United States v. Zapata

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

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No. 94-10410
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE INEZ ZAPATA,
HECTOR HERNANDEZ, a/k/a Torcha,
MARCO ANTONIO ZAPATA-RODRIGUEZ, JR.,
JOSE ANGEL CASTILLO,
MARCO ANTONIO ZAPATA, III,
NORMA AUGUSTINA RODRIGUEZ,

Defendants-Appellants.

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No. 94-10628
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EFRAIN PUENTE-CERVANTES,

Defendant-Appellant.

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Appeals from the United States District Court
for the Northern District of Texas
(3:93-CR-285-R)
_________________________________________________________________
April 4, 1996
Before KING, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

For these numerous challenges to convictions and sentences on

various drug-related charges, primarily at issue are the

admissibility of evidence regarding three murders, and the effect

of post-verdict relationships between several case agents and

jurors. We AFFIRM.

I.

The appellants were charged in a 30-count superseding

indictment. Jose Inez Zapata, Marco Antonio Zapata, III, Hector

Hernandez, Marco Antonio Zapata-Rodriguez, Jr., Jose Angel

Castillo, and Norma Augustina Rodriguez were tried together in

January 1994; Efrain Puente-Cervantes, that April. Each appellant

was convicted on some charges and acquitted on others, and two

other defendants were acquitted in the January trial.

II.

Five of the six appellants from the January trial contend that

the district court erred by admitting evidence of murders. All

appellants assert that they are entitled to new sentencing hearings

because of post-verdict relationships between two case agents and

two jurors from that trial. In addition, Inez Zapata maintains

that the district court erred by denying his severance motion, that

*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

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the evidence is insufficient to sustain his cocaine conspiracy

conviction, and that the court committed two errors in sentencing;

Norma Rodriguez challenges the sufficiency of the evidence on her

money laundering conviction and charges that the court failed to

make a factual finding necessary for her telephone facilitation

sentence; Hernandez raises three sentencing issues; and Puente

contests several evidentiary rulings, as well as his sentence.

A.

Over objection, the district court admitted evidence of the

July 1993 execution-style murders of three men in Chicago, one of

whom was Esteban Zapata, the cousin of appellant Zapata, Jr.

Castillo, Hernandez, Inez Zapata, Zapata, Jr., and Zapata, III,

contend that the evidence was extrinsic and inadmissible under FED.

R. EVID. 404(b), because the Government failed to connect them to

the murders or to establish that the murders were connected to the

charged offenses.1

The admission of this evidence is reviewed only for abuse of

discretion. E.g., United States v. Coleman, ___ F.3d ___, ___,

1
FED. R. EVID. 404(b) provides in relevant part:

Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident....

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1996 WL 97096, at *1 (5th Cir. 1996). "To determine whether `other

acts' evidence was erroneously admitted, first we must determine

whether the evidence was intrinsic or extrinsic." Id. "[E]vidence

is intrinsic, when the evidence of the other act and evidence of

the crime charged are inextricably intertwined or both acts are

part of a single criminal episode or the other acts were necessary

preliminaries, to the crime charged." Id. (internal quotation

marks and citation omitted). Such evidence "is admissible to

complete the story of the crime by proving the immediate context of

events in time and place". Id. "Intrinsic evidence does not

implicate Rule 404(b), and consideration of its admissibility

pursuant to Rule 404(b) is unnecessary." Id. at *2 (internal

quotation marks and citation omitted).

We agree with the district court's implicit finding that the

murders were inextricably intertwined with the charged

conspiracies. The Government presented evidence that Esteban

Zapata (as noted, the cousin of Zapata, Jr., and one of the murder

victims) was in charge of the Chicago branch of the Zapata

organization, which distributed approximately 300 kilograms of

cocaine from late 1992 into the spring of 1993; and that, by April

1993, $300,000 in drug proceeds was owed by the Chicago branch to

Zapata, Jr., and co-conspirator Marco Antonio Rodriguez-Hernandez.2

2
Rodriguez-Hernandez was indicted along with the appellants,
but was a fugitive at the time of trial.

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Zapata, Jr., was coming under increasing pressure for payment from

their supplier in Mexico.

