United States v. Almaraz

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 23 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 01-2049

RUBEN ALMARAZ,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-98-976-BB)

James T. Martin (David C. Iglesias, United States Attorney, with him on the
brief), Assistant United States Attorney, Las Cruces, New Mexico, for Plaintiff-
Appellee.

Richard Winterbottom, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant-Appellant.

Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and
RUSSELL, * District Judge.

BRORBY, Circuit Judge.

*
The Honorable David L. Russell, Chief United States District Judge for
the Western District of Oklahoma, sitting by designation.
 Ruben Almaraz appeals from his conviction and sentence for engaging in a

continuing criminal enterprise in violation of 21 U.S.C. § 848. He claims the

government failed to present sufficient evidence he organized, supervised, or

managed five other persons during the course of the three drug violations for

which the jury returned a guilty verdict or at any other time. This case presents

our first opportunity to interpret the continuing criminal enterprise statute in light

of Richardson v. United States, 526 U.S. 813 (1999). We must decide whether the

continuing criminal statute, in light of Richardson, requires a conviction on the

predicate acts underlying the continuing criminal enterprise charge. Our

jurisdiction arises under 28 U.S.C. § 1291. After careful consideration, we

affirm.

BACKGROUND

The federal “drug king pin” statute forbids any “person” from engaging in a

continuing criminal enterprise. 21 U.S.C. §848(a). A conviction on this statute

carries a harsh penalty, requiring the trial court to impose a twenty-year

mandatory minimum prison term. Id. A continuing criminal enterprise is defined

as a violation of the drug statutes where “such violation is a part of a continuing

series of violations ... undertaken by such person in concert with five or more

other persons with respect to whom such person occupies a position of organizer,

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a supervisory position, or any other position of management.” 21 U.S.C. §848(c).

This case involves a drug organization that imported cocaine from Mexico

for distribution in the Las Cruces, New Mexico, area. At the heart of this

organization were Ruben Almaraz and his younger brother, Carlos Almaraz. 1 The

organization was comprised of family members and longtime close friends of the

Almaraz family. The Almaraz brothers supplied large amounts of cocaine for sale

by their street-level dealers. A family restaurant, where both men worked, served

as a cover for and a focal point of their drug distribution enterprise.

Jesus Orozco, a friend of the Almaraz brothers, assisted in the cocaine

distribution efforts. Janette Orozco is his wife. The parties dispute whether she

was involved in the drug organization. When things got too hot for Jesus Orozco

because he became concerned law enforcement officials were watching him, he

was replaced as a street-level dealer by two brothers, Carlos and Antonio Lopez.

Jesse Chavez arrived on the scene late in the game when Carlos Almaraz and

Jesus Orozco gave a confidential informant a pager number. Jesse Chavez

manned that pager, returned phone calls, and sold cocaine for the organization.

1
We refer to the defendant-appellant Ruben Almaraz as Mr. Almaraz. To
avoid confusion we refer to the other co-defendants by their first and last names.

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 After several months of surveillance and controlled drug buys, law

enforcement officials presented charges against Mr. Almaraz, Carlos Almaraz,

Jesus Orozco, Janette Orozco, Carlos Lopez, Antonio Lopez, and Jesse Chavez to

a grand jury. The grand jury returned an indictment against Mr. Almaraz and

these six co-defendants on numerous drug offenses. Specifically, Count I charged

Mr. Almaraz and his brother, Carlos Almaraz, with engaging in a continuing

criminal enterprise in violation of 21 U.S.C. § 848. 2 Count II charged all seven

