IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50757
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO SALINAS BRITO; ADRIAN BRITO;
JESUS SALINAS BRITO; ADAN BRITO; IGNACIO
BERUMEZ BRITO; BENJAMIN HERNANDEZ RODRIGUEZ,
Defendants-Appellants.
Appeals from the United States District Court for the
Western District of Texas
February 27, 1998
Before POLITZ, Chief Judge, and GARWOOD and BARKSDALE, Circuit
Judges.
GARWOOD, Circuit Judge:
Defendant-appellants Pablo Salinas Brito (Pablo), Adrian Brito
(Adrian), Jesus Salinas Brito (Jesus), Adan Brito (Adan), Ignacio
Berumez Brito (Ignacio), and Benjamin Hernandez Rodriguez
(Rodriguez)(collectively, appellants), were convicted of conspiracy
and various substantive offenses arising out of their drug
importation and distribution enterprise. On appeal, the appellants
raise various constitutional issues and challenge, inter alia, the
sufficiency of the evidence, the admissibility of certain evidence,
and the district court’s sentencing findings as to the amount of
marihuana involved in the offenses.
Facts and Proceedings Below
The appellants’ convictions are all related to a drug
smuggling organization (the Organization or the Brito gang) that,
according to the government’s evidence,1 over the course of several
months moved thousands of pounds of marihuana from Mexico to
Midland, Texas, where it was further distributed to other locations
in the interior of the United States. The Organization was
directed by the Britos, who oversaw the transportation and storage
of the drugs and actively participated in recruiting, supplying,
and escorting the drivers of the drug shipments.
In March 1995, the Organization was exposed when one of the
drug shipments was intercepted by law enforcement officers. In the
months that followed, more shipments were intercepted, and numerous
individuals recruited by the Brito gang were arrested. By late
November 1995, after numerous arrests and seizures, the smuggling
operation was effectively shut down and the conspiracy came to an
end. Appellants and other co-conspirators were charged together in
a twenty-count indictment and convicted by a jury in the Western
District of Texas. Much of the evidence at trial was provided by
co-conspirators who pleaded guilty and testified against
appellants.
The smuggling conspiracy began to unravel on March 15, 1995,
when a Border Patrol agent stopped a car near Marathon, Texas,
1
None of the appellants testified or presented any significant
evidence.
2
driven by Herb Groessel (Groessel). The car contained
approximately 448 pounds of marihuana destined for Midland, Texas.
After Groessel and his passengers, Richard Olson (Olson) and Misty
Wheeler, were arrested, they agreed to cooperate with law
enforcement officials by delivering the marihuana as planned.
Under the watchful eye of law enforcement agents, Groessel left the
car containing the drugs at his parents’ house in Midland. The
car was later picked up by Juan Leija, escorted by Angel Lerma;2 it
was Angel Lerma who had initiated this trip by giving Groessel
$2000 and instructing him to go to Boquillas, Mexico, to pick up
the drug load.
Groessel told law enforcement officers, and later testified at
trial, that he smuggled drugs for Pablo. Olson also believed that
he was smuggling drugs for Pablo. But despite their belief that
Pablo was the leader of the Brito gang and was behind their
smuggling trips, neither Groessel not Olson had much contact with
Pablo. Angel Lerma gave Groessel instructions on when and where to
go pick up the shipments, and upon returning to Midland he was paid
by Jesus and Adan in cocaine and cash. Groessel saw Pablo a couple
of times in Mexico while picking up drug loads, and on occasion
Pablo would act as a “jammer”3 for the marihuana loads.
Groessel testified that he ran drugs about eighty times and
2
As of trial, Angel Lerma was a fugitive from justice.
3
A jammer drives quickly ahead of the vehicle that is carrying the
marihuana load in an attempt to direct attention away from that
vehicle and onto himself.
3
transported cash twice for Angel Lerma and Pablo. Olson, on the
other hand, was a novice and had just started smuggling drugs two
weeks before he was arrested. He testified that he had once
accompanied Groessel to Mexico in order to pick up a load of drugs,
but for one reason or other, they did not receive the drug load and
returned empty-handed. On at least one other occasion, however,
Groessel and Olson did manage to successfully transport a load to
Merkel, Texas.
On July 9, 1995, police officers made another drug bust. Juan
Munoz (Munoz), a confidential informant, told Odessa Police that he
was carrying forty-eight pounds of marihuana for delivery in
Midland. Police followed Munoz, who was driving a white Ford, to
a store in Odessa, where he placed a call on a pay phone. Shortly
thereafter, police observed a maroon Dodge pickup truck arrive.
The driver of the truck, later identified as Pablo, briefly spoke
with the informant, returned to his truck, and drove off, followed
by the informant in the white Ford. The maroon pickup truck
appeared to be “running heat” or checking for surveillance.
A short while later, the two vehicles stopped at a gas station
and another individual, Bumaro Ortega (Ortega), entered the white
Ford and drove it to Pablo’s house. Ortega left the car, with the
drugs in the trunk, in Pablo’s backyard and disappeared into
Pablo’s house. Police approached the house and received Pablo’s
wife’s consent to search the house for Ortega, who was found hiding
upstairs. Ortega then gave the police consent to search the white
Ford. As expected, the car contained approximately forty-eight
4
pounds of marihuana. Pablo’s truck was also stopped, but he was
not carrying any drugs.
On August 16, 1995, David Tovar (Tovar) and Evaristo Galindo
(Galindo), were arrested in Crane, Texas, for transporting 320
pounds of marihuana for the Brito gang. Tovar and Galindo had been
recruited as drivers by Oscar Salinas (Salinas), who was himself a
driver for the Brito gang and had been instructed by Adan to find
more drivers. After the two young recruits were arrested, Adan
gave money to Salinas to pass on to the boys’ parents.
Salinas was well connected to the Brito gang; he knew Ignacio
from school, and he had met all of Ignacio’s family members. Based
on his conversations with Ignacio and his family members, Salinas
learned that they were in the business of selling marihuana.
According to Salinas, despite the fact that the Brito brothers
considered each other equals, Pablo was the leader of this
marihuana enterprise.
Being well acquainted with the Britos and needing money,
Salinas asked Adan if he could sell drugs for the Brito gang. Adan
agreed and sold some marihuana to Salinas, who then sold it to
others. Later, Salinas asked Adan if he could transport drugs for
the brothers. The brothers were hesitant to allow him to transport
drugs since Pablo, Adrian, and Jesus did not trust Salinas.
Eventually however, they offered Salinas $4000 to transport a load.
For this first trip, Salinas was instructed by Adan that he
would have to procure a car and drive to La Linda, a small town
near Big Bend National Park, to pick up the drugs. Escorted by
5
Ignacio and Rodriguez and accompanied by his brother-in-law, Nick
Avila, Salinas drove his father-in-law’s old Pinto to Mexico. In
Mexico, Salinas told inquiring Federales that the Britos had sent
him. Satisfied with this response, the Federales let him continue.
