United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 9, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 05-10461
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO CRESPO-HERNANDEZ; RAMON A. SANTOS; MANUEL MENDEZ also known as
JUAN MANUEL COLON,
Defendants-Appellants.
___________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
4:04-CR-00114-3
___________________________________________________
Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
Mario Crespo-Hernandez, Ramon Santos, and Manuel Mendez were found guilty of
conspiracy to distribute and to possess with intent to distribute more than five kilograms of cocaine
in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). For the reasons that follow, we affirm the
judgment of the district court.
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and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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I. FACTS AND PROCEEDINGS
Crespo-Hernandez, Mendez, and Santos—as well as Norma Pimentel, Victor Ortiz, and
Stephanie Horta—were all charged in a one-count indictment with conspiracy to distribute and to
possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 846
and 841(b)(1)(A). The government initiated prosecution of this case following an undercover
operation by Drug Enforcement Administration (DEA) agents and a confidential informant (CI). The
CI provided information to the agents regarding a group of drug traffickers in the Rhode Island area,
later identified as Appellants and the others charged, and the CI arranged for the sale of cocaine to
the group in Fort Worth, Texas.
At trial, the government presented five witnesses in support of its case: Patrick Reilly, a
Rhode Island police officer; Ronald Robinson, a DEA agent; Richard Martinez, a Forth Worth police
officer acting undercover in the operation; Norma Pimentel, the then-girlfriend of Crespo-Hernandez
and one of the charged co-conspirators; and Kevin Brown, the Tarrant County District Attorney who
investigated the crime scene. The CI, Jose Cruz Garcia, did not testify. Robinson testified as to the
set up of the operation, including the coordination among the offices in Rhode Island and Fort Worth
and the use of the CI to contact Rhode Island phone numbers. Martinez testified that the plan called
for him to pose as a drug dealer with the CI in the Fort Worth area. Under the agents’ direction, on
December 3, 2003, the day of the transaction, the CI placed phone calls to Rhode Island to
coordinate the transaction. Reilly identified the Rhode Island phone number as that of Santos. As
a result of these phone calls, agents knew that two groups of people were coming to Fort Worth to
purchase cocaine; one group was to purchase twelve kilograms, and the other, five kilograms.
Santos gave the CI a contact phone number for each group.
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Martinez further testified as follows: on the day of the transaction, Martinez and the CI went
to a Shell station to meet Pimentel and Crespo-Hernandez. From the Shell station, with Pimentel and
Crespo-Hernandez following them, Martinez and the CI then traveled to a Jack-In-The-Box in order
to meet Ortiz and Mendel. From the restaurant, the entire group relocated to a warehouse where the
transaction was conducted. At the warehouse, Martinez asked to see the money before producing
the cocaine. Mendez retrieved money from under the dashboard of the car that he and Ortiz were
driving and indicated that he only had enough money for four kilograms of cocaine instead of five.
Crespo-Hernandez retrieved money from the back of the jeep that Pimentel was driving by removing
the back seat and accessing a concealed compartment. The money was placed on a table. Pimentel
told Martinez that they only had enough money for eleven kilograms of cocaine. Martinez then called
an undercover officer to deliver the bag of cocaine, retrieved it, and placed it on the table. As
Appellants began to remove the cocaine from the bag, Martinez gave the arrest signal, and officers
came in and arrested all participants.
Pimentel, who agreed to testify as part of her plea agreement, largely corroborated the story
presented by Robinson and Martinez. She confirmed that she was supposed to buy eleven kilograms
of cocaine for Santos and that he would pay her and Crespo-Hernandez $5000 each for their services.
She also stated that Santos arranged to have the hidden compartment installed in the back seat of her
car and that Crespo-Hernandez stored and retrieved the money from the compartment because she
did not know how to access it. She testified that she had served as a drug runner for Santos in the
past and that Crespo-Hernandez had accompanied her on one of the trips. Finally, she testified that
she did not know Mendez before the day of the transaction.
Appellants presented no witnesses at trial. The jury found Appellants guilty. The district
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court sentenced Santos to a 260-month term of imprisonment and a five-year term of supervised
release. Crespo-Hernandez was sentenced to a 170-month term of imprisonment and a five-year term
of supervised release. Mendez was sentenced to a 240-month term of imprisonment and a ten-year
term of supervised release. Appellants raise several issues on appeal: (1) sufficiency of the evidence,
(2) Confrontation Clause violations, (3) sentencing errors, and (4) ineffective assistance of counsel.