co-defendants with conspiracy. Counts VI and VII charged Mr. Almaraz and

2
Count I of the eleven-count second superseding indictment alleged:

On or about the 1st day of December, 1997, and continuing
thereafter up to and including November 24, 1998, ... the defendants,
RUBEN ALMARAZ and CARLOS ALMARAZ, unlawfully,
knowingly and intentionally engaged in a continuing criminal
enterprise in that the defendants knowingly violated provisions of
Title 21, United States code, Sections 841 and 846, including but not
limited to the violations alleged in counts Three through Eleven of
this Second Superseding Indictment, which counts are re-alleged
herein by reference as if fully set forth in this count, all of which
violations were part of a continuing series of violations of Title 21 of
the United States code, undertaken by the defendants with at least
five (5) other persons, including but not limited to JESUS OROZCO
a/k/a “Chuy”, JANETTE OROZCO, CARLOS LOPEZ a/k/a
“Congo”, ANTONIO LOPEZ a/k/a “Flaco”, and JESSE CHAVEZ
a/k/a Lorenzo Lopez, with respect to whom the defendants occupied
a position of organizer, supervisor, and manager, and from which
continuing series of violations the defendants obtained substantial
income and resources.

In violation of 21 U.S.C. § 848(a).

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Jesus Orozco with possession with intent to distribute less than 500 grams of

cocaine and Count X charged Mr. Almaraz, Carlos Almaraz and Antonio Lopez

with possession with intent to distribute more than 500 grams of cocaine.

Mr. Almaraz stood trial with four co-defendants: Carlos Almaraz, Jesus

Orozco, Janette Orozco and Antonio Lopez. At the close of the government’s

case in chief, Mr. Almaraz asked for a judgment of acquittal on all counts,

arguing the evidence was insufficient to prove he organized, supervised, or

managed five or more persons. The district court denied his motion. Just before

closing arguments, he renewed his motion for judgment of acquittal, properly

preserving the issue for appeal. Again, the motion was denied.

The jury returned guilty verdicts on all but the conspiracy count. 3 The

district court subsequently sentenced Mr. Almaraz to concurrent terms of

imprisonment of 240 months on Count I, 240 months on Count X, and 240 months

on Counts VI and VII, to be followed by concurrent terms of supervised release of

five years on Counts I and X and three years on Counts VI and VII. Mr. Almaraz

does not contest his convictions on Counts VI, VII and X.

3
The district court instructed the jury not to consider the conspiracy count
if it convicted Mr. Almaraz of engaging in a continuing criminal enterprise.

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 DISCUSSION

Mr. Almaraz argues a continuing criminal enterprise conviction “requires

proof that the defendant supervised five or more persons while committing the

violations on which the jury unanimously agrees.” His argument is based on his

reading of the continuing criminal enterprise statute in light of Richardson v.

United States, 526 U.S. 813 (1999). First, he claims the evidence was insufficient

to prove he organized, supervised, or managed five or more persons at any time.

As his second contention, Mr. Almaraz argues as a matter of law that even if there

was sufficient evidence he organized, supervised, or managed five people at some

point, there was no evidence he organized, supervised, or managed five persons

while committing the three violations on which the jury agreed. He contends

“[t]he government presented proof in this case of only two persons under [his]

supervision in the course of the three possession with intent to distribute cocaine

offenses of which he was convicted.” This argument assumes the jury is limited

to considering only those offenses on which it returns a guilty verdict when

determining whether a defendant organized, supervised, or managed five or more

people. We address Mr. Almaraz’ arguments in reverse order, attending to the

legal question first, then his sufficiency of the evidence claim.

I

Mr. Almaraz contends the continuing criminal enterprise statute, 21 U.S.C.

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§ 848, “requires proof that the defendant supervised five or more persons during

the commission of the agreed-upon violations” and assumes the “agreed-upon

violations” are offenses of conviction. This presents an issue of statutory

interpretation, a question of law which we review de novo. United States v.

Roberts, 898 F.2d 1465, 1469 (10th Cir. 1990). Section 848 provides:

[A] person is engaged in a continuing criminal enterprise if –

(1) he violates any provision of [the federal drug laws]
the punishment for which is a felony, and

(2) such violation is a part of a continuing series of
violations of [the federal drug laws] –

(A) which are undertaken by such person in concert with
five or more other persons with respect to whom such
person occupies a position of organizer, a supervisory
position, or any other position of management, and

(B) from which such person obtains substantial income
or resources.

21 U.S.C. § 848. Mr. Almaraz asks us to construe this statute in light of the

United States Supreme Court decision in Richardson.

