IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 95-50055
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ALFREDO GAYTAN, JESUS GREGARIO MACIAS-MUNOZ, a/k/a Jesse Macias,
and RENE GANDARA-GRANILLO,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________
January 23, 1996
Before GARWOOD, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The defendants appeal their convictions and sentences on a
number of charges arising from their involvement in a massive drug
trafficking conspiracy. We affirm in part, reverse in part, vacate
in part, and remand for resentencing.
I.
Between June 1988 and June 1992, Rene Gandara-Granillo
(“Gandara”) and Jesse Macias-Munoz (“Macias”) were the leaders of
a large-scale cocaine operation based in El Paso, Texas. Besides
trafficking in cocaine, they arranged the kidnapping, torture, and
interrogation of several of their associates who failed to account
for missing cocaine or funds. Alfredo Gaytan was a lower-level
operative in the conspiracy who participated in several meetings
involving the drug transactions, and on at least one occasion
stored and counted large quantities of cocaine at his residence.
Altogether, the conspirators may have moved over 8,000 kilograms of
cocaine during the course of several years.
A federal investigation utilized undercover agents, extensive
surveillance, wiretapping of the defendants' cellular phones,
information provided by coconspirator, and the co-conspirators’
post-arrest statements. The investigation culminated in an eleven-
count indictment charging the defendants with conspiracy to import
cocaine (count one), conspiracy to possess cocaine with intent to
distribute (count two), money laundering (counts three through
seven), conspiracy to kidnap (counts eight and nine), and use of a
telephone with intent to commit a crime of violence (counts ten and
eleven). Counts one and two named thirteen coconspirators and
referred to others “known and unknown.”
After a lengthy trial, Macias was found guilty on counts one,
two, three, six, eight, nine, ten, and eleven; Gandara was found
guilty on counts two, four, five and eight; and Gaytan was found
guilty on count two but acquitted as to count one. Macias and
Gandara were sentenced to life imprisonment, while Gaytan received
a 188-month sentence.
2
II. Alleged Errors in the Indictment
Counts one and two charged criminal conspiracy. The defen-
dants assert that their convictions on these counts must be
reversed because (1) the indictment failed to provide adequate
notice of the charges; (2) there was a fatal variance between the
indictment and the evidence produced at trial; and (3) the district
court refused their requested multiple conspiracy instruction.
A. Adequate Notice of the Charges
We review the sufficiency of an indictment de novo. United
States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993), cert. denied, 114
S. Ct. 1124 (1994). We will not reverse convictions for minor
deficiencies in the indictment that cause no prejudice. United
States v. Flores, 63 F.3d 1342, 1360 (5th Cir. 1995); United States
v. Chappell, 6 F.3d 1095, 1099 (5th Cir. 1993), cert. denied, 114
S. Ct. 1235, and cert. denied, 114 S. Ct. 1235 (1994).
The defendants complain that counts one and two are "factually
barren" and violate both FED. R. CRIM. P. 7(c)(1) and the Sixth
Amendment, because "[a]llegations such as time, dates, places and
persons involved and specific criminal acts, [sic] necessary to
know the nature of the charges and prepare a defense simply are
lacking." More particularly, the defendants argue that their
attorneys could not adequately investigate the circumstances or the
persons involved in any of the specific transactions involved in
the alleged conspiracy.
The Sixth Amendment requires that an indictment (1) enumerate
3
each prima facie element of the charged offense; (2) fairly inform
the defendant of the charges filed against him; and (3) provide the
defendant with a double jeopardy defense against future prosecu-
tions. United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991),
cert. denied, 503 U.S. 939 (1992). The dictates of FED. R. CRIM P. 7
are essentially the same. See United States v. Ellender, 947 F.2d
748 (5th Cir. 1991); see also Nevers, 7 F.3d at 62.
