IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 96-20149
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR JAVIER GARCIA, also known
as Cowboy,
Defendant-Appellant.
________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(CR-H-94-288-1)
________________________________________________
July 15, 1997
Before GARWOOD, DeMOSS and STEWART, Circuit Judges.*
GARWOOD, Circuit Judge:
Defendant-appellant Cesar Javier Garcia (Garcia) appeals his
conviction and sentence for conspiracy to possess with intent to
distribute more than one hundred kilograms of marihuana. We
affirm.
Facts and Proceedings Below
*
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this opinion should not be published and is not precedent except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.
On February 3, 1994, Alex Mata (Mata) entered into a written
agreement with the Harris County District Attorney’s Office and
Houston Police Department (State) whereby Mata——who had a criminal
history and had pending at the time a state felony charge for
delivery of marihuana——agreed to assist the State with the arrest
and charging of Garcia for aggravated robbery or conspiracy to
commit aggravated robbery.1 To accomplish this goal, the State
along with federal authorities set up a “sting” operation in which
Mata would play the role of a middleman between Garcia (the buyer)
and Crisanto Perez (Perez), an undercover special agent with the
Bureau of Alcohol, Tobacco, and Firearms who posed as a marihuana
seller from the Rio Grand Valley in South Texas. The plan called
for Garcia and Mata to arrange a sham marihuana buy with Perez so
that Garcia could find out where the marihuana was being stored,
allowing him to steal the drugs for resale.
As planned, in late April of 1994 Mata approached Garcia and
told him that Perez had 1,000 pounds of marihuana and was looking
for a potential buyer. Garcia told Mata that he was interested in
working with him and provided Mata with his telephone number and
pager number. Beginning in May of 1994, Mata began secretly
recording conversations he had with Garcia over the telephone and
in person. In these conversations, Garcia continued to express
1
In exchange for Mata’s assistance, the State agreed to dismiss
Mata’s pending marihuana charge and agreed not to revoke his
parole. Also, prior to Garcia’s trial, the State paid Mata’s
relocation expenses totaling approximately $3,500.
2
interest in the sham transaction and indicated that his “compadre”
Jose Alcantar (Alcantar), also known as Joe Diamond or Diamond Joe,
would assist in the operation.2
On June 30, 1994, Mata and Perez met with Alcantar at
Michael’s International Nightclub in the southwest area of Houston.
Also present with Alcantar at the nightclub were Garcia and several
other men. Mata went over to the table at which Alcantar, Garcia,
and others were sitting and, a short while later, returned to
Perez’s table with Alcantar. Alcantar told Perez that he was
interested in purchasing 250 pounds of marihuana, and Alcantar and
Perez agreed on a price of $550 per pound. In accordance with
Garcia’s instructions, Alcantar then followed Perez to the
warehouse where the marihuana was being stored so that Alcantar
could inspect the drugs. After testing the marihuana, Alcantar
approved of its quality and requested that the transaction take
place the next day.3
Over the next several days Garcia, Alcantar, and Mata remained
in contact with one another and had numerous discussions pertaining
primarily to the location of the marihuana, the amount of marihuana
that remained in the warehouse, and the timing of the robbery. At
2
Mata also secretly recorded conversations he had with
Alcantar.
3
As part of the undercover operation, police officers had
placed 1,000 pounds of marihuana in a warehouse so that Alcantar
could inspect the drugs. They also set up hidden video cameras to
record the meeting and any subsequent robbery attempts.
3
one point during this time, Mata informed Garcia that the quantity
of marihuana stored in the warehouse had increased to 1,400 pounds.
On July 20, 1994, Mata and Alcantar tried unsuccessfully to contact
Garcia. Alcantar called Mata that same day and told Mata that he
wanted to go ahead with the robbery without Garcia. Apparently,
Alcantar “said he already talked to Cesar and it was no problem
with Cesar.” In the early morning hours of July 21, 1994, Mata,
Alcantar, and several other men drove to the warehouse with the
intention of stealing the marihuana. Alcantar and two of his
cohorts, Julian Mata, Jr. and Norberto Coronado, drove in one
vehicle while six other men followed in a grey van.4 Unbeknownst
to the would-be thieves, the warehouse was then empty, as the
police had previously transported the drugs to a different
location.
When they arrived at the warehouse, one of the men in the van
hooked up a steel chain to the garage door of the warehouse and,
with the other end of the chain connected to the van, proceeded to
pull the door off the warehouse. Much to their dismay, the entire
load of marihuana was gone. As they attempted to flee, SWAT
officers swarmed the area and arrested the six men who had arrived
in the van.5 Four weapons were seized from the van, including
4
The individuals in the van were Robert Luis Gonzalez, Rogelio
Mata, Juan Mata, Adrian Mata, Joe Luis Lerma, and Raymond Palomo
Trevino.
