UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50269
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
RICARDO ARMENDARIZ;
SALVADOR TREVINO, also known as Minio;
BEATRICE ARMENDARIZ,
Defendants - Appellants.
Appeal from the United States District Court
For the Western District of Texas
(EP-96-CR-366-1)
July 13, 1998
Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:*
Defendants Beatrice Armendariz, Ricardo Armendariz, and
Salvador Treviño were among the parties charged in a multiple-party
indictment charging, inter alia, counts of conspiracy to possess
*
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that this opinion should not be published and is not precedent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.
and distribute marijuana and conspiracy to launder money. The
charges stemmed from a drug-running operation that smuggled
marijuana across the Mexican border and used commercial cargo
trucks to distribute the drugs across the country.
Mrs. Armendariz was convicted on one count of conspiring to
launder money instruments. She was given a special assessment of
$100 and sentenced to 168 months of imprisonment, to be followed by
three years of supervised release. She was fined $1,000 and
ordered to forfeit $5,000,000 in cash and property.
Mr. Armendariz and Mr. Treviño were each convicted on multiple
counts of conspiring to possess with intent to distribute a
quantity of marijuana, conspiring to launder monetary instruments,
and possessing with intent to distribute a quantity of marijuana.
They were each given a special assessment of $500 and sentenced to
concurrent sentences of 262 months, 240 months, 60 months, and 262
months of imprisonment. Their prison terms are to be followed by
five years of supervised release. They were each fined $200,000
and ordered to forfeit $5,000,000 in cash and property.
Beatrice Armendariz, Ricardo Armendariz, and Salvador Treviño
timely appealed.
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I. Sufficiency of the evidence
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Each of the defendants challenges the sufficiency of the
evidence adduced at trial in support of the government’s charges of
a conspiracy to launder money.
The standard of review applicable to the defendants’
sufficiency challenges is “whether a rational trier of fact could
have found that the evidence established guilt beyond a reasonable
doubt.” United States v. Stevenson, 126 F.3d 662, 664 (5th Cir.
1997). “All evidence and inferences from the evidence are to be
viewed in the light most favorable to the government.” Id. “The
evidence need not exclude every reasonable hypothesis of innocence
or be wholly inconsistent with every conclusion except that of
guilt, and this court will accept all credibility choices that tend
to support the verdict.” Id.
Count Two of the Second Superseding Indictment charged the
defendants with conspiring to violate 18 U.S.C. § 1956(a)(1)(A)(i).
The statute provides:
(a)(1) Whoever, knowing that the property
involved in a financial transaction represents the
proceeds of some form of unlawful activity,
conducts or attempts to conduct such a financial
transaction which in fact involves the proceeds of
specified unlawful activity--
(A)(i) with the intent to promote the
carrying on of specified unlawful activity;
* * *
* * *
shall be sentenced to a fine of not more than
$500,000 or twice the value of the property
involved in the transaction, whichever is greater,
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or imprisonment for not more than twenty years, or
both.
18 U.S.C. § 1956. The elements of the conspiracy offense are:
(1) agreement to commit the crime; (2) knowledge of the agreement;
(3) one overt act by a coconspirator in furtherance of the crime;
and (4) voluntary participation. See United States v. Fierro, 38
F.3d 761, 768 (5th Cir. 1994), cert. denied, 514 U.S. 1030, 115 S.
Ct. 1388 (1995); see also 18 U.S.C. § 1956(h) (“Any person who
conspires to commit any offense defined in this section or section
1957 shall be subject to the same penalties as those prescribed for
the offense the commission of which was the object of the
conspiracy.”). Notably with respect to the arguments presented by
the defendants, a conviction of conspiracy may be supported by
circumstantial evidence. See, e.g., Fierro, 38 F.3d at 767-68.
“It is not necessary to prove that the defendant was familiar with
every single detail of the conspiracy in order to prove intent, but
the Government must show knowledge of the conspiratorial agreement
and association with the plan.” United States v. Saenz, 747 F.2d
930, 938 (5th Cir. 1984), cert. denied, 473 U.S. 906, 105 S. Ct.