In Ellender, defendants convicted of conspiracy to import
marihuana challenged the sufficiency of the indictment for failure
to specify the time, location, and precise dates of acts involved
in the conspiracy. We held that the indictment language "'commenc-
ing in or about the month of July, 1982, and continuing through the
month of August, 1984 . . .'" was sufficient. Id. at 755-56 ("The
precise dates on which the appellant committed the alleged acts are
not necessary."). We also held that the language "in the Western
District of Louisiana, and elsewhere" was sufficient to identify
the location of the conspiracy. Id. The language of the indict-
ment before us is nearly identical and therefore sufficient.1
Nor is it fatal that the indictment failed to identify
specific criminal acts constituting the alleged conspiracy. The
purpose of the indictment is to provide the defendant with notice
1
The defendants rely upon United States v. Cruikshank, 2 Otto (92
U.S.) 542 (1875), to support their argument. But our holding in Ellender takes
Cruikshank into consideration, at least derivatively. Ellender is the progeny
of United States v. Gordon, 780 F.2d 1165 (5th Cir. 1986), which explicitly
considered Cruikshank before concluding that "the language of the statute may
guarantee sufficiency if all required elements are included in the statutory
language." Id. at 1171; see United States v. Lavergne, 805 F.2d 517, 521 (5th
Cir. 1986) (relying on Gordon); Ellender, 947 F.2d at 755-56 (relying on
Lavergne).
4
of the offense with which he is charged. See United States v.
Hagmann, 950 F.2d 175, 182 (5th Cir. 1991), cert. denied, 506 U.S.
835 (1992). "[A]n indictment need not allege an overt act in
furtherance of the conspiracy if the indictment alleges a conspir-
acy to distribute drugs, the time the conspiracy was operative, and
the statute allegedly violated." United States v. Khan, 728 F.2d
676, 681 (5th Cir. 1984).
While the defendants complain of the indictment's failure to
identify unindicted coconspirators, they concede that the prosecu-
tion produced a list of forty-seven individuals five days prior to
trial pursuant to an order by the district court. Five days’
notice is certainly less than ideal, but the defendants cite no
cases requiring that the indictment name unindicted coconspirator,
nor do they provide evidence of any prejudice arising from the
government's failure to disclose these names earlier. We therefore
find no error.
B. Fatal Variance
The defendants maintain that a fatal variance existed between
the evidence presented at trialSSwhich they allege demonstrated the
existence of six separate conspiraciesSSand the indictment, which
alleged a single conspiracy. We may reverse a conviction when the
defendant both proves a variance between the government's evidence
at trial and the allegations in the indictment and demonstrates
that the variance prejudiced his substantial rights. United States
v. Morris, 46 F.3d 410, 414 (5th Cir.), cert. denied, 115 S. Ct.
5
2595, and cert. denied, 115 S. Ct. 2595 (1995); United States v.
Puig-Infante, 19 F.3d 929, 935-36 (5th Cir.), cert. denied, 115
S. Ct. 180 (1994). We find no variance between the indictment and
the evidence adduced at trial, and we therefore do not consider
whether the defendants' substantial rights were prejudiced.
"We must affirm the jury's finding that the government proved
a single conspiracy unless the evidence and all reasonable
inferences, examined in the light most favorable to the government,
would preclude reasonable jurors from finding a single conspiracy
beyond a reasonable doubt." United States v. De Varona, 872 F.2d
114, 118 (5th Cir. 1989). To establish the existence of a drug
conspiracy, the government must prove "(1) the existence of an
agreement between two or more persons to violate the narcotics
laws; (2) that each conspirator knew of the conspiracy and intended
to join it; and (3) that each alleged conspirator participated in
the conspiracy." Morris, 46 F.3d at 414-15. Among the factors to
be considered in determining whether a single conspiracy was proven
by the government are (1) the existence of a common goal, (2) the
nature of the scheme, and (3) whether the participants overlapped.
Id. at 415; Puig-Infante, 19 F.3d at 936.
The evidence was sufficient to support a finding of a single
conspiracy under the above standard. The common goal of the
conspiracy was financial gain through the importation and distribu-
tion of cocaine from El Paso to California. The evidence demon-
strated that each defendant played a particular role in the
conspiracy. Intercepted conversations between Macias and Gandara,
6
viewed in combination with testimony and tape recordings of each of
them regarding other transactions, suggests that they were heavily
involved in the planning and distribution of the cocaine. There
was evidence that Gaytan counted and stored 115 kilograms of
cocaine at his home at Macias's direction. Macias was also
involved with the storage of money at Gaytan's residence. Taken in
conjunction, the evidence demonstrates significant overlap between
the defendants, with each performing special functions critical to
the overall success of the enterprise. A reasonable juror
considering this evidence could find that a single conspiracy
existed. See Morris, 46 F.3d at 416 (holding that "the existence
of a single conspiracy will be inferred where the activities of one
aspect of the scheme are necessary or advantageous to the success
of another aspect or to the overall success of the venture").