5
Hidden video cameras captured the botched robbery on tape.
4
three 9mm pistols, a .38 caliber pistol, and several rounds of
ammunition. Alcantar and the two men in his car, who had left the
area before the SWAT team arrived, were all arrested a few days
later.
On July 24, 1994, Mata and an acquaintance were driving on a
Houston road when Garcia, who was driving his family to a shooting
range, pulled up next to Mata’s vehicle, pointed a gold-plated .45
caliber semi-automatic pistol at Mata, and shouted a threat.
Mata’s vehicle accelerated quickly away. Mata provided the police
with a description of Garcia’s vehicle and weapon. On July 25,
1994, police officers arrested Garcia after they spotted him
driving a vehicle that matched Mata’s description. The officers
found in the glove compartment of his car the gold-plated pistol
that Mata alleged Garcia had pointed at him.
On December 2, 1994, Garcia was charged by indictment with
conspiracy to possess with intent to distribute marihuana (count
one) in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846,
and aiding and abetting the use and possession of a firearm during
and in relation to a drug trafficking offense (count two) in
violation of 18 U.S.C. § 924(c).6 On October 19, 1995, a jury
found Garcia guilty on count one but not guilty on count two. On
February 5, 1996, Garcia was sentenced to 160 months in prison, 5
6
Charged in the same indictment were codefendants Alcantar,
Julian Mata, Jr., Norberto Coronado, Robert Luis Gonzalez, Rogelio
Mata, Juan Mata, Adrian Mata, Joe Luis Lerma, and Raymond Palomo
Trevino. All defendants except Garcia pleaded guilty.
5
years of supervised release, and fined $5,000.
Discussion
Garcia raises numerous arguments on appeal. Specifically, he
alleges that (1) the method of selecting jurors in the Houston
Division of the Southern District of Texas systematically excludes
Hispanics; (2) the agreement between the government informant and
the State violated due process; (3) the evidence was insufficient
to support his conviction for conspiracy to possess with intent to
distribute marihuana; (4) the district court improperly instructed
the jury on his withdrawal defense; (5) the district court abused
its discretion by declining to instruct the jury on multiple
conspiracies; and (6) the district court erred when it calculated
the amount of marihuana attributable to him for sentencing purposes
and when it increased his offense level based on obstruction of
justice and his leadership role in the conspiracy. We address each
argument in turn below.
1. Jury Selection Process
Garcia contends that the method of selecting jurors in the
Houston Division of the Southern District of Texas systematically
excludes Hispanics in violation of the Sixth Amendment to the
United States Constitution and the Jury Selection and Service Act
of 1968, 28 U.S.C. §§ 1861-1878 (Jury Act). Under the current
system employed by the Houston Division, the jury wheel from which
both grand and petit jurors are selected is generated by selecting
6
names exclusively from voter registration lists. Garcia contends
that because at least 13% of the Hispanics in the Division are
eligible to serve as jurors but only 7.5% of Hispanics actually
register to vote, the current system does not produce grand and
petit juries that represent a fair cross-section of the community.
Garcia believes that the Division has available and should use a
list of registered voters and licensed drivers that would,
according to Garcia, more accurately reflect the racial composition
of the Division.7
Under both the Sixth Amendment and the Jury Act, litigants are
entitled to have their grand and petit juries drawn from a fair
cross-section of the community in the district or division where
the court convenes. United States v. McKinney, 53 F.3d 664, 670-71
(5th Cir.), cert. denied, 116 S.Ct. 261 (1995). In order to make
a prima facie showing that his right under the Sixth Amendment to
have a jury drawn from a fair cross-section has been violated,
7
In ruling on Garcia’s Motion to Dismiss Because of Improper
Selection of Grand and Petit Jury, the district court below adopted
the conclusions of law and findings of fact entered in a similar
case, United States v. Rodriguez, Cr. No. H-94-216 (S.D. Tex.).
The parties in this case submitted all of the evidence and the
transcript of the hearing in the Rodriguez case as evidence to the
district court. In addition to the evidence from the Rodriguez
case, the court below also considered the testimony of Ray Hardy
(Hardy), a former District Clerk of Harris County who was involved
in the development of Texas’s new jury selection system, which now
includes drivers license lists. Hardy testified that the main
motivation behind this change was a perception that many people
were purposefully avoiding jury service by choosing not to register
to vote.
