United States v. Hidalgo

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 10, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 05-20971

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

TERRY HIDALGO

Defendant - Appellant

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-455-16
--------------------

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Defendant-appellant Terry Hidalgo appeals his conviction of

conspiracy to possess with intent to distribute methamphetamine

in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and

846. For the following reasons, we AFFIRM his conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case stems from defendant-appellant Terry Hidalgo’s

involvement in a large methamphetamine trafficking organization

which operated in Michiocan, Mexico; Harris County, Texas; and

Montgomery County, Texas. Three sets of events are at issue in

this appeal, and the government argues that the jury could have

convicted Hidalgo of conspiracy based on any of these events.

*
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this opinion should not be published and is not precedent except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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The first set of events occurred in April 2004. At this

point in time, Hidalgo owned two homes–-one in Montgomery County,

Texas, and the other in Lafayette, Louisiana–-and traveled

frequently between the two properties. Mark Wilburn testified at

trial that in April 2004 he took Hidalgo, whom he had known for

about four years, from Hidalgo’s Montgomery County property to

Hidalgo’s home in Lafayette, Louisiana. Wilburn stated that

during this trip, Hidalgo sold one ounce of methamphetamine and

gave Wilburn $600 for the ride to Louisiana.

The second set of events occurred between May 23 and May 25,

2004. According to Wilburn’s testimony, the following

transactions occurred. Hidalgo told Christopher Savoy that

Hidalgo could sell methamphetamine in Louisiana for $2000 an

ounce, and Savoy then picked up some methamphetamine for Hidalgo

to sell. Wilburn and Savoy drove to Hidalgo’s house in Lafayette

and delivered two ounces of methamphetamine to Hidalgo. Although

Hidalgo did not pay for the methamphetamine up-front, he told

Savoy that he could sell one ounce of the methamphetamine to an

individual named Bill for $2000. Before returning to Texas,

Wilburn and Savoy picked up the money Hidalgo owed them and a

half-ounce of methamphetamine.1

The third set of events occurred in June and July 2004. In

early June 2004, Savoy began providing information to the DEA on

1
Hidalgo’s version of the story differs from Wilburn’s.
Hidalgo testified that Wilburn attempted to front Hidalgo a large
amount of methamphetamine, but that Hidalgo only took a small
amount for his personal use. Hidalgo also testified that he
refused to allow Wilburn to sell methamphetamine from his
residence.
 No. 01-50999
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the drug organization’s activities.2 Hidalgo and Savoy spoke on

the telephone numerous times about the sale of Hidalgo’s

Montgomery County property. Savoy, Bradford Crain, and Hidalgo

met on June 16, 2004 to discuss the potential sale. Hidalgo

testified that he wanted to sell the property for cash, but the

government alleges that the deal was for $171,000 worth of

methamphetamine (about 114 ounces). The government’s witnesses

testified that on June 16, 2004, Crain gave Hidalgo a down

payment for the property in the form of two and one half ounces

of methamphetamine. Hidalgo testified that he never agreed to

sell his house for drugs and that no payment was ever made.

Savoy wore a recording device to this meeting and the recording

was admitted into evidence and played for the jury. Among other

things, the recording indicates that Hidalgo agreed to sell his

home in exchange for drugs at this meeting. Hidalgo also states

that Savoy was armed during the meeting.

At trial, Hidalgo admitted that he signed the real estate

agreement prepared during the meeting and that the purpose of the

real estate agreement was to disguise the monthly methamphetamine

payment by making it appear that $3000 was being paid monthly.

Evidence also showed that Savoy returned with several others to

view Hidalgo’s Montgomery County property on July 13, 2004.3

Hidalgo and fifteen co-defendants were charged in a

2
Savoy signed a DEA Confidential Source Agreement which
expressly stated that Savoy was not a DEA or government employee
and could not represent himself as one.
3
Dionisio Garcia, also known as Juan Martinez and Saul
Martinez, was the head of the drug trafficking activity in
Houston, Texas.
 No. 01-50999
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thirteen-count indictment. The indictment charged Hidalgo in

Count 1 with conspiracy to possess with intent to distribute

fifty grams or more of methamphetamine in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(viii), and 846 and in Counts 12 and 13

with conspiracy to commit money laundering and money laundering

in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (a)(1)(B)(i). In

response to Hidalgo’s motion in limine, the district court

ordered the government to approach the bench before referring to

any criminal or drug trafficking organization. Hidalgo asserted

defenses of entrapment and public authority.

After the government rested its case during the jury trial,

the court signed an order of acquittal as to Counts 12 and 13.

