IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 25, 2009
No. 07-10680 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
PEDRO FRANKLIN; JULIO ALEJANDRO-GONZALEZ; JAMES
ADAM GUEVARA, also known as James Adam-Guevara; ROSALIO
SALAZAR-RAMIREZ
Defendants-Appellants
Appeals from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
The four appellants were convicted and sentenced in the United States
District Court for the Northern District of Texas for crimes relating to their
roles in a Texas drug distribution conspiracy. They timely appealed.
I.
Investigations in early 2006 revealed that the appellants and others
had formed a drug conspiracy involving methamphetamine distribution and
transportation, mostly from Fort Worth, where the conspiracy was based, to
No. 07-10680
points in West Texas. After an undercover investigation and the preparation
of search warrants, police initiated surveillance, and arrested the defendants
on January 19, 2006.
On that day, Rosalio Salazar-Ramirez picked up a black gym bag of
drugs from David Puente-Hernandez’s apartment; Julio Alejandro-Gonzalez
dropped by the apartment shortly thereafter; and when the police finally
executed search warrants on the apartment, they found drugs and drug
paraphernalia as well as Jose Fernando Garcia and Puente-Hernandez,
present in the apartment. Puente-Hernandez cooperated with the police and,
by cell phone, convinced Salazar-Ramirez, who did not yet know of the bust,
to bring to the house payment for the drugs he had picked up earlier in the
day. When Salazar-Ramirez arrived – with $24,400 wrapped in cellophane
and hidden under his shirt – the police arrested him. They found a loaded
9mm pistol under the driver’s seat when they searched the car he drove.
Puente-Hernandez also placed calls to a supplier, Alejandro-Gonzalez, and
arranged a meeting, at which Alejandro-Gonzalez was arrested. Puente-
Hernandez also called for a meeting with San Angelo-based drug purchasers,
whose agents (James Adam Guevara and Pedro Franklin) were arrested upon
their arrival. More than ten thousand dollars were hidden on Franklin’s
person upon his apprehension.
On February 16, 2006, a federal grand jury in the Northern District of
Texas charged the seven individuals mentioned above with crimes related to
the drug distribution conspiracy. Three defendants (Garcia, Raul-Hernandez,
and Puente-Hernandez) pled guilty and served as government witnesses. The
remaining four defendants were charged under a superceding indictment, and
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No. 07-10680
the case went to trial on February 12, 2007. At trial, undercover and other
officers implicated the defendants in the conspiracy and introduced material
evidence connecting each defendant to the conspiracy activities.
The co-conspirator Garcia testified at trial as to the involvement of
Alejandro-Gonzalez, Salazar-Ramirez, Franklin, and Guevara in illegal drug
distribution activities. He was not able to complete his testimony, however,
nor were the other government witnesses, Raul-Hernandez and Puente-
Hernandez, allowed to testify, because they violated the rule of sequestration
– which the government neglected by failing to discuss it with their witnesses
and by holding them together – speaking with one another during the lunch
break after Garcia’s morning of testimony. Once the violation was discovered,
the court and defense extensively questioned all three men concerning the
conversation, and the court refused to allow any further direct testimony from
them after the violation.
On February 16, 2007, the jury convicted the four remaining
defendants. It found each guilty of conspiracy to possess with intent to
distribute 500 grams or more of methamphetamine 1 and additionally found
Salazar-Ramirez guilty of possession of a firearm in relation to a drug
trafficking case. The district court sentenced each of these defendants to five
years of supervised release, in addition to imprisonment for 235 months
(Alejandro-Gonzalez), 181 months (Salazar-Ramirez), and 151 months
(Guevara and Franklin).
II.
1
They were acquitted of charges as regards the distribution of cocaine.
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A. Sufficiency of Drug Conspiracy Evidence
The standard required to overturn a conviction on grounds of
insufficiency is high: “whether any juror could reasonably find the evidence
established guilt beyond a reasonable doubt.” 2 The reviewing court construes
all evidence and inferences in the light most favorable to the prosecution.
The conspiracy charges require the government to establish that a
conspiracy to unlawfully distribute methamphetamine existed, that the
defendants knew of the conspiracy, and that they intentionally joined and
participated in it. To establish whether there was a “single conspiracy,”
which is an element challenged by Alejandro-Gonzalez and Franklin, courts
look to “(1) the existence of a common goal or purpose; (2) the nature of the
scheme; and (3) overlapping participants in various dealings.” 3 This does not
require that the participants in the conspiracy know the other participants,
nor that each participate in every conspiracy action.
