F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 23, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-4138
(D.C. No. 2:00-CR-7-TC)
JOSE CHACO N-RIOS, (D. Utah)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.
Defendant-Appellant Jose Chacon-Rios appeals his conspiracy conviction,
arguing that there was insufficient evidence of his membership in the conspiracy
and that the jury instructions failed to adequately identify the conspiracy. W e
affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 and 10th Cir. R. 32.1.
B ACKGROUND
M r. Chacon-Rios was indicted along with Jaime Ramirez-Gonzales on one
count of conspiring from November 22 to N ovember 24, 1998, “w ith others
know n and unknown,” to distribute methamphetamine and to possess
methamphetamine with intent to distribute. R., Vol. 1, D oc. 1 at 1. At trial,
Special Agent Howard Ellis of the Federal Bureau of Investigation (FBI) testified
that in the summer of 1998, the FBI began investigating Edgar M orales and Leo
Gonzales for methamphetamine distribution in Salt Lake City. Police Officer
Dale Bench assisted the FBI’s investigation in an undercover capacity, making
several purchases from M orales and Gonzales beginning in August 1998 and
extending into November. At one point, M orales introduced Officer Bench to
“Cuco,” id., Vol. 2 at 64, who, according to M orales, would be handling any
further deliveries of methamphetamine.
Agent Ellis was providing cover for Officer Bench and conducting
surveillance with other agents during Bench’s purchases. Agent Ellis testified
that methamphetamine sold to Bench in mid-November was taken from a
residence at 70 W est 2400 South, which Ellis described as a “stash house.” 1 Id. at
1
“A ‘stash house’ is a place where drugs and money [are] kept” to “hide the
identity of the true owner of the drugs or the cash,” “to protect the drugs from
rival organizations, [and] to keep the drugs hidden from law enforcement
surveillance.” R., Vol. 2 at 20-21.
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92. A pole camera was trained on the 70 W est residence during the investigation
of this case.
Conversations from a number of wiretapped telephone calls that occurred
on November 22 were admitted at trial. 2 M any of the calls involved an individual
known as “Pepe,” who would later be identified at trial as M r. Chacon-Rios.
During one call, Gonzales asked M orales “if Pepe’s stuff is the only thing going
on that day.” Id. at 97. In another call, “Pepe” gave M orales “the number of”
Luis Orona and another person “from Nebraska,” id. at 127, and “Pepe” told
M orales that he “will need to borrow at least $500 before he can go,” id. at 99. In
a call made at 5:22 p.m., M orales told Gonzales “that they have to get five
[pounds] put together . . . for ‘Pepe,’ who has gotten three bills together.” Id. at
100; see also id. at 101. Several minutes later, M orales called Ramirez-Gonzales
and asked for “an eight thousand dollar pound of [high purity]
methamphetamine,” id. at 101; see also id. at 102, but later changed the request to
a lesser quality. M orales then called “Pepe” to discuss “Pepe’s” “long trip
coming up.” Id. at 104.
Telephone conversations from November 23 calls were also admitted.
During one call, M orales and “Pepe” discussed “the five pounds that are being put
together for the trip.” Id. at 106. In a subsequent call, M orales told “Pepe” that
2
Even though the telephone conversations were transcribed and admitted
into evidence at trial, the record on appeal includes only summations of the
conversations.
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the “five pounds of methamphetamine [are] ready,” id. at 108, and that they
should meet in fifteen minutes, id. at 109. The pole camera revealed that
M orales, “Cuco,” and M r. Chacon-Rios soon arrived at the 70 W est residence,
that M r. Chacon-Rios entered the house after speaking with “Cuco,” and that
M r. Chacon-Rios departed after a few minutes carrying “a plastic bag containing
something . . . consistent with five pounds of methamphetamine.” Id. at 112.
During a November 26 telephone call, “Pepe” and M orales discussed the
long trip that “Pepe” had taken, and “Pepe” told M orales that the “customer . . .
did not like the quality of the methamphetamine.” Id. at 114. Two days later,
“Pepe” and M orales discussed on the phone how the five pounds of
methamphetamine were “too low of quality to sell.” Id. at 116. Orona testified
that on one occasion in the W inter of 1998, M r. Chacon-Rios delivered five
pounds of poor quality methamphetamine to him in Nebraska.
