United States v. Rodriguez

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this opinion should not be published and is not precedent except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

9
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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