United States v. Mendoza-Alarcon

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 21, 2005

Charles R. Fulbruge III
Clerk
No. 04-20506

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOSE FREDRIC MENDOZA-ALARCON; SACHA HILARY LEE; MARVA SYLVESTER

Defendants - Appellants

Appeals from the United States District Court
for the Southern District of Texas
No. 4:03-CR-230-4

Before KING, Chief Judge, and DAVIS, Circuit Judge, and
ROSENTHAL,* District Judge.

PER CURIAM:**

This appeal arises from a conspiracy that involved stealing

vehicles, obtaining fraudulent titles for those vehicles,

transporting the vehicles across state lines, and selling them to

individuals or dealerships. On December 3, 2003, a grand jury

*
District Judge of the Southern District of Texas,
sitting by designation.
**
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that this opinion should not be published and is not precedent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.

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issued a ten-count superceding indictment charging Defendants

Jose Fredric Mendoza-Alarcon, Sacha Hilary Lee, and Marva

Sylvester with crimes related to the conspiracy. Count One

charged Mendoza, Lee, and Sylvester with knowingly and willfully

conspiring to transport in interstate commerce vehicles they knew

to be stolen, in violation of 18 U.S.C. § 371. Count Four

charged Lee with aiding and abetting the unlawful transportation

across state lines of a stolen 1999 Ford Expedition, in violation

of 18 U.S.C. §§ 2 and 2312. Counts Six and Eight charged Mendoza

with aiding and abetting the unlawful transportation across state

lines of a stolen 2000 Toyota and a stolen 1998 Honda, in

violation of 18 U.S.C. §§ 2 and 2312.1 On March 5, 2004, a jury

found Mendoza, Lee, and Sylvester guilty of all counts against

them.

The district court sentenced Mendoza to five-months

imprisonment on each count to run concurrently, followed by

three-years of supervised release, and imposed a $200 special

assessment. After departing downward, the court sentenced Lee to

four-years probation on each of the two counts to be served

concurrently and imposed a $200 special assessment. Finally, the

court sentenced Sylvester to fifteen-months imprisonment,

followed by three-years supervised release, and imposed a fine of

$3,000 and a $100 special assessment.

1
All the other counts related to individuals who are not
parties to this appeal.
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 On appeal, each of the defendants argues that the evidence

was insufficient to support his or her conviction. Mendoza also

argues that: (1) the court erred in failing to grant his motion

for a judgment of acquittal pursuant to FED. R. CRIM. P. 29; (2)

the court erred in failing to grant him a new trial; and (3) the

jury failed in its duty to deliberate. Lee argues that the court

erred in admitting evidence that a witness, Janie Braune, saw her

filling out a vehicle inspection form when there was no vehicle

present. Finally, Sylvester argues that: (1) the court erred in

denying her motion for severance; (2) the court erred by

admitting evidence that she inspected a vehicle that the

government did not prove was stolen; and (3) there was a fatal

variance between the charge contained in the indictment and the

proof offered at trial. In addition, via a supplemental letter

brief, Sylvester challenges her sentence under United States v.

Booker, 125 S. Ct. 738 (2005), arguing that it was imposed

pursuant to an unconstitutional mandatory sentencing guidelines

system. We AFFIRM the defendants’ convictions and Sylvester’s

sentence.

A. Sufficiency of the Evidence

Mendoza argues that the evidence at trial was insufficient

to show that he: (1) knew the cars were stolen; (2) knew of the

unlawful purpose of the agreement; (3) willfully joined the

conspiracy; and (4) intended to further the unlawful purpose.

Our review of the record, however, leads us to conclude
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otherwise. There was testimony by two witnesses, Moctezuma Luna

and Jose Ramon Gutierrez, that Mendoza was associated with and

took direction from Roberto Antonio Herrera, the key participant

of the car-theft conspiracy in California. There was also

evidence that Mendoza actively participated in selling a stolen

Honda Accord and attempted to repossess a stolen Toyota Camry.

Mendoza prepared the bill of sale for the stolen Honda. With

respect to the stolen Toyota, Mendoza appeared as the buyer on

the title, asked Gutierrez to repossess the Toyota, and prepared

the repossession note authorizing Gutierrez to repossess the car.