In this case, the single, charged conspiracy easily covers all of the
appellants.4 The evidence involves the testimony of undercover officers, a co-
conspirator, and extensive surveillance and evidence discovered during the
day of the bust. Sufficient evidence directly implicates each defendant in the
illegal drug conspiracy.5
B. Sufficiency of Firearm Conviction
2
U.S. v. Tansley, 986 F.2d 880, 885 (5th Cir. 1993).
3
U.S. v. Morris, 46 F.3d 410, 415 (5th Cir. 1995).
4
See, e.g., U.S. v. Morris, 46 F.3d 410, 414-417 (5th Cir. 1995), vacated in part on other
grounds by U.S. v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc).
5
See U.S. v. Wilson, 116 F.3d 1066, 1075 (5th Cir. 1997).
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To support Salazar-Ramirez’s firearm conviction, the government must
have provided sufficient evidence for a reasonable jury to find that (1) the
defendant committed a drug trafficking crime; (2) he knowingly used or
carried the firearm; and (3) he did so during and in relation to the crime.6
Salazar-Ramirez contests the sufficiency of the evidence as to the second and
third elements.
As to the third element, Salazar-Ramirez notes that he did not take the
weapon into the house with him when he entered to complete the drug
transaction. But this is not required by the relevant statute. He carried a
gun under the driver’s seat when he drove to complete the transaction, and
the fact that he did not retain immediate access to it throughout the time of
the transaction cannot avail him.7 It was natural to want additional
protection when he was carrying, concealed on his person, a large amount of
cash; and the mere fact that he did not carry the gun into his co-conspirator’s
house does not mean he could not be convicted of carrying the gun in the
course of the unlawful drug activities.8 (Salazar-Ramirez’s brief on this point
6
18 U.S.C. § 924(c)(1)(A) (in relevant part, providing criminal penalties for “any person
who, during and in relation to any crime of violence or drug trafficking crime . . . uses or
carries a firearm, or who, in furtherance of such crime, possesses a firearm”).
7
“Harlan’s conviction under § 924(c)(1) was proper because he transported a firearm
in relation to a drug transaction. It does not matter that the firearms at issue were in the
trunk of Harlan’s car.” U.S. v. Harlan, 130 F.3d 1152, 1153 (5th Cir. 1997).
8
See Muscarello v. U.S., 524 U.S. 125, 126-27 (1998) (“We hold that [924(c)(1)] . . .
applies to a person who knowingly possesses and conveys firearms in a vehicle, including in
the locked glove compartment or trunk of a car, which the person accompanies.”).
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No. 07-10680
cites language from a Sixth Circuit decision on this element;9 but that
decision has been overruled by later Supreme Court precedent, as that court
has itself recognized.10 )
As to the second element, “[t]he ‘carrying’ requirement of Section 924(c)
is met where a defendant operates a vehicle knowing the firearm is in the
car.” 11 Salazar-Ramirez claims that insufficient evidence exists for a
reasonable juror to infer that he “knowingly” carried the weapon. He cites
cases in which possession of the gun was otherwise admitted or demonstrated
in meeting this element;12 he notes that such further evidence is missing here.
But in supporting his argument that the “knowing” element can be used to
overcome a conviction, Salazar-Ramirez relies on cases in which drugs were
well concealed – hidden compartment drug cases.13 In such cases the courts
may require more than mere presence of contraband in a car to support a
conviction that included a “knowledge” element. These cases are not directly
analogous, as this gun was not particularly concealed, and as there is no
9
U.S. v. Riascos-Suarez, 73 F.3d 616 (6th Cir. 1996). The brief’s other discussions of
Sixth Circuit law are, of course, rendered similarly ineffective by the later Supreme Court
case, Muscarello.
10
See U.S. v. Nance, 40 F. App’x 59, 65 n. 6 (6th Cir. 2002) (unpublished) (“We note that
Riascos-Suarez represents the old test for whether a firearm is carried in a vehicle. After
Muscarello, the firearm no longer must be ‘immediately available for use.’”).
11
U.S. v. Speer, 30 F.3d 605, 612 (5th Cir. 1994).
