UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-40711
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GABRIEL CISNEROS, JAVIER ROJAS CISNEROS,
and IVO PEREZ, JR.,
Defendants-Appellants.
______________________________________________
Appeals from the United States District Court for the
Southern District of Texas
______________________________________________
May 13, 1997
Before REAVLEY, GARWOOD, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This direct criminal appeal involves three appellants who were
convicted of various drug offenses. In regard to their
convictions, the arguments on appeal include: a Speedy Trial Act
violation; a challenge to the district court's denial of their
motion for new trial; a challenge to the sufficiency of the
evidence; and a violation of the Fourth Amendment. In regard to
sentencing, the issues include one of first impression, namely,
whether a deferred adjudication in Texas constitutes a "prior
conviction" in the context of 21 U.S.C. § 841(b)(1)(A), a mandatory
sentence enhancement provision. Finding no reversible error, we
affirm.
I. PROCEDURAL HISTORY
On April 4, 1995, Ivo Perez, Jr. (Perez), Juan Gabriel
Cisneros (Juan), and Javier Rojas Cisneros (Javier) were charged,1
along with ten other codefendants, with various drug trafficking
offenses in a superseding twenty-count indictment. The following
six counts all alleged violations of 21 U.S.C. § 841(a)(1), §
841(b)(1)(B) and 18 U.S.C. § 2. Count 10 charged Perez with
possession with intent to distribute in excess of 100 kilograms of
marijuana on March 7, 1992. Count 11 charged Perez with possession
with intent to distribute in excess of 1000 kilograms of marijuana
on March 24, 1992. Count 12 charged Perez with possession with
intent to distribute in excess of 100 kilograms of marijuana in
August 1992. Counts 13 and 14 charged Juan and Javier with
possession with intent to distribute in excess of 100 kilograms of
marijuana in May 1994. Count 19 charged Juan and Javier with
possession with intent to distribute in excess of 100 kilograms of
marijuana on June 7, 1994.
Count 17 charged that, from 1986 until the return of the
indictment in April 1995, Perez, Juan, and Javier conspired to
possess with intent to distribute in excess of 1000 kilograms of
marijuana in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A),
and § 846. Finally, count 20 charged Juan and Javier with money
laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (B)(i).
On May 9, 1995, the district court, determining that there was
1
Juan and Javier Cisneros are brothers.
2
a possible conflict of interest between the Cisneroses and Perez,
ordered their common counsel disqualified from representing Perez.
Perez then retained new counsel. On May 25, Javier moved to
suppress evidence seized from a search of his residence, and
Perez's new attorney moved for a continuance. Both motions were
denied, and a jury trial commenced on June 2, 1995. The jury found
the defendants guilty as charged.
The defendants moved for a new trial based upon the discovery
of a "new witness." The district court, after holding an
evidentiary hearing, denied the motion, and sentenced the
defendants as follows: (Juan) 360 months on each of the possession
counts, life imprisonment on the conspiracy count, and 240 months
on the money laundering count; (Javier) 262 months on the
possession and conspiracy counts, and 240 months on the money
laundering count; (Perez) 240 months on all counts.2
II. ANALYSIS
A. SPEEDY TRIAL ACT/CONTINUANCE
Perez argues that the district court's denial of his motion
for continuance violated the Speedy Trial Act. 18 U.S.C. §
3161(c)(2). Section 3161(c)(2) provides that "[u]nless the
defendant consents in writing to the contrary, the trial shall not
commence less than thirty days from the date on which the defendant
first appears through counsel or expressly waives counsel and
elects to proceed pro se."
When evaluating a district court's ruling involving the Speedy
2
The district court imposed the sentences of each of the
defendants to run concurrently.
3
Trial Act, we review facts for clear error and legal conclusions de
novo. United States v. Ortega-Mena, 949 F.2d 156, 158 (5th Cir.
1991). Here, the facts underlying the district court's ruling are
undisputed. On April 20, 1995, Perez, along with his two
codefendants, made his first appearance with counsel. On May 9,
1995, the district court, upon the Government's motion,
disqualified Perez's counsel due to conflict of interest.
At the conclusion of the hearing, the district court instructed
counsel to "please advise Mr. Perez and the magistrate that this
case is already set for final pretrial and jury selection. . . .
It may require additional time to be given to the attorney or the
like."