7
Garcia must demonstrate that (1) the group he claims is being
excluded is a “distinctive” group within the community; (2) the
group’s representation in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons
in the community; and (3) this underrepresentation is caused by
systematic exclusion of the group in the jury selection process.
Duren v. Missouri, 99 S.Ct. 664, 668 (1979). The distinctive group
consists of the pool of individuals in that division who are
eligible to serve as jurors and not the group’s total population in
the community.8 United States v. Fike, 82 F.3d 1315, 1321 (5th
Cir.), cert. denied, 117 S.Ct. 241 (1996). A trial court’s factual
determination that there is no systematic exclusion of minority
members from the venire is reviewed for clear error. United States
v. Sotelo, 97 F.3d 782, 790 (5th Cir. 1996), cert. denied, 117
S.Ct. 1002 (1997).
In United States v. Maskeny, 609 F.2d 183 (5th Cir.), cert.
denied, 100 S.Ct. 3010 (1980), we held that in order to determine
whether there has been a violation of the Sixth Amendment we must
look to the “absolute disparity” between the proportion of members
of an identifiable class in the community and its representation in
8
In order to serve on a jury, one must be a citizen of the
United States, at least 18 years old, be able to understand, read,
speak, and write English, not suffer from a mental and physical
infirmity, and not have a charge pending against him or her or have
a conviction of a crime punishable by imprisonment of more than one
year. 28 U.S.C. § 1865(b).
8
venires from which juries are selected.9 Id. at 189-90. In so
holding, we rejected the defendants’ argument that we should base
our Sixth Amendment analysis on data derived from other statistical
methods, such as comparative disparity and standard deviation. Id.
at 190. The Court went on to conclude that because the absolute
disparity “between the percentage of each allegedly ‘distinctive’
group in the community and the percentage of that group . . .
ending up on the qualified wheel is less than ten percent,” the
defendants did not make out a Sixth Amendment violation. Id.; see
also United States v. Butler, 611 F.2d 1066, 1069-70 (5th Cir.),
cert. denied, 101 S.Ct. 97 (1980). Since Maskeny, many other
courts have similarly held that an absolute disparity of less than
10% alone is not enough to demonstrate underrepresentation under
the Sixth Amendment. See, e.g., United States v. Joost, 94 F.3d
640 (tab.), No. 95-2031, 1996 WL 480215, at *8 (1st Cir.), cert.
denied, 117 S.Ct. 408 (1996); United States v. Grisham, 63 F.3d
1074, 1078-79 (11th Cir. 1995), cert. denied, 116 S.Ct. 798 (1996);
United States v. Ashley, 54 F.3d 311, 313-14 (7th Cir.), cert.
denied, 116 S.Ct. 232 (1995); see also United States v. Hawkins,
9
Absolute disparity measures the difference between the
percentage of a distinctive group in a certain population and the
percentage of that group in a subset of that population. In the
jury selection context, this figure is generally achieved by
subtracting the percentage of a group on the jury wheel from the
percentage of persons within that group who are eligible to serve
as jurors. See United States v. Esquivel, 88 F.3d 722, 726 (9th
Cir.), cert. denied, 117 S.Ct. 442 (1996).
9
661 F.2d 436, 442 (5th Cir. 1981).
We reiterated our less-than-ten-percent standard in United
States v. Butler, 615 F.2d 685 (5th Cir. 1980) (per curiam)
(denying petitions for rehearing and rehearing en banc). In
Butler, we clarified our prior panel opinion by explaining that
“[w]e did not wish to imply that the absolute disparity
method is the sole means of establishing unlawful jury
discrimination. However, given the small absolute
disparities proven and the fact that a ‘less-than-10
percent minority’ was not at issue, we did not feel
consideration of other statistical methods was necessary
in this case.”10 Butler, 615 F.2d at 686.
10
Garcia asserts that this Court should abandon the absolute
disparity test and should adopt either the comparative disparity
model or the disparity of risk model. Under the comparative
disparity model, which focuses on the percentage difference between
the proportion of the distinctive group eligible to serve as jurors
and the shortfall in that group’s representation, the disparity
would amount to approximately 42%. See United States v. Hafen, 726
F.2d 21, 23-24 (1st Cir.), cert. denied, 104 S.Ct. 2179 (1984).
Garcia contends that the comparative model is especially important
in situations, such as in this case, where the minority group is so
small that it would be difficult to meet the 10% minimum under the
absolute disparity model. The disparity of risk model measures the
statistical frequency of underrepresentation of the distinctive
group on juries, which in this case would be approximately 35%.
Under either of these alternative models, the disparity would be
substantially greater than the 4.8% disparity under the absolute
disparity model. See infra.