In considering the evidence in the light most favorable to the

government and accepting all inferences in favor of the verdict,

we conclude that a rational trier of fact could have found that

the evidence established Mendoza’s guilt beyond a reasonable

doubt. See United States v. Gardea-Carrasco, 830 F.2d 41, 43

(5th Cir. 1987). Accordingly, the evidence was sufficient to

support Mendoza’s conviction.

Lee argues that Janie Braune’s testimony that Lee was

filling out a vehicle inspection form when there was no vehicle

present was legally insufficient to support her conviction

because it did not permit a rational jury to find that she knew

the vehicles referred to in the indictment were stolen. We

conclude that the evidence was sufficient for a jury to conclude

that Lee knew the vehicles were stolen. Specifically, the jury

could conclude that Lee knew the vehicles were stolen from Juan

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Anjello Beltran’s testimony that he would obtain Texas titles for

Herrera without physically taking the vehicles for inspections,

the fact that Lee filled out an inspection certificate when there

was no vehicle present, and the fact that Lee’s signature was on

the vehicle inspection form for a Ford Expedition involved in the

conspiracy. Although Lee argues that she could have been filling

out the inspection form absent a vehicle for any number of

reasons, the evidence need not exclude every reasonable

hypothesis of innocence. United States v. Martinez, 151 F.3d

384, 389 (5th Cir. 1998). Accordingly, considering the evidence

in the light most favorable to the government, and accepting all

reasonable inferences that tend to support the verdict, a

rational juror could find that Lee knew the Ford Expedition was

stolen. See Gardea-Carrasco, 830 F.2d at 43.

Finally, Sylvester argues that the evidence was insufficient

to show that she knew the vehicles were stolen and that she

knowingly entered into the conspiracy. Again, we look at the

evidence presented as a whole, including Beltran’s testimony that

he would obtain Texas titles for Herrera without physically

taking the vehicles for inspections and evidence that Sylvester

signed inspection stickers for two cars that were both stolen and

involved in the conspiracy. A rationale juror could infer that

Sylvester never actually physically inspected the vehicles when

she signed the vehicle inspection forms. In combination with the

fact that Sylvester inspected vehicles at ICM Automotive (which
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was owned by another participant in the conspiracy, Frank

Nwabardi) along with Lee (who also signed vehicle inspection

forms for stolen vehicles), a rational trier of fact could

conclude that Sylvester knew the cars were stolen and knowingly

entered into the conspiracy. Considering the evidence in the

light most favorable to the government and accepting all

reasonable inferences that tend to support the verdict, we

conclude that the evidence was sufficient to support Sylvester’s

conviction. See Gardea-Carrasco, 830 F.2d at 43.

B. Judgment of Acquittal Pursuant to FED. R. CRIM. P. 29

Mendoza argues that the court erred in denying his motion

for judgment of acquittal pursuant to FED. R. CRIM. P. 29, which

he made at the end of the government’s case in chief and reurged

at the close of the defense’s case in chief. Mendoza contends

that his motion should have been granted because the government

failed to prove that he joined the conspiracy or that he knew the

vehicles were stolen. We conclude that the court properly denied

Mendoza’s motion because, as stated above, the evidence was

sufficient for a rational juror to find that Mendoza joined the

conspiracy and knew that the vehicles were stolen.

C. Failure to Grant Mendoza a New Trial

Mendoza argues that the district court erred in failing to

grant him a new trial pursuant to FED. R. OF CRIM. P. 33. Rule 33

provides in pertinent part that “[u]pon the defendant’s motion,

the court may vacate any judgment and grant a new trial if the
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interest of justice so requires.” Mendoza concedes that he did

not file a motion for a new trial. He asserts, however, that

such a motion was filed by his co-defendant Terry Kim, and

because his motion to join in the motions of his co-defendants

was granted, this court should consider Mendoza as having filed a

motion for a new trial. Mendoza goes on to argue that the court

erred in not granting a new trial because the government failed

to furnish him with all of the discovery materials he was

entitled to under FED. R. CRIM. P. 16. Mendoza asserts that the

defense made mistakes in determining whether to go to trial or to

plead as a result of the government’s failure to provide him with

the voluminous reprints prepared by officer Tom Civitello,

detective Richard Lee Job, and officer Anthony Banks before

trial.

The record does not reflect that a motion for a new trial

under FED. R. OF CRIM. P. 33 was made or ruled on by the court.