III. The Multiple Conspiracy Instruction
The defendants next argue that the court erred by denying
their request to give the Fifth Circuit Pattern Jury Instruction.
We review a refusal to give a requested jury instruction for abuse
of discretion. Morris, 46 F.3d at 418. We reverse only if the
proposed instruction is (1) substantively correct, (2) was not
substantially covered in the charge actually delivered to the jury,
and (3) concerns an important point in the trial so that failure to
give it seriously impaired the defendant's ability to present a
defense effectively. Id. at 418-19; United States v. Storm, 36
F.3d 1289, 1294 (5th Cir. 1994), cert. denied, 115 S. Ct. 1798
7
(1995).
The substance of the requested instruction was adequately
covered by the charge. The court departed from the Pattern Jury
Instruction to offer a more precise one because more than one
conspiracy count was alleged in the indictment. In doing so, the
court did not abuse its discretion.
IV. The Roving Wiretap
Much of the government's evidence consisted of tape recordings
and transcripts of the defendants' cellular telephone conversations
obtained through a wiretap. Macias and Gandara contend that the
district court erred by denying their motions to suppress that
evidence. They argue that the "roving wiretap" provision of 18
U.S.C. § 2518(11)(b), which the government relied on when obtaining
the wiretap order, violates the Fourth Amendment. If the provision
is constitutional, they maintain the district court nonetheless
should have suppressed the conversations because the government
failed to comply with the statutory requirements for a roving
wiretap.
A. Constitutionality of the Roving Wiretap Provision
The defendants argue that a roving wiretap violates the
particularity requirement of the Fourth Amendment because it
authorizes interceptions without requiring the government to
identify the place of interception in the warrant. Only the Ninth
Circuit has addressed the constitutionality of the roving wiretap
8
provision, and it found the provision acceptable. See United
States v. Petti, 973 F.2d 1441 (9th Cir. 1992), cert. denied, 113
S. Ct. 1859 (1993); see also United States v. Bianco, 998 F.2d
1112, 1122-24 (2d Cir. 1993) (upholding constitutionality of
"roving bugs" to intercept oral communications not transmitted via
wire or electronic means on similar grounds), cert. denied, 114
S. Ct. 1644 (1994). Petti noted that § 2518 permits only surveil-
lance of telephone facilities used by a speaker identified in the
wiretap order and excuses the identification of particular
telephone facilities only if the government establishes that the
person to be intercepted has attempted to evade surveillance by
changing facilities. Petti, 973 F.2d at 1445. We find Petti
persuasive and join the Ninth Circuit in finding the roving wiretap
provision constitutional.
B. Conformity with Statutory Requirements
The defendants next argue that the government failed to comply
with the requirements of § 2518. First, they complain that the
wiretap order itself allowed the interception of conversations of
persons not identified in the order. As a result, they argue that
conversations between parties not specifically named in the order
were intercepted by federal agents. They also maintain that the
government failed to follow procedures to minimize the interception
of such conversations. Second, the defendants assert that the
affidavit submitted by the government in support of its application
was insufficient to demonstrate that the defendants had attempted
9
to evade surveillance. The defendants suggest that the proper
remedy for these deficiencies is the suppression of all intercepted
communications.
It is true that the order allowed the interception of
telephone conversations that did not involve a person specifically
named in the order. As written, the order permitted the
"intercept[ion of] wire communications of JESUS GREGORIO MACIAS-
MUNOZ, aka Jesse Macias, Tocayo; . . . RENE GANDARA-GRANILLO, aka
Compa, Compira; . . . and others yet unknown" (emphasis added).