As a threshold matter, we do not agree with Garcia’s assertion
that the comparative disparity model provides a more accurate
assessment of underrepresentation than does the absolute disparity
model. See Hafen, 726 F.2d at 23-24 (explaining that “the smaller
the group is, the more comparative disparity figure distorts the
proportional representation”). Moreover, most courts have rejected
requests by litigants to abandon the absolute disparity model in
favor of one of the alternative disparity models. See, e.g.,
Joost, 1996 WL 480215, at *8; Esquivel, 88 F.3d at 726; Ford v.
Seabold, 841 F.2d 677, 684 & n.5 (6th Cir.), cert. denied, 109
S.Ct. 315 (1988); United States v. Rodriguez, 776 F.2d 1509, 1511
(11th Cir. 1985); Hafen, 726 F.2d at 23. However, even assuming,
10
See also Rodriguez, 776 F.2d at 1511 n.4 (stating that “[a]lthough
the absolute disparity method is not the sole means of establishing
unlawful jury discrimination, where small absolute disparities are
proven, as in this instance, and the minority group involved
exceeds ten percent of the population, which is also the case in
this challenge, it is not necessary to consider other statistical
methods”).
The parties do not dispute the fact that the percentage of
Hispanics eligible to serve as jurors in the Division exceeds 10%;
thus, we need only consider the absolute disparity between the
percentage of Hispanics eligible to serve on juries and the
percentage of Hispanic registered voters in the Division.11
arguendo, that we considered the comparative disparity or disparity
of risk model to be superior to the absolute disparity model, we
would nevertheless be precluded from adopting either of these
alternative models today, as we are bound by Maskeny and Butler
absent a Supreme Court decision or an en banc decision by this
Court indicating otherwise. See United States v. Pettigrew, 77
F.3d 1500, 1511 n.1 (5th Cir. 1996).
11
Neither party opposes using the percentage of adult Hispanic
citizens as a substitute for the percentage of Hispanics eligible
to serve on juries, even though jury service requires more than
simply being an adult citizen (e.g. a degree of proficiency in
English). Also, both parties wholly adopt the data produced in
Rodriguez despite the fact that the Rodriguez case used statistical
evidence gathered on both the Houston and Galveston Divisions,
while this case only involves a challenge to the selection system
in the Houston Division.
Moreover, as discussed in footnote 9, supra, absolute
disparity figures are generally calculated by taking the difference
of the percentage of persons within a group who are eligible to
serve as jurors and the percentage of that group on the jury wheel.
The court below, as did the district court in Rodriguez, calculated
absolute disparity by subtracting the percentage of adult Hispanic
11
According to two of the experts who provided jury data analysis to
the district court in Rodriguez, Professors John R. Alford and
Robert M. Stein of Rice University, 7.7% of the registered voters
in the Houston and Galveston Divisions are Hispanic, while the
percentage of Hispanic adult citizens in the same Divisions is
12.4%.12 Another expert, Professor Kent L. Tedin of the University
of Houston, opined that the percentages of Hispanic registered
voters and adult Hispanic citizens are closer to 7.6% and 12.8%,
respectively. The court found——and we do not consider the finding
to be clearly erroneous——that the 7.6% and 12.4% figures best
reflect the actual percentages, and concluded that the 4.8%
disparity unequivocally demonstrates that the jury selection system
does not result in an underrepresentation of Hispanics on the jury
wheel.13 Thus, because the percentage of Hispanics eligible to
serve as jurors in the Division clearly well exceeds 10% and the
absolute disparity between the percentage of Hispanic registered
citizens from the percentage of Hispanic registered voters. The
parties did not object below nor do they object on appeal to using
percentages of registered voters instead of percentages of
Hispanics on the jury wheel to determine underrepresentation. In
any event, nothing in the record indicates that the percentage of
Hispanics who register to vote is any different from the percentage
of Hispanics who appear on the jury wheel.
12
Professors Alford and Stein also found that 7.46% of the
persons called to serve on grand juries were Hispanic, 7.28% of the
persons who appeared were Hispanic, and 7.34% of the persons who
were selected were Hispanic.
13
The court decided to use the 7.6% figure because it was more
favorable to Garcia.
12
voters and the percentage of Hispanics eligible to serve on juries
is substantially less than 10%, we hold that Garcia has not made a
prima facie case of underrepresentation under the Sixth Amendment.14
Likewise, Garcia’s Jury Act challenge also lacks merits. To
show that the method of selecting jurors in the Houston Division is
not in conformity with the requirements of the Act, Garcia must
establish that there is a substantial failure to comply with the
Act’s provisions. 28 U.S.C. § 1867. Technical violations that do
not affect the random nature or objectivity of the selection
process do not constitute a substantial failure to comply. See
United States v. Brummitt, 665 F.2d 521, 528 (5th Cir. 1981), cert.
denied, 102 S.Ct. 2244 (1982).
