United States v. Limones

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 93-8152

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SANTOS LIMONES and JUAN ANTONIO FUENTES,

Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Texas
(November 29, 1993)

Before REYNALDO G. GARZA, KING and DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Santos Limones and Juan Antonio Fuentes appeal their

convictions for conspiracy to possess cocaine and possession of

cocaine with intent to distribute. Finding no error, we AFFIRM.

I. FACTS

On November 1, 1990, Armando Ramirez, an agent of the Drug
Enforcement Administration, received a phone call from Francisco

"Pancho" Rodriguez Hernandez ("Rodriguez"). Rodriguez called to

provide information about a load of cocaine being transported in a

pickup truck in Eagle Pass, Texas. Acting on that information,

government agents found a load of cocaine in Eagle Pass the next

day. Based on their investigation, agents concluded that Rodriguez

had removed some of the cocaine from the pickup truck before

reporting the load to Agent Ramirez.

Ricardo Almeda-Alvarado ("Almeda"), a convicted drug dealer,

testified for the Government pursuant to a plea bargain agreement.

Almeda admitted that he would receive a more lenient sentence as

part of his plea bargain agreement. Almeda testified that

Rodriguez sent him some cocaine to sell on November 1 or 2. Almeda

took this cocaine to Ft. Worth after a buyer was found for the

cocaine by Juan Antonio Fuentes ("Fuentes"). Almeda also testified

that they were going to sell the cocaine for $18,000 a kilo and

that Fuentes was going to receive $1,000 a kilo for "this deal."

Almeda further testified that Santos Limones ("Limones") helped

transport the cocaine to Ft. Worth. Almeda claimed that Limones

helped him transport cocaine to Ft. Worth on two different

occasions, making two trips on each occasion.

Almeda testified that Limones drove a station wagon with the

cocaine hidden in the sides of the vehicle. Almeda and Fuentes

drove in a separate "lead car". The lead car was driven by Almeda

and Fuentes was the passenger. When the three men arrived in Ft.

Worth, Almeda phoned the purchaser of the cocaine, Jaime Garcia

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("Garcia"). After Garcia arrived, he and Fuentes left in a car

with the cocaine and Almeda and Limones stayed behind. Fuentes and

Garcia returned more than an hour later with the proceeds from the

sale of the cocaine. Almeda, Limones and Fuentes went back to Del

Rio that night and they returned to Ft. Worth a few days later with

another load of cocaine.

II. PROCEDURAL HISTORY

Limones and Fuentes were charged in a two-count indictment

with conspiracy to possess more than five kilograms of cocaine in

violation of 21 U.S.C. sections 841(a)(1) and 846 (count one), and

with possession with intent to distribute more than five kilograms

of cocaine in violation of 21 U.S.C. section 841(a)(1) (count two).

The case went to trial on December 14, 1992 before Judge Prado of

the Western District of Texas, and on December 18, 1992 the jury

convicted Limones and Fuentes on both counts. On February 1, 1993

Limones was sentenced to 210 months imprisonment on counts one and

two, to run concurrently, and to a five-year term of supervised

release. Limones was also ordered to pay $100 in special

assessments. Fuentes was sentenced to 188 months of imprisonment

on counts one and two, to run concurrently, and to a five year term

of supervised release. Fuentes was also assessed $100. Limones

and Fuentes ("appellants") timely appealed to this court.

III. ANALYSIS

The appellants' claim the district court erred in: (1)

refusing to grant a mistrial on four separate occasions; and (2)

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admitting irrelevant and prejudicial hearsay evidence. Fuentes,

alone, claims the district court erred in finding sufficient

evidence to uphold his conviction, and that a fatal variance exists

between the Government's proof and the indictment.

We find that the district court did not err in: (1) refusing

to grant the appellants' motions for mistrial; and (2) finding

sufficient evidence to uphold Fuentes' conviction. Although the

district court erred in admitting irrelevant and prejudicial

evidence, this was harmless error. Finally, a fatal variance does

not exist between the Government's proof and the indictment.

A. Motions for mistrial

The appellants argue that the district court erred in refusing

to grant a mistrial on four separate occasions. They claim the

first error concerned testimony regarding the death of Rodriguez.

