UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40542
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARLOS OTERO, a.k.a. CHARLIE, a.k.a. CHARLIE OTERO;
JUAN RODRIGUEZ, a.k.a. JOHNNY RODRIGUEZ, a.k.a. JOHNNY;
GUSTAVO B. ANDRADE; and
AUGUSTIN JAIME OBREGON-GONZALEZ, a.k.a. JAIME OBREGON,
Defendants-Appellants,
Appeals from the United States District Court
for the Southern District of Texas
(B-96-CR-337)
March 5, 1999
Before KING, Chief Judge, JONES, and SMITH, Circuit Judges:
PER CURIAM:*
Carlos Otero, Juan Rodriguez, Gustavo Andrade, and
Augustin Jaime Obregon-Gonzalez were convicted by a jury on various
charges relating to the importation and possession of marijuana.
On appeal, the appellants have raised numerous issues in connection
with their convictions. Finding no error in the pretrial, trial,
or sentencing proceedings, we affirm.
*
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that this opinion should not be published and is not precedent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. FACTUAL AND PROCEDURAL HISTORY
A. The Conspiracy
In August 1996, the appellants contacted a confidential
informant for the United States Customs Service to arrange for the
transportation of marijuana between the Rio Grande Valley of Texas
and Chicago, Illinois. After agreeing with Andrade and Hilario
Obregon to transport the marijuana for $50,000, the informant
scheduled an appropriate date to pick up the shipment.
From August 29 to September 2, 1996, the informant, an
undercover officer, and the appellants worked to gather, load, and
store the marijuana shipment. On August 29, Obregon-Gonzales and
Obregon assisted the informant in loading marijuana into a van
(“the August 29 load”).1 On August 30, the undercover officer
drove the van to Rodriguez’s grocery store where he met Obregon-
Gonzales, Andrade, and Rodriguez. More marijuana was loaded in the
van (“the August 30 load”), and the undercover officer was given
money orders in the amount of $5,350 -- a down payment on the
$50,000. On August 31, the undercover officer met with Obregon-
Gonzales, Andrade, and Rodriguez to receive the final shipment of
marijuana. To their chagrin, the United States Border Patrol
seized this shipment as it was crossing the border from Mexico.
On September 2, Andrade, Obregon, and Obregon-Gonzales
met with the undercover officer at a warehouse where the marijuana
1
Initially, the parties had planned to pick up the August
29 load at Rodriguez’s grocery store. These plans ultimately fell
through, however, and the August 29 load was stowed on board the
van at a house in El Ranchito, Texas.
2
had been stored. An additional $6,000 was delivered, and the
parties argued regarding the total amount of marijuana included in
the shipment. Later that day, the undercover officer met with
Andrade, received an additional $3,000 in money orders, and
finalized plans for transporting the marijuana, including
instructions for delivering the contraband to “Charlie” in Chicago.
Following the transportation of the marijuana to Chicago,
the undercover officer contacted Charlie, a.k.a. Otero. The
undercover officer discussed delivery arrangements with Otero and
Andrade, who had been accompanied to Chicago by Obregon-Gonzales.
Final payment was arranged through the informant by wiring $25,000
from Mexico to a bank in Brownsville, Texas. After the informant
confirmed receipt of the money on September 9, the undercover
officer delivered the marijuana to Andrade and Otero at a hotel.
Andrade and Otero left with the marijuana in a Ryder truck. An
Illinois state trooper working with the Customs Service stopped the
vehicle. When searched, the marijuana was found in the cargo bay.
B. The Indictment and Convictions
Rodriguez, Andrade, Otero, Obregon-Gonzales, and Obregon2
were indicted by a federal grand jury for conspiracy to import in
excess of 100 kilograms of marijuana, 21 U.S.C. §§ 952(a),
960(b)(2), 963; conspiracy to possess with intent to distribute in
excess of 100 kilograms of marijuana, 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), 846; and conspiracy to launder money, 18 U.S.C. §
2
Obregon was indicted with the appellants; however, he
died prior to trial.
3
1956(h). Rodriguez, Andrade, Obregon-Gonzales, and Obregon were
also charged with possession, and aiding and abetting possession,
with intent to distribute in excess of 100 kilograms of marijuana,
21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2.