3531 (1985).
A. Beatrice Armendariz
Mrs. Armendariz unsuccessfully moved for a directed verdict of
innocence at the close of the government’s case. On appeal, she
argues, without any supporting authority:
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An examination of the records reveals that there
was little or no evidence produced against
Appellant, Beatrice Armendariz, directly. The
evidence produced at trial was against her co-
defendants primarily resulting in an inference that
the jury could easily follow in arriving at a
guilty verdict.
To the contrary, the record contains ample evidence supporting
the jury’s determination of Beatrice Armendariz’s guilt. First,
there is strong circumstantial evidence that Mrs. Armendariz was
fully aware of the illegal activities that surrounded her. For
example, there is evidence that her husband was active in marijuana
trafficking and received hundreds of thousands of dollars in drug
sale proceeds as payment for his role. See United States v. Cota,
953 F.2d 753, 760 (2d Cir. 1992) (an intimate business relationship
with a conspiracy ringleader is evidence of knowledge of the
unlawful activity from which proceeds used in a money laundering
conspiracy were derived). Also, the Armendarizes spent and
deposited much more money than their reported income. The jury
could infer that Mrs. Armendariz was not completely ignorant of her
husband’s activities or the source of their household income.
The jury heard evidence that Mrs. Armendariz was present while
thousands of dollars in drug proceeds were counted at the home of
Ricky Juarez. “Although mere association or presence by themselves
are insufficient to prove knowing participation in the agreement,
when combined with other relevant circumstantial evidence these
factors may constitute sufficient evidence to support a conspiracy
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conviction.” United States v. Brito, 136 F.3d 397, 409 (5th Cir.)
(citation omitted), cert. denied, 118 S. Ct. 1817 (1998); see also
United States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982).
Furthermore, there is evidence in the record that Mrs.
Armendariz actively participated in the scheme. Her job was to
find names that could be used for the receipt of wire transfers of
drug money. For example, there is evidence that she called a
connection in Florida to confirm the receipt of funds and that she
received an $8,000 wire transfer from a coconspirator, Jose
Delgado. Based on these facts, the jury could have inferred her
knowledge of the illegality of the money because there is no reason
to receive legitimate funds in the names of other individuals. The
jury also heard evidence that upon an instruction from her husband
that he needed “$10 for gas,” Mrs. Armendariz drove from Odessa to
El Paso and delivered $10,000 to him. This money was packaged in
the same fashion as the loads of currency transported and handled
by the coconspirators, and it was the precise amount needed to pay
for the transportation of marijuana from Mexico to the border.
Mrs. Armendariz does not challenge the existence of the
conspiracy or the presence of overt action, and the evidence is
plainly sufficient to support a jury finding that she had knowledge
and participated in the scheme. All of the elements of the crime
were proven, so the district court did not err in entering a guilty
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verdict against her on the one charge of conspiring to launder
money instruments.
B. Ricardo Armendariz and Salvador Treviño
Mr. Armendariz and Mr. Treviño did not make separate arguments
that the evidence presented by the government was insufficient to
support their money laundering conspiracy convictions. They did,
however, purport to adopt all of Mrs. Armendariz’s arguments
pursuant to FED. R. APP. P. 28(i). We have previously held that
under this Rule “an appellant may not adopt by reference
fact-specific challenges to his conviction.” United States v.
Morgan, 117 F.3d 849, 853 (5th Cir. 1997), cert. denied, 118 S. Ct.
454 (1998). A detailed evidence sufficiency analysis is simply
unnecessary with respect to these defendants because of their
failure to brief the argument.
II. Severance
Mrs. Armendariz and Mr. Treviño unsuccessfully moved to sever
their cases from that of their codefendants because Mr. Armendariz
had a prior drug-related conviction. Mr. Armendariz did not move
for severance. Mrs. Armendariz and Mr. Treviño now claim that
their defenses were prejudiced as a result of the district court’s
refusal to sever. Mrs. Armendariz briefed the argument. Mr.