II. DISCUSSION
A. Sufficiency of the evidence
Both Crespo-Hernandez and Mendez moved for a judgment of acquittal at the close of
evidence. See FED. R. CRIM. P. 29. A motion for a judgment of acquittal challenges the sufficiency
of the evidence, and we review the denial of this motion de novo. United States v. Medina, 161 F.3d
867, 872 (5th Cir. 1998). In our review, we consider “the evidence, all reasonable inferences drawn
from it and all credibility determinations in the light most favorable to the Government, and affirm
if a reasonable jury could find the offense’s essential elements beyond a reasonable doubt.” Id.
To establish a conspiracy, the government must prove beyond a reasonable doubt “(1) that
an agreement existed between two or more persons to violate the applicable narcotics law (i.e., a
conspiracy existed), (2) that each alleged conspirator knew of the conspiracy and intended to join it
and (3) that each alleged conspirator participated (i.e., joined) voluntarily in the conspiracy.” Id. It
is enough that the agreement is tacit; an express or explicit agreement is not required. United States
v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997). Additionally, “a person may be guilty as a co-
conspirator even if he plays only a minor role, and he need not know all the details of the unlawful
enterprise or know the exact number or identity of all the co-conspirators, so long as he knowingly
participates in some fashion in the larger objectives of the conspiracy.” Id. (citations omitted).
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Either direct or circumstantial evidence may be used to prove the elements of the conspiracy.
United States v. Virgen-Moreno, 265 F.3d 276, 284–85 (5th Cir. 2001) (citing United States v.
Casilla, 20 F.3d 600, 606 (5th Cir. 1994)). “Additionally, presence and association with other
members of a conspiracy, along with other evidence, may be relied upon to find a conspiracy.” Id.
(internal quotations and citation omitted). See also United States v. Chavez, 947 F.2d 742, 745 (5th
Cir. 1991). The jury is free to choose among reasonable constructions of the evidence; however, if
the evidence gives equal circumstantial support to innocence as to guilt, then we must reverse the
verdict. United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999); United States v. Dean, 59 F.3d
1479, 1484 (5th Cir. 1995).
(1) Crespo-Hernandez
Crespo-Hernandez argues that the evidence only establishes his presence at the drug
transaction, not his knowledge of the conspiracy or agreement to participate in it. However,
Pimentel’s testimony provided ample circumstantial support for the jury to convict him. Pimentel
testified that Santos would pay her and Crespo-Hernandez $5000 each to retrieve the drugs from
Texas. She also stated that Santos gave Crespo-Hernandez, not her, the money to be used to buy the
drugs before they departed for Texas. Pimentel stated that Crespo-Hernandez put the money in the
hidden compartment under the backseat of the Jeep and retrieved the money from the car at the
warehouse because she did not know how to access the hidden compartment. Finally, Pimentel
testified that she and Crespo-Hernandez made a trip to El Paso, Texas, in 2003 to pick up nine
kilograms of cocaine for Santos.
It is not disputed that Crespo-Hernandez accompanied Pimentel to Texas and that he was
present at the drug transaction. While presence at a crime scene alone does not establish a
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defendant’s participation in a conspiracy, the jury may consider presence and association, along with
other evidence, in order to find conspiratorial activity. Chavez, 947 F.2d at 745. Here, the fact that
Crespo-Hernandez bore the responsibility of storing and accessing the drug money and the fact that
he was going to be paid suggest that he knew the purpose of the trip to Texas and voluntarily
participated in it. Moreover, the evidence that Pimentel and Crespo-Hernandez had served as drug
runners for Santos in the past supports the conclusion that Crespo-Hernandez had the requisite
knowledge and intent for the instant offense. Considering this evidence and the inferences to be
drawn from it in the light most favorable to the government, a jury could find Crespo-Hernandez
guilty of conspiracy beyond a reasonable doubt.
(2) Mendez
Mendez does not dispute that he was involved in a conspiracy; instead he argues that the
evidence failed to show that he joined in the single conspiracy alleged in the indictment because the
evidence showed the existence of two conspiracies. He claims one conspiracy consisted of Santos,
Crespo-Hernandez and Pimentel, and the other consisted of Ortiz, Mendez, and Horta. In support,
Mendez relies on several pieces of evidence: (1) two groups came in two separate cars; (2) Martinez
and the CI initially met each group at a different location; (3) Pimentel testified that she had not seen
the other group before they arrived in Forth Worth and did not know they would be there; (4)
Martinez testified that Mendez was “uncomfortable” conducting the transaction with another group
present; and (5) there was no evidence that the group consisting of Mendez, Ortiz and Horta were
sent by Santos.
