[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nov. 5, 2009
No. 08-12668
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 07-80005-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO CARDENAS-SANCHEZ,
a.k.a. Pancho,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 5, 2009)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Defendant Francisco Cardenas-Sanchez appeals his convictions for (1)
conspiracy to possess with intent to distribute 5 kilograms or more of cocaine and
500 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A), and § 846, and (2) possession with the intent to distribute 5 kilograms
or more of cocaine and 500 grams or more of methamphetamine, in violation of 21
U.S.C. § 841(a) and (b)(1)(A). On appeal, Cardenas-Sanchez argues that the
government engaged in prosecutorial misconduct in its closing argument,
warranting a new trial. After review, we disagree and affirm Cardenas-Sanchez’s
convictions.
I. BACKGROUND
A. Offense Conduct
In 2004, a joint Drug Enforcement Agency (“DEA”) and state law
enforcement task force (the “task force”) began investigating an extensive
narcotics network responsible for importing cocaine and methamphetamine from
Mexico and distributing the drugs throughout the southern United States. The task
force identified three primary distributors in the United States: (1) Ranferi
Gonzalez-Hernandez (“Ranferi”), (2) Servando Hernandez-Maldonado
2
(“Servando”), and (3) Gonzalo Gonzalez-Borja (“Gonzalo”).1 In September 2006,
the task force obtained court authorization to intercept calls on cell phones used by
key figures in the drug ring, including Ranferi and Servando. Ranferi supplied
and oversaw a drug distribution network in West Palm Beach, Florida. Ranferi’s
nephew, Rafael Ortiz-Gonzalez (“Rafael”), managed the daily business of this
operation. Defendant Cardenas-Sanchez worked for Ranferi and Rafael.
On a weekly basis, Ranferi “fronted” drugs to defendant Cardenas-Sanchez,
a cocaine wholesaler. A ledger that the task force seized early in its investigation
listed defendant Cardenas-Sanchez as having received a supply of drugs from
Ranferi. Additionally, once the task force began court-authorized wiretapping,
DEA agents overheard Defendant Cardenas-Sanchez soliciting cocaine shipments
from Ranferi and Rafael for resale.
Defendant Cardenas-Sanchez’s principal value to Ranferi’s drug trafficking
organization was as a “facilitator.” Almost all of the drug ring’s leadership,
including Ranferi, Servando, and Rafael, were illegal aliens without strong
English language skills. Defendant Cardenas-Sanchez’s proficiency in English,
lawful presence in the United States, and possession of a valid social security
1
Ranferi and Servando were responsible for importing approximately seventy-five to one
hundred kilograms of cocaine into the United States per month.
3
number and driver’s license allowed him to perform a number of essential
functions for this drug trafficking organization. For example, defendant Cardenas-
Sanchez leased and maintained a secluded residence from which smuggled
narcotics from Mexico were received, opened, and distributed.2 In addition,
defendant Cardenas-Sanchez registered in his name vehicles used to traffic
narcotics, leased premises used as “stash” houses, and subscribed to water and
electrical utilities. Ranferi often paid defendant Cardenas-Sanchez in cocaine for
his services.
The task force also detected and seized two narcotics deliveries in which
defendant Cardenas-Sanchez was directly involved. In early October 2006, the
task force intercepted telephone calls indicating that a Mexican source had
shipped 35 kilograms of cocaine and 750 grams of methamphetamine to West
Palm Beach hidden in a secret compartment of a black van. As the black van was
heading to defendant Cardenas-Sanchez’s unloading site, police officers stopped
the black van, arrested the driver for failure to possess a valid license, and
impounded the vehicle. Once at the impound lot, police searched the black van
and discovered the drug cache. The police removed the drugs and reconstructed
the secret compartment.
2
During 2006, the network received approximately twelve such deliveries.
4
Rafael had followed the black van in a separate vehicle after its arrival in
West Palm Beach. Ranferi believed that the police had not discovered the hidden
drugs, and asked defendant Cardenas-Sanchez to obtain the vehicle’s release,
offering him a share of the drugs that Ranferi hoped to recover from the van.
Defendant Cardenas-Sanchez accepted and recovered the black van. Only after
Ranferi instructed defendant Cardenas-Sanchez to retrieve the drugs from the van
did Cardenas-Sanchez discover that the secret compartment was empty.
Regardless, Ranferi promised to reward defendant Cardenas-Sanchez’s efforts
with a quantity of drugs.
A few months later, in December 2006, the task force learned from the wire
taps that a 15 kilogram cocaine shipment would arrive shortly in West Palm
Beach, where Ranferi, Servando, and Gonzalo, the network’s three primary
distributors, would divide it. Two female couriers, Anita Ramos-Pacheco
(“Anita”) and Sulma Chaves (“Sulma”), would deliver the shipment from Mexico
in a hidden compartment in a Ford Explorer truck.
Police followed the truck after its arrival in West Palm Beach. While the
truck was left unattended, police staged an “accident.” When courier Anita
returned to the truck, the police told Anita that a drunk driver hit the truck. After
Anita consented to a search of the truck, the police found a small quantity of
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cocaine in plain view, along with a firearm and a substantial amount of cash.
