F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 20, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 05-2331
v. (D. New M exico)
A LBER TO BETO BEC ER RA , (D.C. No. CR-04-1312-RCB)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before HA RTZ, A ND ER SO N, and M cCO NNELL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Following a jury trial, Alberto Beto Becerra was found guilty of possession
with intent to distribute 500 grams or more of a substance containing
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff.
Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A),
conspiracy, in violation of 21 U.S.C. § 846, and carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i).
He was sentenced to 235 months on the conspiracy and drug possession counts,
and sixty months on the firearm count, to run consecutively to the 235-month
sentence, for a total sentence of 295 months. Becerra appeals his conviction,
which we affirm.
BACKGROUND
Becerra’s arrest and conviction occurred as a result of a multi-year
investigation into a methamphetamine trafficking conviction organization run by
Guadalupe Lopez. 1 In December 2003, federal agents working with a confidential
informant purchased four pounds of methamphetamine from Lopez. Based upon
this seizure and other information gleaned from their investigation, the agents
obtained a wiretap on a cellular phone used by Lopez. Federal authorities began
intercepting calls in M arch 2003.
On April 5, 2004, federal agents learned from intercepted calls that Lopez
was planning to deliver four pounds of methamphetamine to Becerra. The agents
began conducting surveillance of Becerra. They believed that Lopez would
1
W e recently affirmed the conviction of one of Becerra’s co-defendants,
Abraham Amaya. United States v. Amaya, __ Fed. Appx. __ (10th Cir. 2006).
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deliver the methamphetamine using the same black Dodge pickup with Texas
license plates that he had used in the December 2003 sale. Through intercepted
calls and surveillance, the agents found the truck at a Budget Inn in Roswell, New
M exico, on April 6, 2004. At approximately 11:45 a.m., Becerra arrived at the
Budget Inn in a small gray car, which agents learned was registered to Becerra’s
wife, Elizabeth Tarrango.
Shortly thereafter, the black truck, driven by co-defendant Amaya, and the
small gray car, driven by Becerra, left the Budget Inn and drove to 7018 LaVanne
in Hagerman, New M exico. No one was home at the residence. Amaya and
Becerra got out of their vehicles and looked underneath the back of the truck.
Approximately an hour later, after a brief intervening trip into Hagerman to
make a telephone call from a pay phone, Amaya drove the truck to Becerra’s
house at 400 Kansas in Hagerman, while Becerra followed in the gray car. They
remained at Becerra’s house for several hours. At approximately 6 p.m., Amaya
drove the black truck back to 7018 LaVanne and parked in the carport, with
Becerra again following in his car. After Becerra and Amaya arrived at the
residence, agents observed Becerra in his gray car and another individual in a
blue Ford Probe conducting “heat runs” to check for the presence of law
enforcement personnel in the area. After observing the activities of the gray and
blue cars, and observing Becerra’s gray car begin driving away, agents stopped
Becerra’s car, fearing that the methamphetamine they suspected was in the black
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truck had been unloaded. Becerra was driving the car w hen it w as stopped.
Agents found a loaded Taurus 9 mm. handgun on the driver’s side of the car.
They arrested Becerra.
Agents also detained the blue Probe parked near the residence. They found
the driver, Pedro Becerra, who is defendant Becerra’s nephew, in the driver’s seat
with a loaded 9 mm. Astra handgun on his lap. Shortly thereafter, agents
discovered R.J. Becerra lying on top of a nearby RV camper. Agents secured the
residence and obtained a search warrant to search the premises, including any
vehicles. Amaya was arrested near the black truck, in which agents discovered
507.6 grams of methamphetamine in a hidden compartment in the truck’s axle.
Following Becerra’s arrest, at 7:45 p.m. on that same day (April 6),
Becerra’s niece, Angie B ecerra, called Lopez and left a message asking him to
call her “as soon as possible.” Appellant’s App. at 213. At 7:52 p.m., Lopez,
also known as “Lupe,” had the following conversation with Angie Becerra:
ANGIE: Hello.
LUPE: Ey, what’s happened?
ANGIE: No nothing. Uhm . . .
LUPE: Uh?
ANGIE: . . . Nothing happened with your people yesterday?
LUPE: W hy, what happened?
ANGIE: Because my uncle is over here being detained.
LUPE: W hat uncle?
ANG IE: W ell which? W hat uncle do you hang out with? Oh my
God . . . (crying).
LUPE: W hen did they detain him?
A N G IE: We’re right here now.
LU PE: Y ou’re there right now?
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ANGIE: Yes.
LUPE: W here?
ANGIE: They’re here in town.
LUPE: They have him detained?
ANGIE: Yes.
...
LUPE: Him and who else?
ANGIE: Him and another guy.
LUPE: W hat or why?
...
LUPE: Ask them w hat’s happened.
ANGIE: Oh my God. No, man . . .
LUPE: W hat happened?
ANGIE: I’ll call you back in a little bit.
Appellee’s App. at 38-40. Other phone calls between Angie Becerra and Lopez
were also recorded.
