United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 96-2235EM
United States of America, *
*
Plaintiff/Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Jose Erik Guerra, *
*
Defendant/Appellant. *
Submitted: February 11, 1997
Filed: May 9, 1997
Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and
BATTEY,* Chief District Judge.
BATTEY, Chief District Judge.
Following a jury trial, Jose Erik Guerra (“appellant” or “Guerra”)
was convicted of conspiracy to distribute methamphetamine in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Guerra appeals his
1
conviction from the district court on the following issues: (1) the
district court erred in admitting a coconspirator’s out-of-court statements
pursuant to Fed. R. Evid.
*
The Honorable Richard H. Battey, Chief United States
District Judge for the District of South Dakota, sitting by
designation.
1
The Honorable Stephen N. Limbaugh, United States District
Judge for the Eastern District of Missouri.
801(d)(2)(E); (2)the prosecutor’s statement in closing amounted to
vouching for the credibility of a witness; (3) the prosecutor’s questions
regarding appellant’s status as an illegal alien constituted prosecutorial
misconduct; (4) the district court committed plain error; (5) the
prosecutor erred in eliciting testimony as to appellant’s post-Miranda
silence; (6) the district court erred in determining the quantity of drugs
which it attributed to appellant; and (7) the district court erred in
adding a four-level enhancement for a leadership role.2 We affirm
appellant’s conviction and sentence.
I. Background
This case involves an extensive multi-party conspiracy involving the
distribution of methamphetamine in Missouri. In a week-long trial, the
government established a conspiracy between several individuals including
appellant Guerra. Three of Guerra’s coconspirators, Darrell Jones
(“Jones”), Brandy Cordova (“Cordova”), and Dianne Whyde (“Whyde”),
testified at trial. Coconspirator Antonio Espinosa-Montero (“Montero”)
absconded prior to trial. The evidence demonstrated that Cordova, Jones,
and Montero were the distributors, and Guerra was the California
manufacturer and Montero’s supplier.
In 1994, Jones, a truck driver and part-time drug dealer, became
fully involved in distributing methamphetamine. (Tr. 2-204). He purchased
quantities of methamphetamine from Cordova, who was Jones’ California
connection. (Tr. 2-204, 2-206). Jones would obtain the drugs in California
and return to Missouri where the
2
Upon review of the record, we considered all issues raised
by appellant. We find that the remaining issues raised by
appellant do not merit discussion and would not warrant a
reversal as to appellant’s conviction or sentence.
2
drugs were distributed. Jones did not know that Guerra was Cordova’s
source. (Tr. 2-219).
On January 20, 1995, Jones arranged to purchase some methamphetamine
from Cordova. The exchange took place in a room at the Residence Inn in
Ontario, California. (Tr. 2-215, 217) On that day, Jones noticed a black
car in the parking lot. (Tr. 2-218). Jones later identified the individual
whom he saw in the car as Montero. (Tr. 2-220, 2-221).
Cordova lived in a remote desert ranch with his girlfriend, Whyde.
Whyde assisted Cordova by taking messages from his distributors and
relaying these messages to Cordova. Beginning in October of 1994, Cordova’s
source for his methamphetamine was Montero. Whyde testified that Montero
had come to their ranch and that he and Cordova would go to the garage to
“do their business.” (Tr. 3-18). Cordova told Jones that he had a new
source, and Jones confirmed this fact because the quality of the drugs he
was receiving improved. (Tr. 2-210). Cordova testified that Montero told
him that he received the manufactured methamphetamine from “a pesado,”
meaning a drug lord in Spanish. (Tr. 3-68). Cordova interpreted this to
mean the main man, the manufacturer. (Tr. 3-67). Montero later revealed
his source as Guerra. (Tr. 3-80).
In February of 1995, Jones was arrested in possession of a large
amount of cash and drug paraphernalia. (Tr. 2-27). Officers also seized
a phone list which contained Cordova’s number. (Tr. 2-33). Jones agreed
to cooperate with law enforcement in setting up a buy-bust in California.
The buy-bust took place on March 7, 1995, in Ontario, California. (Tr. 2-
166).
On March 2, 1995, Jones placed a recorded call to Cordova’s
residence. Jones talked to Whyde and told her that he would be
3
making a trip out to California the following week. (Tr. 2-161). In
California, on March 7, 1995, Jones again called Cordova’s residence. He
spoke with Whyde and told her that he was there to buy. (Tr. 2-226).