Garcia has failed to make the necessary showing. The Jury Act
itself expressly authorizes the adoption of a jury plan under which
potential jurors are selected exclusively from voter registration
lists; additional sources are only required if necessary to protect
rights secured by the statutory scheme involved. See 28 U.S.C. §
1863(b)(2). The legislative history of the Act “suggests that
Congress, rather than disapproving the element of nonrandomness
implicit in any form of self-screening, wanted people who lacked a
sense of civic obligation not to serve on federal juries, unless
14
Moreover, even if we were to accept Garcia’s exaggerated
figures of 7.5% and 13%, the absolute disparity would still amount
to only a 5.5% difference, far shy of the 10% minimal disparity
needed under Maskeny and Butler.
13
the number of ‘no-shows’ was so great that the qualified jury wheel
could not be filled up. In that event, but only in that event, the
clerks could be expected to use the coercive powers that the Act
gave them.” United States v. Gometz, 730 F.2d 475, 480 (7th Cir.),
cert. denied, 105 S.Ct. 155 (1984). Hence, the “failure of an
identifiable group to register and vote does not render invalid the
selection of jurors from a voter registration list.” Brummitt, 665
F.2d at 529; see also United States v. Apodaca, 666 F.2d 89, 92-93
(5th Cir.), cert. denied, 103 S.Ct. 53 (1982); United States v.
Arlt, 567 F.2d 1295, 1297 (5th Cir.), cert. denied, 98 S.Ct. 2250
(1978).
We do not consider the district court’s finding that the
current selection system “is advantageous because it results in the
selection of individuals over 18 years and those who are citizens
of the United States, both of which are qualifications for jury
service,” to be clearly erroneous. Additionally, “[t]he use of
voter lists as a source insures that individuals who are interested
enough in their community to register to vote will be able to serve
as jurors.” Nothing in the record compels us to conclude that the
court clearly erred in its determination that the current system
“is unbiased at each of its selection points” and that “[t]he
selection process is racially and ethnically neutral and is not
susceptible to being used as a tool of discrimination.”
Furthermore, Garcia has not explained how a jury selection
14
system based on both voter registration and drivers license lists
would produce a jury wheel that would be more reasonable than that
generated under the current system. Indeed, as evidenced by the
testimony of Hardy given at the pre-trial hearing, such a system
would likely be overly inclusive, as many people who would
otherwise qualify for a drivers license would not be eligible to
serve on juries. According to Hardy, Texas’ drivers license
selection scheme so far has proven to be largely ineffective
primarily because persons who have felony convictions or are not
United States citizen——qualities making them ineligible for jury
service——routinely are included on the list used by the County
Clerk to compose the jury wheel. Conversely, with the one obvious
exception that citizens who are unable to read, write, and speak
English can vote but cannot serve as jurors, the qualifications
needed to vote and to serve on juries are substantially similar.
Although arguably under certain circumstances it may be
appropriate to supplement voter registration lists with some other
source, such as drivers license lists, in order to protect the
rights secured by the Jury Act, this is plainly not such a case.
Garcia does not allege, nor is there any evidence tending to show,
that the jury list is selected in a nonrandom manner or that there
has been any finagling at any stage of the selection process. The
district court in essence found that this was not the situation,
and nothing in the record suggests error in that finding. For
these reasons and the reasons stated earlier, we conclude that
15
Garcia’s jury selection challenges fail on both Sixth Amendment and
Jury Act grounds.15
2. Mata’s Agreement With the State
Garcia claims that his due process rights were violated by the
State’s use of Mata, who was an informant and testified as a
government witness at Garcia’s trial. Garcia insists that the
“contingency fee” agreement resulting in Mata’s testimony offended
the Due Process Clause and that the district court erred by denying
his motion to dismiss the indictment or suppress evidence gathered
by Mata. In support of his argument, Garcia relies chiefly on
Williamson v. United States, 311 F.2d 441 (5th Cir. 1962), cert.
denied, 85 S.Ct. 1803 (1965), in which this Court established a per
15
In the district court below, Garcia objected to the jury
selection process on Fifth Amendment grounds in addition to his
Sixth Amendment and Jury Act challenges. On appeal, however, he
challenges the selection process exclusively on Sixth Amendment and
Jury Act grounds. His failure to brief his Fifth Amendment
challenge constitutes a waiver of that argument. See Graef v.