12
Harlan, 130 F.3d at 1152-53; U.S. v. Still, 102 F.3d 118, 125 (5th Cir. 1996); Speer,
30 F.3d at 612.
13
See, e.g., U.S. v. Aguilar, 503 F.3d 431, 435-36 (5th Cir. 2007) (discussing hidden
compartment doctrine); U.S. v. Ortega Reyna, 148 F.3d 540, 544-47 (5th Cir. 1998) (same);
U.S. v. Resio-Trejo, 45 F.3d 907, 911-912 (5th Cir. 1995) (same).
6
No. 07-10680
argument that Salazar-Ramirez was possibly acting as an innocent, ignorant
courier.
The hidden compartment cases support the use of circumstantial
evidence as to knowledge, and such evidence is ample here. The police officer
who found the gun testified that, when Salazar-Ramirez was in the vehicle,
“[a]ll he would have to do was reach under the seat and he would have had
immediate access to the gun.” No evidence suggests that Salazar-Ramirez
shared access to the car; indeed, he was apparently seen driving the same
“red Dodge truck” earlier on the day in question, picking up the drugs for
which he later in the day brought payment. And he was, of course, engaged
in the dangerous business of large-scale contraband and currency
transportation, a business in which guns are all but necessary tools of the
trade. We recognize that most drivers or even owners of vehicles do not
regularly check below the driver’s seat, but again, we are not dealing with a
potentially unwitting criminal. As Salazar-Ramirez ran his important and
clearly criminal errands, a juror could reasonably infer that he was aware of
the firearm conveniently close to hand. We do not establish a per se rule that
a gun under a driver’s seat will in all circumstances support an inference of
knowledge, but under these circumstances, a reasonable juror could conclude
that he was “knowingly” carrying the gun.
C. Guevara’s Cell Phone
Guevara challenges the pre-trial and trial handling of a cell phone
confiscated by police and introduced as evidence against him.
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No. 07-10680
This court reviews evidentiary rulings on a heightened abuse of
discretion basis.14 Even an abuse of discretion may not merit reversal if the
error was harmless. Because the challenge here is on hearsay, the alleged
error is non-constitutional. “Non-constitutional trial error is harmless unless
it had ‘substantial and injurious effect or influence in determining the jury’s
verdict.’”15
Guevara’s challenge to the phone is not its admission but rather its use
– i.e., the way in which testimony relating to the phone implicated Guevara in
the conspiracy by showing his familiarity with other conspirators. A police
officer, Officer Cedillo, laid a foundation for the introduction of Guevara’s cell
phone by claiming that he found it in a bag labeled with Guevara’s name in
the police station. Guevara denies that he ever owned the phone and that it
was taken from him. He argues, and the government now concedes, that
Cedillo should not have been able to offer hearsay evidence regarding the
alleged bag, or the fact that the phone may have been confiscated from
Guevara. In fact, the evidence seems to have been mishandled; the
government apparently cannot find any record of its having been confiscated,
nor of any bag with Guevara’s name on it. So this testimony should not have
been permitted, as it stood.
That said, the error is harmless. Cedillo offered other, legitimate
testimony circumstantially connecting the phone to Guevara, sufficient to
remove any taint. Cedillo testified that he got the phone from the Fort Worth
14
U.S. v. Nguyen, 504 F.3d 561, 571 (5th Cir. 2007).
15
U.S. v. Simmons, 374 F.3d 313, 320 (5th Cir. 2004) (quoting U.S. v. Lowery, 135 F.3d
957, 959 (5th Cir. 1998)).
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No. 07-10680
jail while Guevara was being processed there; and the record further reflects
that the number for the phone was listed in co-conspirator Puente-
Hernandez’s phone under the name “James,” Guevara’s first name (he is the
only known associate of Puente-Hernandez with this name); and that
Guevara’s alleged phone in turn listed Puente-Hernandez’s number (under
the entry “Joe Boss”). Even without the challenged testimony, the phone was
connected to Guevara.
Furthermore, even if the phone were altogether excluded, the case was
firm against Guevara. The testimony of the undercover officers, the evidence
from the day of the bust, and the testimony of Garcia, all also connected
Guevara to the conspiracy.