Cordova called Jones back and told him it would take a couple hours for him
to arrive. Jones requested two and one-half pounds of methamphetamine.
Cordova agreed to bring three pounds. (Tr. 2-228).
Cordova then called Montero and told him that Jones was in town.
Montero said that he needed to call his “main guy.” Cordova asked Montero
if he was the same supplier who had brought the last delivery when Cordova
had been waiting at Montero’s house. Montero told him it was. After his
telephone conversation with Montero, Cordova left for Montero’s residence.
When he arrived he saw the same car sitting in the driveway at the house
which had dropped off the methamphetamine the previous time that he was at
Montero’s home. After Cordova arrived, Montero completed the delivery of
the methamphetamine. Cordova observed that the driver of the vehicle was
Guerra. Cordova was to meet Montero and the main guy after the delivery
to Jones. Cordova went to the hotel to make the delivery to Jones where
Cordova was arrested. (Tr. 3-100 through 3-108).
II. Fed. R. Evid. 801(d)(2)(E)
Guerra alleges that the court erred in admitting statements made by
his alleged coconspirators. The statements were made by Montero to Cordova
identifying Guerra as the source of Cordova’s drugs. The court admitted the
statement conditionally under Fed. R. Evid. 801(d)(2)(E). (Tr. 2-66). See
United States v. Bell, 573 F.2d 1040 (8th Cir. 1978) (permitting court to
conditionally accept out-of-court statement made by an alleged
coconspirator). At the conclusion of the evidence, the court admitted the
statements
4
permanently. (Tr. 4-192). We conclude that the trial judge did not err in
admitting the statements of coconspirator Cordova. United States v.
Escobar, 50 F.3d 1414, 1423 (8th Cir. 1995).
For statements of a coconspirator to be admissible against a
defendant, the government must prove by a preponderance of the evidence
that (1) a conspiracy existed; (2) the defendant and the declarant were
members of the conspiracy; and (3) the declaration was made during the
course of and in furtherance of the conspiracy. Bell, 573 F.2d at 1043.
See also Fed. R. Evid. 801(d)(2)(E). In Bourjaily v. United States, 483
U.S. 171, 107 S. Ct. 2775, 2781, 97 L. Ed. 2d 144 (1987), the Court held
that “a court, in making a preliminary factual determination under Rule
801(d)(2)(E), may examine the hearsay statements sought to be admitted.”
Cordova is the only coconspirator who testified regarding knowledge
of Guerra’s involvement within the conspiracy. Guerra objected to the
following statements:
Q. Mr. Price: Did Montero ever tell you who he got that
methamphetamine— excuse me— the manufactured
methamphetamine from?
A. Mr Cordova: He said that there was this one guy that,
you know, he was a pretty heavy guy, okay. He—
Q. Okay. What do you mean by heavy? You mean large and big
or what?
A. No, sir. He was like the main guy that, you know, he’s
a manufacturer. And he said that he had access to as many
pounds as I wanted, or Jonsie wanted to purchase maybe
30, 40 pounds, they had it for him. There was no problem
at all.
. . .
Q. Now, if I understand your testimony, you mentioned the
word “heavy.” Did Montero speak English?
A. Very broken, but he could not understand it at all.
5
Q. What word did he use in Spanish to describe “heavy”?
A. Pesado.
Q. Pesado?
A. Yes.
Q. And what does that mean in Spanish to you?
A. It’s slang for drug lords.
(Tr. 3-67, 3-68).
Later on, Guerra was identified.
Q. Was there ever a time that Mr. Montero told you who his
particular main man was?
A. Yes, sir, he did. At one time, he did mention Guerra’s
name over here.
Q. And how did Mr. Montero pronounce that name?
A. Guerra.
(Tr. 3-80).
Guerra makes three objections regarding the statements set forth
above: (1) that the statements referring to Guerra as “a heavy,” “a main
man,” and “a pesado” were not made in furtherance of a conspiracy because
the statements were “promotional puffery”; (2) that at the time of these
statements Cordova and Montero had not yet formed a conspiracy; and (3)
even though the statements infer that Guerra and Montero were
coconspirators, they were not coconspirators in the charged conspiracy.