The government contends that this was a mere clerical error and
that the order should have read "with others yet unknown." It is
also true that the government intercepted many phone calls that did
not involve any of the parties specifically named in the order,
though it maintains that it properly screened calls and terminated
interception when it became apparent that none of the named parties
was involved in the conversation.
Even assuming the order to be overly broad and some of the
interceptions to have been improper, the district court corrected
the matter by excluding from evidence "[i]nterceptions from the
cellular telephones not involving at least one of these individuals
[named in the wiretap order] as a party to the conversation." The
exclusionary rule does not require the exclusion of those
conversations that were properly intercepted as well. See United
States v. Morris, 977 F.2d 677, 682 (1st Cir. 1992) (holding
partial suppression sufficient where search warrant valid as to
some items but not as to others), cert. denied, 113 S. Ct. 1588
10
(1993); United States v. Baldwin, 987 F.2d 1432, 1436 (9th Cir.)
(holding that only items seized pursuant to invalid portions of
warrant must be suppressed), cert. denied, 113 S. Ct. 2948 (1993).
The defendants' second argumentSSthat the government did not
demonstrate that the defendants had engaged in conduct to thwart
surveillanceSSalso fails. The affidavit of Elias Hernandez
supporting the government's request for the wiretap order indicated
that the defendants had engaged in a pattern of changing cellular
phone numbers in an effort to avoid surveillance.
V. The Admission of Gaytan's Post-Arrest Statement
Gaytan argues that the district court erred by admitting his
statement to an FBI agent following his arrest on February 4, 1993,
that he had stored cocaine at his house for Jaime Carrera
approximately six months earlier. Gaytan urges that this statement
was inadmissible because it referred to a period not named in the
indictment and was therefore evidence of another crime. He also
contends that it was obtained in violation of his Sixth Amendment
right to counsel.
We review the admission of Gaytan's statement under the
evidence rules for plain error, as Gaytan failed to raise an
objection at trial. See, e.g., United States v. Vaquero, 997 F.2d
78, 83 (5th Cir.), cert. denied, 114 S. Ct. 614 (1993). We
conclude that it was not plain error for two reasons. First, FED.
R. EVID. 404(b) allows the admission of evidence of other crimes to
establish "proof of motive, opportunity, intent, preparation, plan,
11
knowledge, identity, or absence of mistake or accident," although
such evidence is inadmissible "to prove the character of a person
in order to show action in conformity therewith." It was within
the court's discretion to determine whether the government sought
to admit the statement for the former, legitimate reason or the
latter, inappropriate one. Furthermore, Gaytan's statement may
have been admissible because it referred to a vague time period.
Gaytan indicated that he had stored cocaine with Carrera
"approximately" six months prior to his arrest, or August 4, 1992.
The indictment covers a period ending in June 1992.
"Approximately" implies a margin of error. It is therefore
possible that Gaytan's admission did refer to the period named in
the indictment.
Gaytan's Sixth Amendment claim is equally without merit.
Although the Sixth Amendment right to counsel attaches at
indictment, see Michigan v. Jackson, 475 U.S. 625, 629-30 (1986)
(stating that right to counsel attaches when adversary judicial
proceedings are initiated), the "mere attachment" of Sixth
Amendment rights does not prevent law enforcement officers from
attempting to interrogate the defendant. Montoya v. Collins, 955
F.2d 279, 282 (5th Cir.), cert. denied, 113 S. Ct. 820 (1992). As
long as the defendant is given Miranda warnings, his voluntary
decision to answer questions without invoking the right to counsel
constitutes waiver. Id.
An FBI agent testified at trial that Gaytan was advised of his
right to consult with an attorney before answering any questions
12
and that Gaytan indicated that he understood those rights and
elected to talk with the arresting agent. He therefore waived his
right to counsel.
VI. Failure To Provide a Limiting Instruction
Although most of the evidence presented at trial related to
counts three through eleven, Gaytan was not indicted on those
counts. He maintains that the district court erred by failing to
instruct the jury that it should not consider, against him,
evidence that related solely to counts three through eleven.
Because he failed to request such a limiting instruction, we review
for plain error. United States v. Prati, 861 F.2d 82, 86 (5th Cir.
1988).