The defendants were tried together. Otero filed a motion
to sever, which the trial court denied. Rodriguez’s oral motion
for severance, made during pretrial proceedings, was also denied.
Neither the record nor trial transcripts indicate that Andrade
filed a pretrial motion to sever. The appellants timely appealed
their convictions.
II. ANALYSIS3
A. Sufficiency of the Evidence
Viewed in the light most favorable to the verdict, the
evidence was sufficient to support the convictions of Obregon-
Gonzalez, Otero, and Rodriguez for conspiracy to import marijuana,
conspiracy to possess with intent to distribute marijuana, and
possession with intent to distribute marijuana. See United States
v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992) (explaining
standard for sufficiency of evidence review). In fact, factual
support for the convictions is sprinkled liberally throughout the
record.
First, the sole basis for Obregon-Gonzalez’s sufficiency
challenge (i.e., that he lacked the requisite intent because he was
3
In some cases, more than one of the appellants raises the
arguments we address. It is unnecessary, however, to specify the
proponent of each of the issues, and we will respond to their
arguments together.
4
acting as an agent of the government) was heard by the jury and
rejected. We will not upset this credibility determination on
appeal. See United States v. Kelley, 140 F.3d 596, 607 (5th Cir.
1998) (“We will not supplant the jury’s determination of
credibility with that of our own.” (internal punctuation omitted)).
The actions of Otero and Rodriguez, with respect to the
narcotics conspiracies, showed a clear concert of action from which
a jury could infer the existence of a conspiracy for each count.
See United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993)
(“An agreement to violate narcotics laws may be inferred from
‘concert of action.’”). Direct and circumstantial evidence linked
each of the appellants to the entire conspiracy from the
importation stage,4 to the loading of the drugs,5 to delivery of the
drugs to Chicago,6 and to payment and transportation following
delivery. Under these circumstances a jury could have readily
found that each of the appellants conspired to import marijuana
4
A portion of the drugs intended to be loaded at
Rodriguez’s grocery store was seized by the Border Patrol.
Moreover, on September 2, 1996, Andrade discussed the extent of the
conspiracy’s operation in Mexico with the undercover officer.
5
Most of the loading was accomplished, or was meant to be
accomplished, at Rodriguez’s grocery store. This evidence not only
supports the appellants’ conspiracy convictions, but it buttresses
Rodriguez’s conviction for possession of the August 29 load with
intent to distribute. Though the original plan to transfer the
August 29 load at the grocery store failed, Rodriguez’s attachment
to this load was revealed when Obregon-Gonzalez told the undercover
officer that Johnny, a.k.a. Rodriguez, calculated the entire load
at 1300 pounds of marijuana, the approximate total of both the
August 29 and 30 loads.
6
Otero was clearly linked to each of the narcotics
conspiracies, including the conspiracy to import, as the Chicago
contact for the undercover officer.
5
from Mexico and then conspired to possess the drug with intent to
distribute. This evidence likewise supported the appellants’
convictions for possession with intent to distribute.
The conspiracy to launder money requires a more detailed
analysis, however. In its brief, the government has argued that
Rodriguez’s conspiracy conviction must be sustained because the
appellants paid the informant and undercover officer to transport
marijuana. This argument substantially overstates the reach of the
money laundering statute. In order to conspire to launder money
under 18 U.S.C. § 1956(a)(1)(A)(i), an individual must enter into
an agreement whose ultimate purpose is to “promote the carrying on
of specified unlawful activity” by conducting a financial
transaction using property which involves the known proceeds of
specified unlawful activity.7 Clearly, the mere agreement to pay
the informant and undercover officer would not constitute a
conspiracy to launder money absent proof that the conspirators
contemplated that the “proceeds” used to conduct the transaction
would be derived from unlawful activity. In fact, Rodriguez
attempts to make this very argument in his brief.
7
18 U.S.C. § 1956(a)(1)(A)(i) defines the crime of money
laundering in the following fashion,
Whoever, knowing that the property involved in a
financial transaction represents the proceeds of some form of
unlawful activity, conducts . . . a financial transaction which in
fact involves the proceeds of specified unlawful activity -- with
the intent to promote the carrying on of specified unlawful
activity . . . .