Police arrested Anita for simple cocaine possession and impounded the truck. At
the impound lot, police discovered the hidden compartment and removed 15
kilograms of cocaine.
Courier Sulma notified Servando of the truck’s seizure and Ranferi asked
defendant Cardenas-Sanchez to retrieve the truck. As compensation for defendant
Cardenas-Sanchez’s services, Servando delivered an eighth of a kilogram of
cocaine to Cardenas-Sanchez. Before defendant Cardenas-Sanchez could actually
retrieve the truck, however, the Mexican sources became suspicious that Anita and
Sulma, the female couriers, had stolen the drugs. Ranferi, Servando, and Gonzalo
agreed to finance the kidnaping and torture of Anita and Sulma in order to
determine their knowledge of the drugs’ disappearance. When the task force
intercepted their plan over the wire taps, it terminated the surveillance and arrested
conspirators Ranferi, Rafael, Servando, Gonzalo, Sulma, and Anita, among others.
B. Indictment and Trial
The indictment charged defendant Cardenas-Sanchez with one count of
conspiracy to possess with intent to distribute 5 kilograms or more of cocaine and
500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) and 846, and two counts of possession with the intent to distribute 5 or
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more kilograms of cocaine and 500 or more grams of methamphetamine in
connection with the cocaine shipments seized in October and December 2006, in
violation of § 841(a) and (b)(1)(A). At trial, the government provided recordings
of the three months of wire taps, along with the testimony of Agent Turke, the task
force’s lead case agent. The wire tap recordings revealed numerous requests from
defendant Cardenas-Sanchez to Ranferi and Rafael for drugs and demonstrated
Cardenas-Sanchez’s knowing involvement in the criminal activity of this large
drug network. The government also provided the testimony of codefendants
Ranferi, Rafael, Anita, Sulma, and Servando, all of whom testified to defendant
Cardenas-Sanchez’s knowing involvement in the drug network generally and in
the recovery of the vehicles carrying the October and December 2006 drug
shipments in particular.3 Additionally, Ranferi testified that, before becoming one
of the drug network’s primary distributors, he had started out as a low-level dealer
himself.
Defendant Cardenas-Sanchez presented no evidence at trial. During closing
arguments, his counsel asserted that the government had failed to meet its burden
of proof. Defendant Cardenas-Sanchez claimed to be an unwitting facilitator of
3
Ranferi, Rafael, Servando, Anita, and Sulma were defendant Cardenas-Sanchez’s
codefendants. All five codefendants pled guilty and testified for the government at defendant
Cardenas-Sanchez’s trial with the hope of reducing their sentences.
7
the criminal activities and that others, such as Rafael and Ranferi, were much more
serious violators.
In response, the prosecutor remarked that sophisticated drug networks
require the assistance of many different participants and pose serious societal
threats. The prosecutor stated:
[Cardenas-Sanchez’s counsel] talked to you about the
cooperating defendants, specifically Ran Feri [sic], about
Ran Feri’s willingness to chip in money to [the Mexican
source] in order to have these girls picked up. There isn’t
any question that Ran Feri was ruthless, that he was a drug
lord, that he was importing hundreds of kilograms of
cocaine into the United States and that he was responsible
for distributing that cocaine.
Drugs are destructive and the drug trade is
destructive. No one condones what Ran Feri did. He’s
cooperating with the Government and trying to get
favorable treatment. But no one here condones what he
did. And his actions are inexcusable. But this is the reality
of the drug business. It’s a violent, dangerous business.
Those two girls that you heard testify this week are lucky
to be alive today. And it’s because this business is so
violent and so dangerous that every single person that is
involved in it needs to be held accountable.
At this point, defendant Cardenas-Sanchez’s counsel objected. The district court
overruled the objection. The prosecutor continued:
Every single person that is involved in this type of activity
needs to be prosecuted and needs to be held accountable.
There’s no such thing as a minor participant, a person
that’s not worth pursuing, a small-scale user. Everybody
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involved needs to be held accountable. There isn’t any
exception. The defendant is no exception.
It takes the active participation of a lot of different
people to do what Ran Ferry’s [sic] doing: [i]mporting and
distributing hundreds of kilograms of cocaine. And the
defendant was right there with him. And that’s why
everybody that you saw, the cooperating defendants that
came in here and took the witness stand and testified, they
are all in jail because they participated. So did the
defendant, and he needs to be held accountable too for that.
He was right there with them. He knew exactly what they
were doing every step of the way. He was benefitting from
it. He was taking cocaine from them, and he’s responsible
just like they are.
Plus, look at how Ran Feri started. Ran Feri is this
ruthless drug lord, admittedly. Look at how he started.
Ran Feri was moving small quantities of cocaine when he
first started out, just like the defendant was, just like the
defendant. And look how Ran Feri ended up. He ended up
being responsible for a lot of destruction and a lot of
damage. And that’s why none of it can be condoned.