Although the court did not issue a limiting instruction, it
did instruct the jury that "[e]ach offense and evidence pertaining
to it should be considered separately." Furthermore, Gaytan's
counsel informed the jury that his client was "charged only with
the first two counts" and that "he's not charged in any kidnapping
counts or using the telephone or money laundering." Although
Gaytan complains that the prosecutor stated in closing arguments
that "they [the defendants] have been involved in tortures, in
abductions, and that is what is at the heart of this case," we do
not believe this statement was prejudicial. The prosector
subsequently clarified that only two personsSSMacias and
GandaraSSwere responsible for the kidnappings and torture. We find
Gaytan's argument without merit because "the charge, considered as
13
a whole, [was not] so clearly erroneous as to result in a
likelihood of a grave miscarriage of justice." Id. (quoting United
States v. Varkonyi, 645 F.2d 453, 460 (5th Cir. Unit A May 1981)).
VII. The Money Laundering Convictions
Macias and Gandara challenge the sufficiency of the evidence
to support their convictions for money laundering under 18 U.S.C.
§ 1956(a)(1)(A)(I). We view the evidence in the light most
favorable to the jury verdict and affirm if a rational trier of
fact could have found that the government proved all essential
elements of the offense beyond a reasonable doubt. Puig-Infante,
19 F.3d at 937. To support a conviction for money laundering under
§ 1956(a)(1)(A)(I), the government must prove that (1) the
defendant conducted or attempted to conduct a financial
transaction, (2) which the defendant then knew involved the
proceeds of unlawful activity, (3) with the intent to promote or
further unlawful activity. Id.; United States v. Morris, 46 F.3d
at 423.
Macias and Gandara maintain that there was insufficient
evidence that they had conducted a "financial transaction" with the
proceeds of unlawful activity. In Puig-Infante, we distinguished
a transaction of funds from mere transportation of funds, noting
that a transaction involved "a purchase, sale, loan, pledge, gift,
transfer, delivery, or other disposition . . . ." 19 F.3d at 938
(quoting 18 U.S.C. § 1956(c)(3)). "[F]or something (not involving
a financial institution or its facilities) to be a transaction, it
14
must be a 'disposition.' 'Disposition most commonly means 'a
placing elsewhere, a giving over to the care or possession of
another.'" Id. (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 654
(1961)). We also observed that funds do not become the proceeds of
drug trafficking until a sale of drugs is completed. Hence, a
transaction to pay for illegal drugs is not money laundering,
because the funds involved are not proceeds of an unlawful activity
when the transaction occurs, but become so only after the
transaction is completed:
However, because the money did not become proceeds of
unlawful activity until the sale of the marihuana was
completed, what the government describes as one
transaction is actually two separate actions: the first,
the sale by the Puigs of the marihuana to the Willises
and their payment to Abigail Puig for same, is a
transaction (and an unlawful one) but is not shown to
have been one which involved the proceeds of unlawful
activity; the second, Abigail Puig's transportation of
the money from Florida to Laredo, involves the proceeds
of unlawful activity but is not a transaction.
Id. at 939.
Applying this standard, we reverse Macias's conviction on
count six and Gandara's conviction on count four. In both cases,
Jorge Aguilera owed Macias money for a drug debt. Macias sent a
third partySSRaul and Gloria Pimentel in one instance and Jaime
Carrera in the otherSSto retrieve the money. The money did not
become the proceeds of drug trafficking, however, until Macias (or
Gandara)2 received it. Nor is there any evidence indicating that
Aguilera obtained the money through unlawful activity. Thus, while
2
The Pimentels were to deliver the money to Macias himself, while
Carrera delivered the money to Gandara.
15
it is true that several transactions took place, none involved the
proceeds of unlawful activity.
We affirm Macias's conviction on count three and Gandara's
conviction on count five. With respect to count three, Macias
contends only that no transaction occurred. He concedes, however,
that there was evidence that he received $2,000,000 from Navarro,
which he then stored at Gaytan's residence, and that Navarro later
retrieved the money. By delivering the proceeds to Gaytan's
residence for storage and later to Navarro at Sunset Motors, Macias
effected a "placing elsewhere" or "giving over to the care or
possession of another" sufficient to establish a disposition of the
funds.