Later that day, Perez appeared before the magistrate judge who
advised him that he should timely retain counsel and that he was
"entitled to a 30-day period for preparation of trial with the new
attorney." On May 22, Perez retained counsel, who entered his
appearance three days later on May 25, 1995. That same day,
Perez's new counsel filed a motion for a 60-day continuance,
asserting that one week was an insufficient amount of time to
prepare for a "case of this magnitude." The district court denied
the motion without reasons on June 1, and jury selection began the
next day. Counsel filed a motion for a 30-day continuance on June
2, 1995, which was denied without reasons that same day. Trial on
the merits began on June 12, 1995.
To support his claim that § 3161(c)(2) of the Speedy Trial Act
was violated, Perez relies on this Court's decision in United
States v. Storm, 36 F.3d 1289 (5th Cir. 1994), cert. denied, __
4
U.S. __, 115 S.Ct. 1798 (1995). In that case, the two
codefendants, represented by the same attorney, appeared before the
court on February 12, and the court scheduled a hearing on February
19, to determine whether there existed a potential conflict of
interest. The court also scheduled the trial for March 15. On the
day of the hearing, February 19, the court disqualified Storm's
counsel and appointed an attorney to represent him. That same day,
newly appointed counsel appeared before the court with Storm. At
that time, counsel moved for a continuance based on the Speedy
Trial Act, arguing that going to trial on March 15 would violate
the 30-day requirement for counsel's trial preparation. The
district court denied the motion, "stating that the 30-day period
runs from the defendant's first appearance before the court with
counsel, and Storm's first appearance with counsel was more than 30
days prior to the trial date." Id. at 1292. On appeal, this Court
squarely held "that Storm was tried in violation of the 30-day
trial preparation requirement found in § 3161(c)(2) of the Speedy
Trial Act." Id. at 1293.
The Government, on the other hand, cites United States v.
Jackson, 50 F.3d 1335 (5th Cir. 1995). In that case, the
defendant's retained counsel had at least thirty days to prepare
for trial. That trial ultimately ended in a mistrial, and retained
counsel withdrew. The court subsequently appointed counsel for
Jackson on February 18. The court set the date for the second
trial on March 2, prompting counsel to move for a continuance,
which the district court denied. Jackson appealed to this Court,
arguing that the denial of his motion for continuance combined with
5
only seven days' notice to retry the case violated § 3161(c)(2).
This Court rejected his argument, holding "that, when a defendant
is represented by counsel who has had at least 30 days in which to
prepare for trial, as Jackson was, § 3161(c)(2) is satisfied; the
retention or appointment of new counsel does not trigger a new 30-
day period." Id. at 1339.
Unlike Jackson, Perez's first attorney did not have at least
30 days to prepare for trial. Instead, the pertinent facts in
Perez's case are nearly identical to the facts in Storm. Storm
clearly controls this case. Accordingly, we conclude that Perez
was tried in violation of the 30-day trial preparation requirement
in § 3161(c)(2).
The next question is whether such error was harmless. Id. at
1294.3 Perez adamantly argues that he was prejudiced by having
only nine days to prepare for jury selection and another nine days
to investigate and prepare for trial. To establish harm, Perez
points to the affidavit of Armando Martin-Trevino, which his
counsel obtained after the conclusion of trial.4
After carefully examining the record, we conclude that Perez
has failed to show prejudice. Most importantly, the evidence
reveals that Trevino would not have testified at Perez's trial;
3
Perez recognizes that we review violations of § 3161(c)(2)
for harmless error. Nonetheless, he argues that the facts of his
case are such that he should not be required to show prejudice.
Although we are not unsympathetic to Perez's general assertions
regarding "the intangible and unprovable benefits of being prepared
for trial," our precedent requires a showing of prejudice. Storm,
36 F.3d at 1294.
4
Perez attached this affidavit to his motion for new trial,
and the district court granted Perez a hearing.
6
instead, he would have invoked the Fifth Amendment. On August 21,
at the hearing on Perez's motion for new trial, Trevino invoked his
Fifth Amendment privilege against self-incrimination. Trevino
asserted, however, that he would be available to testify for Perez
after the conclusion of his trial in Dallas, which was set to
commence on September 5.5 Upon questioning by the court, Trevino
stated that he would not have testified for Perez at the trial that
commenced on June 12. It is therefore clear that, had the district
court properly given Perez's counsel the required 30-day trial
preparation period, Trevino still would not have been available to
testify at Perez's trial. Moreover, even if Trevino had testified
to the matter contained in the affidavit, we are satisfied that
Perez has not shown prejudice sufficient to call for the vacating
of Perez's convictions.
