F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 6 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 96-3423
(D.C. No. 95-CR-10009-12)
CARLOS M. RENDEN, aka Carlos
(District of Kansas)
Renden-Ruiz; aka Carlos Renvon; aka
Carlos Rendon,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, BRISCOE and LUCERO, Circuit Judges.
Defendant, currently in federal custody, appeals his conviction for one
count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Mr.
Renden asserts three grounds of appeal: (1) that the district court erred in
allowing the government to introduce evidence concerning his prior arrest and
conviction for cocaine distribution; (2) that the government failed to present
sufficient evidence to convict him of conspiracy; and (3) that the district court
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
erred in failing to reduce his offense level pursuant to U.S.S.G. § 3B1.2. We
affirm.
I
This case involves a complex drug distribution scheme involving the use of
Toyota minivans to transport large quantities of cocaine primarily from Los
Angeles to New York. Because the defendant argues the record is insufficient to
sustain his conviction, we engage in a thorough recitation of the evidence
adduced at trial.
On January 21, 1995, Trooper Greg Jirak of the Kansas Highway Patrol
stopped a Toyota Previa minivan driven by Jesus Solis-Arenas. Rosa Imelda
Gonzales was riding as a passenger in that vehicle. A search of the minivan
uncovered 111 packages of cocaine hidden in a secret compartment under the
interior floor of the vehicle. Two days later, Lazaro Saez and Mirta Gomez were
stopped in Tennessee in a different Previa minivan. That vehicle was found to
contain in excess of 100 kilograms of cocaine in a similar compartment. The
defendant was convicted of conspiring with the occupants of those vehicles and
with others to participate in a large-scale cocaine distribution organization.
At trial, the evidence demonstrated that Thelma Wingist controlled the
organization with the assistance of a man known only as Fernando. Wingist
testified that she had started dealing cocaine in Miami, Florida. When Wingist’s
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organization expanded to California, she contacted the defendant. At their first
meeting, she gave him the key to a minivan and an address to which the vehicle
was to be delivered. Later, the defendant called Wingist and told her that the van
was ready to drive to New York.
Mirta Gomez testified that she had made approximately ten or eleven trips
from Los Angeles to New York, transporting cocaine between the two cities.
According to Gomez, she met the defendant at a travel agency owned by Alberto
Rosas, another co-conspirator. At that initial meeting, Gomez gave Renden the
keys to one of the minivans so that it could be loaded with cocaine for one of her
cross-country trips. Renden waited with her while the van was being loaded.
Gomez also testified that she gave the keys to a minivan to Renden on a second
occasion. She stated that she told Renden where she was staying and that the van
was delivered to her hotel after it had been loaded. Gomez did not see who
delivered the van.
Rosa Imelda Gonzales was recruited to join the conspiracy by Wingist.
Gonzales’s function, like Gomez’s, was to drive the loaded vans from Los
Angeles to New York. Gonzales testified that she would use a beeper to contact a
man named “Zapato” when she was ready to take one of the loaded vans across
the country. She was instructed on how to contact “Zapato” by Wingist.
According to Gonzales, “Zapato” was responsible for loading the minivans with
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cocaine in preparation for the cross-country trips. Wingist later testified that
“Zapato” was a name used to identify the defendant. Gonzales also testified that
she had gone to the defendant’s flower shop to pick up a loaded van on at least
one occasion.
Alberto Rosas testified that he first met Renden when Renden employed his
services as a travel agent. Rosas stated that he first became involved in the
conspiracy in 1993. He further testified that Renden told him that his “friends . . .
travel a lot between California and New York and Miami” and that Renden was
supposed to take their vans to a mechanic every time they returned to California.
R., Vol. IV, at 446. Rosas later testified that, although Renden never explicitly
told him that they were transporting cocaine across the country, Rosas understood
that taking a van to the “mechanic” included the process of loading the van with
either cocaine or money.
Finally, the government offered testimony from Thomas Sanchez Cruz, who
testified that Renden recruited him to participate in the drug distribution
conspiracy. According to Sanchez, Renden asked him for his beeper number so
that Renden could distribute it to the other members of the conspiracy.