In addition, the Government presented evidence that Zapata,

Jr., fronted marijuana to Daniel Ortegon (Hernandez's cousin); that

Ortegon's associates in Florida had to lower the price of the

marijuana because of its poor quality; and that, as a result,

Ortegon, through Hernandez, owed Zapata, Jr., between $50,000 and

$60,000. Ortegon's attempts to satisfy his debt by returning the

marijuana, by turning over his Florida customers to Hernandez, or

by obtaining 200 kilograms of cocaine for Zapata, Jr., were

unsuccessful. Ortegon testified that in an intercepted telephone

conversation, which was played for the jury, Zapata, Jr., and

Hernandez discussed, in code, sending Ortegon to Mexico to be

executed for his drug debt. Instead, Ortegon's debt and the

Chicago debt were satisfied in a package deal: Ortegon testified

that, in June 1993, Hernandez told him that "they" had a problem in

Chicago, "one of them" was a cousin of Zapata, Jr., and that

Zapata, Jr., wanted Hernandez to go to Chicago and "take care of

it".

Esteban Zapata and two other individuals involved in the

Chicago branch of the Zapata organization were found murdered,

execution-style, in Chicago on July 12, 1993. There was no

evidence of forced entry, no sign of a struggle, and no evidence

that robbery was a motive for the murders. The investigating

officer testified that eyewitnesses had identified an individual

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seen leaving Esteban Zapata's apartment just after shots were

fired, but that individual was not named.3 In early August 1993,

a Nebraska police officer stopped a vehicle driven by Zapata, Jr.,

in which Hernandez was a passenger. On obtaining identification

from Hernandez, the officer saw a piece of paper in Hernandez's

wallet with the name "Esteban Zapata" written on it; failing to

note any significance, the officer returned the wallet and paper to

Hernandez. A few hours later, the officer was asked to locate the

piece of paper; he obtained the wallet, but the paper was missing.

The evidence of the murders completed the story about the

Chicago operations of the Zapata organization, which were

inextricably intertwined with the Dallas operations of that

organization; explained the intercepted conversations among the co-

conspirators; and corroborated the testimony of Ortegon and other

Government witnesses. Moreover, the murders and the reason they

were ordered -- retribution for failing to pay the conspiracy for

drugs -- was highly relevant to establish the existence of the

conspiracy and the nature of its operations. Accordingly, because

that evidence was intrinsic, the district court was not required to

analyze its admissibility under FED. R. EVID. 404(b), and it did not

abuse its discretion by admitting it.

B.

The verdicts for the first trial were rendered in late January

3
At sentencing, there was evidence that Hernandez was the
individual identified.

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1994, with sentencing in mid-April and mid-May of that year; the

Puente verdict was rendered in late April 1994, with sentencing

that June. That September, after the appellants had filed notices

of appeal, the district court informed counsel that he had received

information about relationships between two of the jurors in the

January trial, and two of the case agents who testified at trial

and/or sentencing. The appellants moved for a new trial.

At an evidentiary hearing in January 1995, a juror and a DEA

agent admitted having an affair from mid-February until April 1994.

Another juror and an FBI agent admitted having sexual intercourse

on February 11, 1994. (The FBI agent previously had denied the

relationship, and he refused to answer questions about it at the

evidentiary hearing until instructed to do so by the court.)

The district court denied the motion for new trial, finding

that the agents and jurors first had personal contact on January

28, following the verdict, in the jury room; that the intimate

relationships did not develop until mid-February; and that the

relationships had "nothing to do with sentencing". The appellants

from the first trial contend that the relationships between the

agents and the jurors so impaired the integrity of the fact-finding

process as to deny due process, and assert that the credibility

findings at sentencing might have been different had the court

known about those relationships and the FBI agent's lies. Puente

(tried separately) contends that his conviction should be reversed

because he should have been informed about the relationships

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between the agents and jurors in the January trial, for use in

impeachment of one of the agents, who testified for the Government

at his trial and was its only witness at sentencing.