Indeed, Mendoza provides no record cite to where such a motion

appears. Absent such a motion, the district court was without

authority to grant a new trial. See FED. R. CRIM. P. 33; United

States v. Eaton, 501 F.2d 77, 79 (5th Cir. 1974).

D. Jury’s Duty to Deliberate

Mendoza argues that the jury failed in its duty to

deliberate because it only deliberated for five hours. Mendoza

points to no authority for his argument but nonetheless asks this

court to consider the issue. We conclude that Mendoza has waived
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his argument because he failed to cite any legal authority for

his position. See FED. R. APP. P. 28(a)(9)(A); United States v.

Edwards, 303 F.3d 606, 647 (5th Cir. 2002).

E. Admission of Evidence Regarding Lee

Lee argues that the court erred in admitting Braune’s

testimony that she saw Lee filling out an inspection form when

there was no vehicle present. Specifically, Lee asserts that the

evidence was not, as the court concluded, evidence intrinsic to

the conspiracy, but rather evidence pursuant to FED. R. EVID.

404(b).

FED. R. EVID. 404(b) provides:

Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance
of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any
such evidence it intends to introduce at trial.

“[E]vidence of acts committed pursuant to a conspiracy and

offered to prove the defendant’s membership or participation in

the conspiracy are not extrinsic evidence, i.e., evidence of

other acts, for purposes of Rule 404(b).” United States v. Garcia

Abrego, 141 F.3d 142, 175 (5th Cir. 1998) (internal quotations

omitted). “Acts committed in furtherance of the charged

conspiracy are themselves part of the act charged.” Id. “Thus,

evidence of such acts constitutes intrinsic evidence--that is,
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direct evidence of the charged conspiracy itself.” Id. Part of

the conspiracy here consisted of getting Texas titles to stolen

vehicles without showing the cars for a physical inspection.

Thus, the evidence that Lee completed a vehicle inspection form

without actually inspecting the car clearly goes to show Lee’s

membership and participation in the conspiracy and that she

committed acts in furtherance of the conspiracy. Thus, Braune’s

testimony about this act was not evidence of other crimes,

wrongs, or acts under 404(b), but rather evidence intrinsic to

the conspiracy itself. Accordingly, the district court did not

err in admitting Braune’s testimony as evidence intrinsic to the

conspiracy.

F. Sylvester’s Motion for Severance

Sylvester argues that the district court erred in denying

her various motions for severance based on the following evidence

and testimony introduced at trial: (1) evidence that Lee’s state

license to inspect automobiles was suspended because she made

false entries when inspecting a car; (2) Braune’s testimony that

she witnessed Lee filling out a vehicle inspection form while no

car was present; (3) Nwarbardi’s testimony that he never stated

that he had taken documents to Sylvester in order to obtain

completed vehicle inspection forms; and (4) Officer Civitello’s

testimony (impeaching Nwarbardi’s testimony) that he was present

when Nwabardi made the statement that he took two California

certificates of title to Sylvester to obtain vehicle inspection
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certificates. Sylvester argues that the evidence was prejudicial

because it allowed the jury to assume that Sylvester: (1) knew

the vehicles were stolen based on her association with Lee; and

(2) was involved in the conspiracy.

FED. R. CRIM. P. 14 provides:

If the joinder of offenses or defendants in an
indictment, an information, or a consolidation for trial
appears to prejudice a defendant or the government, the
court may order separate trials of counts, sever the
defendants’ trials, or provide any other relief that
justice requires.

In order to obtain a Rule 14 severance, the defendant must make a

showing of “compelling prejudice.” United States v. Coppola, 788

F.2d 303, 307 (5th Cir. 1986). Where the record discloses that

the trial court carefully instructed the jury that the case

against each defendant was to be separately considered, courts

will usually not find compelling prejudice. See id. Here, the

evidence of Lee’s license suspension and Braune’s testimony did

not result in “compelling prejudice” to Sylvester because the

evidence and testimony clearly implicated only Lee. Furthermore,

Braune answered “no” when Sylvester’s counsel asked her if she

had ever suspended Sylvester or given Sylvester any citations.

Also, the district court gave the jury a very thorough

instruction that it was not to consider evidence about one

defendant in considering the counts against another defendant.2

2
The court gave the following instruction to the jury
immediately before Braune’s testimony:

There are six defendants here. Some of the testimony
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In addition, with respect to Nwarbardi and Officer Civitello’s

testimony, the court also gave a limiting instruction.