The appellants assert that Limones moved in his Motion in Limine C

to preclude the government from alluding in any manner before the

jury to the nature and cause of Rodriguez's death.1 The appellants

argue that although the Government did not elicit the testimony,

its witness, Almeda gave a "nonresponsive answer" to a question

that so tainted the minds of the jurors that a mistrial should have

been granted.2 Also, during the testimony of Agent Delfino

1
The district court granted the motion, noting that it
would rule on the admissibility of the evidence concerning
Rodriguez's murder when the Government intended to introduce the
evidence.
2
The testimony in question is the following:

PROSECUTOR: I'm--I forgot to ask you this one question.
Mr. Almeda. At the time that you were meeting with Miguel from

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Sanchez, Jr., tapes of his conversation with Almeda were introduced

into evidence. These tapes again referred to Rodriguez's murder.

The appellants assert that a second motion for mistrial was

requested when the Government asked Almeda if he had any concern

for his safety or the safety of his family for having taken the

stand. Almeda answered affirmatively. The appellants argue that

the Government elicited this testimony in bad faith, because it

could not prove that any threats had been made. The appellants

argue that even though the district court instructed the jury to

disregard the question and the answer, no instruction could cure

the prejudicial effect upon the jury.

Limones alone moved for a mistrial when Deputy Marshal James

Lee stated that Almeda had been dealing drugs for "several years .

. . he's been in the business about as long as Mr. Limones has."

Limones acknowledges that the district court properly instructed

the jury to disregard the testimony. However, Limones argues that

the district court's instruction could not remedy the prejudicial

effect because the extrinsic-offense testimony closely resembled

his charged offense. United States v. Beechum, 582 F.2d 898, 914

(5th Cir. 1986)(en banc), cert. denied, 440 U.S. 920 (1979).

Limones further argues that the evidence of the uncharged drug

dealing had a significant probability of substantially affecting

Houston, did you at any time introduce[] [sic] Santos Limones to
that officer?

ALMEDA: I didn't introduce him to him. I just--these
people were coming to verify if I had-- be Mr. Francisco
Rodriguez, and--because they told me they had killed him, Mr.--
whatever Miguel was supposed to be giving--Francisco the cocaine.

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the jury's verdict. United States v. Kimble, 719 F.2d 1253, 1257

(5th Cir. 1983), cert. denied, 464 U.S. 1073 (1984).

The appellants' final motion for mistrial concerned the

testimony of several government witnesses who testified as to the

alleged coconspirator statements introduced into evidence prior to

the district court's mandatory "threshold" finding that a

conspiracy did in fact exist. The Appellants argue that the

district court erroneously ruled that the evidence presented by the

Government gave the court sufficient reason to find a conspiracy.

The appellants argue that the cumulative error during this

trial so tainted the proceedings that the jury was unlikely able to

erase the prejudicial effect from their minds. United States v.

Escamilla 666 F.2d 126, 128 (5th Cir. 1982).

This court will reverse a district court's refusal to grant a

mistrial only for an abuse of discretion. United States v. Baresh.

790 F.2d 392, 402 (5th Cir. 1986). Furthermore, where a motion for

mistrial involves the presentation of prejudicial testimony before

the jury, a new trial is required only if there is a "significant

possibility" that the prejudicial evidence had a "substantial

impact" upon the jury verdict, viewed in light of the entire

record. United States v. Escamilla, 666 F.2d 126, 128 (5th Cir.

1982).

With regard to the appellants' first motion for mistrial, the

Government points out that Almeda's testimony concerning

Rodriguez's death was unresponsive to the question asked. In

contrast to Escamilla, where the testimony in question was the only

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evidence establishing the defendant's guilt, the evidence of

Rodriguez's murder did not contribute to the appellants' drug

convictions. Id. Moreover, the district court asked the appellants

if they wanted a curative instruction for the tape recorded

conversations concerning Rodriguez's murder and the appellants

declined the instruction.