Whether it’s a small-scale distributor like the defendant or
a major drug lord like Ran Feri, it all has to be prosecuted.
And they are all held accountable.
Defendant Cardenas-Sanchez’s counsel did not object to these statements. The
jury convicted Cardenas-Sanchez on all counts. The district court sentenced
Cardenas-Sanchez to 151 months’ imprisonment.
II. DISCUSSION
On appeal, defendant Cardenas-Sanchez argues that the government
engaged in prosecutorial misconduct in its closing argument by first improperly
9
comparing him to Ranferi. Cardenas-Sanchez argues that, after his objection, the
prosecutor exacerbated the misconduct when he later asserted that the jury must
convict Cardenas-Sanchez so that he would not become a drug lord like Ranferi.
Because defendant Cardenas-Sanchez objected to the first statement that he
challenges on appeal, we review that statement de novo.4 We review the second
statement, to which Cardenas-Sanchez did not object, for plain error.5
“To establish prosecutorial misconduct, (1) the remarks must be improper,
and (2) the remarks must prejudicially affect the substantial rights of the
defendant.” Eckhardt, 466 F.3d at 947 (internal quotation marks omitted). A
statement prejudicially affects the defendant’s substantial rights “when a
reasonable probability arises that, but for the remarks, the outcome of the trial
would have been different.” Id. When, however, the record contains sufficient
independent evidence of the defendant’s guilt, the prosecutorial misconduct is
harmless. Id.
4
We review a claim of prosecutorial misconduct during closing arguments de novo
because it is a mixed question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947
(11th Cir. 2006).
5
When a defendant fails to object contemporaneously, we review the defendant’s claim of
prosecutorial misconduct during closing argument for plain error. United States v. Newton, 44
F.3d 913, 920 (11th Cir. 1995). To show plain error, the defendant has the burden of
establishing: (1) an error occurred, (2) the error is plain, (3) the error affected the defendant’s
substantial rights in that it was prejudicial and not harmless, and (4) the error seriously affects the
fairness, integrity, or public reputation of the proceedings. United States v. Beckles, 565 F.3d
832, 842 (11th Cir. 2009).
10
During closing arguments, a prosecutor may not make improper suggestions
to mislead the jury or appeal to the jury’s “passion or prejudice.” United States v.
Rodriguez, 765 F.2d 1546, 1560 (11th Cir. 1985). A prosecutor may, however,
state conclusions drawn from the evidence, and “there is no prohibition on
‘colorful and perhaps flamboyant’ remarks if they relate to the evidence” shown at
trial. United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997) (citation
omitted).
Defendant Cardenas-Sanchez argues that the prosecutor’s first statement, to
which he objected, was improper because it constituted a comparison between his
actions and Ranferi’s violence. Defendant Cardenas-Sanchez mischaracterizes the
prosecutor’s statement. The prosecutor did not say that defendant Cardenas-
Sanchez was violent and dangerous like Ranferi, but that the illegal drug business
is so dangerous that all those involved should be held accountable. This remark
was simply an explanation of why it is important to prosecute even seemingly
minor drug offenders and was made in response to Cardenas-Sanchez’s argument
in closing that Ranferi and Rafael were much more serious drug traffickers. We
previously have upheld prosecutors’ descriptions, during closing arguments, of the
societal harm drug trafficking fosters. See, e.g., United States v. Delgado, 56 F.3d
1357, 1370 (11th Cir. 1995) (“[r]eference during closing argument to the drug
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problems of society and defendants’ roles in such problems are not unduly
prejudicial or excessively inflammatory”) (quotation marks omitted).
Defendant Cardenas-Sanchez also asserts that the prosecutor’s second
statement, to which he did not object, was improper. Contrary to Cardenas-
Sanchez’s contention, the government was not asserting that Cardenas-Sanchez
would become a drug lord like Ranferi. Rather, the prosecutor was offering
further explanation about why minor drug offenders must be held accountable for
their crimes. Even if the government was arguably suggesting that Cardenas-
Sanchez could become a violent drug lord, this insinuation was not improper
because it was supported by Ranferi’s testimony of his own career trajectory. See
Bailey, 123 F.3d at 1400. At a minimum, we cannot say the prosecutor’s second
statements were plain error.6
In any event, Cardenas-Sanchez has not carried his burden to show that the
remarks affected his substantial rights. The record contained overwhelming
evidence from which the jury could conclude that Cardenas-Sanchez was guilty.
At trial, the government consistently showed that Cardenas-Sanchez was a cocaine
wholesaler and knowing facilitator for the drug distribution network through
6
We also reject Cardenas-Sanchez’s claim that either of the statements spoke to the
veracity of the government’s witnesses’ testimonies.
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numerous recorded telephone conversations, the testimony of Agent Turke, and
the testimonies of Ranferi, Rafael, Anita, Sulma, and Servando. The testimony
also showed that defendant Cardenas-Sanchez knew the impounded black van and
the Ford Explorer truck contained drugs, and that he requested drugs as
compensation for his services.
AFFIRMED.
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