Therefore, the fact that the evidence was admitted was not

prejudicial. See Coppola, 788 F.2d at 307. Accordingly, the

district court did not abuse its discretion in denying

Sylvester’s motion for severance.

G. Admission of Evidence Regarding Sylvester

Sylvester argues that the district court erroneously

admitted evidence that Sylvester completed a vehicle inspection

applies to certain defendants, some applies to others.
I want to remind you of some basic principles that you
need to keep in mind as you’re assessing the evidence
through the trial. First of all, I believe you have a
copy of the indictment and I want to remind you that a
separate crime is charged in each count of the
indictment. And the evidence pertaining to each count
should be considered separately. And the fact that you
find a particular defendant guilty or not guilty on a
particular count should not control your verdict as to
other crimes or other defendants. You must give separate
consideration of the evidence as to each defendant. In
addition, in many, if not all, of the counts, a separate
crime is charged against each defendant in each count.
And each count and the evidence pertaining to it, again,
needs to be considered separately as to each defendant
within that count. The fact that you might find one or
more of the accused guilty or not guilty of a particular
crime in a particular count should not control your
verdict as to any other crime or any other defendant as
charged in the count under consideration. You must give
separate consideration of the evidence as to each
defendant. So, as the testimony comes out, I think you
need to keep in mind to be focusing on which defendant is
the subject of the testimony and then evaluating the
evidence as to that defendant. And remember your decision
as to each defendant and each count will need to be
separate.

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form for a 2000 7-Series BMW because it incorrectly determined

the evidence was intrinsic to the conspiracy rather than Rule

404(b) evidence. Sylvester contends that the evidence was not

intrinsic because the government did not prove it was stolen or

include it in the indictment.

As discussed above with respect to Lee’s claim, intrinsic

evidence includes evidence of acts committed to prove the

defendant’s membership or participation in the conspiracy or acts

committed in furtherance of the conspiracy. Garcia Abrego, 141

F.3d at 175. Here, while the government did not prove the BMW

was stolen, the BMW was connected to the conspiracy by virtue of

its association with David Fox. The Certificate of Title for the

BMW listed David J. Fox as the owner. The name David J. Fox was

listed as the previous owner of a stolen Porsche that was a part

of the conspiracy. In addition, Fox’s address, which was listed

on the application for title for the BMW, belonged to Vilma

Flores, who was Rodriguez’s mother, and Rodriguez was known to

sell stolen cars for Herrera. Thus, Sylvester’s name on the

inspection certificate implicated her in the conspiracy, and the

fact that Sylvester completed a vehicle inspection form for the

BMW was evidence intrinsic to the conspiracy. Accordingly, the

district court did not err in admitting this evidence as

intrinsic to the conspiracy.

H. Fatal Variance

Sylvester argues that there was a fatal variance between the

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conspiracy charged in the indictment and the proof at trial of

multiple conspiracies. More specifically, Sylvester contends

that the charge in the indictment and the proof offered at trial

did not share a common goal, differed in nature, and did not

involve an overlap of participants. According to Sylvester, the

indictment alleged a conspiracy to obtain stolen vehicles, obtain

counterfeit and fraudulent titles for those stolen vehicles,

transport the stolen vehicles interstate, and sell them. She

argues, on the other hand, that the evidence at trial established

a second conspiracy to resell salvaged cars for more than their

market value. Sylvester asserts that this fatal variance

violated her substantial rights because the evidence against her

was so weak.

To demonstrate a fatal variance the defendant must prove:

(1) a variance between the indictment and the proof at trial; and

(2) that the variance affected the defendant’s substantial

rights. United States v. Morrow, 177 F.3d 272, 291 (5th Cir.

1999) (per curiam). The existence of a single or multiple

conspiracies is determined by examining three factors: (1) the

existence of a common goal; (2) the nature of the scheme; and (3)

the overlapping of participants in the various dealings. Id.;

United States v. Allen, 76 F.3d 1348, 1370 (5th Cir. 1996). A

jury’s finding that a single conspiracy was proven by the

evidence will be affirmed unless the evidence, viewed in the

light most favorable to the government, would preclude reasonable

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jurors from finding a single conspiracy beyond a reasonable

doubt. Morrow, 177 F.3d at 291; United States v. Morris, 46 F.3d

410, 415 (5th Cir. 1995).