To prevail on a variance claim, the appellant must prove that: “(1) a variance existed between
the indictment and the proof at trial, and (2) the variance affected [the appellant’s] substantial rights.”
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United States v. Pena-Rodriguez, 110 F.3d 1120, 1126 (5th Cir. 1997) (citing United States v.
Morris, 46 F.3d 410, 414 (5th Cir. 1995)). To determine whether there was a variance between the
indictment and the proof at trial, the number of conspiracies proved at trial must be counted, and in
this regard, the following factors are considered: “‘(1) the existence of a common goal, (2) the nature
of the scheme, and (3) the overlapping participants in the various dealings.’” Id. (quoting Morris,
46 F.3d at 415). “Whether the evidence shows one or multiple conspiracies is a question of fact for
the jury.” Id. “A jury’s finding that the government proved a single conspiracy must be affirmed
unless the evidence viewed in the light most favorable to the government would preclude reasonable
jurors from finding a single conspiracy beyond a reasonable doubt.” Id.
Viewing the evidence in the light most favorable to the government, reasonable jurors could
have found the existence of a single conspiracy. “A single conspiracy exists where a ‘key man’ is
involved in and directs illegal activities, while various combinations of other participants exert
individual efforts toward a common goal.” United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir.
1987). In addition, as stated, participants need not have knowledge of the existence of all other
participants. Westbrook, 119 F.3d at 1189. Even though the evidence showed that two distinct
group traveled to Forth Worth to conduct the transaction, the evidence also showed that Santos was
the “key man” in charge of directing the various participants. Contrary to Mendez’s assertion that
no evidence linked Santos to his group, Agent Robinson testified, while reviewing the log of
telephone calls made from Santos’s cell phone and calls received on Ortiz’s cell phone, that a call was
placed from Santos to Ortiz on December 3, 2003, the day of the drug transaction. The evidence also
showed that both groups came to Fort Worth on the same day and that Santos gave the CI contact
numbers for both groups. Even though each group may have been unaware of the existence of the
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other, Santos served as the key man directing the two groups. Because of Santos’s role connecting
the two groups, the evidence was sufficient to show there was a single conspiracy.
Mendez also argues that the evidence failed to show that he conspired to distribute more than
five kilograms because the government only proved his conspiracy to possess four kilograms. The
indictment alleged conspiracy to distribute five or more kilograms of cocaine. To meet its burden of
proof at trial, the government need only prove conspiracy to distribute five or more kilograms based
on the conspiracy as a whole, not the quantity attributable to each co-conspirator. United States v.
Turner, 319 F.3d 716, 722–23 (5th Cir. 2003) (adopting the rule of the First Circuit in Dermon v.
United States, 298 F.3d 94 (1st Cir. 2002)). The evidence showed that one group purchased four
kilograms (the group Mendez was associated with) and another group purchased eleven. As a result,
the government has met its burden of proof with respect to the conspiracy as a whole, and Mendez’s
insufficiency argument fails.
B. Confrontation Clause violations
Both Mendez and Santos allege that their Confrontation Clause rights were violated by the
admission of statements made by the CI through the testimony of Martinez and Robinson.
Specifically, Mendez complains that he was harmed by testimony showing that the CI made
arrangements with Appellants to set up the drug transaction. Santos complains that he was harmed
because the out-of-court statements proved he sent the two groups to Texas and was the organizer
of the operation. We review alleged Confrontation Clause violations de novo. United States v. Bell,
367 F.3d 452, 465 (5th Cir. 2004) (citing United States v. McCormick, 54 F.3d 214, 219 (5th Cir.
1995)).
For Mendez’s and Santos’s Confrontation Clause rights to be violated, the statements by the
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CI must have been testimonial in nature. In Crawford v. Washington, 541 U.S. 36, 68–69 (2004),
the Supreme Court held that out-of-court statements by witnesses that are testimonial are barred,
unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the
witness. The Court did not further define what constitutes a testimonial statement; however, it did
articulate a “core class” of testimonial statements: “ex parte in-court testimony or its functional
equivalent . . .; extrajudicial statements . . . ; [and] statements that were made under circumstances
which would lead an objective witness reasonably to believe that the statement would be available for
use at a later trial.” Id. at 51–52 (internal quotations and citations omitted). The Court also stated
that an “accuser who makes a formal statement to government officers bears testimony in a sense that
a person who makes a casual remark to an acquaintance does not.” Id. at 51
This circuit has not yet developed a comprehensive definition of “testimonial.” We have,
however, looked to the Court’s discussion in Crawford for guidance of the types of situations where
a witness is deemed to be bearing testimony. See United States v. Gonzales, 436 F.3d 560, 546 (5th
Cir. 2006) (stating that an excited exclamation, even though made while the declarant was in custody,
would probably not qualify under Crawford because the situation was not an interrogation or
anything similar); United States v. Lopez-Moreno, 420 F.3d 420, 436 (5th Cir. 2005) (stating that a
photocopy of an identification card in no way involves a witness bearing testimony). Here, though
Appellants argue that the content of the CI’s statements to Robinson and Martinez was testimonial,
the exchanges between the CI and the co-conspirators with whom he spoke on the phone do not
resemble any of the “core class” of testimonial statements articulated by the Court in Crawford. See
541 U.S. at 51–52. The CI was not being interrogated by police officers, nor was he making a formal
statement to the DEA agents in anticipation of trial. Instead, under the constant direction of DEA
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agents, the CI was coordinating a drug transaction, directing his statements to the co-conspirators
themselves. There was no violation of Mendez’s and Santos’s Confrontation Clause rights.