D. Cell Phone-Related Motion for New Trial
Guevara was sentenced on June 11, 2007. On June 19, 2007, Guevara
requested a new trial pursuant to F ED. R. C RIM. P. 33(a) based on new
evidence that came to light after his conviction was secured. The evidence
relates to the cell phone discussed above, and reveals that the bag bearing
Guevara’s name, from which the phone was supposedly retrieved, cannot be
located, nor can any receipts or records of the phone be produced. Finally, the
phone itself is apparently not “registered” to Guevara.
This court reviews a denial of a motion for a new trial for abuse of
discretion. In order to receive a new trial on the basis of newly discovered
evidence, the defendant must demonstrate that: “(1) the evidence is newly
discovered and was unknown to the defendant at the time of trial; (2) failure
to detect the evidence was not due to a lack of diligence by the defendant; (3)
the evidence is not merely cumulative or impeaching; (4) the evidence is
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No. 07-10680
material; and (5) the evidence introduced at a new trial would probably an
acquittal.” 16 As the government argues, and as the district court ruled (on
July 25, 2007), there is no reason to think that (2), (4), or (5) are met in this
case, and neither Guevara’s original motion nor appellate brief effectively
counter the government’s argument, or even address it squarely. The phone
evidence was not as unreliable as Guevara asserts, and it was also not, as
Guevara argues, effectively the only evidence against him.
E. Salazar-Ramirez’s phone call with David Hernandez
At trial, the district court admitted recordings of two phone calls
between Puente-Hernandez and an individual who the government alleges,
over his denials, was Salazar-Ramirez. The calls took place on January 19,
2006, and they feature Puente-Hernandez and another individual arranging a
rendezvous for the day of the bust. Puente-Hernandez, who had immediately
turned government informant upon his apprehension, made the phone call at
the government’s behest, in the presence of agents. After this phone call,
Salazar-Ramirez showed up at the house, where he was arrested, with over
$24,000 found on his person.
The court allowed a police officer Rangel to authenticate the call and to
identify Salazar-Ramirez as Puente-Hernandez’s interlocutor, on the theory
that Rangel was present when the call was made, had had a conversation
with Puente-Hernandez that very day, and was therefore capable of
identifying Puente-Hernandez’s voice. Salazar-Ramirez claims that these
recordings should not have been admitted, or that the identification of the
16
U.S. v. Bowler, 252 F.3d 741, 747 (5th Cir. 2001) (quoting U.S. v. Lowder, 148 F.3d
548, 551 (5th Cir. 1998)).
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No. 07-10680
interlocutor as Salazar-Ramirez should not have been allowed. We review
the district court’s decision under a heightened abuse of discretion standard,
and if there was such an abuse, the conviction will not be reversed if it was
harmless.
Authentication. First, Salazar-Ramirez’s argument as to admission of
the recordings (and transcript) appears to be meritless. The tapes were
authenticated by an officer who was there for the call, although it is true that
the foundation testimony did not offer many details about the conversation.
It is not clear whether Salazar-Ramirez even objected to this baseline
admissibility at trial; although defense counsel used the word
“authentication,” he argued identification. Even if he properly objected to the
actual authentication of the tape, there has been no meaningful challenge to
their authenticity below or before this court.
Identification. The district court looked into the issue of identification
at trial, as it was challenged by Salazar-Ramirez, and it allowed Rangel’s
testimony. The court did not err. Rangel was capable of testifying to Salazar-
Ramirez’s identity, and the jury was rightly deemed responsible for weighing
the reliability of his testimony. Furthermore, even if part of Rangel’s
testimony was error, other testimonial evidence from Rangel could have been
admitted, albeit with different means of identifying Puente-Hernandez’s
interlocutor. As record transcripts make clear, and as the government points
out on appeal, there was powerful circumstantial evidence, certainly
admissible, that the recordings were of a conversation with Salazar-Ramirez:
namely, shortly after the Puente-Hernandez spoke with the individual on the
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No. 07-10680
phone call requesting him to bring payment, Salazar-Ramirez showed up with
over $24,000 in cash.17
If there was error, it was harmless. Other evidence strongly suggested
Salazar-Ramirez’s thorough involvement with the conspiracy, including
witness testimony and his own activities on the day of the bust.