In Mexico, 280 pounds of marihuana were loaded into the trunk
and backseat of Salinas’ car. Escorted by Ignacio and Rodriguez,
who ensured that no police were in front of or behind the load
vehicle, Salinas drove back to Midland to Jesus’s house, where the
drugs were ultimately unloaded and placed in a shack behind the
house. After this trip was successfully completed, Salinas was
paid by Adan in cash and drugs.
Satisfied by his performance, Adan asked Salinas several more
times to transport drug loads for the Britos. Salinas agreed and
over the next several weeks he not only made trips to Mexico to
smuggle drugs back to the Midland area, but he also transported
drugs from Midland to other places in Texas. For these trips,
Salinas was usually escorted by Ignacio and Rodriguez, received
payment and instructions from Adan, and delivered the drug
shipments to Jesus. In addition to transporting the drugs,
Salinas, on at least one occasion, delivered $40,000 cash to Adan.
A fourth seizure of drugs belonging to the Britos occurred on
October 19, 1995, and led to the arrest of Salinas. For this trip,
Salinas obtained a gray Lincoln Town Car, which he took to
Igancio’s house so Pablo, Adrian, Jesus, and Adan could see it. He
then drove to Mexico where the car was loaded with marihuana. At
around this same time, Border Patrol agents received information,
6
based on a confidential informant’s tip, that a gray Lincoln Town
Car, driven by Salinas, would be smuggling a load of drugs from
Mexico. On October 19, 1995, law enforcement officials spotted the
Lincoln, driven by Salinas. The car was escorted by Ignacio in a
green pickup truck and by Rodriguez and his wife in a blue pickup
truck. Upon seeing the police cars, the Lincoln sped away from the
law enforcement officers and crashed into an embankment. After the
crash, Salinas fled, but was later apprehended. The Lincoln was
searched and 278 pounds of marihuana were found in its trunk.
The final drug seizure occurred on November 19, 1995, when a
pickup truck registered to Adrian, driven by Gustavo Manriquez
(Manriquez), was stopped and searched. The search uncovered 120
pounds of marihuana hidden in a secret compartment in the bed of
the truck. This ill-fated trip was directed by Pablo, who
instructed Carlos Valdez (Valdez) to take Adrian’s truck to San
Vicente, Mexico. Valdez knew that the truck had a secret
compartment and knew that the purpose of the trip was to transport
a load of marihuana back to Midland. Pablo accompanied Valdez down
to Mexico and instructed him to bring a roll of cellophane for
packaging marihuana. Once in Mexico, Pablo left with the truck.
On the return trip to the United States, Manriquez drove the truck
with the drugs and Valdez accompanied Adrian and Pablo in an escort
vehicle. This escort vehicle, a Pontiac Grand Am driven by Adrian,
was stopped a few minutes before the drug-laden truck was stopped.
As they were being pulled over, Pablo announced to the other
occupants of the car that they were going to get “busted” because
7
the truck behind them contained drugs. The agent searched their
car, but after a drug-sniffing dog failed to detect any drugs, the
three men were allowed to continue. Shortly thereafter, the truck
driven by Manriquez was stopped, and the drugs were discovered.
On May 30, 1996, a grand jury indictment was returned against
the six appellants charging twenty violations of the Title 21
Controlled Substances Act and the Title 18 Racketeering Act.4 All
appellants were charged in Count Two with conspiracy to import
marihuana in violation of 21 U.S.C. § 963, and in Count Three with
conspiracy to possess with intent to distribute marihuana in
violation of 21 U.S.C. § 846. Additionally, they were each charged
with several substantive offenses.
Pablo was also charged in Count One with engaging in a
continuing criminal enterprise, in violation of 21 U.S.C. § 848; in
Counts Four, Six, Eight, Ten, and Thirteen with possession with
intent to distribute marihuana, in violation of 21 U.S.C. § 841
(a)(1) and aiding and abetting, in violation of 18 U.S.C. § 2; in
Count Eleven with enticing a minor to possess with intent to
distribute marihuana, a violation of 21 U.S.C. § 861(a)(1); in
Count Fourteen with conspiring to launder money, in violation of 18
U.S.C. § 1956(h); and in Counts Fifteen through Twenty with money
laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (B)(i)
& 2. On July 17, 1996, prior to trial, the United States moved for
4
The indictment also charged fourteen other individuals who are not
appellants in this case. Several of these other charged persons
pleaded guilty and cooperated with the government as witnesses at
the trial.
8
dismissal, and the court dismissed Count Eleven of the indictment
due to the unavailability of an essential witness. Following a
jury trial, Pablo was convicted on all remaining counts in which he
was charged. Pablo requested that his conviction on either the
conspiracy count or the continuing criminal enterprise count be
vacated as violative of double jeopardy. The United States
conceded that Count Three, conspiracy to possess with intent to
distribute, had to be vacated, and accordingly the court dismissed
Count Three as to Pablo only. Pablo was then sentenced to 492
months’ imprisonment followed by five years of supervised release;
he was also ordered to pay a fine.
Adrian was also charged in Count Thirteen with possession with
intent to distribute marihuana, in violation of section 841(a)(1),
and aiding and abetting, in violation of section 2. Adrian was
convicted on all 3 counts and sentenced to 156 months’ imprisonment
followed by 5 years of supervised release.
Jesus was also charged in Counts Eight and Ten with possession
with intent to distribute marihuana, in violation of section
841(a)(1), and aiding and abetting, in violation of section 2.
Jesus was found guilty on all 4 counts and sentenced to 168 months’
imprisonment followed by 5 years of supervised release.
Adan was also charged in Counts Eight and Ten with possession
with intent to distribute marihuana, in violation of section
841(a)(1), and aiding and abetting, in violation of section 2.
Adan was convicted on all 4 counts and sentenced to 144 months’
imprisonment followed by 5 years of supervised release.
9
Ignacio was also charged in Count Nine with importation of
marihuana, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and
aiding and abetting, in violation of section 2; and in Count Ten
with possession with intent to distribute marihuana, in violation
of section 841 (a)(1), and with aiding and abetting, in violation
of section 2. He was found guilty on all 4 counts and sentenced to
120 months’ imprisonment and 5 years of supervised release.
Rodriguez was also charged in Count Nine with importation of
marihuana, in violation of section 952(a), 960(a)(1), and aiding
and abetting, in violation of section 2; in Count Ten with
possession with intent to distribute marihuana, in violation of
section 841(a)(1), and with aiding and abetting, in violation of 18
U.S.C. § 2; in Count Fourteen of a money laundering conspiracy, in
violation of 18 U.S.C. § 1956(h); and in Count Fifteen with money
laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (B)(i),
& 2. He was found guilty on all 6 counts and sentenced to 120
months’ imprisonment followed by 5 years supervised release.
All six appellants filed timely notices of appeal.
Discussion
On appeal, appellants assert the following claims of error:
(1) 21 U.S.C. § 848(c) is void for vagueness and the jury was not
properly instructed on the definition of “substantial income and
resources;”5 (2) the district court was required by the “rule of
lenity” to vacate Pablo’s continuing criminal enterprise conviction
5
Raised by Pablo.