Richardson involved an appeal from a conviction for engaging in a

“continuing criminal enterprise” in violation of 21 U.S.C. § 848. In Richardson,

the trial court “rejected Richardson’s proposal to instruct the jury that it must

‘unanimously agree on which three acts constituted [the] series of violations.’”

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Richardson, 526 U.S. at 816. The trial court did instruct the jury that it “‘must

“unanimously agree that the defendant committed at least three federal narcotics

offenses.’” Richardson, 526 U.S. at 816. However, the judge added, “‘You do

not ... have to agree as to the particular three or more federal narcotics offenses

committed by the defendant.’” Richardson, 526 U.S. at 816. Recognizing a split

in the circuit courts, 4 the Supreme Court granted certiorari and reversed

Richardson’s conviction holding, “unanimity in respect to each individual

violation is necessary.” Id.

The holding in Richardson is based on the distinction between the elements

of an offense and the means by which the government may satisfy an element.

United States v. Powell, 226 F.3d 1181, 1196 (10th Cir. 2000), cert. denied, 531

U.S. 1166 (2001). A jury cannot convict a defendant unless it unanimously finds

the government proved each element of the offense, but the jury need not always

decide unanimously on which of several possible means the defendant used to

commit an element of the crime. Richardson, 526 U.S. at 817. The Supreme

4
Richardson cited three circuit court cases, comparing United States v.
Edmonds 80 F.3d 810, 822 (3rd Cir.1996) (en banc) (jury must unanimously agree
on which “violations” constitute the series), with United States v. Hall, 93 F.3d
126, 129 (4th Cir. 1996) (unanimity with respect to particular “violations” is not
required), and United States v. Anderson, 39 F.3d 331, 350-51 (D.C. Cir. 1994)
(same). Richardson, 526 U.S. at 816.

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Court explained,

[i]f the [continuing criminal enterprise] statute creates a
single element, a “series,” in respect to which individual
violations are but the means, then the jury need only
agree that the defendant committed at least three of all
the underlying crimes the Government has tried to
prove. The jury need not agree about which three. On
the other hand, if the statute makes each “violation” a
separate element, then the jury must agree unanimously
about which three [underlying] crimes the defendant
committed.

Id. at 818. The Supreme Court determined each individual violation is an element

of the continuing criminal enterprise statute and concluded, “the statute requires

jury unanimity in respect to each individual ‘violation.’” Id. at 818-19, 824. The

Supreme Court assumed, without deciding, the necessary number of underlying

predicate violations is three, the number used in Mr. Richardson’s trial. Id. at

818.

For our purposes then, the jury must be instructed to unanimously find the

defendant committed at least three underlying predicate violations of the

applicable drug statutes when determining whether the defendant committed a

“series of violations” within the rubric of the continuing criminal enterprise

statute. Instruction Number 8 informed the jury:

Title 21, United States Code, Section 848, makes it a crime for
anyone to engage in a continuing criminal enterprise.

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 For you to find Defendant Ruben Almaraz or Defendant Carlos
Almaraz guilty of this crime, you must be convinced that the
government has proved each of the following beyond a reasonable
doubt:

First: That the defendant committed a felony in violation of the
Controlled Substances Act as charged in the indictment;

Second: That such violation was part of a continuing series of
violations, as hereinafter defined;

Third: That the defendant obtained substantial income or
resources from the series of violations; and

Fourth: That the defendant undertook such violations in
concert with five or more persons with respect to whom the
defendant occupied a position of organizer, supervisor or manager.
The five other persons need not have acted at the same time or in
concert with each other.

A “continuing series of violations” means at least three
violations of the Controlled Substances Act, and also requires a
finding that those violations were connected together as a series of
related or ongoing activities as distinguished from isolated and
disconnected acts. You must unanimously agree about which
violations constitute the continuing series of violations.

(Emphasis added.) This jury instruction clearly meets the standard announced by

the majority in Richardson. It “requires jury unanimity in respect to each

individual ‘violation’” that makes up the “series of violations.” Richardson, 526

U.S. at 824. Indeed, Mr. Almaraz does not contend the instruction runs afoul of

the limited holding in Richardson.