B. MOTION FOR NEW TRIAL
The Cisneroses argue that the district court erred in denying
the motion for new trial based on the prosecution's failure to
disclose exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83, 87, 83 S.Ct. 1194, 1196 (1963).6 More specifically,
relying on Trevino's aforementioned affidavit, the Cisneroses
assert that the prosecution failed to disclose evidence to the
5
That trial involved an unrelated charge of conspiracy with
intent to distribute seven and one-half tons of marijuana.
6
Perez also argues that the district court erred in denying
his motion for new trial. In support of this claim, Perez relies
on the same arguments that he made to show prejudice in the context
of his Speedy Trial Act violation. For the same reasons we found
those arguments unavailing, we find that the district court did not
abuse its discretion in denying his motion for new trial.
7
defense that a deputy sheriff was involved in marijuana
trafficking. We review a district court's denial of a motion for
new trial for abuse of discretion. United States v. Adi, 759 F.2d
404, 407 (5th Cir. 1985).
After conducting an evidentiary hearing, the court below
rejected the Brady claim, opining as follows:
None of the witnesses called by the Defendant could
corroborate the statements contained in the affidavit; in
fact, every witness testified to evidence contrary to
that in the affidavit. Additionally, the witnesses'
notes, taken during the debriefings in question,
conformed with the witnesses' present testimony. Thus,
the Court concludes the evidence tends to show the
prosecution did not withhold exculpatory information,
since all the testimony offered, save that contained in
the affidavit, controverts the Defendants' allegations
that the prosecution was given this information.
(emphasis added).
The Cisneros brothers do not address the district court's
finding that the prosecution did not withhold any exculpatory
evidence. The district court's finding is supported by the record.
Although Trevino asserts in his affidavit that during the
debriefings he gave detailed information regarding the deputy
sheriff's involvement in drug dealing; the evidence at the hearing,
which the district court believed, indicated Trevino claimed that
he never personally dealt with the deputy sheriff and that it was
simply "common knowledge" that the deputy sheriff dealt in drugs.
Under those circumstances, we cannot say the district court erred
in finding that no exculpatory evidence was suppressed.
In any event, assuming arguendo that exculpatory information
was withheld, we find that the information was not material. The
Cisneros brothers arguments regarding the materiality prong of
8
Brady are rather vague and speculative. They essentially argue
that the deputy sheriff's testimony, no matter how insignificant,
undermined the verdict because the witness was a "dirty cop." We
reject this argument. The hearsay or second-hand assertions
regarding the deputy sheriff's involvement in illegal drugs do not
rise to the level of the materiality standard required to establish
a successful Brady claim. See Kyles v. Whitley, 514 U.S. 419, 115
S.Ct. 1555 (1995). We conclude that the district court did not
abuse its discretion in denying the motion for new trial.
C. MOTION TO SUPPRESS
Javier Cisneros argues that the district court erred in
denying the motion to suppress evidence seized from his residence.
He argues that the affidavit used to obtain the warrant did not
provide probable cause. "Our review of a district court's denial
of a motion to suppress evidence seized pursuant to a warrant is
limited to (1) whether the good-faith exception to the exclusionary
rule applies, and (2) whether the warrant was supported by probable
cause." United States v. Alix, 86 F.3d 429, 435 (5th Cir. 1996).
We need not address the probable cause inquiry if the good-faith
exception applies. Id.
"[E]vidence obtained by officers in objectively reasonable
good-faith reliance upon a search warrant is admissible, even
though the affidavit on which the warrant was based was
insufficient to establish probable cause." United States v.
Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992) (citing United
States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 3420 (1984)).
"An officer may rely in good faith on the validity of a warrant so
9
long as the warrant is supported by more than a `bare bones
affidavit.'" Alix, 86 F.3d at 435. An affidavit is "bare bones"
if it so deficient in demonstrating probable cause that it renders
an officer's belief in its existence completely unreasonable.
Satterwhite, 980 F.2d at 320-21.
In the case at bar, the affidavit supporting the application
for a warrant to search Javier's residence was not a "bare bones"
affidavit. The affidavit was executed by a special agent of the
DEA. It provided a detailed description of the premises to be
searched and summarized the affiant's years of experience as a DEA
agent. It also explained why, based on the agent's experience, he
expected to find evidence of drug trafficking on the premises.