10
where he was also convicted of a lesser included offense that was
dismissed at the government’s election;6 (3) the evidence was
insufficient to support the conviction of Pablo for engaging in a
continuing criminal enterprise under section 848(c);7 (4) the
evidence was insufficient to support the convictions of Jesus and
Adrian for conspiracy to import marihuana and conspiracy to possess
with intent to distribute, and the evidence was insufficient to
support their convictions for possession with intent to
distribute;8 (5) it was error that one conspiracy was charged in
the indictment, but evidence was produced at trial reflecting
multiple conspiracies;9 (6) it was an abuse of discretion to admit
testimony by a police officer concerning profile evidence of family
drug gangs and assigning roles within family drug gangs to various
members of the Brito gang;10 (7) it was an abuse of discretion to
admit evidence concerning a small amount of marihuana recovered
from the toilet at Adan’s house;11 (8) it was an abuse of discretion
to admit evidence concerning the sale of marihuana by Ignacio to
6
Raised by Pablo.
7
Raised by Pablo.
8
Raised by Adrian and Jesus.
9
Raised by Adrian.
10
Raised by Adrian, Jesus, Ignacio, and Adan.
11
Raised by Adan.
11
Salinas;12 (9) the district court should have granted the motion for
new trial based on jury misconduct;13 (10) the post-conviction
filing of an amended notice of enhanced penalty amounted to a
denial of the defendants’ confrontation rights;14 (11) the quantity
of marihuana, for which each defendant was held accountable, was
not properly determined.15 We consider these issues in that order.
I. Continuing Criminal Enterprise
Pablo was indicted and convicted for engaging in a continuing
criminal enterprise (CCE) in violation of section 848.16 The
essential elements of the offense are: (1) that Pablo committed
either of the conspiracy offenses charged in Counts Two or Three;
(2) that the violation of either such count was part of a
continuing series of violations of federal narcotics laws; (3) that
12
Raised by Ignacio.
13
Raised by Jesus, Adan, and Rodriguez; adopted by Adrian in Notice
of Adoption pursuant to Federal Rule of Appellate Procedure 28(i).
14
Raised by Jesus and Rodriguez; adopted by Adrian in Notice of
Adoption pursuant to Federal Rule of Appellate Procedure 28(i).
15
Raised by Adrian, Jesus, Rodriguez, Pablo, and Adan.
16
Count One of the indictment reads, in pertinent part, as follows:
“Defendant PABLO SALINAS BRITO undertook such
continuing series of violations in concert with five or
more persons, whom are listed in COUNT THREE of the
Indictment and with respect to whom Defendant PABLO
SALINAS BRITO occupied a position of organizer;
supervisory position; and a position of management, and
from which violations Defendant PABLO SALINAS BRITO
obtained substantial income and resources.”
12
Pablo undertook to commit such series of offenses in concert with
five or more persons; (4) that Pablo occupied a position of
organizer or supervisor, or other management position over those
five or more persons; (5) and that Pablo obtained substantial
income or resources from the continuing series of violations.17
Pablo raises two issues concerning the phrase “substantial
income or resources,” found in the continuing criminal enterprise
provision at section 848(c)(2)(B). First, Pablo argues that the
district court failed to properly instruct the jury on the
definition of the phrase, and second, he argues that the phrase is
so vague that it renders the statute unconstitutional. We reject
17
21 U.S.C. § 848 provides, in relevant part:
“(c) ‘Continuing criminal enterprise’ defined
For purposes of subsection (a) of this section, a
person is engaged in a continuing criminal enterprise
if——
(1) he violates any provision of this
subchapter or subchapter II of this chapter
the punishment for which is a felony, and
(2) such violation is a part of a
continuing series of violations of this
subchapter or subchapter II of this chapter——
(A) which are undertaken by
such person in concert with five or
more other persons with respect to
whom such person occupies a position
of organizer, a supervisory
position, or any other position of
management, and
(B) from which such person
obtains substantial income or
resources.”
13
both arguments.
A. Jury Instruction
Pablo contends that the jury was not adequately instructed
because the court did not define the term “substantial” with a
specific dollar figure. Rather than using a dollar figure, the
district court followed the Fifth Circuit’s Pattern Jury
Instructions and defined “substantial income or resources” as
follows: “The term ‘substantial income or resources’ means income
in money or property which is significant in size or amount as
distinguished from some relatively insignificant, insubstantial, or
trivial amount.” Fifth Circuit Pattern Jury Instructions
(Criminal), Instruction No. 2.90 (1997 Ed.).
As a general rule, a jury instruction must define the factual
issues and clearly instruct the jurors as to the principles of law
they are to apply. See United States v. Wolfson, 573 F.2d 216
(5th Cir. 1978). However, the trial judge need not define
statutory terms unless they are highly “technical or specific,” or
“outside the common understanding” of jurors. United States v.
Chenault, 844 F.2d 1124, 1131 (5th Cir. 1988). While a definition
of the term “substantial” may in some circumstances aid the jury,
in United States v. Johnson, 575 F.2d 1347, 1358 (5th Cir. 1978),
we held that the term “substantial,” as it is found in section 848,
required no definition in the context of that case. In this case,
the court opted to define the term in question, but fell short of
giving a bright line with specific monetary figures that could be
considered substantial.
14
In the context of this section 848(c) prosecution, the
definition, as given by the court, adequately informed the jurors
on the factual issues and principles of law present in the case and
the court was not required to supplement its definition of
“substantial income and resources” with specific monetary figures.
We reject Pablo’s complaint concerning the district court’s
definition.
B. Constitutionality of Section 848(c)
Pablo further contends that because of the ambiguity inherent
in the term “substantial,” the statute is unconstitutionally vague.
This Court has specifically held that section 848 is not
unconstitutionally vague on its face. See Johnson, 575 F.2d at
1357-58; United States v. Cravero, 545 F.2d 406 (5th Cir. 1976).
In the context of the CCE statute, the inherent ambiguities of the
term “substantial” do not rise to the level of a constitutional
due process deficiency. Pablo does not challenge the sufficiency
of the evidence that he obtained “substantial income or resources”
from the drug operation.
The amount of income that a defendant receives by organizing
a criminal enterprise does not have the effect of making criminal
that which would otherwise be legal, innocent conduct. This is not
a statute which renders felonious the otherwise wholly innocent
operation of, say, a farm, if, but only if, the operator “obtains
substantial income or resources therefrom.” Instead, receiving
substantial income from a criminal enterprise merely enhances the
punishment for engaging in activities that are clearly serious
15
felonies regardless of the income derived. The due process concern
of giving individuals sufficient notice as to what activities are
prohibited is simply not an issue in this case. In practical
effect, the CCE “substantial income” provision enhances the penalty
for otherwise serious felonies. That this particular provision is
included as an element of the offense, rather than merely as a
sentencing factor, only enhances the protections afforded the
defendant.
We hold that this challenged provision of the CCE statute is
not unconstitutionally vague or violative of due process. We
therefore reject Pablo’s contentions in this respect.