Trial then continued as to Count 1. The court did not instruct

the jury as to the public authority defense, even though it had

been requested by Hidalgo. The court used the pattern jury

instruction regarding entrapment. The jury convicted Hidalgo of

conspiracy to possess with intent to distribute methamphetamine,

and the district court sentenced Hidalgo to 100 months’

imprisonment and four years’ supervised release. The district

court denied Hidalgo’s motion for new trial. Hidalgo now

appeals.

II. DISCUSSION

Hidalgo raises several challenges on appeal. First, he

argues that the evidence was insufficient to support his

conviction. Second, he contends that he was entrapped, and no

evidence existed from which the jury could conclude that he was

not. Third, he urges that the pattern jury instruction on
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entrapment misstates the law and should not have been used by the

district court. Fourth, he argues that the prosecutor committed

reversible error by displaying a chart during the opening and

closing arguments, and that as a result the district court should

have granted his motion for new trial. Fifth, he contends that

the district court erred by not including a public authority

defense in the jury charge, despite evidence at trial to support

it. Finally, he challenges the admission of a tape recording of

the June 16th meeting into evidence.

A. Sufficiency of the Evidence

Because Hidalgo moved for judgment of acquittal at the close

of the evidence, this court reviews a challenge to the

sufficiency of the evidence by “‘viewing the evidence and the

inferences that may be drawn from it in the light most favorable

to the verdict’ and determining whether ‘a rational jury could

have found the essential elements of the offenses beyond a

reasonable doubt.’” United States v. Valdez, 453 F.3d 252, 256

(5th Cir. 2006) (quoting United States v. Pruneda-Gonzalez, 953

F.2d 190, 193 (5th Cir. 1992)), cert. denied, 127 S. Ct. 456

(2006). The jury alone weighs the evidence and makes credibility

determinations. United States v. Jaramillo, 42 F.3d 920, 923

(5th Cir. 1995). The evidence need not “exclude every rational

hypothesis of innocence or be wholly inconsistent with every

conclusion except guilt” so long as “a reasonable trier of fact

could find the evidence establishes guilt beyond a reasonable

doubt.” Pruneda-Gonzales, 953 F.2d at 193. Nonetheless, this

court “must reverse a conviction if the evidence construed in
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favor of the verdict ‘gives equal or nearly equal circumstantial

support to a theory of guilt and a theory of innocence of the

crime charged.’” Jaramillo, 42 F.3d at 923 (quoting United

States v. Menesses, 962 F.2d 420, 426 (5th Cir. 1992)).

In order to prove conspiracy to possess with intent to

distribute methamphetamine, the government must prove beyond a

reasonable doubt that: (1) the defendant and one or more persons

agreed to violate the narcotics laws, (2) the defendant knew of

the conspiracy, and (3) the defendant voluntarily participated in

the conspiracy. United States v. Rosa-Fuentes, 970 F.2d 1379,

1381-82 (5th Cir. 1992). Evidence of an overt act is not

required to prove a drug conspiracy. United States v. Ramirez-

Velasquez, 322 F.3d 868, 880 (5th Cir. 2003). An agreement may

be either explicit or implicit, and the fact finder may infer an

agreement from “a concert of action.” United States v. Mann, 161

F.3d 840, 847 (5th Cir. 1998). A fact finder can infer an

agreement to join a conspiracy “from the performance of acts that

further its purpose” even though not every act “that assists in

the accomplishment of the objective of the conspiracy is a

sufficient basis to demonstrate his concurrence in that

agreement.” United States v. Alvarez, 610 F.2d 1250, 1255 (5th

Cir. 1980). An individual’s “[m]ere presence at the scene of a

crime or close association with a co-conspirator will not support

an inference of participation in a conspiracy.” United States v.

Tenorio, 360 F.3d 491, 495 (5th Cir. 2004).

Hidalgo argues that while the evidence does show a large

methamphetamine organization and conspiracy, the government
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failed to present evidence from which the jury could conclude

beyond a reasonable doubt that Hidalgo as an individual knew of

or voluntarily participated in the conspiracy. Nonetheless, the

evidence presented at trial is sufficient to support Hidalgo’s

conviction for conspiracy to possess with intent to distribute

methamphetamine. The evidence presents multiple ways that

Hidalgo could have committed conspiracy.