There was no variance between the charge in the indictment

and the evidence at trial. First, there was a common goal. The

testimony by Beltran and Officer Civitello established that the

purpose of the conspiracy was to steal cars, alter VINs, retitle

cars with false information, transport the cars across state

lines, and resell the cars. At no time did they make any mention

that the conspiracy involved the resale of salvaged cars.

Although Herrera stated that he obtained clean titles to salvaged

cars to resell them at higher than market prices, the vehicles

Herrera was speaking of were actually stolen. In addition,

Sylvester contributed to reaching that common goal by completing

vehicle inspection forms to get titles to the stolen cars. See

United States v. DeVarona, 872 F.2d 114, 118 (1989) (stating that

a single conspiracy exists “if the evidence demonstrates that all

of the alleged co-conspirators directed their efforts to

accomplish a single goal or common purpose”).

Second, the nature of the scheme was such that completion of

the vehicle inspection forms was part of a single conspiracy.

Sylvester asserts that the nature of the schemes was different

because the charged conspiracy required the theft and

transportation of stolen vehicles but the separate conspiracy

required neither proof that the vehicle was stolen nor that it

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traveled in interstate commerce. Sylvester’s argument is

misguided. Here, there was one conspiracy, and, as described

above, it was to steal cars, alter VINs, retitle cars with false

information, transport the cars across state lines, and resell

the cars. Completing the vehicle inspection forms was necessary

to obtain titles for the stolen cars. Morris, 46 F.3d at 416

(stating that in analyzing whether the nature of the scheme

points to a single conspiracy, this court asks whether the

activities of one aspect of the scheme are necessary or

advantageous to the success of another aspect of the scheme or to

the overall success of the venture, and whether the agreement

contemplated bringing to pass a continuous result that will not

continue without the ongoing cooperation of the conspirators);

DeVarona, 872 F.2d at 119-20. Thus, the nature of the scheme was

such that completion of the forms was part of one single

conspiracy.

Third, the overlapping of participants in the various

dealings and the interrelationships among the various

participants in the conspiracy suggests there was a single

conspiracy. See Morris, 46 F.3d at 416. Sylvester argues that

there was no overlap of participants because there was no

evidence linking Sylvester to Herrera, Beltran, Nwarbardi, or

Teran, who were all key participants in the conspiracy. While

Sylvester’s assertions may be correct, the members of a

conspiracy that functions though a division of labor need not

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have an awareness of the existence of the other members or be

privy to each aspect of the conspiracy. United States v.

Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987); Morris, 46 F.3d

at 416-417. Thus, the fact that neither Herrera nor Beltran

knew about Sylvester is not dispositive. Furthermore, Sylvester

worked at ICM Automotive, which was owned by Nwarbardi, who she

admits was the focus of the investigation. See Morris, 46 F.3d

at 416 (stating that there is no requirement that every member

must participate in every transaction to find a single

conspiracy, but only that parties who knowingly participate with

core conspirators to achieve a common goal may be members of an

overall conspiracy). Accordingly, there was no variance between

the charge in the indictment and the evidence at trial.

I. Sylvester’s Booker-Argument

Sylvester challenges her sentence under Booker, arguing that

it was imposed pursuant to a mandatory sentencing guidelines

regime. Because Sylvester did not raise her Booker objection

below, we review it for plain error. See United States v. Mares,

402 F.3d 511, 515 (5th Cir. 2005). Although Sylvester has shown

error that is plain, she cannot satisfy her burden of showing

that the error affected the outcome of the district court

proceedings because she points to no evidence in the record

indicating that the court would have sentenced her differently

under an advisory sentencing scheme. See United States v. Olano,

507 U.S. 725, 734 (1993); Mares, 402 F.3d at 521. Sylvester,
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however, argues that Booker error is structural error, and even

if the error is not structural, it should be presumed prejudicial

because the difference in the sentencing scheme pre and post-

Booker is extremely likely to affect a district court’s

sentencing decision. This court has specifically rejected both

of these arguments as inconsistent with Mares. See United States

v. Martinez-Lugo, --- F.3d ----, 2005 WL 1331282 (5th Cir. June

7, 2005); United States v. Malveaux, No. 03-41618, 128 Fed. Appx.

362, 364 n.9 (5th Cir. Apr. 11, 2005) (unpublished).

Accordingly, Sylvester’s challenge to her sentence fails.

AFFIRMED.

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