II. Dismissal of Lesser Included Offense
Pablo was found guilty of continuing criminal enterprise
(Count One) as well as conspiracy to possess marihuana with intent
to distribute (Count Three). Since conspiracy to distribute a
controlled substance is a lesser included offense of CCE, see
Rutledge v. United States, 116 S.Ct. 1241 (1996), the government
moved to dismiss Count Three on the grounds of double jeopardy.
Over Pablo’s objection that the greater offense should be
dismissed, the court granted the government’s motion and dismissed
the lesser included offense.
Pablo now argues that the dismissal of the lesser count
violated the rule of lenity. The rule of lenity, however, is
inapplicable to this issue; it is a rule of statutory
interpretation that dictates that statutory ambiguities be resolved
in favor of leniency and prohibits a court from interpreting an
16
ambiguous statute in a way that maximizes the penalty. See Bifulco
v. United States, 100 S.Ct. 2247, 2252 (1980); United States v.
Sayklay, 542 F.2d 942, 944 (5th Cir. 1976). Since the question
before us does not involve any statutory interpretation, the rule
is inapplicable to this issue.
It is well settled that in cases of double jeopardy arising
from the simultaneous charging of a greater and a lesser included
offense, we dismiss the lesser included offense. See United States
v. Wilson, 116 F.3d 1066, 1087 (5th Cir. 1997); United States v.
Fields, 72 F.3d 1200, 1209-10 (5th Cir. 1996); United States v.
Tolliver, 61 F.3d 1189, 1223 (5th Cir. 1995). The Rutledge
decision has not placed this practice in question.
In Rutledge, the Court held that since section 846 is a lesser
included offense of section 848, the double jeopardy clause
prohibits imposing punishment for both offenses. Rutledge, 116
S.Ct. at 1250-51. Accordingly, the Court ordered that one of the
convictions be vacated and remanded the case to the trial court.
Id. The Court did not suggest that the greater offense must be
dismissed or in any way intimate that leniency was to be taken into
consideration.
Because the rule of lenity is inapplicable in this situation
and the law is clear that the lesser, rather than the greater,
offense should be vacated in this context, we find no error in the
court’s dismissal of Count Three, rather than Count One, as to
Pablo.
III. Sufficiency of the Evidence
17
Pablo, Jesus, and Adrian all contend that the evidence was
insufficient to support their convictions on several counts. In
reviewing challenges to the sufficiency of the evidence, we view
the evidence in the light most favorable to the jury’s verdict and
affirm if a rational trier of fact could have found that the
government proved all essential elements of a crime beyond a
reasonable doubt. See United States v. Puig-Infante, 19 F.3d 929
(5th Cir. 1994). Credibility determinations and reasonable
inferences are resolved in favor of the jury’s verdict. Id.
A. Pablo
Pablo challenges the sufficiency of the evidence supporting
his conviction for continuing criminal enterprise under 21 U.S.C.
§ 848. Pablo’s sole contention is that he did not occupy a
position of organizer, supervisor, or other management position
with respect to five or more persons as required by section
848(c)(2)(A). We disagree and hold that the evidence was
sufficient.
It is not required that the defendant acted with all five
persons at the same time or that he occupied the same position with
respect to all five persons. See United States v. Phillips, 664
F.2d 971, 1013 (5th Cir. 1981). Neither is it required that he
have been the sole or dominant organizer, supervisor, or manager of
the enterprise. See United States v. Michel, 588 F.2d 986, 1000
n.14 (5th Cir. 1979).
The evidence is sufficient to support the reasonable inference
that Pablo was a manager, supervisor, or organizer of at least five
18
members of the Britos’ smuggling enterprise. Groessel, a driver
for the Brito gang, characterized Pablo as the “boss,” the “head
guy,” and the “main man.” Another driver, Olson, stated that he
was transporting marihuana and cash for Pablo. The incident on
July 9, 1995, where Munoz met Pablo and drove a small load of drugs
to Pablo’s house, while Pablo checked for surveillance, indicates
Pablo’s control over Munoz. Salinas also perceived Pablo as the
leader and observed him with items for bribing Mexican Federales.
Later, Valdez personally observed Pablo bribing the Federales.
These bribing activities support the fact that Pablo had a
leadership role in the organization. According to Valdez, not only
did Pablo bribe the Federales, but he also supervised the trip in
November when Manriquez was stopped. That trip was initiated by
Pablo, who told Valdez to take Adrian’s truck to Mexico and asked
him to bring along a roll of cellophane for wrapping marihuana.
Clearly, Valdez was under Pablo’s control and supervision.
Additionally, Pablo supervised Rodriguez. Rodriguez used various
vehicles belonging to Pablo and even received a Dodge truck paid
for by Pablo, but registered in Rodriguez’s name.
At a minimum, a jury could have inferred that Pablo
supervised, organized, or managed five individuals associated with
the gang (Groessel, Olson, Munoz, Valdez, and Rodriguez).
Additionally, the fact that several witnesses identified Pablo as
the leader, supports an inference that he controlled more than just
those five members of the enterprise. We reject Pablo’s challenge
to the sufficiency of the evidence to support his CCE conviction.
19
B. Jesus
1. Conspiracy
Jesus challenges the sufficiency of the evidence supporting
his convictions for conspiracy to import marihuana (Count Two) and
conspiracy to possess marihuana with intent to distribute (Count
Three). Necessary elements of the charged conspiracies are: (1)
the existence of an agreement to import marihuana or to possess
marihuana with the intent to distribute, (2) knowledge of the
agreement, and (3) voluntary participation in the agreement. See
United States v. Mergerson, 4 F.3d 337, 341 (5th Cir. 1993).
Although mere association or presence by themselves are
insufficient to prove knowing participation in the agreement, see
United States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982), when
combined with other relevant circumstantial evidence these factors
may constitute sufficient evidence to support a conspiracy
conviction. See United States v. Williams-Hendricks, 805 F.2d 496,
503 (5th Cir. 1986). Thus, a conspiracy can be inferred from a
combination of close relationships or knowing presence and other
supporting circumstantial evidence. Id.
The evidence in this case clearly establishes a relationship
between Jesus and the other defendants. In addition, the
conviction is supported by circumstantial and direct evidence that
Jesus was a knowing and voluntary member of the Britos’ drug
conspiracy.
The evidence shows that Jesus actively participated in the
storage of marihuana. Salinas testified that he dealt mainly with
20
Jesus and Adan, and on his first smuggling trip Salinas took the
load to Jesus’s house where the marihuana was unloaded and stored.
On his second trip, Salinas initially took the drugs to his own
house, but later Jesus and Adan came by and took the drugs to
Jesus’s house. On another occasion, Jesus provided Bumaro Ortega
with keys to a storage unit for storing a load of drugs.
The evidence is adequate to support a reasonable inference
that Jesus was a knowing and voluntary member of the conspiracies
to import and distribute marihuana. We reject Jesus’s challenge to
the sufficiency of the evidence on the conspiracy counts.