The affidavit provided that the affiant's investigation had
uncovered the Belmontes family's large scale marijuana operation.
"As part of the scheme[,] various . . . persons hired the BELMONTES
to transport marijuana for them and others worked with the
BELMONTES to arrange safe routes around the Border Patrol
Checkpoints which are located on roads leading away from the United
States/Mexican Border. These safe routes utilize back roads and
ranch roads throughout South Texas."
The affidavit then provided information from a confidential
informant. This information tied the Cisneros brothers to the
Belmontes organization. More specifically, details were set forth
regarding the Cisneroses' involvement in transporting loads of
marijuana on two occasions. Additionally, the Cisneroses purchased
a Ford pick-up truck and had the bill of sale put in another
individual's name. A few months later, this particular truck was
10
seized. The truck contained 526 pounds of marijuana. The affiant
then stated that "[t]he information provided by [the confidential
informant] has been corroborated by other sources and his
information is a result of his active participation in the
BELMONTES drug organization."
Javier challenges the sufficiency of the affidavit, arguing
that "it fails to identify the basis of knowledge of the
confidential source's information, fails to sufficiently establish
the confidential source's reliability and credibility, and fails to
establish sufficient police corroboration." Contrary to Javier's
argument, the affidavit provides that the informant's knowledge was
gained as a result of his active participation in the Belmontes'
drug organization. Moreover, "[u]ncertainty about the veracity of
an informant can also be compensated for by detail of the statement
or internal consistency of the statement and surrounding facts."
United States v. Privette, 947 F.2d 1259, 1262 (5th Cir. 1991),
cert. denied, 503 U.S. 912, 112 S.Ct. 1279 (1992). The agent
specifically averred that the information provided by the
confidential informant had been corroborated by other sources.
The affidavit contained more than "bare bones" assertions. It
furnished adequate "information to allow the conclusion that a fair
probability existed that seizable evidence would be found" on
Javier's premises. United States v. Restrepo, 994 F.2d 173, 189
(5th Cir. 1993). The law enforcement officers' reliance on the
warrant was objectively reasonable, rendering the good-faith
exception applicable. The district court did not err in denying
Javier's motion to suppress.
11
D. OBSTRUCTION OF JUSTICE
The Cisneroses argue that the district court erred by
increasing their respective offense levels by two for obstruction
of justice pursuant to U.S.S.G. § 3C1.1. A district court's
determination that a defendant has obstructed justice is a factual
finding review for clear error. United States v. Winn, 948 F.2d
145, 161 (5th Cir. 1991), cert. denied, 503 U.S. 976, 112 S.Ct.
1599 (1992). A district court's finding will not be deemed to be
clearly erroneous unless this court is "left with the definite and
firm conviction that a mistake has been committed." United States
v. Pofahl, 990 F.2d 1456, 1480 (5th Cir.), cert. denied, 510 U.S.
898, 114 S.Ct. 266 (1993) (citations omitted).
Section 3C1.1 of the sentencing guidelines provides:
If the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the investigation, prosecution, or
sentencing of the instant offense, increase the offense
level by 2 levels.
The commentary provides that "escaping or attempting to escape from
custody before trial or sentencing" is an example of the type of
conduct that would trigger the application of this enhancement. §
3C1.1, comment. (n.3(e)).
It is undisputed that, while awaiting sentencing in the
instant case, the Cisneroses were indicted for attempted escape.
The presentence report (PSR) of both the Cisneroses provided that:
According to Brownsville FBI Agent Raul Carballido, there
is evidence to show that both defendants actively
participated in a conspiracy with family members and
others to attempt their escape from the Cameron County
Jail. . . . According to DEA Special Agent Larry
Councilman, the Cisneros brothers bribed a jail guard to
facilitate their escape. Furthermore, evidence shows
12
that a cellular phone was found in their possession that
was apparently smuggled in by family members.
The district court adopted the PSR. In light of the Cisneroses'
failure to offer any rebuttal evidence, the district court was free
to adopt the facts in the PSR without further inquiry. United
States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).7
The Cisneroses further argue that the district court failed to
make a finding that their attempt to obstruct justice was "willful"
as required under § 3C1.1. We have been unable to locate any
specific objection in the record to the district court's failure to
find that the Cisneroses conduct was "willful." In any event,
because there is evidence that the appellants conspired with others
to attempt their escape, we are satisfied that the appellants
"voluntarily and intentionally" attempted to escape, which
satisfies the "willfullness" requirement under § 3C1.1.8 The
district court did not clearly err in finding that the Cisneroses
obstructed justice under § 3C1.1.