Pertaining to the appellants' second and third motions for

mistrial, the district court instructed the jury to disregard

Almeda's testimony regarding his concern for his safety and that of

his family, and U.S. Deputy Marshal Lee's characterization of

Limones as a long time drug dealer. This court has declined to

reverse a district court's refusal to grant a mistrial when the

district court has immediately instructed the jury to disregard the

evidence of extrinsic offenses or other wrongs. See, United States

v. Walker, 621 F.2d 163 (5th Cir.), cert. denied, 450 U.S. 1000

(1980).

Finally, addressing appellants' argument that the

coconspirator statements were not made in the course of and

furtherance of a conspiracy, the term "in furtherance" of a

conspiracy is broadly construed and clearly encompasses the

testimony contained in the taped conversation between Almeda and

Sanchez. See, United States v. Johnson, 872 F.2d 612, 623 (5th cir.

1989). Furthermore, the district court expressly held that the

requirements for the admission of coconspirator statements had been

met. United States v. Fragoso, 978 F.2d 896, 899 (5th Cir. 1992).

The significant evidence of the appellants' guilt renders it

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unlikely that any or all of the testimony complained of had a

substantial impact on the jury's verdict. United States v.

Rodriguez Arevalo, 734 F.2d 612, 615 (11th Cir. 1984). Therefore,

the district court did not abuse its discretion in refusing to

grant the appellants' motions for mistrial.

B. Evidentiary rulings

Limones argues that the district court erred in admitting

evidence that Rodriguez had been murdered by drug-dealing

confederates. Limones argues that this evidence was irrelevant and

extremely prejudicial hearsay because the jury could easily have

inferred that he was involved with the murder.

In reviewing a district court's evidentiary rulings, this

court will reverse only for an abuse of discretion. United States

v. Anderson, 933 F.2d 1261, 1267-68 (5th Cir. 1991). The district

court erred in admitting irrelevant and prejudicial evidence of

Rodriguez's murder. Thus we must determine whether this was

harmless error. FED. R. CRIM. P. 52(a). In view of other

overwhelming evidence of the appellants' guilt, as discussed in the

sufficiency of the evidence section, and the unlikelihood that the

prejudicial evidence had a substantial influence on the outcome of

the trial, we find that the district court's error was harmless.

United States v. Poitier, 623 F.2d 1017, 1021 (Fifth Cir. 1980).

C. Sufficiency of the evidence

Fuentes argues that the Government failed to prove each and

every element of the offenses charged in the indictment. Fuentes

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argues that this court will reverse a conviction when the evidence

is so weak or so contrary to guilt that it would compel a jury to

entertain a reasonable doubt of the defendant's guilt. United

States v. Del Aguila-Reyes, 722 F.2d 155, 157 (5th Cir. 1983).

Fuentes argues that after the conclusion of the Government's

case there was clearly insufficient evidence to find him guilty.

Fuentes argues that the only evidence that proves that he was

involved in a conspiracy to possess cocaine is the uncorroborated

testimony of coconspirator Almeda, a known drug dealer, and an

address book seized from defendant Alberto Trevino Alderete's3

house which had Fuentes' name on it, and Fuentes' business card.

Fuentes also argues that Almeda's testimony is incredible or

otherwise insubstantial on its face. United States v. Osum, 943

F.2d 1394, 1405 (5th Cir. 1991).

Fuentes further argues that the Government failed to show

direct or circumstantial evidence that he was a willing and knowing

participant in the possession of cocaine. Fuentes argues that the

fact that Limones was in possession of the vehicle with the

cocaine, while he was a passenger in the lead car is insufficient

by itself to sustain a conviction against him for the conspiracy to

possess with intent to distribute cocaine, or for possession of

cocaine. United States v. Ascarrunz, 838 F.2d 759 (5th Cir. 1988).

In reviewing challenges to the sufficiency of the evidence,

this court must determine whether a rational trier of fact could

3
Trevino Alderete was originally charged with Fuentes and
Limones, however, after the trial began, he changed his plea to
guilty.

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have found that the evidence established guilt beyond a reasonable

doubt. United States v. Carrasco, 830 F.2d 41, 43 ((5th Cir. 1987).