2. Substantive Offenses
Jesus also contends that the evidence was insufficient to
support his convictions on Counts Eight and Ten for possession of
marihuana with intent to distribute on August 16, 1995, and on
October 19, 1995, in violation of section 841(a)(1). Possession
may be actual or constructive and may be joint with other co-
perpetrators; “constructive possession is ‘the knowing exercise of,
or the knowing power or right to exercise, dominion and control
over the proscribed substance.’” United States v. Gardea Carrasco,
830 F.2d 41, 45 (5th Cir. 1987). See also United States v. Wilson,
657 F.2d 755, 760 (5th Cir. 1981), cert. denied, 455 U.S. 952
(1982).
There is no evidence that Jesus had either actual or
constructive possession of the drugs transported on the days in
question. With regard to the August 16, 1995, transaction, Jesus’s
only role appears to have been that he and Adan advised Salinas to
21
find additional drivers. The additional drivers, Tovar and
Galindo, then drove the load vehicle, and Salinas and Avila
escorted them. There is no evidence that Jesus accompanied them on
this trip or ever took possession of the drugs. With regard to the
October 16, 1995, trip, all Jesus did was inspect and approve a
vehicle that was later used to transport the shipment. The
government has not produced sufficient evidence to support Jesus’s
conviction on either of these two substantive counts.18
We therefore reverse Jesus’s convictions and sentences on both
Counts Eight and Ten.19
C. Adrian
1. Conspiracy
Adrian, like Jesus, challenges the sufficiency of the evidence
supporting his conspiracy convictions on Counts Two and Three.
There was both direct and circumstantial evidence against
Adrian. The truck containing drugs in a secret compartment that
was stopped on November 19, 1995, belonged to Adrian. Adrian was
one of the occupants of the car that was escorting the truck. On
18
The government argues on appeal that the conviction could also be
affirmed on an aiding and abetting theory. The government’s
reliance on this theory is misplaced. The jury was not instructed
on that theory; therefore we cannot sustain a conviction based upon
it. See United States v. Acosta, 763 F.2d 671, 681 (5th Cir.
1985); United States v. Wilson, 657 F.2d 755, 762-63 (5th Cir.
1981). The theory of Pinkerton v. United States, 66 S.Ct. 1180
(1946), is likewise unavailable as the jury was not instructed
thereon. See Acosta, 763 F.2d at 681.
19
We detect no reasonably possible prejudice respecting Jesus’s
sentence on Counts One and Two, the guideline range of which was no
higher by virtue of the convictions on Counts Eight and Ten.
22
another occasion, Adrian told Valdez about a van that was being
altered to create a secret compartment. Adrian also escorted
Groessel on at least one smuggling trip. In addition to this
evidence, the government brought forth several other witnesses who
connected Adrian to the conspiracy.
We recognize that the testimony provided at trial by Groessel
and Salinas suffered some shortcomings. Groessel, for instance,
could not identify Adrian in court. And Salinas, an admitted drug
addict, appears to have had trouble distinguishing between the
names “Adrian” and “Adan.” At trial, Salinas corrected statements
that he had made to the police incriminating Adrian, on the grounds
that he had gotten the names confused and had meant to say “Adan.”
The inability of Groessel to identify the defendant goes to
the weight and credibility of his testimony, but it does not render
such testimony devoid of any probative value. See Smith v. United
States, 358 F.2d 695, 695 (5th Cir. 1966). So, too, Salinas’ drug
use and apparent confusion over the names is also a question of
credibility, and his testimony is not totally negated thereby. We
generally resolve such issues of credibility in favor of the jury’s
verdict. See United States v. Gibson, 55 F.3d 173, 180 (5th Cir.
1995). Moreover, the testimony of Salinas and Groessel was not the
only evidence of Adrian’s guilt on the conspiracy counts.
We hold that the testimony of Groessel, Salinas, Valdez, and
others was, taken together, sufficient to prove that Adrian was a
knowing and voluntary member of the conspiracies to import
marihuana and to possess with the intent to distribute marihuana.
23
We reject his challenge to sufficiency of the evidence on Counts
Two and Three.
2. Substantive Offense
Adrian also challenges the sufficiency of the evidence
supporting his conviction on Count Thirteen for possessing
marihuana with the intent to distribute, in violation of section
841(a)(1), on November 19, 1995. Under this count, the government
had to prove: (1) knowing (2) possession (3) with intent to
distribute. See United States v. Ramirez, 954 F.2d 1035, 1039 (5th
Cir. 1992).
That Adrian did not have actual possession of the drugs when
they were seized from a hidden compartment in his pickup truck is
undisputed. But possession need not be actual; constructive
possession suffices and it can be joint with co-perpetrators. See
United States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982); Wilson,
657 F.2d at 760. Constructive possession exists if the defendant
knowingly has dominion and control, or has the power to exercise
dominion and control, over the drugs, see Gardea Carrasco, 830 F.2d
at 45, or if the defendant has knowing dominion and control over a
vehicle in which drugs are concealed, see United States v.
Richardson, 848 F.2d 509, 512 (5th Cir. 1988). T h e r e i s
sufficient evidence indicating that Adrian had constructive
possession of the drugs. The drugs that were seized on November
19, 1995, were discovered in a secret compartment in the bed of
Adrian’s pickup truck. The truck was driven by Manriquez, but it
was escorted by Adrian in a second car, accompanied by Valdez and
24
Pablo, who had driven Adrian’s truck down to Mexico earlier.
Adrian would have us believe that he was “just along for the
ride” and neither exercised nor had any dominion or control over
his own pickup truck or the drugs when the seizure occurred. In a
similar case, United States v. Rogers, 719 F.2d 767, 770-71 (5th
Cir. 1983), the defendant and some of his associates embarked on a
long trip to the border for no apparent reason. The trip was
financed entirely by the defendant, who drove his own car on the
trip and bankrolled the entire excursion. On the last leg of the
trip, the defendant rented a car, but continued to drive his own
car. The trip ended when his associate was arrested for smuggling
a load of marihuana in the car that the defendant had rented. This
Court concluded that the evidence was sufficient to support a
finding of constructive possession and affirmed the conviction of
the defendant. We reasoned as follows:
“Rogers’ presence near the drug pick-up was not ‘mere,’
rather, it was the effect of great effort and
considerable expense on his part in promoting a long
journey all but inexplicable for any other purpose, made
chiefly in his own automobile, and ending with the
capture of his associate in a load car over which [the
defendant] had dominion and had rented for no apparent
purpose on the last leg of the journey.” Rogers, 719
F.2d at 770-71.
The circumstances in Adrian’s case are similar to those in
Rogers. Given his ownership of the vehicle, his proximity to the
vehicle on the day in question,20 and his failure to ever provide
20
Mere proximity to the controlled substance, without dominion and
control, is insufficient to establish constructive possession. See
United States v. Cardenas, 748 F.2d 1015, 1019-20 (5th Cir. 1984).
25
any explanation as to the purpose of his trip to the Big Bend area,
we hold that the evidence was sufficient to find that he
constructively possessed the marihuana. Intent to distribute may
be inferred from the quantity involved.