The district court's refusal to grant a new trial is reviewed

only for abuse of discretion, United States v. Ruggiero, 56 F.3d

647, 653 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 397,

486 (1995). Puente has not shown that the undisclosed

relationships affected the outcome of his trial. See, e.g., United

States v. Bagley, 473 U.S. 667, 682 (1985). Nor were any of the

appellants' sentences affected. After hearing evidence about the

relationships, the district court found that they had no effect on

its credibility findings at sentencing.

At oral argument, the appellants acknowledged that their

sentences were based primarily on evidence presented at trial, thus

conceding that the district court's credibility findings at

sentencing had no effect on their sentences. Therefore, they ask

primarily that we "send a message" to the FBI and the DEA by

granting new sentencing hearings. That is not our role. Instead,

it is to determine whether the district court abused its discretion

by denying a new trial. Clearly, it did not.

C.

Inez Zapata contends that he was unfairly prejudiced by the

denial of his severance motion, because of the gross disparity in

the evidence against him and his co-defendants (including the

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Chicago murders), which made it impossible for the jury to separate

the evidence applicable to each defendant. "In conspiracy cases,

the general rule is that persons indicted together should be tried

together." United States v. Fields, 72 F.3d 1200, 1215 (5th Cir.

1996).

"Severance is a matter left to the sound discretion of the

trial court, and a defendant is not entitled to severance unless he

can demonstrate specific compelling prejudice that actually results

in his having received an unfair trial." United States v. Capote-

Capote, 946 F.2d 1100, 1104 (5th Cir. 1991), cert. denied, 504 U.S.

942 (1992); see FED. R. CRIM. P. 14. "[N]either a disparity in the

amount of evidence against each defendant nor a supposition that

the evidence against other defendants `spilled over' and prejudiced

the defendant constitute compelling prejudice." Fields, 72 F.3d at

1215.

The jury was instructed to consider the evidence against each

defendant separately. It apparently had no difficulty following

that instruction, inasmuch as it acquitted two defendants on all

charges, and each of the others, including Inez Zapata, were

convicted on some counts and acquitted on others. See Fields, 72

F.3d at 1215 (stating that district court remedied any prejudicial

effect by instructing jury to limit its consideration of the

evidence to the appropriate defendant); United States v. McCord, 33

F.3d 1434, 1452 (5th Cir. 1994) (stating that acquittal of each

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defendant on at least one count reflects that jury was able to sort

and consider separately evidence applicable to each count and each

defendant), cert. denied, ___ U.S. ___, 115 S. Ct. 2558 (1995).

There was no abuse of discretion.

D.

Next, Inez Zapata asserts that the evidence is insufficient to

support his cocaine conspiracy conviction. In reviewing a

sufficiency of the evidence challenge, we view the evidence in the

light most favorable to the verdict to determine whether a

reasonable jury could find that the evidence establishes guilt

beyond a reasonable doubt. E.g., United States v. Gonzalez-

Rodriguez, 966 F.2d 918, 920 (5th Cir. 1992). For a narcotics

conspiracy charge, the government must prove beyond a reasonable

doubt: (1) that two or more persons agreed to violate the

narcotics laws; (2) that each alleged conspirator knew of the

conspiracy and intended to join it; and (3) that each alleged

conspirator participated in the conspiracy. E.g., United States v.

Flores-Chapa, 48 F.3d 156, 161 (5th Cir. 1995).

Although the evidence of Inez Zapata's participation in the

cocaine conspiracy was not as overwhelming as that of his

participation in the marijuana conspiracy, which he does not

challenge on appeal, it was, nevertheless, sufficient. For

example, the evidence includes intercepted telephone conversations

in which Inez Zapata made arrangements for the purchase of cocaine;

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and in which Zapata, Jr., discussed a cocaine and marijuana

transaction with Hernandez, and told Hernandez that he would be out

of town, but that his brother, Inez Zapata, or his son, Zapata,

III, could take care of the transaction while he was away.

E.

Norma Rodriguez, who was married to Inez Zapata, challenges

the sufficiency of the evidence to support her money laundering

convictions under 18 U.S.C. § 1956(a)(1)(A)(i), based on her use of

cash (approximately $1200 over several months) to purchase money

orders to pay cellular telephone bills for herself and Zapata, Jr.