A. Statements in Furtherance of the Conspiracy
Whether a statement is made in furtherance of a conspiracy is given
broad construction. United States v. Krevsky, 741 F.2d 1090, 1094 (8th
Cir. 1984). To establish that a statement was made in furtherance of a
conspiracy, the government must show that the statements were more than
informative and that they were made to
6
“advance the objectives of the conspiracy.” United States v. Baker, 98
F.3d 330, 336 (8th Cir. 1996), petition for cert. filed, (U.S. March 14,
1997) (No. 96-8214)(citations omitted). Statements of a coconspirator
identifying a fellow coconspirator as his source of controlled substances
is in furtherance of the conspiracy and therefore admissible. United
States v. Womochil, 778 F.2d 1311, 1314 (8th Cir. 1985) (quoting United
States v. Anderson, 654 F.2d 1264, 1270 (8th Cir. 1981), cert denied, 454
U.S. 1127, 102 S. Ct. 978, 71 L. Ed. 2d 115 (1981)). See also Escobar, 50
F.3d at 1423 (citing United States v. Garcia, 893 F.2d 188, 190 (8th Cir.
1990)); Krevsky, 741 F.2d at 1094 (holding that statement by a
coconspirator to an undercover government agent describing the duties and
responsibilities of the defendants in the drug smuggling operation was made
in furtherance of the conspiracy). Montero’s statements to Cordova were
made to identify that he had a source for his controlled substances.
Montero stated that he had a “pesado,” “a drug lord,” who could supply
Cordova and Jones with 30 to 40 pounds of methamphetamine, and he later
identified this “pesado” as Guerra. These statements furthered the object
of the conspiracy.
B. Conspiracy Established
Guerra objects that at the time these statements were made by Montero
to Cordova there was no evidence that Montero and Cordova had established
a conspiracy. He further objects that if Montero and Cordova had
established a conspiracy, Guerra did not belong to it. We have searched
the record and find ample evidence that a drug conspiracy existed and that
Guerra was a part of it. The district court did not err in its finding
that a conspiracy existed at the time of the conversation between Montero
and Cordova.
7
Cordova testified at trial that on one occasion he was waiting at
Montero’s house because the methamphetamine had not arrived. On this day,
Montero told Cordova that the methamphetamine was on its way. Cordova
heard a car pulling up Montero’s gravel driveway, and Montero said, “I
think he is here already.” Montero opened the door to this house and said,
“He’s here” and told Cordova to “wait.” Montero then went outside and left
the door part way open behind him. Cordova observed a dark-colored car and
its driver. Cordova testified that the driver of the car that day was
Guerra. Cordova saw Montero walk up to the car and a package was handed
to him. When Montero came back inside he told Cordova that he had checked
the stuff out and that it was high quality. (Tr. 3-88).
On the day of the controlled buy, Cordova testified that the “main
guy” would be accompanying Montero because of the amount of money which was
involved in the transaction. On that day, Cordova called Montero and told
him that Jones was in town and Montero said, “Okay, no problem. Let me
call, you know, my main guy.” Montero told Cordova that the “product”
would be coming from the same guy as last time, “the main guy.” Cordova
asked Montero if he was the same supplier who had brought the last delivery
when Cordova had been waiting at Montero’s house, and Montero told him it
was. After his telephone conversation with Montero, Cordova left for
Montero’s residence. When he arrived at Montero’s, he saw the same car
sitting in the driveway at the house which had dropped off the
methamphetamine last time he was at Montero’s home. After Cordova arrived,
Montero got out of the car and walked over to Cordova’s vehicle with the
methamphetamine. Cordova observed that the driver of the vehicle was
Guerra. Cordova was to meet Montero and the main guy at a designated
location after the delivery to Jones. Guerra was later arrested at that
location. (Tr. 3-98 to 3-108).
8
III. Prosecutorial Misconduct
Guerra alleges that the prosecutor committed misconduct by eliciting
testimony regarding Guerra’s status as an illegal alien and by vouching for
the credibility of the government’s witnesses.
An improper question by government counsel may constitute
prosecutorial misconduct. See United States v. Stands, 105 F.3d 1565, 1577
(8th Cir. 1997). A two-part analysis is applied: “(1) the prosecutor’s
remarks or conduct must in fact have been improper, and (2) such remarks
or conduct must have prejudicially affected the defendant’s substantial
rights so as to deprive the defendant of a fair trial.” Stands, 105 F.3d
at 1577. See also United States v. Goodlow, 105 F.3d 1203, 1207 (8th Cir.