We hold that there was sufficient evidence supporting Adrian’s
conviction on Count Thirteen.
IV. Variance Between the Indictment and Proof at Trial
Adrian contends that the indictment alleged one conspiracy
lasting from March to November 1995, but that the evidence
presented at trial indicates there were multiple conspiracies, only
one of which involved him. Since this issue has been raised for
the first time on appeal, we review it for plain error. See United
States v. Olano, 507 U.S. 725 (1993).
In order to determine whether multiple conspiracies existed,
we consider three factors: (1) a common goal, (2) the nature of
the scheme, (3) overlapping of participants in the various
transactions. See United States v. Jensen, 41 F.3d 946, 956 (5th
Cir. 1995). Based on these factors, we hold that the evidence
supports the existence of a single conspiracy in which the co-
conspirators, including Adrian, shared the common goal of importing
large quantities of marihuana from Mexico for distribution in the
United States. The scheme involved several escort vehicles
accompanying single drug-laden vehicles from Mexico to Midland.
While some of the participants in the individual trips varied, the
evidence supports the inference that the Britos were materially
involved throughout the existence of the conspiracy. We hold that
26
the evidence at trial proved the existence of a single conspiracy
in accordance with the indictment.
As a corollary to his argument that there were multiple
conspiracies, Adrian argues that he was only involved in the
November 19, 1995, transaction. Although the clearest evidence
against Adrian was related to the November 19, 1995, transaction,
there was evidence supporting Adrian’s involvement prior to that
date.
We hold that there was adequate evidence of a single
conspiracy and of Adrian’s involvement as a co-conspirator well
before November 19.
V. Admissibility of Evidence
Several of the appellants argue that some of the evidence
presented at trial was inadmissible. Since those appellants
properly objected at trial and preserved error on these points, we
review the trial court’s admission of evidence on an abuse of
discretion standard. See United States v. Speer, 30 F.3d 605 (5th
Cir. 1994).
A. Detective Bryant’s Testimony on Family Drug Gangs
Adrian, Jesus, Ignacio, and Adan contend that Bryant’s
testimony was inadmissible profile and opinion testimony which
impermissibly summarized and bolstered the testimony of other
witnesses. Bryant testified generally about the structure of
family drug gangs, and, based on the testimony of other witnesses,
he ascribed certain leadership roles to the Britos. Pablo was
labeled the leader; Adrian was labeled the second-in-command, and
27
the other Britos were labeled recruiters, overseers, and escorts.
Bryant described a profile of family drug organizations and
then compared the Britos’ actions to that profile. Using the
profile, Bryant testified that Pablo was the leader, and assigned
other leadership roles to the members of the organization. This
type of profile evidence is inadmissible to prove substantive guilt
based on similarities between defendants and a profile, see United
States v. Williams, 957 F.2d 1238 (5th Cir. 1992), and under the
circumstances the court abused its discretion in allowing Bryant to
testify in this respect over the defendants’ objections.
In the course of his profile testimony, Bryant relied on the
testimony of other witnesses, especially their conclusions and
views about the leadership hierarchy of the Brito gang. We have in
the past disapproved of this practice that “without good reason or
real need, unfairly allows one prosecution witness merely to repeat
or paraphrase the in-court testimony of another as to ordinary,
observable facts . . . .” United States v. Castillo, 77 F.3d 1480,
1500 (5th Cir. 1996).
In Castillo, we held that the error did not merit reversal
because the witness did not misstate or put an unfair spin on the
testimony that he repeated, and the testimony in question was
uncontradicted. Id. The witness in Castillo, relied on “ordinary,
observable facts” put forth by other witnesses. Id. Bryant,
however, relied on conclusory facts and subjective observations by
other witnesses. Castillo is thus distinguishable and does not
support a finding of harmless error in this case. Nevertheless, we
28
hold that Bryant’s testimony was harmless as to Adrian, Jesus,
Ignacio, and Adan, the only parties who have complained of it on
appeal.
The profile testimony was harmless because there was
substantial other evidence supporting the convictions for
conspiracy, and Bryant’s testimony merely assigned to the Britos
roles within an organization to which they clearly belonged.
Leadership is not an element of conspiracy, and therefore the fact
that they may have been assigned a leadership role was essentially
immaterial to their conspiracy convictions. Bryant did not
unfairly bolster or summarize any testimony pertaining to the
Britos’ convictions for conspiracy.
In addition to describing the family drug organization
profile, Bryant also testified about the difficulty of obtaining
evidence about such an organization. He described the difficulty
of infiltrating the organization and explained that the majority of
the evidence is gathered from co-conspirators. This testimony was
improper because it tended to implicitly suggest to the jury that
they should convict the defendants on a lower standard of proof.
General difficulty of proof does not justify conviction on any
lesser standard than beyond a reasonable doubt. See, e.g., United
States v. Beckner, F.3d at (No. 97-30285, 5th Cir. Feb.
2, 1998), slip op. 1847 at 1853. We hold, however, that on this
record and evidence the error was harmless. The jury was clearly
and properly instructed on the burden of proof by the court, and
neither the prosecutor (nor Bryant explicitly) asked the jury to
29
convict the defendants on a lower standard of proof. We presume
that the jury followed the court’s instructions and applied the
proper standard of proof, despite Bryant’s testimony.
We specifically note that testimony such as Bryant’s is
normally inappropriate and inadmissible. In this case, however,
the court’s error in admitting it was harmless.
B. Marihuana Recovered from Adan’s Toilet
Adan contends that evidence of a small amount of marihuana
found in the toilet of his house was irrelevant and prejudicial,
and was merely evidence of an extrinsic offense. We agree that the
court abused its discretion in admitting this evidence, but the
error is harmless and does not warrant reversal.
During a search of Adan’s house on May 31, 1996, a bag of
marihuana was discovered in the toilet after a young girl left the
bathroom. In light of the fact that the indictment did not allege
any drug activities after the conspiracy came to an end in November
1995 and the indictment charged the defendant with importing and
possessing large quantities of marihuana for distribution, the
discovery of a small user-quantity of marihuana after the
conspiracy had allegedly ended is irrelevant, extraneous offense
evidence. Cf. United States v. Elliott, 571 F.2d 880, 911 (5th
Cir. 1978) (holding that the government may introduce evidence of
other acts committed by conspirators during the life of the
conspiracy). As such, it was inadmissible.
The court’s erroneous admission of this evidence, however, was
harmless in that it did not affect Adan’s substantial rights in
30
light of all the evidence. Moreover, the jury was charged that the
defendants were not on trial for acts not alleged in the indictment
and the government did not refer to this evidence in its closing
argument.
C. Sale of Marihuana by Ignacio to Salinas
Ignacio contends that testimony by Salinas concerning the sale
and use of marihuana by Ignacio was inadmissible extraneous offense
evidence. Salinas testified that he and Ignacio got high together
and that Ignacio sold him “dope.” Salinas, however, was unsure as
to whether these events occurred during or prior to the alleged
conspiracy.