F. Sequestration Violation and Remedy
The prosecution intended to call three co-conspirators who had pled
guilty and turned government witness: Puente-Hernandez, Garcia, and Raul-
Hernandez. The first one it called was Garcia, who testified for a morning,
offering very damaging evidence about the drug-dealing activities of the
defendants. After the morning’s testimony, the court recessed for lunch.
Upon resumption of the proceedings, it came to light that, during lunch,
Garcia, who was held in a room with Puente-Hernandez and Raul-Hernandez
(his friends/professional colleagues and fellow government witnesses), had
spoken with them while in the room, in violation of the rule of
sequestration.18 The prosecution explained that it had forgotten to inform
17
On the other hand, the government’s difficulty in identifying Salazar-Ramirez was
that Puente-Hernandez was not allowed to testify due to his violation of the rule of
sequestration; and in arguing against the court’s exclusion of Puente-Hernandez, the
prosecutor himself cast doubt on his ultimate method of getting this evidence in: “[Puente-
Hernandez] would be the only one that could authenticate those conversations, and those
conversations would lead up to as to why those individuals just happened to show up with a
bunch of money in their shirts.” The prosecution now argues the opposite position, advancing
the argument that Puente-Hernandez was not the “only one” who could testify as to the phone
conversation. We do not believe that this inconsistency, borne of somewhat misguided trial
strategy, sufficiently calls into question the ultimate identification of this particular piece of
evidence.
18
See FED . R. EVID . 615.
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No. 07-10680
Garcia of the rule, which he of course had no other reason to know, and had
failed to insure that they were held separately during the trial.
In response to this revelation, the court interrogated Garcia, sent him
back to the (same) holding area while it researched the matter and discussed
it further with counsel, and finally allowed the defense to question Garcia as
well. This was all out of the presence of the jury.
It emerged that the three witnesses had discussed their likely
sentences, made small talk, and said a prayer. They had discussed how the
defense attorneys were giving Garcia a hard time with his testimony, seeking
to impeach and undermine him. And Garcia had asked the other witnesses a
few substantive questions regarding the involvement of some of the
defendants. It further emerged that when he was sent back after the
discovery of the rule violation – this time, he was specifically instructed not to
speak to his fellows – he had used a vulgar term to describe the defense
lawyers, and told his fellow witnesses that they were in trouble because of
their previous conversation.
After consideration of both sets of contacts in violation of the rule, the
court limited Garcia’s further testimony to a brief cross examination. It did
not permit either Puente-Hernandez or Raul-Hernandez to testify at all. The
defense did not object to this arrangement, which essentially fell in line with
its requested remedy.19
On appeal, the defense argues that Garcia’s testimony should have
been stricken in its entirety and that he should have been examined in the
presence of the jury regarding his violation of the rule. The defendants have
19
By contrast, the unhappy prosecution referred to the remedy as “punitive.”
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No. 07-10680
failed to establish this position, and indeed, further testimony from Garcia
regarding his violation of the rule might have led to the jury hearing hearsay
concerning some of the defendants’ guilt. These arguments are in any case
subject to plain error review, a high standard that they do not approach.
G. Franklin’s Alleged Minor/Minimal Participation
Franklin claims he should have received a “minor” or “minimal”
participant role reduction pursuant to USSG § 3B1.2,20 since he was “only” a
courier, and in fact his fellow courier (and brother-in-law) Guevara was,
evidence showed, more involved than Franklin in the conspiracy. The
government disagrees, noting that evidence showed Franklin helped purchase
and transport large amounts of methamphetamine to West Texas. (And at
the time of his arrest he was in possession of ten thousand dollars intended as
drug payments.) Even if his participation were overshadowed in some ways
by Guevara, his involvement exposed him to a full measure of culpability for
the charged offenses.21
Franklin may indeed have been a less-than-average participant because
he was a courier and not a main supplier, but he was not a minor or minimal
player under the Guidelines.
We AFFIRM the judgment of the district court.
20
Minimal participant is defined (at n. 4) as “a defendant . . . who plays a minimal role
in concerted activity. It is intended to cover defendants who are plainly among the least
culpable of those involved in the conduct of a group. . . . It is intended that the downward
adjustment for a minimal participant will be used infrequently.” Minor participant (n. 5) is
described as a participant “who is less culpable than most other participants, but whose role
could not be described as minimal.”
21
See, e.g., U.S. v. Morris, 46 F.3d 410, 426 (5th Cir. 1995) (refusing reduction).
14