The conviction required proof that Rodriguez "(1) knowingly

conducted a financial transaction; (2) which involved the proceeds

of an unlawful activity; and (3) with the intent to promote or

further that unlawful activity". United States v. Morris, 46 F.3d

410, 423 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 2595

(1995). Rodriguez contends that the Government failed to prove the

second and third elements.

The evidence included intercepted telephone conversations in

which Rodriguez discussed drug transactions and in which she warned

other individuals of the presence of police in the neighborhood.

At trial, Rodriguez admitted that she was aware of her husband's

(Inez Zapata) drug use, and had obtained drugs for his personal

use; she admitted also that, in addition to purchasing money orders

to pay Zapata, Jr.'s, cellular telephone bills, she rented cars for

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Zapata, Jr., and Zapata, III, and obtained credit cards for Zapata,

Jr.

The jury was entitled to reject Rodriguez's innocent

explanations for her conduct, to infer that she was well aware of

the drug-dealing activities of Zapata, Jr., Zapata, III, and her

husband, and to infer that she knew that the funds used to pay the

cellular telephone bills were proceeds of that activity. In light

of the evidence of the pervasive use of cellular telephones, by

Rodriguez and Zapata, Jr., as well as others, to conduct the drug-

dealing activities of the Zapata organization, the jury could have

inferred also that Rodriguez paid the cellular telephone bills with

the intent to promote drug-dealing.

F.

Puente maintains that the district court erred by admitting

drug ledgers seized from others and photographs of weapons, because

the Government failed to connect the evidence to him. "Admission

of evidence is reviewed for abuse of discretion, and even if abuse

is found, the error is reviewed under the harmless error doctrine."

United States v. Capote-Capote, 946 F.2d at 1105; FED. R. EVID.

103(a).

The district court did not abuse its discretion by admitting

evidence related to Puente's co-conspirators. "[P]roof of the

existence of the charged conspiracy is not confined to the acts of

the defendant[] on trial", United States v. Sepulveda, 710 F.2d

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188, 189 (5th Cir. 1983), because, as the district court instructed

the jury, if the defendant is a member of the alleged conspiracy,

the statements and acts of other members of the conspiracy, done in

furtherance of it, may be considered against the defendant.

G.

Puente claims next that the district court erred by allowing

jurors to consider English translations of intercepted telephone

conversations conducted in Spanish, prior to their being admitted

into evidence. "Whether the jury should have the use of

transcripts is a matter left to the sound discretion of the trial

judge." United States v. Rena, 981 F.2d 765, 767 (5th Cir. 1993).

Because the English translations were admitted into evidence, which

Puente does not challenge, the district court did not abuse its

discretion by allowing the jurors to use the translations prior to

admission, while they listened to the tapes.

H.

Puente asserts also that the district court erred by admitting

a DEA agent's testimony that a cooler delivered to Puente by

Zapata, Jr., contained five kilograms of cocaine, because the

testimony was based on speculation. Because Puente was able to

cross-examine the agent about the basis for his belief that the

cooler contained cocaine (intercepted telephone conversations and

surveillance), and about the fact that the agent did not see the

contents of the cooler, the admission of the testimony did not

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affect Puente's substantial rights. See FED. R. EVID. 103(a).

I.

Puente's final contention is that the district court erred at

sentencing by admitting the hearsay testimony of a DEA agent

regarding statements made by co-defendant Castillo with respect to

the quantity of drugs attributable to Puente, and that it

erroneously overruled his request for a continuance of the

sentencing hearing to obtain Castillo's testimony, thereby denying

him his constitutional right of confrontation. There was no error.

"In making its determination of the [quantity of drugs] to be

attributed to [a defendant], the district court is not limited to

the quantity proved at trial nor is it limited to evidence

admissible at trial." United States v. Morris, 46 F.3d at 425.

The right to confrontation "is substantially limited at a

sentencing hearing; the district court may even base its findings

on out-of-court statements". United States v. Sherrod, 964 F.2d

1501, 1507 (5th Cir.), cert. denied, 506 U.S. 1041 (1992), and

cert. denied, 507 U.S. 953, 975 (1993). And, "[a]t sentencing, the

district court may consider hearsay testimony which it finds

reliable". United States v. Rodriguez, 62 F.3d 723, 725 n.9 (5th

Cir. 1995).