C. Sentencing errors
(1) Crespo-Hernandez
Crespo-Hernandez argues that the district court should have downwardly adjusted his
sentence pursuant to U.S.S.G. § 3B1.2 because of his alleged minor role in the conspiracy. His trial
counsel did not request a downward adjustment before the district court, and where, as here, the
defendant does not raise the issue of his role at sentencing, this court reviews for plain error. See
United States v. Fierro, 38 F.3d 761, 773 (5th Cir. 1994). The determination of a defendant’s role
in an offense is factual in nature. United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994).
However, “questions of fact capable of resolution at sentencing can never constitute plain error.”
Fierro, 38 F.3d at 773 (citing United States v. Guerroro, 5 F.3d 868, 871 (5th Cir. 1993)). As a
result, Crespo-Hernandez’s challenge does not survive plain error review.
(2) Santos
Santos argues that his Sixth Amendment rights were violated because he was held accountable
for an amount of cocaine beyond what was alleged in the indictment and because his sentence was
enhanced based on a prior conviction. Santos did not object to his sentence before the district court,
and, therefore, we will review for plain error. United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005).
Santos’s objections are foreclosed. First, regarding the quantity of cocaine Santos was held
accountable for, we have held that the Sixth Amendment does not prohibit a sentencing judge from
finding all the facts relevant to sentencing. See Mares, 402 F.3d at 519; United States v. Lopez-
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Urbina, 434 F.3d 750, 759 (5th Cir. 2005); United States v. Alonzo, 435 F.3d 551, 553 (5th Cir.
2006). Second, prior convictions are permissible sentencing factors and need not be admitted by the
defendant or found by the jury beyond a reasonable doubt. See Almendarez-Torres v. United States,
523 U.S. 224, 228 (1998); see also United States v. Martin, 431 F.3d 846 853 (5th Cir. 2005)
(acknowledging that Apprendi did not overrule Almendarez-Torres).
(3) Mendez
Mendez objects to the procedure set forth in 21 U.S.C. § 850 for enhancement of sentences
based on prior convictions, but he concedes that his objection is foreclosed by Almendarez-Torres,
523 U.S. 224. He raises the issue to preserve it for possible further review.
D. Ineffective assistance of counsel
For the first time on appeal, Crespo-Hernandez alleges that his right to effective assistance
was violated because counsel failed (1) to thoroughly object to the presentence investigation report,
(2) to request a downward adjustment due to Crespo-Hernandez’s minor role, and (3) to schedule
an interview with Crespo-Hernandez to meet with the government to substantiate his qualification
for a sentence below the statutory minimum pursuant to U.S.S.G. § 2D1.1(b)(6). “[A] claim of
ineffective assistance of counsel generally cannot be addressed on direct appeal unless the claim has
been presented to the district court; otherwise there is no opportunity for the development of an
adequate record on the merits of that serious allegation.” United States v. Navejar, 963 F.2d 732,
735 (5th Cir. 1992) (citing United States v. Higdon, 832 F.2d 312 (5th Cir. 1987)). In “rare cases”
where the record is adequately developed to permit this court to fairly evaluate the merits of the
claim, we will resolve an allegation of ineffective assistance of counsel on direct appeal. Id. Here,
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the record does not indicate if a reason existed for defense counsel’s decisions. Because the record
is not sufficiently developed with respect to Crespo-Hernandez’s claim, we will not address it. We
also note that the Supreme Court has stated that claims for ineffective assistance brought under 28
U.S.C. § 2255 are preferable to direct appeal. See Massaro v. United States, 538 U.S. 500, 504–05
(2003).
IV. CONCLUSION
The judgment of the district court is AFFIRMED.
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