1997); Hale, 1 F.3d at 694. When considering the effect of alleged
prosecutorial conduct on a defendant’s substantial rights, we generally
analyze three factors: “(1) the cumulative effect of the misconduct; (2)
the strength of the evidence against the defendant; and (3) the curative
actions taken by the trial court.” Hale, 1 F.3d at 694 (citing United
States v. Hernandez, 779 F.2d 456, 460 (8th Cir. 1985)).
A. Question by Prosecutor as to Appellant’s Status as an Illegal
Alien
During the testimony of Officer Hammer, the prosecutor elicited the
following information:
Q. Mr. Price: However, did you determine at the time that
Mr. Guerra was arrested as to whether or not he was a
United States citizen?
A. Officer Hammer: He told me that he was not a United
States citizen. In fact, I wrote on his booking form
that he was an illegal alien, although it was very
suspect as to his actual home address.
9
Upon objection, the court sustained the objection and the answer was
stricken from the record. (Tr. 3-292). The district court acted properly
in sustaining the objection since Guerra’s alienage was not relevant. Any
claimed error, however, was harmless and was, in any event, cured by the
district court’s action.
B. Vouching for Credibility of Witnesses
Guerra also alleges that the prosecutor vouched for the credibility
of the government witnesses. In closing argument, the prosecutor made the
following statement:
And I am here to tell you I think the Government would have to
say that they presented excellent testimony. They didn’t—
Mr. Butts: Judge, I object to him vouching for the truthfulness
or credibility of the witnesses.
Mr. Price: I apologize, your Honor.
The Court: All right.
(Tr. 5-57). Defense counsel interrupted the prosecutor’s statement. What
the prosecutor might have said had he been permitted to complete his
thought is only speculative. Whether such statement was improper might be
arguable, but in the context of the argument the statement did not prevent
Guerra from receiving a fair trial. The prosecutor apologized for the
statement which further reduced its effect. The court instructed the jury
in its instructions that counsel’s statements were not evidence which
further served to obviate any claimed error. (Tr. 5-66).
10
Defense counsel also objected to the following question on the basis
that prosecutor was vouching for the credibility of witness Whyde:
Q. Mr. Price: And if I determine that you didn’t tell the
truth, or someone else provides information to me that
tells me, or makes me believe that you didn’t tell the
truth, then I have the right to deny filing that 5K
motion. Do you understand that?
A. Dianne Whyde: Yes.
Mr. Butts: I think we are getting very close to Mr. Price
vouching for the credibility of the witness. I did not
raise the issue that this gal was lying. As a matter of
fact, I said I am sure you are telling the truth. I
don’t see where this is going, it is repetitious, and I
object to it on those grounds.
The Court: Well, the objection will be overruled. But I
think we have pretty thoroughly exhausted this subject,
so let’s proceed.
(Tr. 3-45 to 3-46).
Defense counsel was somewhat disingenuous when he argued to the trial
court, “I did not raise the issue that this gal was lying” (Tr. 3-46),
while at the same time conducting a thorough cross-examination concerning
her plea agreement and the benefits it provided for a reduced sentence.
(Tr. 3-32 to 3-42). The challenged statement amounted to no more than
prosecutorial response to defense counsel’s examination and, as such, was
not error.
IV. Plain Error
11
When an issue is not raised at trial, we review only for plain error.
United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d
508 (1993); Wright v. Nichols, 80 F.3d 1248, 1252 (8th Cir. 1996); United
States v. Hale, 1 F.3d 691, 694 (8th Cir. 1993) (if defense counsel fails
to object to prosecutor’s statement at trial it will be reviewed only for
plain error); United States v. Turner, 104 F.3d 217, 221 (8th Cir. 1997)
(if an argument is not raised before the district court, the only standard
of review is plain error). “Plain error occurs if (1) there is an error,
(2) the error is obvious, and (3) the error affects a defendant’s
substantial rights.” United States v. Hill, 91 F.3d 1064, 1072 (8th Cir.
1996) (citing United States v. Ryan, 41 F.3d 361, 367 (8th Cir. 1994) (en
banc), cert. denied, U.S. , 115 S. Ct. 1793, 131 L. Ed. 2d 721
(1995)). The burden is on the party asserting plain error. Wright, 80 F.3d
at 1252; Ryan, 41 F.3d at 366. For an error to affect a substantial right,
a defendant must show that “the error affected his substantial rights by
prejudicially influencing the outcome of the district court proceedings.”
United States v. Webster, 84 F.3d 1056, 1066 (8th Cir. 1996).