Chemical Leaman Corp., 106 F.3d 112, 115 n.2 (5th Cir. 1997).
However, even if we were to consider the merits of a Fifth
Amendment challenge to the jury selection process, we would
nevertheless conclude that such a claim would fail, as Garcia has
offered nothing but statistics to support his allegations of
discrimination, and these statistics are alone insufficient to
support a claim of intentional discrimination under the Fifth
Amendment. See Brummitt, 665 F.2d at 527 (stating that “[a] prima
facie case of discrimination cannot rest merely on statistics. The
fact that an identifiable minority group votes in a proportion
lower than the rest of the population and is therefore
underrepresented on jury panels presents no constitutional issues”)
(citations omitted). Moreover, Garcia has provided no evidence of
discriminatory intent in the selection process, and we regard the
lower court’s finding that the selection process is “unbiased” and
“racially and ethnically neutral” as well supported and not even
approaching clearly erroneous.
16
se rule that an informant paid a contingency fee is not a competent
witness.
There are numerous problems with Garcia’s argument. First,
Mata’s agreement was with the State of Texas, not with the federal
authorities who prosecuted Garcia. Indeed, Mata had no agreement
whatsoever with the federal government. Second, Mata’s contingency
fee agreement consisted of neither a contingency nor a fee. Under
the agreement, the State agreed not to revoke Mata’s parole, to
dismiss his marihuana charge, and to pay for relocation expenses,
which totaled approximately $3,500, in exchange for Mata’s
assistance in the successful “arrest and charging” of Garcia.16 The
benefits of the agreement were not contingent upon the successful
prosecution of Garcia. Also, this agreement did not involve
payment of any fees as consideration for Mata’s services; rather,
the consideration was for the State to drop the felony charge and
not revoke his parole. The only fees received by Mata——the
relocation expenses——were not paid as consideration for his
services and certainly were not contingent upon the government’s
getting a conviction against Garcia, as evidenced by the fact that
Mata was paid prior to Garcia’s trial.
Lastly, Garcia faces one final insurmountable hurdle: in
United States v. Cervantes-Pacheo, 826 F.2d 310 (5th Cir. 1987) (en
banc), cert. denied, 108 S.Ct. 749 (1988), we overruled Williamson,
16
Mata was relocated due to threats to his safety.
17
holding that “the credibility of the compensated witness, like that
of the witness promised a reduced sentence, is for a properly
instructed jury to determine. Accordingly, we overrule Williamson
and its per se exclusionary rule.” Id. at 316. As we explained in
Cervantes-Pacheo, an informant who is promised a contingency fee or
other benefits is not automatically excluded from testifying at
trial; rather, the matter should be left to the jury to consider in
weighing the credibility of the witness-informant. Id. at 315.
Certain procedural safeguards, however, must be employed in
connection with the use of the informant’s testimony:
“The government must not use or encourage the use of
perjured testimony; the government must completely and
timely disclose the fee arrangement to the accused . . .;
the accused must be given an adequate opportunity to
cross-examine the informant and government agents about
any agreement to compensate the witness; and the trial
court should give a special jury instruction pointing out
a suspect credibility of paid witnesses.” United States
v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994), cert.
denied, 115 S.Ct. 1113 (1995).
See also United States v. Pruneda-Gonzalez, 953 F.2d 190, 197-98
(5th Cir.), cert. denied, 112 S.Ct. 2952 (1992).
In the case sub judice, all of these procedural safeguards
have been satisfied. Garcia does not claim nor does the evidence
show that the government knowingly used or encouraged perjured
testimony; the government timely disclosed the agreement to the
defense; Garcia thoroughly cross-examined Mata at trial about his
agreement with the State; and the district court cautioned the jury
18
with a special instruction (as to which no complaint is made)
concerning Mata’s suspect credibility as a compensated or immunized
government informant. Reversal is not warranted based on Mata’s
involvement in this case.
3. Sufficiency of the Evidence
Next, Garcia argues that the evidence was insufficient to
support his conviction for conspiracy. Specifically, he contends
that he had no discussions with any of his codefendants, except for
Alcantar; the only evidence of those discussions was “puffing” on
his taped calls with Mata or between Mata and Alcantar; in the days
preceding the attempted robbery, he repeatedly failed to return
calls from Mata and Alcantar; and he did not go with his
codefendants to the warehouse.
In considering Garcia’s sufficiency of the evidence claim, we
view the evidence presented and all inferences that may be drawn
therefrom in the light most favorable to the jury’s verdict, and
decide whether any rational trier of fact could have found each
element of the crime beyond a reasonable doubt. United States v.