E. DEFERRED ADJUDICATION AS A PRIOR CONVICTION UNDER § 841
Juan Cisneros was convicted of conspiring to possess with
intent to distribute in excess of 1,000 kilograms of marijuana in
violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A).
7
Because there is arguably some tension in this circuit's
precedent regarding whether an indictment may be used to support a
sentencing court's findings, United States v. Williams, 22 F.3d
580, 582 n.9 (5th Cir.), cert. denied, 513 U.S. 951, 115 S.Ct. 367
(1994), we rely only on the representations made by the agents.
8
Cf. United States v. O'Callaghan, 106 F.3d 1221, 1223 (5th
Cir. 1997) (explaining that our review of record left us unable to
determine whether the defendant "willfully" failed to appear for
trial).
13
Section 841(b)(1)(A) provides that "[i]f any person commits a
violation of this subparagraph . . . after two or more prior
convictions for a felony drug offense have become final, such
person shall be sentenced to a mandatory term of life imprisonment
without release . . . ." Pursuant to this provision, the district
court sentenced Juan Cisneros to life imprisonment. He argues that
one of his previous felonies, a deferred adjudication, was not a
"prior conviction" within the meaning of § 841(b)(1)(A). This
issue is one of first impression in this circuit.
Juan Cisneros properly concedes that, in the absence of clear
language to the contrary, federal law governs the application of
federal legislation. See United States v. Vasquez-Balandran, 76
F.3d 648, 650 (5th Cir. 1996). In United States v. Morales, 854
F.2d 65, 68 (5th Cir. 1988), we concluded that the meaning of the
phrase "have become final" in 21 U.S.C. § 841(b)(1)(B) was a
question of federal law rather than state law. We explained that
state law could be looked to "for informational purposes, but we
are not bound by its treatment of a felony conviction when we apply
the federal sentence-enhancement provisions." Id.
In Texas state court, Juan Cisneros received deferred
adjudication for felony possession of marijuana pursuant to Tex.
Code Crim. Proc. art. 42.12, § 3d(a),9 which provided that:
When in its opinion the best interest of society and the
defendant will be served, the court may, after receiving
a plea of guilty or plea of nolo contendere, hearing the
evidence, and finding that it substantiates the
9
A subsequent reconfiguration of this statute moved the
deferred adjudication provisions to section 5. See Tex. Code Crim.
Proc. 42.12, § 5.
14
defendant's guilt, defer further proceedings without
entering an adjudication of guilt, and place the
defendant on probation on reasonable terms and conditions
. . . .
He now argues that the district court erred in determining that his
prior state deferred adjudication was a "prior conviction" for the
purposes of 21 U.S.C. § 841(b)(1)(A). In the court below, Juan
Cisneros argued that because he had successfully completed his two-
year deferred adjudication probation, it was an excludable drug
offense and could not be used to enhance his punishment to a
mandatory life sentence under § 841(b)(1)(A). The district court
disagreed, ruling that this Court's decision in United States v.
Giraldo-Lara, 919 F.2d 19 (5th Cir. 1990), precluded it from
finding that the previous deferred adjudication was not a prior
conviction.
In that case, we concluded that a Texas deferred adjudication
probation counted as a "prior sentence" pursuant to U.S.S.G. §
4A1.2(a)(1) when calculating a defendant's criminal history score.
This holding was based on the following language in the guidelines:
Diversion from the judicial process without a finding of
guilt (e.g., deferred prosecution) is not counted. A
diversionary disposition resulting from a finding or
admission of guilt, or a plea of nolo contendere, in a
judicial proceeding is counted as a sentence under §
4A1.1(c) even if a conviction is not formally entered,
except that diversion from juvenile court is not counted.
U.S.S.G. § 4A1.2(f). As previously set forth, deferred
adjudication in Texas requires that a defendant first plead guilty
or nolo contendere. Art. 42.12 § 3d(a). Therefore, applying the
plain language of § 4A1.2(f), it was clear that a deferred
adjudication was a "prior sentence" for purposes of calculating a
15
defendant's criminal history score. Although perhaps instructive,
Giraldo-Lara is not dispositive of the issue at bar, i.e., whether
a deferred adjudication constitutes a "prior conviction" under 21
U.S.C. § 841(b)(1)(A).10
The Government asserts that holding that Juan's deferred
adjudication was such a "prior conviction" would promote the policy
that defendants who obtain the advantage of a rehabilitative
sentence but nevertheless continue to commit crimes should not
receive further leniency. See § 4A1.2, comment. (n.9). This
policy concern was expressed in the opinions of our sister circuits
that have decided that deferred adjudications or probated sentences
constitute convictions in the context of § 841. See United States
v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995); United States v.