Additionally, even if the jury had not been so instructed, it did return a

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guilty verdict on the three drug statute violations charged in the indictment.

Therefore, it unanimously found Mr. Almaraz committed at least those three

violations. On appeal, Mr. Almaraz does not contest those convictions or whether

they constituted a “series of violations” within the meaning of the statute.

Because the jury was properly instructed and Mr. Almaraz concedes he committed

the individual crimes charged against him in the indictment, he does not complain

his conviction runs contrary to the limited holding in Richardson.

However, Mr. Almaraz asks us to construe the continuing criminal

enterprise statute in light of Richardson, conceding the majority decision in

Richardson left open the two questions relevant to his appeal. 5 First, whether, as

a necessary consequence of the Supreme Court’s decision, the jury must

unanimously agree on which specific transactions were undertaken in concert with

5
Justice Kennedy’s dissent in Richardson warned that a necessary
consequence of the Court’s decision would require the jury to agree on which
transactions were undertaken in concert with five or more other persons.
Richardson, 526 U.S. at 830-31. The Richardson majority responded the jury
need not unanimously agree the defendant was involved with five or more persons
in each of the specific underlying violations. Id. at 823. “Those requirements
must be met with respect to the series, which, at a minimum, permits the jury to
look at all of the agreed-upon violations in combination.” Id. at 823. While the
dissent concluded there must be proof the defendant supervised five or more
persons while committing the agreed-upon violations, the majority declined to
reach that question.

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five or more other persons. And second, whether the underlying predicate

violations are limited to the three offenses of conviction.

A

Mr. Almaraz argues “it follows from a natural reading of the statute that the

defendant must be found to have supervised five or more persons during the

course of the agreed-upon violations.” Relying on United States v. Lopez, 248

F.3d 427 (5th Cir.), cert. denied, 122 S. Ct. 222 (2001), he urges us to expand the

limited holding in Richardson and to require a jury finding that the specific

violations underlying the “continuing series of violations” were undertaken in

concert with five or more persons. 6 The jury instruction given by the district

court in this case required the jury to find the “defendant undertook such

violations in concert with five or more persons with respect to whom the

defendant occupied a position of organizer, supervisor or manager.” This jury

instruction, by its own terms, elicits the finding Mr. Almaraz urges us to require.

6
Mr. Almaraz invites us to follow Lopez. In Lopez the Fifth Circuit stated,
but did not hold, “the defendant must have committed these violations ‘in concert
with five or more other persons whom he organized, supervised, or managed.’” Id.
at 429 n.2. However, the Fifth Circuit published an opinion after Lopez which
expressly noted Richardson did not require the jury to “find that each predicate
violation was undertaken in concert with five or more other persons.” United
States v. Santana-Madera, 260 F.3d 133, 140 n.3 (5th Cir. 2001), cert. denied,
122 S. Ct. 817 (2002). Therefore, we do not find the Lopez decision necessary, or
helpful, to our analysis.

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The phrase “such violations” in the instruction refers to the violations that make

up the “series of violations” the jury was instructed to find unanimously. We

presume jurors attend closely to the language of the instructions in a criminal case

and follow the instructions given them. United States v. McSwain, 197 F.3d 472,

481 (10th Cir. 1999), cert. denied, 529 U.S. 1138 (2000). Based on this

instruction, we assume the jury understood it must be unanimous on the specific

findings underlying its verdict. United States v. O’Brien, 131 F.3d 1428, 1432

(10th Cir. 1997). Although the limited holding in Richardson did not require an

instruction that the “series of violations” found by the jury must be undertaken in

concert with five or more people, this particular jury was so instructed and we

presume it followed those instructions. See Santana-Madera, 260 F.3d at 140 n.3

(noting Richardson did not impose a requirement that the jury find each predicate

violation was undertaken in concert with five or more other persons).

B

This brings us to the heart of the argument submitted by Mr. Almaraz:

whether the predicate acts underlying the continuing criminal enterprise

conviction are limited to those acts for which the jury returned a guilty verdict.