We affirm Gandara's conviction on count five on the basis of
Carrera's testimony that he and his brother delivered the proceeds
of a cocaine sale to Gandara in El Paso. The delivery from Carrera
to Gandara was a transaction, and, because Carrerra obtained the
funds from a drug sale, the transaction involved the proceeds of an
unlawful activity.
VIII. The Kidnapping Counts
Macias and Gandara argue that the district court committed
reversible error by not dismissing the kidnapping counts for
failing to name the alleged victims. We find no merit in this
argument. Although the court did not dismiss the indictment, it
did order the government to identify the victims and the government
complied.
16
The defendants claim prejudice because the court ordered that
the government disclose the victims' names on September 1, less
than two weeks before trial. Any prejudicial delay, however, was
the defendants' own fault, for they waited until August to move for
dismissal. It is true that they requested a bill of particulars in
April, and the court indicated that they were entitled to know the
names of the kidnapping victims,3 but they failed promptly to file
a motion for dismissal when the government did not disclose the
names. We find no reversible error.
IX. Failure Properly To Swear a Witness
Gaytan asserts that the district court committed plain error
by failing properly to swear a government witness. He raised no
objection to this failure at trial, however. It is the general
rule that a defendant who does not object to a failure to swear a
witness at trial waives any right to raise that issue on appeal.
United States v. Perez, 651 F.2d 268, 273 (5th Cir. Unit A July
1981). Gaytan has provided us with no reason to depart from that
rule here. We therefore deem this claim to have been waived.
X. Impeachment Information in the Presentence Reports
The district court conducted an in camera review of the sealed
presentence reports of two government witnesses, Jaime Carrera and
Alejandro Navarro, pursuant to United States v. Jackson, 978 F.2d
3
The court did not actually order the government to disclose the names
until September 1, however.
17
903, 909 (5th Cir. 1992), cert. denied, 113 S. Ct. 2429 (1993).
Macias and Gaytan contend that the court erred in its determination
that the reports contained no impeachment evidence to which they
were entitled. We review for clear error only. See, e.g., United
States v. Mora, 994 F.2d 1129, 1139 (5th Cir. 1993), cert. denied,
114 S. Ct. 417 (1993). We will not reverse unless “there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985). Upon careful
consideration of the pages cited by the defendants in their briefs,
we conclude that the district court's determination was not clearly
erroneous.
XI. Gaytan's Ineffective Assistance of Counsel Claim
Gaytan asserts that he received ineffective assistance of
counsel at trial. He did not raise this claim before the district
court, however, and we generally will not review an ineffective
assistance of counsel claim for the first time on direct appeal.
United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992) (noting
that we consider "'claims of inadequate representation on direct
appeal only in rare cases where the record allow[s] us to fairly
evaluate the merits of the claim'") (quoting United States v.
Higdon, 832 F.2d 312, 314 (5th Cir. 1987), cert. denied, 484 U.S.
1075 (1988)); United States v. Bounds, 943 F.2d 541, 544 (5th Cir.
1991).
While Gaytan alleges several errors that may support a claim
18
of ineffective assistance of counsel, no hearing was held in the
district court to develop a record. Nor is the record sufficient
to resolve the question. We therefore decline to hear this claim,
without prejudice to Gaytan's ability to raise it in a habeas
corpus proceeding.
XI. Sentencing Issues
A. Quantity of Drugs for Calculating Base Offense Level
Macias and Gandara contend that the district court failed to
make adequate findings regarding the quantity of drugs attributable
to them as required by FED. R. CRIM. P. 32(c)(1), which provides that
"[f]or each matter controverted, the court must make either a
finding on the allegation or a determination that no finding is
necessary because the controverted matter will not be taken into
account in, or will not affect, sentencing." Id. At sentencing,
the defendants contested the amount of drugs attributed to them in
the presentence report ("PSR"). The district court then entered a
separate finding with respect to each defendant, stating that a
preponderance of the evidence established that each had been
involved in a conspiracy involving not less then 1,500 kilograms of
cocaine.