Meraz, 998 F.2d 182, 184-85 (3d Cir. 1993); United States v.
Campbell, 980 F.2d 245, 249-51 (4th Cir. 1992), cert. denied, 508
U.S. 952, 113 S.Ct. 2446 (1993); see also United States v.
McAllister, 29 F.3d 1180, 1184-85 (7th Cir. 1994).
In making that determination, several of the circuits were
guided by the Supreme Court's opinion in Dickerson v. New Banner
Institute, 460 U.S. 103, 103 S.Ct. 986 (1983). Mejias, 47 F.3d at
403; McAllister, 29 F.3d at 1184-85; Campbell, 980 F.2d at 251. In
10
Similarly, in United States v. Stauder, 73 F.3d 56 (5th
Cir. 1996), relying on the above-quoted language in § 4A1.2(f),
this Court held that a Texas deferred adjudication was a conviction
for purposes of determining a defendant's base offense level under
§ 2K2.1. We recognized that "[a]lthough § 2K2.1 uses the term
`conviction,' it refers specifically to the criminal history
provisions, which . . . include deferred adjudications such as
Stauder's in calculating a defendant's criminal history score."
Id. at 57. Like Giraldo-Lara, Stauder may be informative, but it
does not control the disposition of this case.
16
Dickerson, the Supreme Court determined that the defendant's prior
guilty plea was a conviction that could be used to deny him a
license to deal firearms under 18 U.S.C. § 922(g). That section
"impose[d] disabilities on one convicted of a `crime punishable by
imprisonment for a term exceeding one year.'" Dickerson, 460 U.S.
at 113, 103 S.Ct. at 992 (emphasis omitted). There, the defendant
had pleaded guilty in Iowa state court to the crime of carrying a
concealed handgun, and the state court "deferred" entry of formal
judgment and placed him on probation. After the completion of his
term of probation, the defendant was discharged and his record
expunged.
The Court explained that "`[a] plea of guilty differs in
purpose and effect from a mere admission or an extrajudicial
confession; it is itself a conviction. Like a verdict of a jury it
is conclusive. More is not required; the court has nothing to do
but give judgment and sentence.'" Id. at 112-13, 103 S.Ct. at 992
(quoting Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct.
582, 583 (1927)). The Court determined that "for purposes of the
federal gun control laws, we equate a plea of guilty and its
notation by the state court, followed by a sentence of probation,
with being `convicted' within the language of §§ 922(g) and (h)."
Id. at 113, 103 S.Ct. at 992. Finally, the Court opined that the
expunction under Iowa law did not change "the historical fact of
the conviction." Id. at 114-15, 103 S.Ct. at 993.
In the case at bar, after receiving Juan Cisneros's guilty
plea and hearing the evidence, the state trial court had to find
that the evidence substantiated Cisneros's guilt in order to defer
17
the proceedings without entering an adjudication of guilt. Art.
42.12 § 3d(a). Applying the reasoning of Dickerson, we conclude
that Juan Cisneros's guilty plea that resulted in a deferred
adjudication was a "prior conviction" for purposes of sentence
enhancement under § 841(b)(1)(A). The district court properly
sentenced him to life imprisonment.
F. SUFFICIENCY OF THE EVIDENCE
Finally, all three appellants make weak challenges to the
sufficiency of the evidence to support their convictions. We find
no merit in their arguments.
Perez first argues that the Government failed to prove as to
count 10 (unlawful possession of in excess of 100 kilograms of
marijuana on March 7, 1992) that he ever "possessed" the amount of
drugs specified in the indictment. Perez concedes that over 1,000
pounds of marijuana was seized at Israel Cardenas's11 house, but
asserts that Arnoldo Belmontes' trial testimony attributed directly
to him only "40 pounds" (roughly 18 kilograms) of the marijuana.
Perez also generally alleges that the evidence was insufficient to
prove he possessed any amount, but that at most it was forty
pounds. Perez’s argument is unavailing because the issue here is
not ownership, however that may have been decided among the
conspirators, but "possession," be it actual or constructive. See
United States v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th Cir.