More specifically: are the “agreed-upon violations” that make up the “series of

violations” limited to acts for which the jury returns a guilty verdict, or may the

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jury consider other acts established at trial? The district court instructed the jury

it had to find Mr. Almaraz “undertook such violations [i.e., the “series of

violations”] in concert with five or more persons with respect to whom the

defendant occupied a position of organizer, supervisor or manager” (emphasis

added), to return a guilty verdict. The instruction did not limit the violations to

those for which it returned a conviction. Therefore, the instruction as given does

not resolve this part of the issue presented by Mr. Almaraz. 7

Mr. Almaraz calls on us to consider the continuing criminal enterprise

statute in light of Richardson and to conclude the jury could not have found he

organized, supervised, or managed five or more persons during the course of the

three violations for which it returned guilty verdicts. The jury convicted Mr.

Almaraz on Counts I, VI, VII, and X. Count I is the continuing criminal

enterprise charge at issue here. If the “series of violations” for the continuing

criminal enterprise is limited to the charges on which the defendant is charged

and convicted as Mr. Almaraz contends, then the series of violations is limited to

7
Mr. Almaraz proffered a jury instruction that would have limited the
“continuing series of violations” to the violations “as charged in Counts VI, VII
and X of the Second Superseding Indictment.” The district court did not use his
proffered instruction. However, he did not object to the instruction given, and
does not challenge the instruction on appeal.

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Counts VI, VII and X. Counts VI and VII involved Jesus Orozco and Mr.

Almaraz. Count X involved Carlos Almaraz, Antonio Lopez, and Mr. Almaraz.

If Mr. Almaraz is correct, he organized, supervised, or managed, at most, three

people: Carlos Almaraz, 8 Jesus Orozco, and Antonio Lopez, and the evidence is

insufficient to uphold his conviction under the continuing criminal enterprise

statute.

The Richardson Decision

The question before us is whether the predicate acts underlying the

continuing criminal enterprise conviction are limited to those acts for which the

jury returned a guilty verdict. Mr. Almaraz contends a natural reading of

Richardson requires a conviction on the predicate acts that make up the

“continuing series of violations.” In other words, for the jury to consider the

violation as part of “such violations [the defendant undertook] in concert with

five or more persons,” the defendant must be tried and convicted of that particular

violation. This argument assumes the jury could only “agree upon,” or

unanimously find those violations for which it returned a guilty verdict.

8
Whether Mr. Almaraz organized, supervised, or managed Carlos Almaraz
is a matter of dispute between the parties we resolve later in this opinion.

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 We think this reading reaches too far beyond the narrow scope of the

majority decision in Richardson. Richardson does not require a conviction on all

of the violations that make up the “series of violations.” Instead, the majority’s

holding merely requires the jury to unanimously determine which violations make

up the series. In response to arguments made by the government and the dissent,

the Court made clear the narrow scope of its holding:

To the extent the dissent suggests that those other statutory
requirements must be satisfied with respect to each underlying crime,
it is clearly wrong. Those requirements must be met with respect to
the series, which, at a minimum, permits the jury to look at all of the
agreed-upon violations in combination. Even if the jury were limited
to the agreed-upon violations, we still fail to see why prosecutions
would prove unduly difficult.

Richardson, 526 U.S. at 823. The Court also assumed, “without deciding, that

there is no unanimity requirement in respect to these other provisions [identity of

the five people and substantial income], [and] nonetheless [found] them

significantly different from the provision” before it. Id. at 824. Based on the

Court’s reluctance to reach several issues pressed by the government and the

dissent, we are reluctant to expand the Court’s holding as Mr. Almaraz requests. 9

9
Our sister circuits have also read the majority decision in Richardson
narrowly. See, e.g., United States v. Harris, 209 F.3d 156, 160 (2d Cir. 2000)
(noting the Richardson opinion and holding the government need not prove the
identities of the five persons supervised); United States v. Escobar-de Jesus, 187
F.3d 148, 162 n.8 (1st Cir. 1999) (leaving the questions left unanswered by
Richardson “for another day”), cert. denied, 528 U.S. 1176 (2000); United States
v. Short, 181 F.3d 620, 624 (5th Cir. 1999) (noting Richardson decision “raises

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The Continuing Criminal Enterprise Statute

“When interpreting a statute, we look first to the language.” Id. at 818.