Regardless of when these events transpired, the evidence was
admissible to show Salinas’ relationship to the Britos. The sales
and use of marihuana were thus intertwined with the charged
conspiracy and were not inadmissible extrinsic evidence. See
United States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992) (holding
that evidence of prior drug transactions and convictions was
admissible to show relationship between co-conspirators). The
court’s admission of this testimony was not error.
VI. Juror Misconduct
Jesus, Adan, Rodriguez, and Adrian contend that the court
should have granted a new trial based on juror misconduct. The
jury returned a guilty verdict against all the appellants. The
unanimity of the verdict was confirmed through a jury poll of each
juror individually as to each defendant individually in which each
juror separately affirmed that the verdict was that of the
31
particular juror separately as to each defendant. Despite her
affirmances during the jury poll, however, a juror later alleged
that her verdict was coerced through threats and insults that she
received from other jurors, and that the jurors impermissibly
discussed punishment and appellate rights. As a result of these
allegations, several appellants filed Motions for New Trial, which
were denied without a hearing.
Generally, a verdict may not be challenged if the jurors were
polled and agreed to the verdict. See United States v. Straach,
987 F.2d 232, 241-42 (5th Cir. 1993). This rule prevents courts
from delving into the internal deliberations of the jury. However,
a juror may impeach the jury’s verdict with evidence that the
verdict was influenced by outside sources. See Mattox v. United
States, 13 S.Ct. 50 (1892). Federal Rule of Evidence 606(b)
specifically prohibits a juror from testifying on any matter that
occurred during the jury’s deliberations unless it concerns
improper extraneous information or outside influence.
We have previously held that pressure from other jurors, such
as the “coercion” at issue in this case, is not considered an
“outside influence,” and an affidavit concerning such pressure is
inadmissible. See Straach, 987 F.2d at 241-42 (5th Cir. 1993);
United States v. Vincent, 648 F.2d 1046, 1049-50 (5th Cir. 1981).
Because the affidavit in this case merely alleged internal
coercion, it was inadmissible to support the Motions for New Trial,
and thus the court below did not abuse its discretion in refusing
to consider this evidence and denying appellants’ motions for new
32
trial.
The affidavit also alleged that the jury improperly discussed
extraneous general information concerning sentencing and the
defendants’ rights of appeal, contrary to the court’s specific
instructions that they were not to consider punishment. Since
there is nothing to suggest this information was brought to the
jury’s attention by an outside source, the court did not abuse its
discretion in denying the Motions for New Trial. See Fed. R. Evid.
606(b); Straach, 987 F.2d at 242 (holding that although the jury
improperly discussed penalties that might be imposed against the
defendant, the verdict must stand where there is no evidence that
they learned of these matters from an outside source).
VII. Amended Notice of Enhanced Penalty
Rodriguez, Jesus, and Adrian contend that the government’s
Amended Notice of Enhanced Penalty violated their Sixth Amendment
right to confront their accusers. The government’s original Notice
of Enhanced Penalty notified the defendants that the government
would seek an enhanced penalty because the conspiracy involved more
than one hundred kilograms of marihuana. After the guilty verdicts
were returned, the government filed an Amended Notice of Enhanced
penalty alleging that more than one thousand kilograms of marihuana
were involved in the conspiracies to import and possess marihuana.
Under the Sentencing Guidelines, a conviction involving one
hundred kilograms of marihuana carries a lower base offense level
than a conviction involving one thousand kilograms. See Drug
Quantity Table, U.S.S.G. § 2D1.1(c). Several co-conspirators
33
pleaded guilty and testified against appellants in return for
lighter sentences of two to five years. In order to challenge the
credibility of the witnesses and potentially expose their ulterior
motives for testifying, these co-conspirators were questioned about
the sentences that they had avoided by cooperating with the
government. At trial it appeared that these lower sentences were
in lieu of sentences calculated based on one hundred kilograms.
If, however, one thousand kilograms were the appropriate amount,
they may have lowered their potential exposure even more.
Because the appellants were not notified before trial that
appellants would be sentenced based on one thousand kilograms of
marihuana, they assert that therefore they only questioned the
witnesses about their ulterior motives based on their avoidance of
sentences based on one hundred kilograms. Rodriguez, Jesus, and
Adrian now contend that the witnesses had even greater motivation
to lie since they had avoided much stiffer sentences, and because
the government failed to inform them of this greater quantity, they
could not adequately cross-examine the witnesses and expose these
motives. They contend that this violated their Sixth Amendment
rights to cross-examine witnesses and reveal to the jury the
witnesses’ potential bias and ulterior motives.
There is no evidence, however, suggesting that the witnesses
agreed to testify in order to avoid being sentenced based on one
thousand kilograms. It appears that the witnesses, like the
appellants, assumed that they would be sentenced based on one
hundred kilograms. Thus, the fact that the government later sought
34
an even stiffer penalty did not affect the witnesses’ original
choice to cooperate, rather it merely made it a better choice in
retrospect.
Moreover, a notice of enhanced penalty as to appellants——which
the government was not required to file before trial, see United
States v. Thames, 12 F.3d 1350, 1373 (5th Cir.), cert. denied, 511
U.S. 1095 (1994)——did not bind the government as to the cooperating
witnesses. Appellants had adequate opportunity to cross-examine
the witnesses as to any ulterior motives they may have been
harboring at the time they testified, and therefore their Sixth
Amendment rights were not violated.
VIII. Sentencing
Pablo, Adrian, Adan, Jesus, and Rodriguez contend that they
were improperly sentenced because the court miscalculated the
amounts of marihuana involved and that those amounts were
misweighed. We review the factual findings of the trial court for
clear error. See United States v. Mejia-Orosco, 867 F.2d 216 (5th
Cir. 1989).
Under the United States Sentencing Guidelines (USSG), sentence
is imposed based on the defendant’s offense level. For drug
trafficking crimes that do not involve serious bodily injury or
death, the base offense level is calculated based on the quantity
of drugs involved. See U.S.S.G. § 2D1.1(a)(3). For a defendant
involved in a drug trafficking conspiracy, the quantity includes
both the drugs with which the defendant was directly involved and
the drugs that can be attributed to him through the conspiracy.
35
See United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir.
1994); U.S.S.G. § 1B1.3(a)(1).
The defendant will not necessarily be held responsible for the
full amount of drugs involved in the conspiracy, rather the
defendant will only be held accountable for those amounts of drugs
that he knew or reasonably could have known or believed were
involved in the conspiracy. See United States v. Puma, 937 F.2d
151, 160 (5th Cir. 1991); United States v. Thomas, 963 F.2d 63, 65
(5th Cir. 1992) (holding that an individual involved in a
conspiracy trafficking large amounts of drugs will be held
accountable even for drugs that are beyond his “universe of
involvement”). In order to calculate this amount, a court may
consider the co-conspirator’s role in the conspiracy, his
relationship to the other conspirators, and any other information
with “sufficient indicia of reliability.” See Puig-Infante, 19
F.3d at 942.