FBI Special Agent Juan Becerra testified that after M r. Chacon-Rios was
arrested, he admitted that his nickname was “Pepe,” that he was the person in the
photograph taken by the pole camera on November 23, 1998, and that he was
delivering methamphetamine in the bag to Nebraska for M orales.
A t the jury instruction conference, M r. Chacon-Rios proposed two
instructions that are relevant to this appeal. Proposed instruction five read, in
part: “The charge in this indictment is [that] a conspiracy extended from July of
1998 through sometime in December of 1998”; and “It is for you, the jury to
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determine whether M r. Chacon[-]Rios conspired or not and was a member of the
conspiracy charged in the indictment, whether he was a member of another
conspiracy or w hether he was not [a] member of any conspiracy at all.” Aplt. Br.,
Addendum A -4. Proposed instruction six read: “The defendant’s theory of the
case is that he was not a member of the conspiracy charged in the indictment.”
Id. The district court rejected the instructions, ruling that they were covered by
its instruction twenty-two:
Even if the evidence in the case shows that M r. Chacon-Rios
was a member of some conspiracy, but that this conspiracy is not the
single conspiracy charged in the indictment, you must acquit
M r. Chacon-Rios of this charge.
Unless the government proves the existence of the single
conspiracy described in the indictment beyond a reasonable doubt,
you must acquit M r. Chacon-Rios of this charge.
R., Vol. 1, Doc. 121 at 25.
During closing arguments, the government focused the jury on the dates of
the conspiracy charged in the indictment, stating, “that’s the issue before you, not
whether or not he was doing that before or continued to do it after,” and “our
evidence with regards to the activities of before was to only assist you and help us
prove what was going on between November 22nd, 1998 and November 24th of
1998.” Id., Vol. 4 at 48. M r. Chacon-Rios’ counsel argued that M r. Chacon-Rios
“did nothing more than to try to make a little money by working with Edgar
[M orales] to take this stuff to Luis [Orona],” id. at 57, and that “[j]ust as Edgar
and Jaime [Ramirez-Gonzales] had a side conspiracy, Pepe and Edgar had a side
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conspiracy. It’s not the same conspiracy that they’ve charged in the indictment.”
Id. at 59.
After deliberating, the jury returned a guilty verdict and found the amount
of methamphetamine to be five pounds. This appeal followed.
D ISCUSSION
I. Sufficiency of the Evidence
M r. Chacon-Rios first argues that there was insufficient evidence of his
membership in the conspiracy. W hether there is sufficient evidence is a question
of law that we review de novo. United States v. Chavis, 461 F.3d 1201, 1207
(10th Cir. 2006). “Evidence is sufficient to support a conviction if, viewing the
evidence in the light most favorable to the government, a reasonable jury could
have found the defendant guilty beyond a reasonable doubt.” United States v.
Pettigrew, 468 F.3d 626, 639 (10th Cir. 2006) (quotation omitted), cert. denied,
75 U.S.L.W . 3438 (Feb. 20, 2007). In conducting our review , we consider both
direct and circumstantial evidence, as well as the reasonable inferences to be
drawn therefrom, and “it is not our duty to weigh conflicting evidence [ ]or to
consider the credibility of witnesses.” United States v. Brooks, 438 F.3d 1231,
1236 (10th Cir. 2006).
A conspiracy conviction requires proof beyond a reasonable doubt of (1) an
agreement with another person to violate the law, (2) knowledge of the
conspiracy’s essential objectives, (3) knowing and voluntary participation, and
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(4) interdependence among the alleged conspirators. United States v.
M cCullough, 457 F.3d 1150, 1159 (10th Cir. 2006), cert. denied, 127 S. Ct. 988
(2007).