Guerra now claims plain error in the court’s allowing: (1) the
prosecutor to elicit testimony regarding Guerra’s status as an illegal
alien; that to manufacture methamphetamine the chemical Ephedrine is
needed; that Ephedrine can be obtained in Mexico, that large quantities of
Ephedrine were being brought from Mexico into the United States; and that
many Mexican Nationals manufacture methamphetamine; (2) the prosecutor’s
comment in closing that Montero, the coconspirator who did not testify, is
another person who could tell us about Guerra’s guilt; and (3) a police
officer’s testimony which allegedly vouched for the credibility of other
coconspirators.
12
A. Testimony as to Ethnic Characteristics and Comment as to Status
as an Illegal Alien
In opening statement, the prosecutor stated,
And the booking sheet, we expect to show you, is that Guerra
was an illegal alien in the State of California and the United
States, without proper permission, or without a green card. .
. . And that he can tell you that it takes Ephedrine — as
Special Agent Gregory and Nance and any law enforcement officer
that is connected with the investigation of methamphetamine —
that you have to have the chemical Ephedrine to produce the
methamphetamine. And that Ephedrine comes from Mexico.
(Tr. 1-60).
No objection was made by defense counsel to this statement. The
prosecutor also proceeded to ask the following questions without any
objection from defense counsel:
Q. Mr. Price: You asked him whether he was a United States
citizen, is that correct?
A. Officer Hammer: Yes.
Q. And what was his response?
A. That he was from Mexico.
Q. Did you ask him whether he had an address in the United
States?
A. Yes.
Q. And what address did he give you?
A. He said he lived at an unknown address in the City of
Huntington Park, which conflicted with other statements
made.
Q. Okay. Did you determine whether or not he was employed at
that time?
A. Said he was unemployed.
Q. Did you determine whether or not he had what is commonly
referred to as a green card?
A. I don’t believe he had any green card.
Q. As a resident alien?
A. Yes.
Q. He did not.
A. He did not to my recollection.
13
(Tr. 3-292 to 3-293). The government also elicited testimony at trial that
large quantities of Ephedrine are being brought from Mexico into the United
States and that large quantities of methamphetamine are being produced by
Mexican Nationals. (Tr. 4-94, 4-118). Deputy Sheriff Don Yoder testified
that Mexican Nationals have the capability of cooking a hundred pounds of
methamphetamine in a day. (Tr. 4-95).
As we have indicated, whether Guerra was a citizen or not, and
whether he was in this country legally or not, had nothing to do with his
drug trafficking. In the circumstances of this case, however, we believe
that the prosecutor’s remarks in his opening statement and his questions
to Officer Hammer on the subject of Guerra’s alienage were not plain error.
B. Vouching for Coconspirator Who Did Not Testify at Trial
Guerra also alleges that the district court committed plain error in
allowing the prosecutor to vouch for a coconspirator who did not testify.
Guerra now objects to the following statements made by the prosecutor in
his closing argument:
And Montero, ladies and gentlemen, is the only other person
that we know, other than Cordova and the others that we had
testify, that knows for sure about the defendant. And, ladies
and gentlemen, we think you know that he knows for sure that
the defendant is a coconspirator, and that he was there on
those two occasions, just like Cordova said he was. . . . (Tr.
5-25 to 5-26). Now, that is not to suggest that Brandy Cordova
is the heavy here, because Brandy Cordova is the person that
took the witness stand, that appeared in Court, and told you
exactly what happened. Montero did not. Montero is the only
other person that could tell you that the defendant is guilty
in this matter, if we had him here.
14
(Tr. 5-50). This court recognizes that it is error for a prosecutor to
tell the jury what the testimony of a witness who did not testify would
have been. See United States v. Palmer, 37 F.3d 1080 (5th Cir. 1994),
cert. denied, U.S. , 115 S. Ct. 1804, 131 L. Ed. 2d 730 (1995). A
closing argument should be based upon the facts in evidence and reasonable
inferences therefrom and should not assert factual propositions for which
there are no evidentiary support. United States v. Boyce, 797 F.2d 691,
694 (8th Cir. 1986) (citing United States v. Ojala, 544 F.2d 940 (8th Cir.
1976)). We do believe that the prosecutor’s statement that “Montero is the
only person that could tell you that the defendant is guilty in this
matter, if we had him here” is at least a subliminal reference to an absent
witness’s testimony and was error. In the context of the evidence, however,
it did not constitute plain error.