The language of § 848 is plain. The first element of the crime is the violation of

the drug statutes. 21 U.S.C. § 848(b)(1). Section 848 and Richardson both use

the term “violation,” not the word “conviction.” Unlike Richardson, the relevant

provision and the facts in this case do not “permit either interpretation.”

Richardson, 526 U.S. 818. Construing the continuing criminal enterprise statute

in the past, we gave the terms their everyday nontechnical meanings. McSwain,

197 F.3d at 478. We see no reason to stray from that precedent. Absent a clearly

expressed legislative intent to the contrary, clear statutory language ordinarily is

regarded as conclusive. United States v. Hall, 843 F.2d 408, 410 (10th Cir.

1988). We presume Congress would have used the term “conviction” if it wished

to limit the acts that make up the “continuing series of violations” to act for

which the jury returned a guilty verdict. Committing a “violation of” the drug

statutes is simply not the same as being “convicted of” those crimes. Therefore,

we hold the jury is not limited to considering only those acts for which it returned

a guilty verdict when determining which acts make up the “continuing series of

the question of whether this Circuit’s precedent that does not require jury
unanimity as to the identities of supervisees still stands,” and holding the district
court did not err in refusing the proposed jury instruction which would have
required such unanimity), cert. denied, 528 U.S. 1091 (2000).

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violations” undertaken with five or more people.

This does not end our analysis, however. Richardson did not indicate

which violations the jury can consider when determining whether the defendant

organized, supervised, or managed five or more people. In this case we have

already concluded the jury is not limited to considering the convicted offenses.

However, these questions remain: Is the jury limited to those violations alleged

specifically in the indictment, or can the indictment allege violations generally, as

long as the charge tracks the statutory language? Do the violations need to be

alleged in the indictment at all if the government presents sufficient evidence the

violations occurred? We leave these thorny questions for another day because the

government alleged specific violations in the indictment and, as we discuss

below, Mr. Almaraz organized, supervised, or managed at least five persons

during the course of the specific violations alleged in the indictment.

II

Mr. Almaraz claims the government did not present sufficient evidence to

prove he organized, supervised, or managed five or more persons at any time, as

required by 21 U.S.C. §848(c)(2)(A). When evaluating the sufficiency of

evidence supporting a conviction, we conduct a de novo review of the entire

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record. United States v. Whitney, 229 F.3d 1296, 1300 (10th Cir. 2000). Mr.

Almaraz bears a heavy burden to succeed on his sufficiency of the evidence

claim, as we review the evidence in the light most favorable to the government,

determining whether “‘any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” United States v. Apodaca,

843 F.2d 421, 425 (10th Cir.) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)), cert. denied, 488 U.S. 932 (1988).

A continuing criminal enterprise conviction must be supported by, inter

alia, proof the defendant acted “in concert with five or more other persons with

respect to whom such person occupies a position of organizer, a supervisory

position, or any other position of management.” 21 U.S.C. §848(c)(2)(A). In

determining whether a defendant was an organizer, supervisor, or manager of a

continuing criminal enterprise, we give these terms “their nontechnical, everyday

meanings.” McSwain, 197 F.3d at 478. The statute is phrased in the disjunctive,

therefore, the evidence is sufficient if it shows the defendant acted as either an

organizer, a supervisor, or a manager. Apodaca, 843 F.2d at 426. The

supervisory relationships “need not have existed at the same time or with each

other, and the same type of relationship need not exist between the defendant and

each of the five” other persons involved. McSwain, 197 F.3d at 478 (quoting

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Apodaca 842 F.2d at 426). The “defendant may not insulate himself from liability

by delegating authority.” McSwain, 197 F.3d at 479. Because the defendant’s

role within the organization may be flexible, there is no requirement that the

defendant be the dominant organizer, supervisor, or manager of the enterprise.