M r. Chacon-Rios contends that “the charged conspiracy was in fact the
conspiracy running from July 98 until December 1998.” Aplt. Br. at 11. W e
reject M r. Chacon-Rios’ attempt to enlarge the scope of the conspiracy charged
and proved by the government. The indictment specified that the conspiracy to
distribute and to possess with intent to distribute occurred from “the 22nd day of
November, 1998, until the 24 th day of November, 1998.” R., Vol. 1, Doc. 1 at 1.
During trial, the government argued those dates to the jury and indicated that
evidence of prior activities was intended only to place M r. Chacon-Rios in an
ongoing conspiracy. 3 Further, the government did not vary from the single
conspiracy charged in the indictment w hile presenting its evidence. See United
States v. Hall, 473 F.3d 1295, 1305 (10th Cir. 2007) (explaining that a potentially
fatal “variance occurs when the conspiracy charged in an indictment is different
from the evidence adduced at trial”).
3
M r. Chacon-Rios mischaracterizes the record when he states that “during a
pre[-]trial hearing the government, when pressed by the court, assured that court
that the indictment charged a conspiracy that ran from July of 1998 to December
of 1998.” Aplt. Br. at 7. Rather, during a James hearing, see United States v.
James, 590 F.2d 575 (5th Cir. 1979), to determine the admissibility of
coconspirator statements under Fed. R. Evid. 801(d)(2)(E), the government
argued that M r. Chacon-Rios had joined the conspiracy “at least by November
22nd,” R., Supp. Vol. 1 at 27, and that evidence of conversations before that date
was necessary “to place [the conspiracy] in context,” id. at 20.
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M r. Chacon-Rios also contends that there was no evidence that he knew of
the conspiracy’s objective to distribute methamphetamine. W e disagree.
M r. Chacon-Rios’ knowledge of the objective was shown by his initial telephone
conversations w ith M orales arranging the delivery to Orona, his meeting with
M orales and “Cuco” at the stash house to obtain the methamphetamine, his
delivery of the methamphetamine to Orona, and his subsequent telephone
conversations w ith M orales stating that the methamphetamine was of poor quality
and not sellable.
Next, M r. Chacon-Rios seems to contest knowing and voluntary
participation in the conspiracy. He contends that his contact with the conspiracy
“was a one time deal,” citing his unfamiliarity with Ramirez-Gonzales, his
confusion of Leo Gonzales’s voice for M orales’ voice during a November 13
telephone call, his lack of “any significant financial assets,” and his need for
directions to the stash house. Aplt. Br. at 11. W hile “[c]asual transactions w ith
persons involved in a conspiracy are insufficient to establish” participation,
United States v. Horn, 946 F.2d 738, 741 (10th Cir. 1991), “[t]he defendant’s
participation in or connection to the conspiracy need only be slight,” United
States v. Johnston, 146 F.3d 785, 789 (10th Cir. 1998); accord United States v.
Roberts, 881 F.2d 95, 101 (4th Cir. 1989) (stating that a conspiracy conviction
may lie even though the defendant “had not participated before and even though
he played only a minor part”). The jury may presume that a defendant is a
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knowing participant in the conspiracy when he acts in furtherance of the
conspiracy’s objective. Johnston, 146 F.3d at 789. Here, the jury could have
reasonably presumed M r. Chacon-Rios’s knowing participation based on (1) his
delivery of methamphetamine procured from the conspiracy’s stash house to
Orona and (2) his subsequent telephone calls notifying M orales that the
methamphetamine was not sellable.
That M r. Chacon-Rios may not have known Ramirez-Gonzales is of no
moment. There is no requirement that a conspirator know every other member of
the conspiracy, see United States v. Eads, 191 F.3d 1206, 1210 (10th Cir. 1999),
so long as he has “a general awareness of other alleged coconspirators,” Horn,
946 F.3d at 741. M r. Chacon-Rios knew M orales, a core conspirator, as
evidenced by their numerous telephone conversations on November 22 and 23
arranging the delivery of methamphetamine to Orona, and there was
circumstantial evidence showing that M r. Chacon-Rios also knew “Cuco” as a
conspirator, given that “Cuco” had handled methamphetamine deliveries for
M orales and was seen speaking to M r. Chacon-Rios at the stash house.