C. Government Witness Vouches for Credibility of Other Witnesses
Guerra also alleges that it was plain error to allow a government
witness to “vouch for the credibility of the coconspirators.” Special
Agent Gregory testified as follows:
Q. Mr. Price: Now, Special Agent Gregory, after these
proffered statements were obtained, did you in fact
advise my office that you were accepting the information,
and that we wanted to work out some type of plea
agreement with Mr. Cordova and Dianne Whyde?
A. Special Agent Gregory: Yes, sir —
Q. Yes, I am sorry.
A. Based on the interview and the statements that they made,
I believed them to be truthful and forthcoming with the
information that they gave to us.
15
(Tr. 2-60 to 2-61). Government counsel may inquire as to the terms of a
plea agreement with other codefendants. The test, of course, is relevancy.
Agent Gregory’s testimony was not responsive to government counsel’s
questions. We do not believe that the substantial rights of Guerra were
prejudiced by this offhand remark. Swanson, 9 F.3d at 1357 (court need not
consider if error was committed given that “no substantial rights were
prejudiced by the admission of the evidence”).
We are nonetheless disturbed by the conduct of the prosecutor in this
case. While he may not have crossed the line to prosecutorial misconduct,
he certainly was on the line. Particularly in view of the sufficiency of
the evidence, he need not have done so. Overzealous prosecutors sometimes
forget that the prosecutor’s special duty is not to convict, but to secure
justice. United States v. O’Connell, 841 F.2d 1408, 1428 (8th Cir. 1988),
cert. denied, 488 U.S. 1011, 109 S. Ct. 799, 102 L. Ed. 2d 790 (1989)
(citing United States v. Peyro, 786 F.2d 826, 831 (8th Cir. 1986)). The
cause of justice would be well served if prosecutors would heed the 1935
admonition by the Supreme Court:
He [she] may prosecute with earnestness and vigor— indeed, he
[she] should do so. But, while he [she] may strike hard blows,
he [she] is not at liberty to strike foul ones. It is as much
his [her] duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legitimate
means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed.
1314 (1935).
16
V. Post-Miranda Statements
Guerra argues that Detective Lupercio should not have been allowed
to testify to statements which he believes implied that Guerra chose to
remain silent. Lupercio testified that Montero was read his rights in
Spanish and that he waived those rights. Lupercio then testified that
during the interview Montero denied any wrongdoing and that Guerra was only
at the location because he was trying to sell Montero a car.
Guerra also objects to the following testimony:
Q. Mr. Price: The defendant, in his — after you read him his
Miranda rights, and after he waived those rights to talk
with you initially —
A. Officer Lupercio: Um-hum.
Q. — at that period of time, he didn’t tell you that he came
there with the car, did he, to buy it?
A. No, he did not.
Q. He never said anything like what Montero said, or what
the juvenile had told you with regard to checking the car
out?
A. True.
Q. And yet isn’t it fair to say that Montero is the one that
told you that that is why they were there at Bertino’s is
to check the car out, because the driver, Guerra, had
brought it there?
A. Yes.
Q. And Guerra never said anything about that during his?
A. No. But the juvenile did.
(Tr. 4-89 to 4-90). In the testimony now objected to by Guerra, no direct
comment was made by the prosecutor to the jury regarding Guerra’s silence.
We have searched the record and are unable to conclude that Guerra’s
claims as to post-Miranda statements merit reversal. At best, they amount
to statements of marginal relevancy, adding
17
nothing to the merits of the government’s evidence. Guerra is not entitled
to a perfect case—only a fair one. We find no unfairness in the instance
of this testimony.
VI. Quantity of Drugs
Guerra objects to the district court’s determination that 15-20
pounds of methamphetamine were attributable to him. At sentencing, the
government must prove the drug quantity by a preponderance of the evidence.
United States v. Campos, 87 F.3d 261, 263 (8th Cir.), cert. denied,
U.S. , 117 S. Ct. 536, 136 L. Ed. 2d 420 (1996). “Defendants who
challenge the sentencing court’s determination of drug quantity face an
uphill battle on appeal because we will reverse a determination of drug
quantity only if the entire record definitely and firmly convinces us that
a mistake has been made.” United States v. Sales, 25 F.3d 709, 711 (8th
Cir. 1994). “A district court’s decision on the amount of drugs for which
a defendant is to be held accountable is a finding of fact that must be
accepted by a court of appeals unless clearly erroneous.” United States
v. Alexander, 982 F.2d 262, 267 (8th Cir. 1992), cert. denied, 512 U.S.