18 U.S.C. § 1956(h) makes a conspiracy to commit an offense under
§ 1956(a)(1)(A)(i) a crime.
6
Rodriguez’s conviction for conspiring to launder money
rests, however, on sufficient proof on a narrower basis. The
evidence submitted to the jury demonstrated that the appellants
were engaged in a broad conspiracy to import marijuana from Mexico
to Chicago. In order to promote the narcotics conspiracy, the
appellants engaged the services of the informant and the undercover
officer to transport the marijuana from Texas to Illinois. To pay
for these services, the appellants purchased money orders in
Chicago and wired funds from Mexico to Brownsville, Texas. As the
government explained at oral argument and in its closing jury
argument, a jury could find based on circumstantial evidence that
the appellants had used the proceeds of unlawful activities
occurring in Chicago and Mexico (i.e., funds procured through
participation in felony narcotics violations) to promote an
unlawful activity (i.e., conspiring to import and distribute
marijuana) by conducting a financial transaction (i.e., purchasing
money orders and wiring funds). Rodriguez knowingly participated
in a conspiracy that included money laundering to further the
defendants’ importation scheme. See United States v. Garcia
Abrego, 141 F.3d 142, 163 (5th Cir. 1998) (defining elements of
money laundering conspiracy) (citing United States v. Conley, 37
F.3d 970, 976-77 (3d Cir. 1994)).
B. Motions to Sever
This court reviews the denial of a motion to sever for an
abuse of discretion. See United States v. Neal, 27 F.3d 1035, 1045
(5th Cir. 1994). In conducting this examination, the court must
7
consider the general rule “that persons indicted together should be
tried together, especially in conspiracy cases.” Id. (citing
United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993)). A
severance should be granted “only if there is a serious risk that
a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment
about guilt or innocence.” Zafiro v. United States, 506 U.S. 534,
539, 113 S. Ct. 933, 938 (1993); see also United States v.
Buckhalter, 986 F.2d 875, 876 (5th Cir. 1993) (requiring severance
only when specific, compelling prejudice outweighs interest in
judicial economy).
1. Otero
The trial court did not abuse its discretion in denying
Otero’s motion to sever. Otero principally argued that severance
was warranted in this case because a joint trial would deprive him
of exculpatory evidence.8 Otero maintained that Andrade would
waive his Fifth Amendment rights at Otero’s severed trial and would
testify that Otero had no knowledge of the conspiracy. During the
pretrial conference, however, Andrade confirmed that he would not
waive his Fifth Amendment rights. Based on this refusal, the trial
court denied Otero’s motion to sever. Nonetheless, the district
court admitted a statement into evidence, allegedly written by
8
Otero asserts in a footnote to his brief that severance
was also warranted to avoid presenting a case too factually and
legally complex for a jury to comprehend. The evidence presented,
however, was similar to that in any multi-defendant, multi-count
drug conspiracy indictment -- severance was not required based on
alleged complexity.
8
Andrade, which proclaimed that Otero was not involved in the
conspiracy. In this way, Otero was neither deprived of Andrade’s
testimony nor denied admission of potentially exculpatory evidence.
Otero was not entitled to a separate trial.
2. Rodriguez and Andrade
This court will not review the merits of Rodriguez’s and
Andrade’s arguments. The record excerpts filed by Andrade do not
indicate that a motion to sever was filed on his behalf in the
trial court. Thus, Andrade waived his right to pursue severance.
See United States v. Palmer, 122 F.3d 215, 220 (5th Cir. 1997)
(citing United States v. Castillo, 77 F.3d 1480, 1490 n.19 (5th
Cir. 1996)).
Rodriguez has failed to point out any properly filed
motion to sever in the record, and the docket sheet does not
indicate that a written motion to sever was filed, although it
identifies the government’s response to such a motion. Based on
the deficiency in the record, attributable to Rodriguez, we need
not consider this issue. See United States v. Hinojosa, 958 F.2d
624, 632-33 (5th Cir. 1992). Moreover, based on the government’s
trial briefing and the transcripts of pretrial proceedings, it
appears that Rodriguez changed the basis for his motion to sever on
appeal -- arguing below that severance of defendants was required
under Fed. R. Crim. P. 14, yet maintaining on appeal that severance
of offenses was necessary pursuant to Fed. R. Crim. P. 8(a).9
9
The following perfunctory colloquy appears in pretrial
proceedings:
9
Under all of these circumstances, Rodriguez waived the severance
grounds he now asserts. See United States v. Brown, 16 F.3d 423,
428-29 (D.C. Cir. 1994) (finding waiver of Rule 8 relief when
Rodriguez’s Attorney: I have a
motion to
s e v e r ,
y o u r
h o n o r .