Finally, M r. Chacon-Rios’ lack of “significant financial assets” and his
confusing Leo Gonzales for M orales do not compel the conclusion that he was not
a participant, as there are any number of non-exculpatory explanations for these
occurrences, including that M r. Chacon-Rios had only recently joined the
conspiracy. Nor does M r. Chacon-Rios’ need for directions to the stash house
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negate his participation, as one may become a member of the conspiracy without
full knowledge of all of its details. United States v. Smith, 413 F.3d 1253, 1276
(10th Cir. 2005), cert. denied, 126 S. Ct. 1093 (2006).
W e conclude that substantial evidence supports M r. Chacon-Rios’
conspiracy conviction.
II. Jury Instructions
“W e review a district court’s refusal to give a requested instruction for
abuse of discretion.” United States v. Crockett, 435 F.3d 1305, 1314 (10th Cir.
2006). In determining whether the district court properly exercised its discretion,
however, we review the instructions de novo to ensure that, “as a whole, they
accurately state the governing law and provide the jury with an accurate
understanding of the relevant legal standards and factual issues in the case.” Id.
M r. Chacon-Rios argues that, without his proposed instructions, it was
unlikely that the jury “ever consider[ed] that [he] was not a member of the
charged conspiracy,” or that it “even kn[e]w which conspiracy was the charged
conspiracy.” Aplt. Br. at 13. W e disagree. The district court expressly directed
the jury in instruction twenty-two to acquit M r. Chacon-Rios if the evidence
showed that he was a member of some conspiracy other than “the single
conspiracy charged in the indictment.” R., Vol. 1, Doc. 121 at 25. Further,
instruction fourteen reproduced the indictment and instructions nineteen and
tw enty-three required the jury to consider whether the government had shown
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beyond a reasonable doubt that “M r. Chacon Rios was a member of the
conspiracy charged in the indictment.” Id. at 27; see also id. at 20. Based on
these instructions, we conclude that the district court did not abuse its discretion
in refusing M r. Chacon-Rios’ requested instructions.
The judgment of the district court is AFFIRMED. 4
Entered for the Court
Bobby R. Baldock
Circuit Judge
4
On February 16, 2007, M r. Chacon-Rios moved to stay these proceedings
and to allow further briefing. In the motion, he states that the sentencing judge
impermissibly increased his sentence by finding that the conspiracy involved
thirteen-and-a-half pounds of methamphetamine, when the jury found only five
pounds. M r. Rios states that further briefing is necessary because he did not brief
any sentencing issues and after briefing was completed the Supreme Court
released Cunningham v. California, 127 S. Ct. 856, 860, 865-67 (2007) (citing,
among other cases, United States v. Booker, 543 U.S. 220 (2005), to invalidate a
state’s sentencing scheme that assigned to the judge the authority to find by a
preponderance of evidence facts exposing the defendant to an “elevated ‘upper
term’ sentence”). W e deny the motion for a variety of reasons. First,
Cunningham offers M r. Chacon-Rios nothing more than a reaffirmation of
Booker, which precludes a sentencing judge, when operating under mandatory
Federal Sentencing Guidelines, from finding a particular amount of drugs unless
admitted by the defendant or proven to a jury beyond a reasonable doubt, see
Booker, 543 U.S. at 244. Booker was available long before M r. Chacon-Rios’
sentencing, and his failure to include a Booker argument in his appellate brief
constitutes waiver. See United States v. Patterson, 472 F.3d 767, 783 (10th Cir.
2006). Second, even if there were no waiver, M r. Chacon-Rios admitted in a pre-
sentencing motion for safety-valve treatment that the conspiracy involved
thirteen-and-a-half pounds. R., Vol. 1, Doc. 143 at 2. And third, even if he had
not admitted that weight, the sentencing judge applied the guidelines in an
advisory fashion, and was therefore permitted to diverge from the jury’s finding
using a preponderance test. See United States v. M agallanez, 408 F.3d 672, 685
(10th Cir.), cert. denied, 126 S. Ct. 468 (2005).
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