Based on the recording, the jury could have determined that

the June 16th transaction evidenced a conspiracy offense because

Hidalgo satisfied the agreement element when he agree to sell his

Montgomery County residence in exchange for monthly

methamphetamine payments. The jury could also have concluded

that Hidalgo’s statements during the meeting indicate both his

knowledge of the conspiracy and that he was a willing

participant. Other evidence at trial also supports this theory

of conspiracy, including Crain’s testimony that he gave Hidalgo

two ounces of methamphetamine as a down payment. Hidalgo’s

intent to distribute the methamphetamine may be inferred because

the down payment was a large amount of methamphetamine and the

agreement required monthly payments of a large quantity of

methamphetamine. See United States v. Moreno, 185 F.3d 465, 471

(5th Cir. 1999) (holding that intent to distribute narcotics may

be inferred from a large quantity of narcotics or narcotics of

particularly high value).

Additionally, the jury could have believed that Hidalgo

joined the conspiracy prior to the June 16th meeting, during one

of Wilburn’s two trips to Louisiana. Testimony at trial stated
 No. 01-50999
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that during the first trip, Wilburn gave Hidalgo one ounce of

methamphetamine which Hidalgo then sold, and that during the

second trip, Wilburn and Savoy fronted Hidalgo two ounces of

methamphetamine, which Hidalgo told Savoy that he would sell for

$2000 an ounce. Wilburn testified that he accompanied Hidalgo to

sell part of the methamphetamine and that a day or two later

Hidalgo paid Wilburn and Savoy for the fronted methamphetamine.

The evidence thus shows that the arrangement between Hidalgo and

Wilburn was a means of effectively distributing the drugs, not

just a transaction between a buyer and seller. See United States

v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991) (holding that

although evidence of a buyer-seller relationship alone is not

enough to support a conspiracy conviction, evidence of an

agreement for something other than the exchange of drugs for

money, such as to obtain drugs for distribution, can support a

conspiracy conviction).

Hidalgo’s lack of familiarity with some of the key members

of the larger drug trafficking organization does not bar his

conspiracy conviction. A defendant does not need to personally

know all of the members of a conspiracy. See United States v.

Garcia-Abrego, 141 F.3d 142, 155 (5th Cir. 1998) (holding that to

be convicted of engaging in a criminal conspiracy, the defendant

does not need to know the exact number or identity of all the co-

conspirators).

Hidalgo also attacks the credibility of Wilburn’s and

Crain’s testimony based on inconsistencies between their

testimony and the transcript of the June 16, 2004, meeting, but
 No. 01-50999
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inconsistencies in testimony do not equate to insufficient

evidence. The uncorroborated testimony of a co-conspirator can

be sufficient evidence to convict as “long as the testimony is

not factually insubstantial or incredible.” United States v.

Medina, 161 F.3d 867, 872-73 (5th Cir. 1998). “Testimony is

incredible as a matter of law only if it relates to facts that

the witness could not possibly have observed or to events which

could not have occurred under the laws of nature.” See United

States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994). The facts

testified to by Crain and Wilburn could have been observed by

them. Thus, because Hidalgo has not shown Wilburn’s or Crain’s

testimony to be incredible, the jury could choose to believe the

testimony of either. Id.

Finally, Hidalgo argues that he did not conspire with anyone

because Savoy, as an informant, could not be a co-conspirator.

But the jury could have inferred from the evidence a conspiracy

existed between Hidalgo and others, such as Wilburn. See United

States v. Manotas-Mejia, 824 F.2d 360, 365 (5th Cir. 1987)

(holding that a conspiracy may exist among those individuals not

acting as informants for the government, even though a government

informant is involved in the plan). The jury could also have

inferred that a conspiracy formed between Hidalgo and Savoy

before Savoy became a government informant.

B. Entrapment Defense

At trial, Hidalgo asserted the defense of entrapment.

Hidalgo claims that the evidence is insufficient to support a

jury finding that he had not been entrapped. “When a jury, which
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was fully charged on entrapment, rejects the defendant’s

entrapment defense, the applicable standard of review is the same

as that which applies to sufficiency of the evidence.” United

States v. Rodriguez, 43 F.3d 117, 126 (5th Cir. 1995). Thus,

this court must view every fact in the light most favorable to

the guilty verdict. United States v. Wise, 221 F.3d 140, 154

(5th Cir. 2000).

Entrapment is an affirmative defense, and to be successful,

the defendant must establish (1) government inducement and

(2) lack of predisposition to engage in criminal conduct. United

States v. Thompson, 130 F.3d 676, 688 (5th Cir. 1997). Although

Hidalgo maintains that the government entrapped him, a

defendant’s testimony generally does not establish entrapment “as

a matter of law because, absent unusual circumstances, the jury

is almost always entitled to disbelieve that testimony.”

Rodriguez, 43 F.3d at 127.