1989) (defining "constructive possession as the knowing exercise
11
Cardenas testified that because he needed money, he stored
over 1,000 pounds of marijuana at his house for the Belmontes. In
exchange for his testimony at trial, the Government did not file
charges against Cardenas.
18
of, or the knowing power or right to exercise dominion and control
over the prescribed substance") (citation and internal quotation
omitted). Viewed in the light most favorable to the Government,
the evidence is sufficient to show that Perez constructively
possessed marijuana in relation to count 10. A reasonable juror
could have easily found the elements of the offense beyond a
reasonable doubt.
Perez next claims that the Government failed to prove the
amount of drugs alleged in count 11 (unlawful possession of in
excess of 1000 kilograms). Perez claims that in Stipulation No. 4,
the Government stipulated that 271 kilograms and 660 kilograms of
marijuana were seized on March 24, 1992; this total of 931
kilograms is less than that charged in the offense. Contrary to
Perez's argument, this Court has held that "[p]roof of the quantity
of controlled substances at issue is not an element of an offense
under 21 U.S.C. §§ 841(a) and 846." United States v. Montes, 976
F.2d 235, 240 (5th Cir. 1992), cert. denied, 507 U.S. 1024, 113
S.Ct. 1831 (1993). Therefore, Perez's argument that the evidence
was insufficient to sustain his conviction for count 11 necessarily
fails.
In regard to count 12, which involved unlawful possession of
in excess of 100 kilograms of marijuana "in or about August, 1992,"
Perez alleges that no testimony established the exact month in
which the “drug caravan” which was the subject of this indictment
occurred. Perez acknowledges that a driver involved in the
incident alleged in count 12, testified, albeit pursuant to
"leading questions," that Perez acted as a guide several months
19
after the March 24, 1992 incident alleged in count 11. "It is
sufficient if the evidence demonstrates a date reasonably near the
date alleged in the indictment." United States v. Bowman, 783 F.2d
1192, 1197 (5th Cir. 1986).12 Perez's sufficiency argument as to
count 12 fails as well.
The Cisneroses complain that their convictions were based
entirely upon the uncorroborated testimony of a number of
coconspirators who had made deals with the Government and that the
resulting convictions are so unreliable they cannot stand. Their
argument focuses not on the quantity of the evidence but rather the
quality of the evidence.
The law in this circuit is that a conviction may be sustained
on the uncorroborated testimony of an accomplice or of a person who
has entered into a plea bargain with the Government. United States
v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991). Although the
Cisneros brothers acknowledge our precedent, they nevertheless
persist in their claims. They present nothing to indicate that
Osum should not apply to this case. Moreover, the telephone
records and the testimony of law enforcement officers regarding
12
Perez also challenges the sufficiency of the evidence on
count 17, the conspiracy count. Perez argues that the indictment
charges him with conspiring with a dozen individuals to traffick in
marijuana, but that at trial the only conspirator he was ever
linked to was Arnoldo Belmontes. Perez claims that the Government
did not prove the conspiracy alleged, but rather proved several
smaller conspiracies, only one of which included him but all of
which contained the common ingredient of Arnoldo Belmontes.
Contrary to Perez's assertion, viewing the evidence in the light
most favorable to the government, the evidence was not such that it
would preclude reasonable jurors from finding a single conspiracy
beyond a reasonable doubt. United States v. Morris, 46 F.3d 410,
415 (5th Cir.), cert. denied, __ U.S. __, 115 S.Ct. 2595 (1995).
20
seizures of vehicles containing drugs circumstantially supported
the coconspirator testimony. The Cisneroses elicited details of
each witnesses' arrangement with the Government on cross-
examination in front of the jury; no more is required. See United
States v. Jaras, 86 F.3d 383, 387-88 (5th Cir. 1996).13
Regarding the money laundering count, the Government relies
upon the Cisneros brothers' purchase of a truck for cash, the
titling of that truck in another's name, and the use of that truck
for drug transportation. The evidence is sufficient on all counts.
AFFIRMED.
13
The Cisneroses further suggest that the district court
erred by not instructing the jury that corroboration of the
coconspirators' testimony was needed. The court did instruct the
jury that it should consider with great care the accomplice
testimony. In any event, in light of our precedent, the Cisneroses
have not shown that the district court erred.
21