[M]y only
basis for
that is
there are
t h r e e
defendants
in this
case. * *
*
The Court: It will be
prejudicia
l is what
you are
saying?
Rodriguez’s Attorney: Yes,
your
honor
.
The Court: Any other grounds?
Rodriguez’s Attorney: No, your honor.
The Court: It will be denied.
This exchange indicates that Rodriguez in fact relied on Rule 14 as
the basis for his pretrial motion to sever.
If this discussion constitutes the sole basis for his
motion, Rodriguez failed to proffer sufficient evidence to
demonstrate a compelling and specific justification for severance
under Rule 14. Accordingly, the record would not support a finding
that the trial court abused its discretion. Moreover, plain error
review of Rodriguez’s Rule 8(a) argument also fails to persuade the
court that severance was required. The charged offenses clearly
formed “two or more acts or transactions . . . constituting parts
of a common scheme” and, thus, were joined properly in the
indictment. Fed. R. Crim. P. 8(a).
10
appellant failed to assert the issue pretrial, though proper Rule
14 motion had been made).
C. Motion to Suppress
A federal agent may not prosecute a defendant by using
evidence obtained by state officers in violation of the federal
Constitution. See Elkins v. United States, 364 U.S. 206, 223-24,
80 S. Ct. 1437, 1447 (1960) (rejecting “silver platter” doctrine);
see also United States v. Eastland, 989 F.2d 760, 765-66 (5th Cir.
1993). In Eastland, this court refused to extend the Elkins
principle to evidence obtained in violation of a state statute or
constitution, so long as the seizure did not violate the
Constitution. See Eastland, 989 F.2d at 765-66. Under the Fourth
Amendment, a conversation may be recorded as long as one party to
the conversation has consented to the taping. See United States v.
White, 401 U.S. 745, 749, 91 S. Ct. 1122, 1125 (1971); United
States v. Gorel, 622 F.2d 100, 106 (5th Cir. 1979). The recordings
in this case were each made with the consent of a participant, the
undercover officer or the informant, and, thus, did not violate the
Constitution.10 Accordingly, the trial court did not err by
admitting the tapes or by refusing to instruct the jury on
inapplicable Illinois law. See Eastland, 989 F.2d at 765-66.
D. Admission of Andrade’s Address Books
The admission of Andrade’s address books is reviewed for
an abuse of discretion. See United States v. Brito, 136 F.3d 397,
10
It follows from this discussion that we take no position
on whether the tape recordings violated Illinois law, as appellants
contend.
11
412 (5th Cir. 1998). Andrade’s counsel objected to the admission
of the address books for lack of foundation and hearsay. In
response to the objections, the trial court asked the Illinois
state trooper when and where the evidence had been seized. The
officer responded that the address books were taken from Andrade
when he was arrested. Thus, the trial court could have concluded,
based on the seizure of the address books from Andrade, that the
books were his property and that the writing therein was his.
Under these circumstances, the address books were properly
admissible under the exception to the hearsay rule for admissions
of a party opponent. See Fed. R. Evid. 801(d)(2)(A). Even if the
address books were not admissible, the ruling would amount to
harmless error, as substantial record evidence of Andrade’s guilt
existed without the address books. See United States v. Gadison,
8 F.3d 186, 192 (5th Cir. 1993).
E. Improper Comments During Closing Argument
During the government’s closing argument, a prosecutor
commented on an objection Andrade’s attorney had made to the
admission of a police report. Andrade objected to the statement.