Treviño simply adopted the argument by reference. We note once
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again that Mr. Treviño’s adoption of another defendant’s fact-
specific argument is an unavailing move under FED. R. APP. P. 28(i).
See Morgan, 117 F.3d at 853.
The district court’s decision not to sever defendants for
separate trials is reviewed for abuse of discretion. See United
States v. Capote-Capote, 946 F.2d 1100, 1104 (5th Cir. 1991), cert.
denied, 504 U.S. 942, 112 S. Ct. 2278 (1992). “[A] defendant is
not entitled to severance unless he can demonstrate specific
compelling prejudice that actually results in his having received
an unfair trial.” Id. “Any possible prejudice must, moreover, be
balanced against the public’s interest in efficient judicial
administration.” United States v. Hernandez, 962 F.2d 1152, 1157
(5th Cir. 1992).
Mrs. Armendariz argues that it was prejudicial to her to be
tried along with her husband because he had been previously
convicted of drug-related offenses. While Mrs. Armendariz was only
charged with one count of conspiring to launder money, her co-
defendants were also charged with possession of marijuana,
possession of marijuana with intent to distribute, conspiracy to
distribute marijuana, and money laundering. She thus argues that
both a quantitative and a qualitative disparity in the evidence
produced against her required severance, citing United States v.
Rocha, 916 F.2d 219 (5th Cir. 1990), cert. denied, 500 U.S. 934,
111 S. Ct. 2057 (1991).
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The Federal Rules of Criminal Procedure provide:
If it appears that a defendant or the
government is prejudiced by a joinder of offenses
or of defendants in an indictment or information or
by such joinder for trial together, the court may
order an election or separate trials of counts,
grant a severance of defendants or provide whatever
other relief justice requires.
FED. R. CRIM. P. 14. The Supreme Court has commented on the
application of this rule, noting:
[A] district court should grant a severance under
Rule 14 only if there is a serious risk that a
joint trial would compromise a specific trial right
of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or
innocence. Such a risk might occur when evidence
that the jury should not consider against a
defendant and that would not be admissible if a
defendant were tried alone is admitted against a
codefendant. For example, evidence of a
codefendant’s wrongdoing in some circumstances
erroneously could lead a jury to conclude that a
defendant was guilty. When many defendants are
tried together in a complex case and they have
markedly different degrees of culpability, this
risk of prejudice is heightened. Evidence that is
probative of a defendant’s guilt but technically
admissible only against a codefendant also might
present a risk of prejudice. Conversely, a
defendant might suffer prejudice if essential
exculpatory evidence that would be available to a
defendant tried alone were unavailable in a joint
trial. The risk of prejudice will vary with the
facts in each case, and district courts may find
prejudice in situations not discussed here. When
the risk of prejudice is high, a district court is
more likely to determine that separate trials are
necessary, but . . . less drastic measures, such as
limiting instructions, often will suffice to cure
any risk of prejudice.
Zafiro v. United States, 506 U.S. 534, 539, 113 S. Ct. 933, 938
(1993) (citations omitted). Our Court has entertained an argument
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for severance in a case where, as Mrs. Armendariz alleges, there is
a “great disparity" in the evidence offered against different co-
defendants. United States v. Harrelson, 754 F.2d 1153, 1175 (5th
Cir.), cert. denied, 474 U.S. 908, 106 S. Ct. 277 (1985). This
Court has further reasoned, however, that a mere quantitative
difference is “clearly insufficient in itself to justify severance;
a qualitative disparity must be shown as well.” Id. (citation
omitted); see United States v. Neal, 27 F.3d 1035, 1045 (5th Cir.),
cert. denied, 513 U.S. 1008, 115 S. Ct. 530 (1994).