McSwain, 197 F.3d at 478. The defendant need not be the only manager. Id. at

479. In fact, most significant to this appeal, a co-defendant also can be a co-

manager and can be included as one of the five others with respect to whom the

defendant holds a supervisory position. Id. at 479-80.

Mr. Almaraz concedes the requisite relationship between himself and two

other people: Jesus Orozco and Antonio Lopez. However, he claims the evidence

he supervised Janette Orozco, Carlos Lopez, Jesse Chavez or Carlos Almaraz is

insufficient to sustain his conviction. We will discuss the evidence concerning

each of the remaining co-defendants in turn.

Janette Orozco

The jury acquitted Janette Orozco on the conspiracy charge and the charge

related to a drug transaction between her husband and a confidential informant on

March 18, 1998. However, the jury did find Janette Orozco guilty of one count of

possession of cocaine with intent to distribute less than 500 grams on April 17,

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1998.

In its brief on appeal, the government does not address whether Janette

Orozco should be considered one of the five supervisees. During oral argument

the government denied conceding the issue. Nevertheless, arguments not briefed

on appeal are waived. See United States v. Jenkins, 904 F.2d 549, 554 n.3 (10th

Cir.) (declining to consider issue raised for first time in reply brief), cert. denied,

498 U.S. 962 (1990). Raising the issue for the first time at oral argument affords

the defendant an inadequate opportunity to address it. It is unfair to lie in wait

until oral argument to present issues material to the appeal. In the background

section of its brief, the government did briefly describe Janette Orozco’s behavior

during a drug transaction. However, this perfunctory and cursory reference

without citation to authority in support of a legal argument is inadequate to

warrant consideration. See United States v. LaHue, 261 F.3d 993, 1009 (10th Cir.

2001) (holding issue waived when party fails to make any argument or cite any

authority to support assertions), cert, denied, 122 S. Ct. 818 (2002); Femedeer v.

Haun, 227 F.3d 1244, 1255 (10th Cir. 2000) (quoting United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990) (noting the “settled appellate rule that issues

adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.”)). Therefore, we will not consider whether

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Janette Orozco was one of the five individuals necessary to sustain Mr. Almaraz’

continuing criminal enterprise conviction.

Carlos Lopez

Mr. Almaraz claims Carlos Lopez “was merely present with his brother

Antonio [Lopez]” during a drug transaction on September 21, 1998, and was not

under the supervision of Mr. Almaraz. On September 16, 1998, Jesus Orozco

gave a confidential informant a slip of paper with the names “Congo” and “Flaco”

and a pager number written on it. Trial testimony identified Carlos Lopez as

“Congo” and Antonio Lopez as “Flaco.” On September 21, 1998, Carlos Lopez

and his brother, Antonio Lopez, sold two ounces of cocaine to a confidential

informant and an undercover agent. Antonio Lopez told the two men Jesus

Orozco gave him the business. Carlos Lopez was present during an extended

discussion about future drug purchases and prices. At the conclusion of the

discussion, Antonio Lopez gave the confidential informant and undercover agent

a new pager number and told them it belonged to his brother, Carlos Lopez.

Viewing this evidence in the light most favorable to the government, a reasonable

juror could find Carlos Lopez was a member of the Almaraz organization, which

was organized, supervised, or managed by Mr. Almaraz.

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Jesse Chavez

Mr. Almaraz argues Jesse Chavez “was not shown to have been subject to

[Mr.] Almaraz’s managerial authority.” It is true the government did not present

evidence of personal contact between Mr. Almaraz and Jesse Chavez. However,

the defendant need not have had personal contact with each of the
five persons involved. Nor must each transaction with or instruction
to those persons organized or managed specifically originate with the
defendant. The mere delegation of managerial and supervisory duties
will not defeat an individual’s ultimate status as organizer,
supervisor, or manager.

Apodaca, 843 F.2d at 426 (citations omitted).