Becerra was indicted in a three-count superceding indictment charging him
with conspiracy, in violation of 21 U.S.C. § 846, possession with intent to
distribute 500 grams or more of a substance containing methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and carrying a firearm during
and in relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A )(i). 2 Becerra, Amaya and Huerta-Varela proceeded to trial.
During the trial, the government sought to introduce recordings and
corresponding transcripts of the telephone conversations between Angie Becerra
and Lopez which occurred shortly after Becerra’s arrest. Becerra objected on
2
Becerra’s co-defendants Amaya, Francisco Huerta-Varela, the owner of the
residence at 7018 LaVanne, and Lopez were indicted on the first two counts along
with Becerra. Lopez has not been prosecuted, however, as he has remained a
fugitive living in M exico.
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hearsay and confrontation clause grounds. The district court overruled the
objection in part, allowing some of the recorded conversations to be admitted into
evidence. At the close of the government’s case, all three defendants moved for
judgment of acquittal, which the court denied. The jury then found Becerra guilty
of all three counts w ith w hich he was charged, found Amaya guilty of the two
counts with which he was charged and acquitted Huerta-Varela. This appeal
followed.
Becerra argues: (1) the district court violated his Sixth Amendment right to
confront the witnesses against him when it admitted evidence of the telephone
calls between Becerra’s niece and Lopez following Becerra’s arrest; (2) there was
insufficient evidence supporting Becerra’s conviction for carrying a firearm
during and in relation to a drug trafficking offense; and (3) the district court erred
in admitting evidence that Becerra’s nephew, Pedro, was found with a weapon in
his car at the time of Becerra’s arrest, even though Pedro was not a co-defendant
or a specific named co-conspirator.
D ISC USSIO N
I. Telephone conversations
As indicated, shortly after Becerra’s arrest, Becerra’s niece, Angie,
telephoned Lopez and told him about Becerra’s arrest. The government sought to
introduce evidence of several of these phone calls as “co-conspirator statements”
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which were “not testimonial in nature,” or as evidence of a conspiracy. The
government further argued they were not hearsay, because they were not offered
to prove the truth of w hat was stated. Appellant’s App. at 79, 194-95. Becerra
objected to their introduction, arguing that Becerra’s niece was never charged as a
co-conspirator and the calls were prejudicial more than probative of anything.
The district court admitted evidence of the phone calls because they “are not
offered for their truth.” Id. at 199. 3
Relying on Crawford v. W ashington, 541 U.S. 36 (2004), Becerra argues
the admission of evidence of these phone calls violated his Sixth Amendment
right to confront the witnesses against him. W e “review[] de novo the legal
question of whether the admission of a . . . statement at trial violates the
accused’s Sixth Amendment confrontation right.” United States v. Summers, 414
F.3d 1287, 1298 (10th Cir. 2005). W e review for an abuse of discretion decisions
to admit evidence which do not implicate the Sixth Amendment. United States v.
Dowlin, 408 F.3d 647, 659 (10th Cir. 2005).
In Craw ford, the Supreme Court held that the Sixth A mendment’s
confrontation clause requires a trial court to exclude hearsay that is “testimonial”
in nature unless the declarant is unavailable and the defendant has had an
3
The court did not allow evidence of the phone calls in on the ground that
they were co-conspirator statements, because the court believed that the
conspiracy had ended when Becerra and his co-defendants were arrested and the
methamphetamine was seized. Additionally, only two calls were actually played
for the jury. There was simply a reference to other calls.
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opportunity earlier to cross-examine the declarant. Id. at 68. W hile the Court in
Craw ford did not precisely define “testimonial,” it indicated “that the term
encompasses formal statements to government officers, including at least
statements during police interrogation and prior testimony.” United States v.
Faulkner, 439 F.3d 1221, 1225 (10th Cir. 2006) (citing Crawford, 541 U.S. at 51-
52, 68). The Court subsequently indicated that a statement given under
interrogation is testimonial if “the circumstances objectively indicate . . . that the
primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.” Davis v. W ashington, 126 S.
Ct. 2266, 2273-74 (2006); see also Summers, 414 F.3d at 1302 (“[A] statement is
testimonial if a reasonable person in the position of the declarant would
objectively foresee that his statement might be used in the investigation or
prosecution of a crime.”). Further, “the [Confrontation] Clause restricts only
statements meeting the traditional definition of hearsay” which is “‘a statement,
other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.’” Faulkner, 439 F.3d
at 1226 (quoting Fed. R. Evid. 801(c)).
The confrontation clause did not prohibit the admission of the phone calls
between Angie Becerra and Lopez because those calls were not testimonial
hearsay. They were not offered to prove the truth of the matters asserted in the
calls, nor were they testimonial in nature under D avis or Craw ford. They were
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purely private informal conversations between two individuals, and they were
introduced at Becerra’s trial simply to demonstrate a connection between Lopez
and the B ecerra family. See Faulkner, 439 F.3d at 1226-27. The district court
committed no error in admitting evidence of the calls.
