IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-50831
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN PAUL RODRIGUEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United District Court
for the Western District of Texas
(W-95-CR-89-1)
_________________________________________________________________
August 27, 1998
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
The defendant, John Paul Rodriguez, appeals his conviction for
conspiracy and possession of marijuana. He alleges as error the
district court’s (1) instructions to the jury, (2) admission of
certain “expert” testimony, (3) qualification of one witness as an
expert, and (4) calculation of the amount of marijuana for
sentencing purposes. Concluding that the court committed no
reversible error, we affirm the conviction and sentence.
*
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this opinion should not be published and is not precedent except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.
I
John Paul Rodriguez owned and operated a body shop called
Interstate Body and Paint in Round Rock, Texas. After conducting
an investigation, the Narcotics Division of the Texas Department of
Police Safety (“TDPS”) and the Internal Revenue Service (“IRS”)
discovered that Rodriguez was involved in the trafficking of
marijuana--transporting the narcotic from the Round Rock area to
Missouri and Illinois--and that he was using the body shop as a
front operation. Rodriguez was charged in a two-count indictment.
Count 1 charged a conspiracy to distribute and possess marijuana,
in violation of 21 U.S.C. §§ 841(a)(1) and 846. Specifically, the
indictment alleged that Rodriguez conspired to distribute and
possess 100 or more kilograms of marijuana. Count 2 charged
possession of marijuana with intent to distribute, in violation of
21 U.S.C. § 841(a)(1).
Jose Luis Ortiz and Hall Antonio Rubio assisted Rodriguez with
his drug trafficking from 1989 through mid-1995. Although named as
coconspirators in the indictment, they are not parties to the
instant appeal. Ortiz elected to stand trial with Rodriguez, was
convicted, and his appeal dismissed as frivolous. Rubio pled
guilty and handed up his two compadres to the government, serving
as the government’s star witness. Rodriguez was convicted of both
counts and sentenced to concurrent terms of imprisonment of 188
months on each. He now appeals.
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II
A
Rodriguez first complains that the district court erred when
it instructed the jury that the government need not prove any
particular quantity of drugs in order to obtain a conviction for
conspiracy. The indictment charged Rodriguez with conspiring to
“distribute and possess 100 kilograms or more of marijuana.”
During deliberations, the jury submitted a note inquiring “as to
the amount he had to sell in order for it to be considered a
conspiracy.” The court responded, over Rodriguez’s objections,
that “while the indictment alleges a conspiracy involving 100
kilograms or more of marijuana, alleging the amount is unnecessary.
It is not necessary that any amount be proven.” The jury returned
a guilty verdict shortly thereafter.
Section 841 provides for various statutorily enhanced
penalties dependent upon the amount of narcotics proved to have
been possessed by the defendant. See 21 U.S.C. § 841. The
government sought application of the penalty set out in §
841(b)(1)(B)(vii)--mandatory minimum five years imprisonment and
maximum 40 years for possession of more than 100 kilograms of
marijuana. Rodriguez contends that the district court acted
arbitrarily and capriciously when it withdrew the quantity issue
from the jury’s reach after having submitted it for consideration.
The district court, however, properly instructed the jury on
the essential elements of a drug conspiracy. Although the court
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quoted from Count 1 of the indictment--the conspiracy count that
included the language concerning the quantity--the court never
instructed the jury that the 100-kilogram quantity was an element
of the charged offense. The law is well settled that “[q]uantity
is not an element of the crimes proscribed by 21 U.S.C. § 841(a)(1)
or 846, and only need be established for sentencing purposes.”
United States v. Castillo, 77 F.3d 1480, 1496 (5th Cir. 1996)
(rejecting argument that 1,000 kilogram quantity alleged in
indictment constituted element of offense). “Consequently,
quantity need not be finally determined until the sentencing
hearing when the district judge, applying a preponderance of the
evidence standard, determines the quantity of the drugs involved in
the offense . . . .” United States v. Watch, 7 F.3d 422, 427 (5th
Cir. 1993); United States v. Valencia, 957 F.2d 1189, 1197 (5th
Cir. 1992); United States v. Lokey, 945 F.2d 825, 836 (5th Cir.
1991); United States v. McCusker, 936 F.2d 781, 784 (5th Cir. 1991)
(“Quantity is a sentencing concern.”). The district court did not
err when it clarified this point for the jury with its supplemental
instruction.