Thereafter, the co-conspirators would contact Sanchez when they wanted a van
loaded with cocaine. In addition, Sanchez testified that Renden asked him
explicitly to find a house to store drugs, see R., Vol. IV, at 515; R., Vol. V, at
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538, after which Sanchez made an arrangement with Rosas to use the garage of
Lordus Mayorga, Rosas’s mistress, to store over 400 kilograms of cocaine.
According to Sanchez, he only became involved with the loading and storage of
cocaine at the direction of Renden.
II
Over defense objection, the government offered the testimony of Alberto
Rosas that he and Renden had been arrested while attempting to deliver two
kilograms of cocaine to a private residence in Rancho Santa Margarita,
California. Renden contends that his prior conviction is outside the scope of his
alleged role in the conspiracy and is therefore subject to Rule 404(b) of the
Federal Rules of Evidence. He argues it was error to admit this evidence because:
(1) the government failed to give the required notice that it planned to introduce
404(b) evidence, see United States v. Lopez-Gutierrez, 83 F.3d 1235, 1241 (10th
Cir. 1996); (2) neither the government nor the district court identified the specific
reason under Rule 404(b) for admitting the evidence, see United States v. Cardall,
885 F.2d 656, 671 (10th Cir. 1989); and (3) there is no appropriate purpose under
Rule 404(b) for which this evidence should have been admitted. The government
argues that Renden’s prior attempt to distribute cocaine was direct evidence of the
conspiracy alleged and thus was properly admitted. See United States v. Pace,
981 F.2d 1123, 1135 (10th Cir. 1992). We review the district court’s decision to
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admit such evidence for abuse of discretion. See United States v. Kimball, 73
F.3d 269, 271 (10th Cir. 1995).
The defendant does not dispute that “[c]onduct during the life of a
conspiracy that is evidence of the conspiracy is not Rule 404(b) evidence.” Pace,
981 F.2d at 1135. Rather, he contends that the facts surrounding his prior arrest
and conviction are so incongruous with the government’s theory of his role in the
charged conspiracy that it was an abuse of discretion to admit them as direct
evidence of the charged conspiracy. We disagree.
The indictment in this case charges the defendant with making
“arrangements for the distribution of large quantities of cocaine which included . .
. making deliveries of cocaine and accompanying other couriers to assist in the
delivery of cocaine to various locations throughout the United States.” R., Vol. I,
Doc. 336, at 2-3. Renden’s prior conviction involves the delivery of cocaine, the
controlled substance identified in the indictment. The timing of the arrest, in
December of 1993, is within the time frame charged in the indictment. 1 In
addition, the defendant was acting in concert with another co-conspirator at the
time of his prior arrest. Although not sufficient itself to establish the defendant’s
1
The indictment charged Defendant with participating in a conspiracy “[f]rom in
or about January of 1992 to on or about February 1, 1995.” R., Vol. 1, Doc. 336, at 1.
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participation in the large-scale conspiracy, we cannot conclude that the district
court abused its discretion in admitting the disputed evidence.
III
The defendant also claims that the government failed to present sufficient
evidence to support his conspiracy conviction. We review such claims de novo.
See United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). “‘Evidence is
sufficient to support a conviction if a reasonable jury could find the defendant
guilty beyond a reasonable doubt, given the direct and circumstantial evidence,
along with the reasonable inferences therefrom, taken in a light most favorable to
the government.’” Id. (quoting United States v. Mains, 33 F.3d 1222, 1227 (10th
Cir. 1994)).
The government must present sufficient evidence on the following four
elements in order to sustain a conviction for conspiracy: (1) the defendant and
one or more persons agreed to violate the law; (2) the defendant knew the
essential objectives of the conspiracy; (3) the defendant knowingly and
voluntarily became involved with the conspiracy; and (4) interdependence existed
among the alleged co-conspirators. United States v. Nieto, 60 F.3d 1464, 1469
(10th Cir. 1995) (citing United States v. Johnson, 12 F.3d 1540, 1545 (10th Cir.
1993)). “Conspiracy cases may be proven exclusively by circumstantial
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evidence.” United States v. Troutman, 814 F.2d 1428, 1446-47 (10th Cir. 1987)
(citing United States v. Henry, 468 F.2d 892 (10th Cir. 1972)).