Resio-Trejo, 45 F.3d 907, 910-11 & n.6 (5th Cir. 1995). In a drug
conspiracy prosecution under 21 U.S.C. § 846, the government must
prove beyond a reasonable doubt (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. United States v.
19
Limones, 8 F.3d 1004, 1009 (5th Cir. 1993), cert. denied, 114 S.Ct.
1562 (1994); United States v. Maltos, 985 F.2d 743, 746 (5th Cir.
1992). A conspiracy can be established by circumstantial evidence,
that is, the jury frequently may infer its existence from a
defendant’s concert of action with others. United States v.
Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993), cert. denied, 114
S.Ct. 2150 (1994). The agreement and the defendant’s knowledge and
participation in the conspiracy may be inferred from the
“development and collocation of circumstances.” Maltos, 985 F.2d
at 746 (internal quotations and citation omitted).
The evidence shows, primarily through taped conversations and
Mata’s testimony, that Garcia repeatedly agreed to enter into the
conspiracy to steal amounts of marihuana ranging from 1,000 to
1,400 pounds; that Garcia recruited Alcantar to assist in the scam;
that Garcia scheduled the meeting between Alcantar and the seller;
that Garcia conferred with Alcantar prior to going to the warehouse
to inspect the marihuana; and that Garcia continued to show
interest in the days immediately before the attempted robbery.17
Viewing the evidence and all reasonable inferences therefrom in the
light most favorable to the verdict, we hold that there is amply
sufficient evidence for a reasonable jury to conclude that Garcia
actively participated in the conspiracy.
17
Other than through cross-examination of government witnesses,
the defense presented no evidence apart from a stipulation that
there was an outstanding arrest warrant for Mata.
20
4. Withdrawal Defense
Garcia next contends that the district court erred by refusing
to give a correct jury instruction on his withdrawal defense. He
complains that the instruction given unnecessarily narrowed the
jury’s consideration of activities that could have constituted
withdrawal. Also, he argues that the district court erred by
denying his request that the jury be instructed that if he proved
he withdrew from the conspiracy prior to the robbery he should be
found not guilty. The actual instruction, according to Garcia,
left open the possibility that the jury could have found him guilty
even if they believed that he withdrew from the conspiracy.
We review the lower court’s refusal to give a requested jury
instruction for abuse of discretion. United States v. Branch, 91
F.3d 699, 711 (5th Cir. 1996), cert. denied, 117 S.Ct. 1466 (1997).
We may reverse only if the requested instruction is substantially
correct, was not substantially covered in the charge as a whole,
and concerns an important point in the trial, the omission of which
materially impaired the defendant’s ability to present a given
defense effectively. United States v. Tannehill, 49 F.3d 1049,
1057-58 (5th Cir.), cert. denied, 116 S.Ct. 167 (1995).
The instruction given by the court on withdrawal was a correct
statement of the law and appears to have provided an adequate basis
for the defendant to argue that he was entitled to be found not
guilty based on that defense. Further, the instruction immediately
21
preceding the withdrawal instruction directed the jury that the
defendant must be a member of the conspiracy at the time that the
offense is committed in order to be responsible for the offense.
Hence, the jury was instructed that if it determined that Garcia
had withdrawn from the conspiracy at the time that the offense was
committed, it could not find him guilty of the conspiracy offense.
Furthermore, there was no evidence of withdrawal, and
certainly not of withdrawal before any overt act in furtherance of
the conspiracy. United States v. Nicoll, 664 F.2d 1308, 1315-16
(5th Cir.), cert. denied, 102 S.Ct. 2929 (1982). The district
court did not reversibly err in refusing to give the requested
instruction.
5. Multiple Conspiracy
Garcia argues that the district court erred in not giving the
jury his requested instruction on multiple conspiracies. He
asserts that the evidence “arguably” supports the existence of two
conspiracies, the first occurring before July 20 and the second
being the July 21 attempted robbery. Garcia contends that his
requested instruction, which stated that “to prove Count One, the
prosecution must prove beyond a reasonable doubt the conspiracy
alleged in the indictment . . . [and not a] different conspiracy,”
should have been given to the jury.