The brief submitted by Mrs. Armendariz contains no support for
its bare allegation that at trial there was “not only a
quantitative but also a qualitative disparity" in the evidence
produced against her as compared to the evidence presented against
her codefendants. Our review of the record brings us to the
opposite conclusion. The jury heard no evidence of Ricardo
Armendariz’s prior marijuana convictions, so there was no prejudice
to the other defendants. More importantly, the jury was instructed
to compartmentalize the evidence against each defendant on each
count. See Zafiro, 506 U.S. at 539, 113 S. Ct. at 938 (limiting
instructions are a less drastic measure than severance which “often
will suffice to cure any risk of prejudice”). In addition, the
jury acquitted one of the defendants, demonstrating that it did
differentiate among different defendants. This trial lasted nine
days, and judicial economy would have been disserved by permitting
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separate trials. Our Court has affirmed denials of severance in
cases where there was a much stronger disparity in the evidence
presented. See, e.g., Harrelson, 754 F.2d at 1174-76. We are not
compelled to reverse the district court’s decision in this case.
Mrs. Armendariz failed to demonstrate “specific compelling
prejudice that actually result[ed] in h[er] having received an
unfair trial.” Capote-Capote, 946 F.2d at 1104. She has not,
therefore, articulated an interest which might outweigh “the
public’s interest in efficient judicial administration.”
Hernandez, 962 F.2d at 1157. Mrs. Armendariz’s failure to
demonstrate prejudice precludes any conclusion that the district
court abused its discretion. The same conclusion must be drawn for
Mr. Treviño, who simply adopted Mrs. Armendariz’s argument by
reference. Mr. Treviño makes no separate argument comparing the
evidence offered against him to the evidence offered against his
codefendants. On the facts of this case his argument that there
was a disparity in the evidence is no more compelling.
III. Admissibility of Evidence of Witnesses’ Prior Convictions
Mr. Armendariz and Mr. Treviño contend that the district court
erred by refusing to allow two of the government’s witnesses to be
cross-examined about prior convictions. One witness, Manuel
Castro, was convicted in 1978 for embezzlement. The other witness,
John Bennett, was convicted in 1963 for conspiring to steal a motor
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vehicle, in 1974 for interstate theft, and in 1982 for interstate
transportation of stolen property.
The district court excluded this evidence pursuant to the
Federal Rules of Evidence, which provide:
Rule 609. Impeachment by Evidence of Conviction of
Crime
(a) General rule. For the purpose of
attacking the credibility of a witness,
(1) evidence that a witness other than an
accused has been convicted of a crime shall be
admitted, subject to Rule 403, if the crime
was punishable by death or imprisonment in
excess of one year under the law under which
the witness was convicted, and evidence that
an accused has been convicted of such a crime
shall be admitted if the court determines that
the probative value of admitting this evidence
outweighs its prejudicial effect to the
accused; and
(2) evidence that any witness has been
convicted of a crime shall be admitted if it
involved dishonesty or false statement,
regardless of the punishment.
(b) Time limit. Evidence of a conviction
under this rule is not admissible if a period of
more than ten years has elapsed since the date of
the conviction or of the release of the witness
from the confinement imposed for that conviction,
whichever is the later date, unless the court
determines, in the interests of justice, that the
probative value of the conviction supported by
specific facts and circumstances substantially
outweighs its prejudicial effect. However,
evidence of a conviction more than 10 years old as
calculated herein, is not admissible unless the
proponent gives to the adverse party sufficient
advance written notice of intent to use such
evidence to provide the adverse party with a fair
opportunity to contest the use of such evidence.
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* * *
FED. R. EVID. 609 (emphasis supplied). The district court’s
evidentiary rulings are reviewed for abuse of discretion. See,
e.g., United States v. Acosta, 763 F.2d 671, 693 (5th Cir.), cert.
denied, 474 U.S. 863, 106 S. Ct. 179 (1985). The Fifth Circuit has
required district courts to be “extremely cautious in admitting
evidence of remote convictions.” United States v. Cathey, 591 F.2d
268, 275 (5th Cir. 1979) (citation omitted). Moreover, “[e]rror
may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected.”
FED. R. EVID. 103(a).