A
In order to sustain a conspiracy conviction, there must first be sufficient
evidence of an agreement between the defendant and at least one other person to
violate the law. See Nieto, 60 F.3d at 1469. The defendant does not contest that
the government established the existence of a conspiracy; he merely claims the
government has failed to prove he joined it. In order to demonstrate that the
defendant entered into an agreement, the government must show more than mere
association with the alleged co-conspirators. See United States v. Evans, 970
F.2d 663, 669 (10th Cir. 1992). In this case, there is ample evidence that Renden
entered into an agreement.
Wingist, Gomez, and Gonzales each testified that they contacted the
defendant to arrange for the loading of cocaine and delivery of loaded minivans.
Rosas testified that the defendant had told him that he had “friends” who
frequently traveled across the country and that he would assist them by taking
their vans to a “mechanic” upon their arrival in Los Angeles. 2 R., Vol. IV, at 446.
Finally, Sanchez testified that the defendant recruited him to participate in the
2
Rosas further testified that he understood this statement to mean that the
minivan was being loaded with cocaine for transport.
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conspiracy and that he had arranged for the storage of cocaine at the defendant’s
request. Taking all inferences in the light most favorable to the government, see
Wilson, 107 F.3d at 778, the evidence is more than sufficient to support the jury’s
finding that the defendant entered into an agreement with the other co-
conspirators.
B
The government must also prove that the defendant knew the central
objectives of the conspiracy and that he knowingly and voluntarily joined. See
Nieto, 60 F.3d at 1469. In order to support the defendant’s conviction, the
evidence must sufficiently establish that the defendant shared a common objective
with the other co-conspirators. See Evans, 970 F.2d at 669. The government
need not show that the defendant interacted with every other co-conspirator;
rather, the government need only show that the defendant knew a conspiracy
existed and voluntarily joined. See id. To show knowing and voluntary
involvement, the government must demonstrate that the defendant had a general
awareness of both the scope and objective of the conspiracy. See id. In
conspiracy cases, a “‘defendant’s guilty knowledge and voluntary participation
may be inferred from surrounding circumstances.’” United States v. Carter, 130
F.3d 1432, 1440 (10th Cir. 1997) (quoting United States v. Christian, 786 F.2d
203, 211 (6th Cir. 1986)).
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The defendant has never challenged the existence of a conspiracy to
distribute cocaine. Rather, the defendant’s consistent position, both at trial and
on appeal, is that he never knowingly and voluntarily entered the conspiracy
charged in the indictment. He argues that none of the witnesses testified that they
saw him handling cocaine on the scale alleged in the indictment and that there is
no evidence creating an affirmative link between him and the large-scale
distribution of cocaine. We disagree.
There is sufficient evidence in the record to establish the defendant’s
awareness of the nature and scope of the charged conspiracy. First, the defendant
told Rosas that he would take the minivans to the “mechanic” to be serviced for
the cross-country trips, a process that Rosas later understood to include loading
the minivans with cocaine. Second, the testimony of Thomas Sanchez Cruz
indicates that the defendant recruited him to join the conspiracy and that Sanchez
only became involved with the loading and storage of cocaine at the direction of
the defendant. Sanchez testified that the defendant personally distributed
Sanchez’s pager number to other co-conspirators who then used it to contact
Sanchez so that he could load the minivans with cocaine. Sanchez’s testimony
also states that the defendant requested Sanchez to store drugs for him, after
which Sanchez arranged for the storage of over 400 kilograms of cocaine at the
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home of Lordus Mayorga. From this testimony, the jury could reasonably have
found that the defendant knew the nature and scope of his request.
In addition, the testimony at trial indicated that the drug couriers would
contact the defendant by pager when they needed to have a van loaded with
cocaine. The co-conspirators employed a method of entering codes on the beeper
so the defendant would know that the signal was genuine. The defendant would
then take control of the minivan and it would later be returned to the courier after
it had been loaded. Sanchez testified that the defendant explained this precise
method to him when the defendant recruited him to join the conspiracy. From
that testimony, it is reasonable for the jury to infer that the defendant knew what
role he was asking Sanchez to play in the cocaine distribution scheme. In the
light of all of the above evidence, it is reasonable for the jury to have concluded
that the defendant knew that the central objective of the conspiracy was the large-
scale distribution of cocaine and that the defendant was a voluntary and knowing
participant.