The jury could have inferred from the evidence an absence of

government inducement.4 The government may use undercover agents

and informants to provide the avenue for the commission of an

offense, Sorrells v. United States, 287 U.S. 435, 441 (1932), but

the agents may not “implant in an innocent person’s mind the

disposition to commit a criminal act, and then induce commission

of the crime so that the Government may prosecute.” Jacobson v.

United States, 503 U.S. 540, 548 (1992). A successful entrapment

4
The parties disagree regarding whether Hidalgo waived the
argument that the government induced him by not fully briefing
the issue in his principal brief, but we need not reach this
issue because we conclude that the jury could have inferred an
absence of government inducement from the record.
 No. 01-50999
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defense requires that the government actually spur the individual

to commit the crime. See Thompson, 130 F.3d at 690. If any

inducement results solely from a private citizen, the entrapment

defense does not apply. United States v. Barnett, 197 F.3d 138,

143 (5th Cir. 1999).

The evidence provides many bases from which the jury could

have inferred that no government inducement occurred. First, as

discussed above, the jury could have decided that Hidalgo joined

the conspiracy during either of Wilburn’s trips to Lafayette,

both of which occurred before Savoy became a government informant

in June. The entrapment defense does not apply when the

inducement originates from a private citizen, such as Wilburn.

See id. Even if the jury determined that Hidalgo joined the

conspiracy at or near the time of the June 16th meeting, the jury

may have determined that no entrapment occurred because the

government did nothing more than present an opportunity for

Hidalgo to commit the offense. See Thompson, 130 F.3d at 690.

The jury could have determined that Hidalgo was predisposed

to commit conspiracy to possess with intent to distribute

methamphetamine from the testimony concerning his activities with

Wilburn and the recording of the June 16th meeting, both of which

show his knowledge and experience with drug activity and his

willing participation. This would render the entrapment defense

inapplicable. See United States v. Reyes, 239 F.3d 722, 739 (5th

Cir. 2001) (holding that a defendant’s ready and willing

participation in the activity, desire for profit, knowledge or

experience with a particular type of criminal activity, and past
 No. 01-50999
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criminal history may indicate a defendant’s predisposition to

commit the charged crime). Accordingly, the evidence is

sufficient to support a jury finding that Hidalgo was not

entrapped.

C. Entrapment Instruction

Hidalgo argues that the pattern jury instruction used by

this circuit for entrapment misstates the law because the

language does not clearly express that the disposition to commit

an offense must exist prior to the defendant’s contact with the

government. This court rejected that argument in United States

v. Hernandez, 92 F.3d 309, 311 (5th Cir. 1996). Accordingly,

Hidalgo’s argument is foreclosed by circuit precedent. Hogue v.

Johnson, 131 F.3d 466, 491 (5th Cir. 1997).

D. Motion for New Trial

Hidalgo contends that the district court abused its

discretion by denying his motion for new trial despite the

prosecution’s improper use of a chart reflecting the hierarchy of

a criminal organization in the opening and closing arguments.

The district court found any error from the display of the chart

to be harmless because the complicated nature of the chart made

it difficult to understand in the brief period of time it was

displayed. The chart was not admitted into evidence, and the

district court instructed the jury to consider only the evidence.

Because the jury is presumed to follow its instructions,

Richardson v. Marsh, 481 U.S. 200, 211 (1987), we hold the

district court did not abuse its discretion in denying Hidalgo’s

motion for new trial. See also United States v. Akpan, 407 F.3d
 No. 01-50999
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360, 368 (5th Cir. 2005) (referring to the presumption that

juries follow the instructions of the court).

E. Public Authority Defense

Hidalgo testified that during Savoy’s May trip to Louisiana,

Savoy showed Hidalgo a badge and police scanner and told Hidalgo

that he was a task-force officer in a reverse sting. Savoy was

not a task-force officer, but Hidalgo argues that the evidence

regarding Savoy’s portrayal of law enforcement was sufficient to

require the district court to include a public authority defense

in the jury charge. To avail himself of the public authority

defense, Hidalgo had to show that a government official

authorized him to engage in the defense. See United States v.

Spires, 79 F.3d 464, 466 n.2 (5th Cir. 1996).

This court cannot overturn a conviction “for failure to

instruct the jury on a defense unless the requested but omitted

instruction has an evidentiary basis in the record which would

lead to an acquittal.” United States v. Spires, 79 F.3d 464, 466

(5th Cir. 1996). We decline to consider whether an evidentiary

basis for this defense existed as Hidalgo waived his right to the

public authority instruction. The trial transcripts reveal that

Hidalgo’s attorney agreed with the district court that the

evidence did not present elements of the public authority

defense.