Sometime before November 2, 1998, Carlos Almaraz and Jesus Orozco

gave a confidential informant a pager number. On November 2, and again on

November 5, 1998, the confidential informant used this pager number. Jesse

Chavez returned the calls and arranged to meet the confidential informant. Jesse

Chavez sold the confidential informant one ounce of cocaine. A jury could infer

Jesse Chavez worked for the Almaraz organization from the testimony indicating

a cocaine buyer was referred to him by Carlos Almaraz and Jesus Orozco. While

not overwhelming, this evidence is sufficient to support the government’s claim

Jesse Chavez was a member of the Almaraz organization and was indirectly

supervised by Mr. Almaraz.

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Carlos Almaraz

Mr. Almaraz contends the evidence is insufficient to prove Mr. Almaraz

organized, supervised, or managed Carlos Almaraz in the criminal enterprise. 10

Mr. Almaraz contends the indictment alleged Mr. Almaraz and Carlos

Almaraz organized, supervised or managed at least five other persons, listing five

people: Jesus Orozco, Janette Orozco, Antonio Lopez, Carlos Lopez and Jesse

Chavez, and the “government consistently argued at trial that Ruben and Carlos

Almaraz co-managed and co-supervised the five individuals named in the

indictment.” Considering facts nearly identical to these, we have said “[t]he

indictment does not limit the class of individuals from which the ‘five other

persons’ might be drawn.” McSwain, 197 F.3d at 479. The language used in the

10
As part of his contention, he also claims the government did not argue
Mr. Almaraz organized, supervised, or managed Carlos Almaraz at trial. Our
independent review of the record reveals the government did in fact make this
argument. For example, in its opening and closing statements the government
described two drug transactions that included acknowledgments Mr. Almaraz set
the price for the cocaine. The government explained this was a “clear indication
that Ruben Almaraz is the leader and organizer of this drug business, giving the
directions” and “Ruben Almaraz is clearly in charge of this organization. He’s
the head honcho, he’s calling the shots, he’s telling who to do what, where to be,
when to be.” Calling Mr. Almaraz the “manager, organizer and leader of this
continuing criminal enterprise,” the government described the structure of
“Almaraz Distributing.” The government explained, “there’s clearly a manager
and a supervisor and at least five participants.”

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indictment is not dispositive.

Next, Mr. Almaraz claims, “even if the government had argued at trial that

[Mr.] Almaraz supervised his brother Carlos,” the evidence presented at trial was

insufficient for a reasonable jury to find Mr. Almaraz organized, supervised, or

managed his younger brother, Carlos Almaraz. After a de novo review of the

entire record, in the light most favorable to the government, we conclude the

evidence was sufficient for the jury to determine Mr. Almaraz supervised Carlos

Almaraz.

During drug transactions, Mr. Almaraz described the cocaine sold by the

street-level dealers as his cocaine. He did not include Carlos Almaraz or refer to

the cocaine in a way that might have given the impression it belonged to both of

them. A jury could reasonably infer Mr. Almaraz was the head of the

organization, above Carlos Almaraz, based on these statements. When a

confidential informant spoke with Carlos Almaraz over the phone about

purchasing two ounces of cocaine per week, Carlos would not agree to sell the

drugs until speaking with Mr. Almaraz. Instead, he took a message for Mr.

Almaraz to call the confidential informant later. When an undercover agent

wanted to buy a kilo of cocaine, Carlos Almaraz called Mr. Almaraz to consult

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with him before consummating the deal and Mr. Almaraz, not Carlos Almaraz, set

the price. On the other hand, Mr. Almaraz did not consult with Carlos Almaraz

before making decisions.

A reasonable jury could infer Mr. Almaraz supervised Carlos Almaraz

based on these interactions between the two brothers. The record supports a jury

finding that Mr. Almaraz organized, supervised, and managed the entire operation

and Carlos Almaraz was his second in command. Therefore, we conclude the

evidence was sufficient for a reasonable jury to find Mr. Almaraz supervised his

brother, Carlos Almaraz.

CONCLUSION

The government was not required to prove Mr. Almaraz organized,

supervised, or managed five or more persons during the course of the three

offenses of conviction and the evidence was sufficient to prove Mr. Almaraz

supervised five or more persons during the course of the drug violations alleged

in the indictment. Therefore, we AFFIRM the conviction and sentence.

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