In considering whether a district court properly refused such
22
a requested jury instruction, this Court determines whether the
requested instruction was supported by the evidence. United States
v. Asibor, 109 F.3d 1023, 1036 (5th Cir. 1997). In determining
whether a multiple conspiracy instruction should be given, we
consider “the times, places, persons, offenses charged, and the
overt acts involved.” Id. (internal quotations and citations
omitted). The evidence shows that Garcia and Mata had several
conversations in which Garcia expressed his intent to steal the
entire load of marihuana from the warehouse, and although certain
minor details of the drug heist were unsettled, throughout the
entire conspiracy the single primary purpose of the conspiracy
never changed. Alcantar and the other codefendants all fully
participated in this same conspiracy, and nothing in the record
indicates that any of these codefendants were operating under a
different conspiracy. Accordingly, the district court did not err
in refusing to give the requested instruction because the evidence
does not reflect the existence of more than one conspiracy.
6. Sentencing Challenges
Garcia’s final argument on appeal is a challenge to his
sentence on three separate grounds. First, he argues that the
district court erred in determining the quantity of marihuana
attributable to him, as various quantities of marihuana were
discussed during the taped conversations ranging from 200 to 1,400
pounds. He contends that he should not be held accountable for the
1,500 pounds anticipated to be obtained during the July 21 robbery
23
attempt, but instead should be accountable for only 600-800 pounds.
This Court reviews a district court’s factual findings
concerning the quantity of drugs attributable to a defendant for
clear error. United States v. Maseratti, 1 F.3d 330, 340 (5th Cir.
1993), cert. denied, 114 S.Ct. 1096 (1994). A factual finding is
not clearly erroneous if it is plausible in light of the record of
the case as a whole. Id. During a taped telephone conversation 2
days before the robbery, Mata told Garcia that the seller had
brought in an additional 800 pounds of marihuana and that the
seller now had 1,400 pounds of marihuana. Garcia responded that
was fine and later that evening indicated that he had everything
ready to go for the next day. Thus, there was reliable evidence in
the record to support a finding that Garcia was personally aware
that the conspiracy involved 1,400 pounds of marihuana. The 100
pound difference was inconsequential with respect to the
calculation of Garcia’s base offense level. See U.S.S.G. §
2D1.1(c)(6). That is, the same guideline range would have been
produced by 1,400 (or 1,000) pounds as by 1,500 pounds. The
court’s finding was not clearly erroneous.
Second, Garcia contends that the district court erred in
denying his objection to the two-level upward adjustment for
obstruction of justice based on Mata’s allegation that on July 24,
a few days after the attempted robbery, Garcia pointed a pistol at
him and shouted a threat. Garcia asserts that he never threatened
Mata with the pistol.
24
The district court’s determination that a defendant obstructed
justice within the meaning of U.S.S.G. § 3C1.1 is reviewed for
clear error. United States v. Bethley, 973 F.2d 396, 402 (5th Cir.
1992), cert. denied, 113 S.Ct. 1323 (1993). In addition to hearing
the testimony of Mata at trial concerning the alleged threat, the
district court also heard the testimony of Garcia’s wife at the
sentencing hearing, who stated that she was with Garcia during the
alleged incident and that he never pointed the gun or made any
threats towards Mata. The court ruled against Garcia, stating that
it was making a credibility determination based on what it had
observed at trial and at the sentencing hearing. There is no basis
for finding that the district court’s credibility determination was
clearly erroneous. United States v. McAfee, 8 F.3d 1010, 1018 (5th
Cir. 1993). Thus, the district court did not clearly err in making
the adjustment for obstruction of justice.
Finally, Garcia complains that the district court erred in
denying his objection to the four-level upward adjustment for his
role as an organizer in criminal activity involving five or more
participants. He contends that he did not exercise decision-making
authority such as setting the quantity and prices and that his only
participation, besides his telephone conversations with Mata, was
his introduction of Alcantar to Mata. He also argues that he did
not recruit the other codefendants and there was no evidence that
he was involved in the planning of the robbery.
This Court reviews a district court’s determination that a
25
defendant held a supervisory role in an offense under U.S.S.G. §
3B1.1 for clear error. United States v. Musquiz, 45 F.3d 927, 932-
33 (5th Cir.), cert. denied, 116 S.Ct. 54 (1995). A defendant’s
offense level is increased by four levels if the defendant was an
organizer or leader of any criminal activity involving five or more
participants or was otherwise extensive. U.S.S.G. § 3B1.1(a).
Proof that the defendant supervised only one other culpable
participant is sufficient to make the defendant eligible for this
enhancement. United States v. Washington, 44 F.3d 1271, 1281 (5th
Cir.), cert. denied, 115 S.Ct. 2011 (1995). The evidence shows
that Garcia recruited Alcantar to carry out the scheme and
continued to oversee his activities. Alcantar recruited at least
six other men to participate in the robbery. The evidence was
sufficient to support the district court’s imposition of the
adjustment.
Conclusion
Based on the foregoing, we AFFIRM Garcia’s conviction and
sentence.
26