1244, 114 S. Ct. 2761, 129 L. Ed. 2d 876 (1994). See also United States
v. McMurray, 34 F.3d 1405, 1415 (8th Cir. 1994), cert. denied, U.S.
, 115 S. Ct. 1164, 130 L. Ed. 2d 1119 (1995). Guerra has the burden of
proving that the district court’s decision was clearly erroneous. Campos,
87 F.3d at 263.
According to the Sentencing Guidelines, a criminal defendant
convicted of conspiracy may be held accountable for “all reasonably
foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B);
18
United States v. Rice, 49 F.3d 378, 382 (8th Cir.), cert. denied, U.S.
, 115 S. Ct. 2630, 132 L. Ed. 2d 870 (1995).
At sentencing the district court set forth specific findings of fact
based upon review of his notes and the evidence in the case. (S.T. 12-16).
We conclude that the record contains evidence linking Guerra to the
distribution of the methamphetamine. The presentence report recommended
that 15-20 pounds of methamphetamine were reasonably foreseeable by Guerra
and thus attributable to him. Cordova testified at trial that Montero said
he had access to as many pounds as Cordova or Jones wanted—maybe 30, 40
pounds. Also, of the specific transactions testified to by Cordova, Montero
supplied Cordova with at least a pound of methamphetamine. The testimony
revealed that Guerra had a substantial level of commitment to this
conspiracy. See Rice, 49 F.3d at 382-83 (when determining if activity was
reasonably foreseeable to defendant, court looked to whether “defendant
demonstrated a substantial commitment to the conspiracy”). His commitment
was so great that on the day of the buy-bust he went with Montero since it
was a large drug buy involving substantial money. Guerra received a
monetary benefit from the methamphetamine. Id. (when determining if
activity was reasonably foreseeable to defendant, court looked to “whether
defendant benefitted from coconspirators’ activities”). On the day of the
buy-bust, Montero supplied Cordova with three pounds of methamphetamine.
The fact that this information was obtained from one of Guerra’s
coconspirators does not render the information unreliable. United States
v. Kime, 99 F.3d 870, 885 (8th Cir. 1996), cert. denied, U.S. , 117
S. Ct. 1015, L. Ed. 2d (1997). Given the actions of Guerra and the
testimony at trial, it was reasonably foreseeable that Guerra knew that the
drugs which he supplied to Cordova were being distributed to others. We
are not definitely and firmly convinced that a mistake
19
was made in attributing 15-20 pounds of methamphetamine to Guerra. The
court’s findings are supported by the evidence.
VII. U.S.S.G. § 3B1.1(a)
Pursuant to U.S.S.G. § 3B1.1(a), the district court added four levels
to the base offense level of 34 based upon the finding that Guerra was an
organizer or leader of a criminal activity involving five or more
participants. U.S.S.G. § 3B1.1(a) provides: “If the defendant was an
organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive, increase by four levels.” We
apply the clearly erroneous rule to the court’s determination. See United
States v. Turpin, 920 F.2d 1377, 1386 (8th Cir. 1990), cert. denied sub
nom., 499 U.S. 953, 111 S. Ct. 1428, 113 L. Ed. 2d 480 (1991) (factual
interpretations when applying the Sentencing Guidelines will not be
disturbed unless the district court was clearly erroneous).
The terms “organizer” and “leader” are to be broadly interpreted.
United States v. Miller, 91 F.3d 1160, 1164 (8th Cir. 1996). For the
enhancement to apply, the government need not prove that a defendant
“directly controls” his coconspirators, but the government must prove that
a defendant does more than sell for resale. Id. The evidence at trial
established that Guerra did more than “sell for the resale.” The
government introduced testimony that Guerra exercised control in the sale
of the methamphetamine. Cordova testified that Montero’s “main man” or
“heavy” was named “Guerra,” and that this “main man” could supply Cordova
with 30 to 40 pounds of methamphetamine. On the day of the buy-bust,
Guerra, who drove the car, accompanied Montero because he was shepherding
the amount of money involved. We conclude that the district court’s
enhancement based upon its finding that Guerra was
20
a leader or an organizer of criminal activity involving five or more
participants was not clearly erroneous.
VIII. Conclusion
For the foregoing reasons, the conviction and sentence of Guerra are
affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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