Mr. Armendariz and Mr. Treviño contend that the prior
convictions of Mr. Castro and Mr. Bennett were relevant to their
credibility as witnesses, and therefore this evidence was necessary
to their defense. The defendants complain that the government
portrayed Mr. Castro as a disabled ex-Marine who is bankrupt, but
otherwise a good citizen. They also complain that Mr. Bennett was
portrayed as one who cooperated with the government out of the
goodness of heart who was unaware of what possible sentence he was
facing in his own case. They claim they needed the prior-
convictions evidence to impeach these witnesses’ testimony.
The problems with this point of error are legion. First, the
defendants failed to provide notice to the government of their
intent to use the prior-convictions evidence as required by FED. R.
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EVID. 609(b). Second, all of those convictions are more than ten
years old, and the defendants have not established that "the
probative value of the [witnesses’] conviction[s] supported by
specific facts and circumstances substantially outweighs [their]
prejudicial effect.” FED. R. EVID. 609(b). Finally, it is
impossible to conclude that the defendants were prejudiced by the
exclusion of Mr. Bennett’s and Mr. Castro’s older convictions
because the record is full of other evidence that Mr. Bennett was
continually involved in criminal activity (including cross-
examination about more recent convictions), and both Mr. Castro and
Mr. Bennett were extensively cross-examined about their deals with
the government.
To the extent that the defendants wanted to impeach the
credibility of these witnesses for bias, they were able to do so by
exploring the details of their bargains with the government.
Evidence of prior convictions would have added little, if anything,
on that score. To the extent that the evidence was sought for
simple character assassination, however, Rule 609 embodies a policy
judgment that convictions over ten years old are presumably not
probative of any relevant character trait except under the
circumstances embodied in the exception to the rule, in other
words, where the district court determines that “the probative
value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect.”
FED. R. EVID. 609(b).
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Given that there is no apparent abuse of discretion in the
district court’s refusal to admit evidence of certain convictions
under Rule 609(b), and given that the defendants have failed to
demonstrate that this ruling affected their substantial rights, we
conclude that there was no error.
IV. Sentencing
Finally, Mr. Armendariz and Mr. Treviño contest their
sentences. They lodge several complaints on appeal. First, they
contest the amount of marijuana used to calculate base offense
levels. They characterize the evidence supporting the amount used
in sentencing as “vague, uncorroborated and untrustworthy.”
Second, they challenge the evidence used to apply four-level
leadership-role upward adjustments as “untrustworthy testimony of
the informants.” Third, they dispute the calculated amount of
gross proceeds, which “is based upon the testimony of Agent
Shuster, which in turn is based upon the testimony of informants.”
Finally, Mr. Armendariz contests his criminal history
categorization because there is no credible evidence of his
involvement in any offense prior to his probation discharge date.
Plainly, these are not legal arguments directed to the
district court’s application of the Sentencing Guidelines. Rather,
they are challenges to the factual determinations used by the
district court to calculate the defendants’ sentences. These
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factual determinations are reviewed for clear error. See
Stevenson, 126 F.3d at 664. Factual findings for sentencing
purposes need only be supported by a preponderance of evidence, see
United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir.
1997), and our independent review of the record convinces us that
the district court’s factual findings were not clearly erroneous.
Moreover, the district court relied on the factually detailed
presentence report, which “generally bears sufficient indicia of
reliability to be considered as evidence by the trial judge in
making guideline determinations, especially when there is no
evidence in rebuttal.” United States v. Hornsby, 88 F.3d 336, 339
(5th Cir. 1996). The defendants failed to offer or adduce evidence
showing that the factual statements in the presentence report were
materially inaccurate, untrue, or unreliable. Thus, we conclude
there is no error in the sentence imposed on Mr. Armendariz and Mr.
Treviño.
V. Conclusion
For the aforementioned reasons, the judgment of the district
court is AFFIRMED.
g:\opin\97-50269.opn
United States v. Armendariz
Court: Court of Appeals for the Fifth Circuit
Date filed: 1998-07-13
Citations: 149 F.3d 1179
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