In making this determination, this court considers the direct and

circumstantial evidence in a light most favorable to the

government, and accepts all reasonable inferences which tend to

support the jury's verdict. Id. at 43-44. To establish the offense

of a drug conspiracy, the Government must prove beyond a reasonable

doubt that a conspiracy existed, that the accused knew of the

conspiracy, and that he voluntarily joined it. United States v.

Rodriguez-Mireles, 896 F.2d 890, 892 (5th Cir. 1990). To establish

the offense of possession of a controlled substance with intent to

distribute, the government must prove knowing possession of the

contraband with intent to distribute. United States v. Romero-

Reyna, 867 F.2d 834, 836 (5th Cir. 1989).

Fuentes' argument is basically that the evidence is

insufficient because Almeda's testimony should not have been

believed. The fact that Almeda is a known drug dealer, however,

goes to the weight rather than the sufficiency of the evidence.

See, United States v.Greenwood, 974 F.2d 1449, 1458 (5th Cir.

1992), cert. denied sub nom., ___U.S.___, 113 S.Ct. 2354 (1993).

Evidence at trial established that Fuentes was directly

involved in the plan to transport the cocaine to Ft. Worth. The

evidence also established that Fuentes found a buyer for the

cocaine. Specifically, on November 1, Fuentes called his buyer and

told him that "we [are] going over to Ft. Worth and take [sic] some

cocaine and sell it over there." Upon Limones, Almeda and Fuentes'

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arrival in Ft. Worth, Fuentes called Garcia, the buyer of the

cocaine. Subsequent to this phone call, Limones, Almeda and

Fuentes met with Garcia at the J&J Auto Clinic. When they first

arrived at the Auto Clinic, Garcia was already there and Fuentes

was the first one to talk to Garcia. Garcia and Fuentes left in a

car with the cocaine while Almeda and Limones stayed behind. They

returned more than an hour later with the proceeds from the sale of

the cocaine. It was further established that Fuentes was going to

receive $1,000 for "this deal."

Contrary to Fuentes' argument, evidence corroborating Almeda's

testimony was introduced at trial. Employees from the Ft. Worth

Holiday Inn and Motel 6, testified that Garcia rented a room at the

Holiday Inn on or near the day in question and that Almeda rented

a room at the Motel 6 on November 13 and 17, and December 12, 1990.

Telephone bills and an address book containing Fuentes' name and

phone number, and Fuentes' business card further corroborate

Almeda's testimony.

Therefore, sufficient evidence exists to uphold Fuentes'

conviction on both counts.

D. Variance between the Government's proof and the
indictment

Fuentes argues that a fatal variance exists between the

indictment which charged "multiple conspiracies" and any actual

proof of his involvement. Fuentes argues that at issue in his case

was the sale of approximately 49 kilograms of cocaine in Ft. Worth.

Fuentes argues that the testimony of 96 kilograms of cocaine seized

in Eagle Pass, Texas and the 539 kilograms discovered in Normandy

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and Del Rio, Texas were evidence of "independent activities" which

should not have been introduced into evidence. According to

Fuentes, most of the evidence elicited at trial dealt with two

other discrete conspiracies. Fuentes argues that although there

may have been some evidence of his involvement with the Ft. Worth

venture, there was no evidence linking him to the Eagle Pass or Del

Rio ventures.

"We have held that a variance between the offense charged in

the indictment and the proof relied upon at trial constitutes

reversible error if it affects the substantial rights of the

defendant." United States v. Hernandez, 962 F.2d 1152, 1158 (5th

Cir. 1992), cert. denied, ___U.S.___, 113 S.Ct. 2429 (1993).

Furthermore, "[w]e have long held that when the indictment alleges

the conspiracy count as a single conspiracy, but the `government

proves multiple conspiracies and a defendant's involvement in at

least one of them, then clearly there is no variance affecting that

defendant's substantial rights.'" United States v. Jackson, 978

F.2d 903 (5th Cir. 1992) (citing, United States v. Richerson, 833

F.2d 1147, 1155 (5th Cir. 1987)). At the very least, the

Government established that Fuentes was involved in the Ft. Worth

conspiracy. Therefore, the district court correctly held that

Fuentes' substantial rights were not affected.

IV. CONCLUSION

For the reasons stated above, Limones and Fuentes' convictions

are AFFIRMED.

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