The objection was overruled and counsel’s request to instruct the
jury that the prosecutor’s remark constituted an attack on the
office of defense counsel was denied. The district court, however,
did admonish the jurors, “Remember my instructions. You are to
consider the evidence that has been admitted during the course of
the trial. That’s a legal matter before me.” Based on the trial
court’s curative instruction, the limited prejudicial effect the
12
lone statement may have had on the jury, and the substantial
evidence of Andrade’s guilt, the trial court’s decision not to
offer a more detailed curative instruction and not to grant a
mistrial does not cast serious doubt on the jury’s verdict. See
United States v. Andrews, 22 F.3d 1328, 1341 (5th Cir. 1994)
(reversing verdict only proper when prosecutor’s remarks “cast
serious doubts on the correctness of the jury’s verdict”); see also
United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir.
1990) (setting forth factors to be considered).
F. The Jury Instructions
Andrade maintains that a more specific perjury
instruction should have been given in light of the undercover
officer’s testimony that it would be acceptable to deceive in order
to garner a conviction. See, e.g., United States v. Partin, 493
F.2d 750, 760-62 (5th Cir. 1974) (requiring specific perjury
instruction when evidence showed that witnesses essential to the
government’s case were convicted felons and admitted perjurers).
The trial court’s admonitions to the jury appropriately instructed
the jurors as to their role in weighing the credibility of a
witness’s testimony, and the instructions correctly informed the
jury that it could believe any or all of a witness’s testimony.
Andrade’s argument, moreover, borders on the frivolous.
The undercover officer in this case was not a felon or perjurer.
In fact, his remarks concerning the propriety of deception arose in
the context of several questions about his role in the undercover
operation, not with respect to his testimony. The trial court’s
13
substantively correct charge to the jury did not deprive Andrade of
any defense or argument, and thus, the trial court did not err in
rejecting Andrade’s proffered instructions. See United States v.
Pipkin, 114 F.3d 528, 535 (5th Cir. 1997); see also United States
v. Asibor, 109 F.3d 1023, 1034 (5th Cir. 1997).
Next, Andrade challenges the trial court’s alleged
failure to instruct the jury that a mere buyer/seller relationship
was insufficient to support a conspiracy conviction and the court’s
refusal to give the jurors a copy of the written charge for use
during deliberations. So long as the general conspiracy charge
accurately reflects the law, this court does not require a specific
instruction regarding the insufficiency of a buyer/seller
relationship. See Asibor, 109 F.3d at 1034-35 (citing United
States v. Maseratti, 1 F.3d 330, 336 (5th Cir. 1993)). As such,
the trial court did not err by refusing to give the proffered
instruction. Moreover, the court did not abuse its discretion by
failing to give a written copy of the charge to jurors for use
during deliberations. Cf. United States v. Sotelo, 97 F.3d 782,
787-88, 792-93 (5th Cir. 1996) (finding trial court did not abuse
discretion by refusing to give jurors a copy of written charge in
multi-defendant, multi-charge drug conspiracy indictment).
G. Sentencing
1. Rodriguez
Rodriguez maintains that the district court committed
clear error at sentencing by attributing 1,200 pounds of marijuana
to the conspiracy. See United States v. Carreon, 11 F.3d 1225,
14
1230, 1231 n.17 (5th Cir. 1994) (factual findings regarding drug
amounts reviewed for clear error). Although Rodriguez argues that
only the August 30 load of marijuana should be attributed to him
for sentencing purposes, the testimony of the confidential
informant clearly shows that Rodriguez’s involvement in the
conspiracy extended to the August 29 load -- the initial delivery
point for the August 29 load was Rodriguez’s grocery store.
Moreover, Rodriguez’s participation in the entire importation and
possession conspiracy is readily apparent from the record. Thus,
the trial court did not clearly err when it attributed the entire
1,200 pounds of marijuana to Rodriguez.
2. Andrade
The trial court’s finding that Andrade played a
leadership role in the conspiracy under U.S. Sentencing Guidelines
Manual § 3B1.1(c) is also subject to clear error review. See
United States v. Rivas, 99 F.3d 170, 176 (5th Cir. 1996). Andrade
negotiated a price for the transport, developed plans for loading
and delivering the marijuana, paid deposits on the $50,000 fee,
and, ultimately, accepted delivery of the marijuana in Chicago.
Based on his dominant position in the conspiracy at every stage of
the crime, the trial court’s two point adjustment of Andrade’s
sentence level did not constitute clear error.
15
III. CONCLUSION
For the foregoing reasons, this court affirms the
convictions and sentences of each of the appellants.
AFFIRMED.
16