B
Rodriguez next argues that the district court abused its
discretion in admitting certain “expert” testimony. The government
introduced into evidence conversations between certain participants
of the drug conspiracy that had been captured on tape. Law
enforcement agents then testified concerning the drug-related code
4
words spoken throughout the taped conversations. Specifically,
Rodriguez maintains that the court allowed numerous law enforcement
agents to offer their own interpretations and opinions of the
defendants’ use of common language and whole conversations under
the guise of interpreting “drug code.” According to Rodriguez, the
agents thus encroached upon the province of the jury by offering
“expert” opinions on matters well within the jury’s ken. We review
for abuse of discretion a district court’s decision to allow expert
testimony. United States v. Garcia Abrego, 141 F.3d 142, 172 (5th
Cir. 1998).1
We frequently have allowed the introduction of expert
testimony to help jurors understand specialized jargon, including
that acroamatic within illegal drug trafficking. In United States
v. Griffith, we explained that:
[d]rug traffickers will often refer to ordinary items of
commerce in lieu of illegal narcotics. It is implausible
to think that jurors can understand such arcane allusions
without expert assistance. Drug traffickers’ jargon is
a specialized body of knowledge, familiar only to those
wise in the ways of the drug trade, and therefore a fit
subject for expert testimony.
118 F.3d 318, 321 (5th Cir. 1997). We have thus held it proper for
law enforcement agents to testify to the “‘argot or seemingly
secret jargon’ used in [the drug distribution realm].” Griffith,
1
"’The admission or exclusion of expert testimony is a matter
left to the discretion of the trial court, and that decision will
not be disturbed on appeal unless it is manifestly erroneous.’”
First Nat’l Bank of Durant v. Trans. Terra Corp., 142 F.3d 802, 811
(5th Cir. 1998) (quoting Eiland v. Westinghouse Elec. Corp., 58
F.3d 176, 180 (5th Cir. 1995)).
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118 F.3d at 322 (quoting United States v. Fuller, 974 F.2d 1474,
1482-83 (5th Cir. 1992)).
The scope of a district court’s authority to allow such
explication, however, is not unlimited. “[E]xpert testimony
regarding the meaning of ordinary words, which the jury is in as
good a position as the “expert” to interpret, must be excluded.”
United States v. Krout, 66 F.3d 1420, 1433 (5th Cir. 1995).
Rodriguez has offered excerpts from the testimony of several
different agents that he claims demonstrates that the agents’
opinions concerned their personal interpretation of ordinary words
that had no specialized meaning in the drug trafficking trade.
We need not address this issue, however, because the allegedly
erroneous admission of expert testimony is subject to harmless
error analysis. Griffith, 118 F.3d at 323, Krout, 66 F.3d at 1433;
see also Fed.R.Crim.P. 52(a). “An error is harmless if the
reviewing court is sure, after viewing the entire record, that the
error did not influence the jury or had a very slight effect on its
verdict.” United States v. Rodriguez, 43 F.3d 117, 123 (5th Cir.
1995).2 Even absent the agents’ testimony concerning the taped
2
Rodriguez maintains that “overwhelming evidence” is only one
factor to consider when determining harmlessness. We apparently
have articulated two different standards for deciding whether an
error is harmless. Fleming v. Collins, 917 F.2d 850, 855 n.6 (5th
Cir. 1990). The first--labeled the “Chapman rule”--sets out that
an error may be considered harmless only if it did not contribute
to the verdict. Id. (referring to Chapman v. California, 386 U.S.
18, 24 (1967)). We articulated the second standard in Harryman v.
Estelle, 616 F.2d 870, 876 (5th Cir. 1980) (en banc): error will be
considered harmless if the remaining admissible evidence
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conversations, the evidence of Rodriguez’s guilt (if credited by
the jury) was so overwhelming as to render the agents’ testimony
harmless, if not almost superfluous. See id. (holding error
harmless because of overwhelming evidence of defendant’s guilt).
The prosecution introduced as evidence marijuana seized from
Rodriguez’s residence. Government agents also seized from his
house drug ledgers that set out the specifics of several drug
transactions. Furthermore, the jury heard the testimony of Hall
Antonio Rubio, Roel Antonio Ortegon, Mark Dulaney, and Benito
Encinia--men who were all involved with Rodriguez’s drug
distribution business. Rubio testified extensively regarding his
involvement with Rodriguez’s drug-running business. He said that
Rodriguez recruited him in 1989 to sell marijuana. He detailed how
Rodriguez would load spare tires from the body shop with marijuana
and drug money to smuggle each to their respective destinations.