F. Admission of Tape Recording

Hidalgo argues that the district court improperly admitted

the tape recording of the June 16th meeting for two reasons:

(1) the foundation was inadequate and (2) it violated the
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Confrontation Clause. We review the district court’s evidentiary

rulings for abuse of discretion, United States v. Cheramie, 51

F.3d 538, 540 (5th Cir. 1995), and alleged violations of the

Confrontation Clause de novo, United States v. Delgado, 401 F.3d

290, 299 (5th Cir. 2005).

Tape recordings may be admitted into evidence if they are

reliable. See Thompson, 130 F.3d at 683. To show reliability,

the government must establish that (1) a competent individual

operated the recording device, (2) the recording equipment was in

sufficient working order, (3) there were no material deletions,

additions, or alterations to the recording, and (4) the speakers

could be identified. United States v. Stone, 960 F.2d 426, 436

(5th Cir. 1992). Yet, even if all these requirements have not

been met, “the trial judge retains broad discretion to

independently determine that the recording accurately reproduces

the auditory experience.” Id. at 436.

All the prerequisites to admitting a recording have been

established. See Stone, 960 F.2d at 436. The evidence indicates

that the equipment was in sufficient working order when Savoy

used it and that Agent Sowell, a competent individual experienced

in the use of this type of equipment, operated it. Despite

Hidalgo’s contention that Savoy altered the recording to

manipulate the conversation, the recording device showed it

operated without interruption during the time it was in Savoy’s

possession. Further, the evidence indicated Savoy did not even

know how to use the equipment. Finally, the speakers in the

recording could be identified.
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Hidalgo’s contention that the admission of the recording was

error because portions of it were inaudible is also unfounded.

Reversal of the admission of a recording due to inaudibility

should occur only if “‘the inaudible parts are so substantial as

to make the rest more misleading than helpful.’” Thompson, 130

F.3d at 683 (quoting Gorin v. United States, 313 F.2d 641, 652

(1st Cir. 1963)). After a thorough review of the record, we

conclude that the inaudible portions were not substantial and did

not result in misleading the jury. Accordingly, the government

satisfied the foundational requirements for admitting the tape.

The admission of testimonial hearsay is barred under the

Confrontation Clause unless the witness “was unavailable to

testify, and the defendant had a prior opportunity for cross-

examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

The Confrontation Clause applies only to testimonial statements.

Davis v. Washington, 126 S.Ct. 2266, 2274-75 (2006). A

testimonial statement “is typically ‘[a] solemn declaration or

affirmation made for the purpose of establishing or proving some

fact’” and includes “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.’” Crawford, 541 U.S. at 51-52.

The voices of Hidalgo, Crain, and Savoy can all be heard on

the recording. Of those three individuals, only Savoy did not

testify at trial and therefore was unavailable for cross-

examination. Even if Savoy’s statements are testimonial, they

are not barred by the Confrontation Clause because they were
 No. 01-50999
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offered not for truth, but instead for context and evidence of

knowledge. The Confrontation Clause does not bar testimonial

statements when they are offered for some purpose other than the

truth of the matter asserted. Id., 541 U.S. at 59 n.9; see also

United States v. Acosta, 475 F.3d 677, 683 (5th Cir. 2007)

(holding that the Confrontation Clause did not bar the use of a

testimonial statement when it was offered to show that a

witness’s trial testimony was not a recent fabrication).

In Cheramie, this court held that an unavailable witness’s

recorded statements did not violate the Confrontation Clause

because the statements were part of a reciprocal and integrated

conversation between the informant and the defendant and

necessary to provide a context for the defendant’s statements.

51 F.3d at 541. Here, the jury needed to hear Savoy’s statements

to understand the meaning of Hidalgo’s responses. Additionally,

Savoy’s statements within the conversation showed that Hidalgo

had knowledge of the unlawful plan–that Crain would pay for the

property with drugs, not money. Hidalgo’s knowledge of the

unlawful agreement is an element of the conspiracy offense. See

Rosa-Fuentes, 970 F.2d at 1382. Because Savoy’s statements were

offered to establish context and Hidalgo’s knowledge and intent

to participate in the unlawful plan, rather than the truth of the

matter asserted, the Confrontation Clause does not bar Savoy’s

statements. See Crawford, 541 U.S. at 59 n.9; see also

Tennessee v. Street, 471 U.S. 409, 414 (1985).

III. CONCLUSION

For the foregoing reasons, we AFFIRM Hidalgo’s conviction.