II. Sufficiency of evidence of carrying a firearm
Becerra was convicted of carrying a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), based upon the fact
that, when he was arrested driving his wife’s gray car, there was a gun on the
driver’s side of the car. He argues the evidence was insufficient to support his
§ 924(c)(1)(A)(i) conviction.
“W e review claims of insufficient evidence de novo” asking “only whether
taking the evidence— both direct and circumstantial, together w ith the reasonable
inferences to be drawn therefrom— in light most favorable to the government, a
reasonable jury could find the defendant guilty beyond a reasonable doubt.”
United States v. Banks, 451 F.3d 721, 725 (10th Cir. 2006) (further quotation
omitted). “W e do not assess the credibility of witnesses or weigh conflicting
evidence because these tasks are exclusively those of the jury.” Id. at 725-26.
W e accordingly may reverse “only if no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. at 726 (further
quotation omitted).
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Section 924(c)(1)(A )(i) provides that “any person who, during and in
relation to any . . . drug trafficking crime . . . uses or carries a firearm” is subject
to a mandatory five-year prison term. The “carry” part of § 924(c)(1)(A) “has
two elements: (1) possession of the weapon through the exercise of dominion or
control; and (2) transportation of the weapon.” United States v. Lindsey, 389
F.3d 1334, 1338 (10th Cir. 2004). In M uscarello v. United States, 524 U.S. 125,
126-27 (1998), the Supreme Court held it “applies to a person who knowingly
possesses and conveys firearms in a vehicle, including in the locked glove
com partment or trunk of a car, w hich the person accompanies.” Further, “we
have determined that a firearm is carried during and in relation to the underlying
crime when the defendant avails himself of the weapon and the weapon plays an
integral role in the underlying offense.” Banks, 451 F.3d at 726 (further
quotation and internal alterations omitted). The “during and in relation to”
requirement is satisfied when the government proves “a direct nexus between the
defendant’s carrying of a firearm and the underlying drug crime.” Id. (further
quotation omitted). This nexus requirement is established by evidence
demonstrating “that the defendant intended the firearm to be available for use in
the offense.” Id.
The evidence in this case clearly meets the statutory definition of carrying a
firearm during and in relation to a drug trafficking crime. The gun was found on
the driver’s (Becerra’s) side of the car when he was arrested after being observed
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driving in tandem with the vehicle containing the methamphetamine, and after his
vehicle was observed conducting “heat runs.” W hile he argues there was no
evidence he ever used the firearm, that is irrelevant because he was convicted of
carrying the firearm, not using it. W e have frequently commented on the
extremely common association between firearms and drug operations. United
States v. M endoza-Salgado, 964 F.2d 993, 1008 (10th Cir. 1992) (“The courts
generally view items such as firearms . . . as ‘tools of the trade’ for distributing
drugs.”). Furthermore, as we discuss more fully below , evidence that Pedro
Becerra was also carrying a readily accessible loaded firearm suggests that both
men were using those weapons to facilitate the methamphetamine conspiracy and
protect their load of contraband. A reasonable jury could easily find Becerra
guilty beyond a reasonable doubt of carrying the firearm in connection with the
methamphetamine conspiracy.
III. Admission of evidence of firearm in Pedro Becerra’s vehicle
As indicated above, Becerra’s nephew, Pedro Becerra, was also stopped in
his vehicle at the same time Becerra was arrested. A firearm was taken from
Pedro Becerra’s car at that time. The government sought to have the firearm
seized from Pedro introduced into evidence as part of its proof of Becerra’s guilt
on count three— carrying a firearm during and in relation to the methamphetamine
conspiracy. The government offered the firearm “to show that other participants
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in the conspiracy also had firearms readily accessible” and to show that Becerra’s
carrying a firearm in his vehicle was “not just by accident or coincidence.”
Appellee’s B r. at 23. The district court allowed it, “on the notion that it is
relevant on the question . . . or . . . inference that M r. Pedro Becerra or Alberto
Becerra might simply have been carrying a gun because that was his practice.”
Appellant’s App. at 206.
Becerra argues that the firearm was inadmissible because Pedro Becerra
was not a co-defendant or co-conspirator. The government responds that, while
Pedro Becerra was not a co-defendant of Becerra, he was clearly a co-conspirator.
W e review the decision to admit the firearm for an abuse of discretion. Dowlin,
408 F.3d at 659.
W e agree with the government that the district court did not abuse its
discretion in admitting evidence of the firearm seized from Pedro Becerra. The
indictment charged that there were other conspirators, both known and unknown.
There was ample evidence demonstrating Pedro Becerra’s involvement in the
conspiracy— conducting heat runs after the methamphetamine was delivered and
meeting with Becerra shortly before the contraband was seized. Further, Pedro’s
possession of a firearm in his vehicle suggests that both his and Becerra’s
possession of a firearm was part and parcel of the conspiracy. Both men were
armed to protect the contraband, a familiar scenario in drug conspiracies. United
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States v. Sakyi, 160 F.3d 164, 169 (10th Cir. 1998) (“[A]s w e have previously
noted, guns often accompany drugs.”).
C ON CLU SIO N
For the foregoing reasons, we AFFIRM Becerra’s conviction.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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