A. Pablo
The district court found that Pablo committed offenses
involving over 19,000 kilograms of marihuana. This amount, being
between 10,000 and 30,000 kilograms, yielded a base level of 36
under the Sentencing Guidelines. The court also added 4 points for
the CCE conviction, pursuant to U.S.S.G. § 2D1.5(a)(1), for a base
level total of 40. With a base level of 40 and criminal history
category III, the court sentenced Pablo to 492 months in prison.
Pablo objected to the court’s calculation of the quantity of
drugs involved. The court overruled the objection and specifically
36
adopted the factual statements as to the amount involved from the
Presentencing Report (PSR).
Pablo contends that the evidence considered by the court and
the PSR for calculating his sentence lacked the requisite
“sufficient indicia of reliability.” The majority of the 19,225
kilogram figure was based on the testimony of Groessel, who, after
his arrest, told police officers that he had driven as many as 80
loads averaging 500 pounds per load. At trial, Groessel testified
that the loads weighed between 300 and 400 pounds. Despite this
trial testimony, the PSR used the 500 pound estimate and calculated
that Groessel had transported 18,144 kilograms for Pablo.21
Even if the PSR had used the lowest estimate of the weight per
load (300 pounds), the total quantity would still have been greater
than 10,000 kilograms. Thus, any error concerning the weight of
the loads was harmless since even the most conservative calculation
yields a total over ten thousand kilograms.
Pablo also challenges the veracity and reliability of
Groessel’s testimony that he transported eighty loads for Pablo.
Whenever a defendant challenges the facts contained in the PSR, the
court must either make specific findings as to those facts or
determine that those facts will not be considered at sentencing.
See Fed. R. Crim. P. 32. In order to satisfy Rule 32, the court
may make implicit findings by adopting the PSR. See Puig-Infante,
21
This figure was calculated by multiplying 80 times 500 pounds and
then converting that figure into kilograms by dividing by 2.2046
lbs./kg.
37
19 F.3d at 943.
At Pablo’s sentencing hearing, the court resolved this factual
dispute concerning the amount involved by explicitly accepting the
factual statements contained in the PSR. The court’s findings of
fact are subject to a clearly erroneous standard of review, and we
find that the court’s adoption of the PSR, after having heard all
the testimony and having seen all the evidence, was not clearly
erroneous.
B. Adrian
The court adopted Adrian’s PSR and found that there was proof
that there were more than one thousand kilograms of marihuana
involved, and hence Adrian had a base level of 32 under the
Sentencing Guidelines. Additionally, the court adopted the PSR’s
finding of a category III criminal history. As a result, Adrian
was sentenced to 156 months’ imprisonment.
Adrian now contends that he should not have been held
accountable for all the drugs involved in the conspiracy from June
through November. Adrian was clearly involved with the 120 pound
load that was seized on November 19, 1995. However, as a co-
conspirator, he can also be held accountable for the other loads
even though he did not actively participate in their
transportation. Given his level of involvement in the conspiracy,
these loads were foreseeable to him, and thus the quantity was
properly calculated by the court. The court’s findings of fact are
subject to considerable deference, and in the absence of a clearly
erroneous finding, the sentence must be affirmed. We affirm
38
Adrian’s sentence.
C. Adan, Jesus, and Rodriguez
Adan was sentenced to 144 months’ imprisonment. The court
found that he was involved with over one thousand kilograms of
marihuana and set his base level at 32 with a criminal history
category of two. The court made virtually identical findings for
Jesus as to weight, but sentenced him to 168 months’ imprisonment
because of his higher, category four criminal history.
Rodriguez, on the other hand, received a lighter sentence.
The court found that Rodriguez was involved with over one thousand
kilograms of marihuana, giving him a 32 base level, but reduced the
level by two points for being a minor participant. Thus, with a
base level of 30 and category one criminal history, the court
sentenced Rodriguez to 120 months’ imprisonment, the statutory
minimum for conspiring to import and conspiring to distribute over
1,000 kilograms of marihuana in violation of 21 U.S.C. §§ 846 and
963.
Adan, Jesus, and Rodriguez contend that the court’s
calculation of the quantity of marihuana was erroneously based on
the gross weight of the marihuana rather than the net weight. Both
Adan and Rodriguez specifically raised this issue at the sentencing
hearing, while Jesus made a broad objection as to the amounts
involved. The court noted that it could not reweigh the marihuana
and found by a preponderance of the evidence that over one thousand
kilograms of marihuana were involved. The court adopted the
findings of the PSR and imposed sentence.
39
The weights given in these appellants’ respective PSRs are
identified as net weights. The mere suspicion by appellants that
these are actually gross weights is insufficient to challenge the
sentence. Since appellants have provided no specific evidence that
these weights are incorrect, we affirm and hold that the court did
not err in adopting the PSR’s findings.
Adan also contends that Salinas’s testimony concerning the
amounts of marihuana that he transported is unreliable and that
the actual amount is much lower than the 1006 kilograms reflected
in the PSR. The 1006 kilogram figure was based on amounts that
were actually seized and on the testimony of Salinas concerning
loads that he transported. According to Salinas’ testimony, (1)
the first load that he transported was 280 pounds; (2) the second
was 300 pounds; (3) the third was 200 to 250 pounds; (4) he
delivered a load worth $40,000 to Fort Worth, which, at $1800 per
pound, weighed about 22 pounds; (5) 3 other loads with no estimated
weights were also transported; (6) Tovar and Galindo were arrested
with 320 pounds; (7) Salinas stored 80 to 100 pounds that were
transported by his uncle; (8) Salinas was arrested with 278 pounds
of marihuana. The PSR calculated that Salinas’s activities in
connection with the Brito gang involved a quantity of 1006
kilograms.
To calculate Adan’s total involvement, the PSR used this 1006
kilogram figure. The PSR estimated that Adan was involved to the
same extent as Salinas and attributed the 1006 kilograms to Adan.
Additionally, the PSR found that Adan was involved with the
40
November 19, 1995, shipment of 54.54 kilograms of marihuana.
Adan’s total was thus calculated at 1060.54 kilograms. The court
adopted this figure and found that the quantity involved was over
one thousand kilograms.
Adan failed to offer any affidavits or evidence to rebut the
findings of the PSR, hence the court was free to adopt it. See
United States v. Rodriguez, 897 F.2d 1324 (5th Cir. 1990). We
reject Adan’s argument that Salinas’s testimony was unreliable,
and, therefore, we hold that the quantity of marihuana was properly
calculated and adequately supported by the record.
For these reasons, we affirm the sentences imposed by the
district court.22
Conclusion
We affirm the convictions and sentences of Pablo, Adrian,
Adan, Ignacio, and Rodriguez. As to Jesus, we reverse his
convictions and sentences on Counts Eight and Ten, but affirm his
convictions and sentences on Counts Two and Three.
REVERSED in part; AFFIRMED in part
22
Except Jesus’s sentences on Counts Eight and Ten, convictions on
which we have reversed.
41
United States v. Brito
Combined Opinion