Ortegon, Dulaney, and Encinia all corroborated Rubio’s testimony
and added further specifics concerning his illegal activities.
Dulaney testified with respect to the amounts of marijuana that he
had purchased from Rodriguez, quantities that eventually increased
to an average of 25 pounds per load. Ortegon testified that he
sold over 100 pounds of marijuana to Rodriguez and that he was cut
out as the middleman when his supplier began to sell directly to
overwhelmingly establishes guilt beyond a reasonable doubt.
Collins, 917 F.2d at 855 n.6 (citing Harryman). Assuming the
impropriety of the agents’ testimony, the district court’s
admission of that evidence was harmless under either standard.
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Rodriguez. In the light of the overwhelming evidence of
Rodriguez’s guilt--hard evidence, such as the seized marijuana and
the drug ledgers, and the testimony of those involved--any error in
admitting the agents’ opinion testimony must certainly be
considered harmless.
C
Rodriguez also argues that the district court erred in
allowing the expert opinion testimony of TDPS Trooper Gilvert
Arredondo. Specifically, Rodriguez points to Arredondo’s
interpretation of one part of an intercepted call where the speaker
said, “My running days are over,” which phrase Arredondo
interpreted as, “My drug smuggling days are over.” Rodriguez
argues that Arredondo could not have qualified as an expert
because, at the time the conversation was taped, he had been
working in the narcotics unit for only three to four months and had
never received any formal training in interpreting drug code.
Furthermore, Arredondo testified that he never had heard that
particular phrase before.
Similar to the previous argument raised by Rodriguez, we need
not address this complaint regarding Arredondo’s qualifications
because, even if erroneously allowed to testify as an expert, the
remaining unchallenged evidence overwhelmingly indicates
Rodriguez’s guilt beyond a reasonable doubt. Furthermore, the
speaker was Blankenship--neither a defendant nor a named
coconspirator--and Rodriguez has failed to demonstrate how
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Arredondo’s interpretation of this tangential individual’s remark
conceivably could have contributed to the jury’s verdict. If the
district court committed any error in allowing Arredondo to testify
as an expert, it was harmless.
D
As his final point of error, Rodriguez challenges the amount
of marijuana the district court attributed to him at the sentencing
hearing. The district court found that Rodriguez was responsible
for 1050 pounds of marijuana, making his base offense level 28. On
appeal, Rodriguez contends that the district court erroneously
credited an “offhand hearsay remark” made by Rubio that lacked
sufficient indicia of reliability. Rodriguez did not present this
argument to the district court and we consistently have held that
“a new argument raised for the first time on appeal, even if it
concerns an issue considered by the trial court, will not be
addressed unless it meets the plain error standard.” United States
for use of Wallace v. Flintco, Inc., 143 F.3d 955, 971 (5th Cir.
1998).
The district court did not clearly err, much less commit plain
error, when it calculated the amount of marijuana attributable to
Rodriguez for sentencing purposes. The court adopted the factual
findings set out in the presentence report that reflected a
statement made by Rubio to the case agent from which the 1050-pound
figure is derived. Generally, “a presentence report . . . bears
sufficient indicia of reliability to be considered as evidence by
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the trial judge in making the factual determinations required by
the sentencing guidelines.” United States v. Alfaro, 919 F.2d 962,
966 (5th Cir. 1990). A sentencing court may adopt the facts
contained in the PSR without inquiry if the defendant does not
present rebuttal evidence. United States v. Puig-Infante, 19 F.3d
929, 943 (5th Cir. 1994). The burden is on the defendant to
demonstrate the unreliability of the unfavorable sentencing
information and “[o]bjections in the form of unsworn assertions do
not bear sufficient indicia of reliability to be considered.”
United States v. Tolliver, 61 F.3d 1189, 1219 (5th Cir. 1995),
vac’d on another point, 516 U.S. 1105 (1996); United States v.
Angulo, 927 F.2d 202, 205 (5th Cir. 1991).
Rodriguez did not present any reliable evidence in opposition
to Rubio’s statement contained in the PSR that supports the
determination that his base offense level is 28. Accordingly, the
district court did not err in crediting Rubio’s estimate that
Rodriguez had distributed a total of over 1000 pounds of marijuana.
III
For the foregoing reasons, Rodriguez’s conviction and sentence
are
A F F I R M E D.
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