C
The government must also produce sufficient evidence of “‘the essential
element of interdependence’ among the co-conspirators.” United States v. Fox,
902 F.2d 1508, 1514 (10th Cir. 1990) (quoting United States v. Dickey, 736 F.2d
571, 582 (10th Cir. 1984)). “[I]nterdependence exists where each [co-
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conspirator’s] activities constituted essential and integral steps toward the
realization of a common, illicit goal.” United States v. Edwards, 69 F.3d 419,
431 (10th Cir. 1995) (internal quotations omitted). The defendant argues that the
government failed to establish interdependence because it failed to demonstrate
that the co-conspirators “act[ed] together for their shared mutual benefit within
the scope of the conspiracy charged.” Evans, 970 F.2d at 671. The defendant
asserts that Evans requires the government to show that the defendant benefitted
financially from his role in the conspiracy. Thus, the defendant argues, the
evidence is insufficient to establish his involvement in the conspiracy because the
government failed to show that the defendant benefitted in any way.
The defendant misinterprets our decision in Evans. The evidence need not
demonstrate that the defendant received a financial benefit for the role that he
played. Rather, the evidence need only demonstrate that the defendant played an
essential role in the furtherance of the goals of the conspiracy. That the
defendant was not apparently rewarded for his efforts is not dispositive. It is
clear that the success of the conspiracy required someone to store large quantities
of cocaine and load it onto the minivans when the couriers were ready. When the
defendant was no longer able to fill this role, he recruited Thomas Sanchez Cruz.
The role played by the defendant was integral to achieving the goals of the
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conspiracy and the evidence clearly demonstrates the required interdependence
among the co-conspirators. See Edwards, 69 F.3d at 431.
IV
The defendant’s final ground for appeal is that the district court erred in
failing to reduce his sentence under U.S.S.G. § 3B1.2, which allows the district
court to grant a two to four level reduction to defendants who played “minor” or
“minimal” roles in the commission of the charged offense. We review the district
court’s finding that the defendant was neither a “minor” nor a “minimal”
participant for clear error. See United States v. Ayers, 84 F.3d 382, 383 (10th
Cir. 1996). The burden is on the defendant to show that he is entitled to a
reduction under § 3B1.2. See id. Clear error is shown if the district court’s
finding is without support in the record or if, after reviewing the record, we are
left with the firm conviction that a mistake has been made. Cowles v. Dow Keith
Oil & Gas, Inc., 752 F.2d 508, 511 (10th Cir. 1985).
Section 3B1.2 of the Sentencing Guidelines “‘vests the district court with
discretion to grant a base offense level reduction if it finds a defendant is less
culpable relative to other participants in a given offense.’” Ayers, 84 F.3d at 383
(quoting United States v. Santistevan, 39 F.3d 250, 254 (10th Cir. 1994)). The
commentary to section 3B1.2 indicates that “the downward adjustment for a
minimal participant will be used infrequently.” U.S.S.G. § 3B1.2, commentary
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(n.2). As an example of a “minimal” participant, the commentary describes a
participant in a “very large drug smuggling operation” whose only role was “to
offload part of a single marihuana shipment, or . . . an individual [who] was
recruited as a courier for a single smuggling transaction involving a small amount
of drugs.” Id. A minor participant means anyone who does not qualify as a
minimal participant but who is still less culpable than most other participants.
See id., commentary (n.3).
We find no clear error. The district court determined that the defendant
“participated on an equal footing with most of the others involved in this
offense;” that he loaded and transported vans on more than one occasion; that he
had a full knowledge of the scope of the conspiracy; and that he “recruited
Thomas Sanchez to find a place to store large amounts of cocaine.” R., Vol. I,
Doc. 490, at 1-2. Such findings are supported by the record and justify denial of
a reduction under § 3B1.2.
AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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