of
Joe Chavez, Juan Barraza, and Hipolito Ortiz constitutes all of the
record evidence on this issue and is thus determinative of the
29
quantity of drugs attributable to Espinoza. The record reveals
that Ortiz testified that, to his knowledge, there were only five
marijuana shipments involving Border Freight trucks, that Ortiz
identified Espinoza as the driver on only two of those shipments,
and that on the three other trips the driver was Fred Tejeda.
Chavez knew of only two deliveries that Espinoza made using Border
Freight trucks. Juan Barraza testified that he knew of only one
Border Freight trip where Espinoza was involved. No evidence was
introduced as to whether Espinoza knew of or was acquainted with
Fred Tejeda, the other Border Freight truck driver, in any way.
Despite our deference to the district court, we agree with
Espinoza that Routh’s recollection of the evidence at Espinoza’s
sentencing hearing was inaccurate and the district court in relying
solely on Routh’s testimony clearly erred in attributing 2100
pounds of marijuana to Espinoza. The record contains only five
references to Espinoza as a transporter of drugs; the two occasions
each testified to by Ortiz and Chavez and the one time testified to
by Barraza. One of the incidents Chavez referred to was the
October 5 arrest and seizure of 282 pounds of marijuana.
Therefore, at maximum, the record supports the attribution of 1482
pounds of marijuana to Espinoza. Accordingly, the sentence must be
vacated and Espinoza’s case remanded for resentencing.
CONCLUSION
For the reasons assigned, each defendant-appellant’s
conviction is AFFIRMED, and each of their sentences is AFFIRMED,
30
except for Espinoza’s sentence, which is VACATED, and his case is
remanded for purposes of resentencing.
31