J.

Inez Zapata charges that the district court erred by basing

his sentence on 200 kilograms of cocaine distributed by others,

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claiming there was no factual finding that he was part of a

jointly-undertaken scheme to distribute cocaine. Needless to say,

the sentencing "court's findings about the quantity of drugs on

which a sentence should be based are factual findings which we

review for clear error". United States v. Mitchell, 964 F.2d 454,

457 (5th Cir. 1992).

The district court credited the case agent's testimony at

sentencing regarding the quantity of cocaine attributable to Inez

Zapata; although the sentence was based only on the 200 kilograms

that the PSR concluded were reasonably foreseeable to Inez Zapata,

the district court found, based on the agent's testimony, that the

actual quantities were higher than those reflected in the PSR. By

crediting the agent's testimony as to the 200 kilograms of cocaine,

the district court adopted the PSR's conclusion regarding Inez

Zapata's ability to foresee the distribution of 200 kilograms of

cocaine. Moreover, the court's specific rejection of Inez Zapata's

objection to the amount of cocaine charged in the PSR satisfies

FED. R. CRIM. P. 32. See United States v. Golden, 17 F.3d 735, 737

(5th Cir. 1994).

K.

Inez Zapata claims next that the two-level increase in his

offense level for possession of a weapon, pursuant to U.S.S.G. §

2D1.1(b)(1), was erroneous because there was no evidence that he

possessed any weapons, and it was not foreseeable to him that

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weapons were stored in the home of his brother, Zapata, Jr.;

Hernandez adopted this claim. "The district court's decision to

apply § 2D1.1(b)(1) is essentially a factual determination

reviewable under the clearly erroneous standard." United States v.

Rodriguez, 62 F.3d at 724.

There was ample evidence to support the finding that Inez

Zapata was involved with weapons, including evidence of his

managerial role and his presence at his brother's residence, from

which several weapons were seized. Another example is an

intercepted telephone conversation in which Inez Zapata referred to

getting his machine gun. The evidence also supports the

enhancement for Hernandez, because of his involvement in the

Chicago murders, as discussed infra.

L.

Rodriguez asserts that her sentence for telephone facilitation

should be vacated because the district court made no finding as to

drug quantity or type, and there was insufficient evidence to

support any such finding. But, even assuming that the court erred

by failing to make a finding as to drug quantity and type, any

error is harmless, because this count was grouped with the money

laundering counts, and Rodriguez's sentence was based on the

guidelines for the latter. See Williams v. United States, 503 U.S.

193, 203 (1992) (if party defending sentence persuades court of

appeals that district court would have imposed same sentence absent

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erroneous factor, remand is not required).

M.

Hernandez contends that the district court erred by adding

three points to his criminal history score, pursuant to U.S.S.G. §

4A1.1(d) and (e), for commission of the instant offenses less than

two years after release from imprisonment. Even assuming error, it

was harmless because, even without the addition of these points,

Hernandez's criminal history points exceeded the total necessary

for classification as a Category VI offender; therefore, his

guideline range would have been the same. See U.S.S.G. Sentencing

Table; Williams, 503 U.S. at 203.

N.

Hernandez asserts also that the evidence does not support his

three-level upward departure, pursuant to U.S.S.G. § 5K2.1

(permitting upward departure if death resulted from offense), based

on findings that he committed the Chicago murders and that they

were connected to the offenses of conviction. "The district court

is given wide discretion to decide whether aggravating factors

exist to support an upward departure" under § 5K2.1. United States

v. Davis, 30 F.3d 613, 615 (5th Cir. 1994), cert. denied, ___ U.S.

___, 115 S. Ct. 769 (1995).

The findings were based on the testimony at trial and an FBI

agent's testimony at sentencing that Hernandez had been identified

by two witnesses as one of three men leaving the murder scene. As

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stated, the district court may rely on hearsay in sentencing;

moreover, it was entitled to reject the testimony of Hernandez's

alibi witnesses that Hernandez was in Texas at the time of the

murders. The findings were not clearly erroneous; accordingly, the

upward departure was not an abuse of discretion.

III.

For the foregoing reasons, the judgments are

AFFIRMED.

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