Rule 32 does not "'require a catechismic regurgitation of each
fact determined and each fact rejected.'" Puig-Infante, 19 F.3d at
943 (quoting United States v. Sherbak, 950 F.2d 1095, 1099 (5th
Cir. 1992)); see also United States v. Mora, 994 F.2d at 1141 ("The
defendant is generally provided adequate notice of the district
19
court's resolution of the disputed facts when the court merely
adopts the findings of the PSR."). In Puig-Infante, we held that
the district court's findings satisfied rule 32 where the court
expressly had adopted the findings in the PSR regarding the amount
of drugs attributable to the defendant and explained that its
decision to adopt the findings was based upon its assessment of the
testimony presented by the government. 19 F.3d at 943. The facts
of this case are indistinguishable: The court adopted the findings
in the PSR and found that a preponderance of the evidence indicated
that the defendants had been involved in a conspiracy involving
"not less than 1,500 kilograms of cocaine." This satisfied the
rule.
Macias and Gandara also contend that the information relied
upon by the district court did not possess "sufficient indicia of
reliability" as required under U.S.S.G. § 6A1.3(a), p.s. They
assert that the court erred by relying upon quantity calculations
contained in the PSR’s that were based almost entirely on the
unreliable testimony of Jaime Carrera, a coconspirator turned
government witness. They argue that they demonstrated multiple
inconsistencies in Carrera's testimony and that Carrera's status as
a cooperating government witness undermined his credibility.
We review the district court's findings for clear error.4 For
4
See United States v. Young, 981 F.2d 180, 185 n.7 (5th Cir. 1992)
("If the district court's account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as trier of fact, it would have weighed
the evidence differently.") (quoting Anderson v. City of Bessemer City, 470 U.S.
564, 565 (1985) (syllabus)), cert. denied, 113 S. Ct. 1986, and cert. denied, 113
S. Ct. 2454 (1993).
20
purposes of sentencing, "the court may consider relevant
information without regard to its admissibility under the rules of
evidence applicable at trial, provided that the information has
sufficient indicia of reliability to support its probable
accuracy." U.S.S.G. § 6A1.3(a), p.s.; see, e.g., United States v.
West, 58 F.3d 133, 138 (5th Cir. 1995). Even uncorroborated
hearsay evidence may be sufficiently reliable. Id.
The court's findings are not clearly erroneous. While Macias
and Gandara dispute the reliability of Carrera's testimony, they do
not demonstrate that his testimony regarding the quantity of
cocaine was "materially untrue." Young, 981 F.2d at 185 ("The
defendant bears the burden of demonstrating that the information
the district court relied on is 'materially untrue.'"). Much of
Carrera's testimony was corroborated by the testimony of other
witnesses, the defendants' own statements, and wiretap
interceptions. The fact that portions of Carrera's testimony are
uncorroborated is not fatal, especially as Carrera was subject to
extensive cross-examination at trial.
Macias and Gandara finally maintain that due process requires
the government to prove beyond a reasonable doubt the quantity of
drugs attributable to them. We ordinarily apply a preponderance of
the evidence standard to such findings. The defendants urge that
applying the preponderance standard here allows the government to
obtain a mandatory life sentence without complying with the
stricter burden of proof employed in other mandatory life cases.
They argue that the need for the stricter standard of proof is
21
particularly compelling in a case in which only forty-five
kilograms of cocaine were actually seized.
It is well-established that the preponderance standard is the
applicable standard for sentencing purposes. United States v.
Angulo, 927 F.2d 202, 205 (5th Cir. 1991); United States v.
Billingsley, 978 F.2d 861, 866 (5th Cir. 1992), cert. denied, 113
S. Ct. 1661 (1993). The defendants cite no authority holding that
a different standard should apply under these circumstances. In
fact, we recently rejected an argument involving similar facts.
See United States v. Mergerson, 4 F.3d 337, 344 (5th Cir. 1993),
cert. denied, 114 S. Ct. 1310 (1994) (rejecting application of
reasonable doubt standard to quantity finding that required
mandatory life sentence without possibility of release).
Nor is it significant that only forty-five kilograms were
seized. The guidelines specifically state that "[w]here there is
no drug seizure or the amount seized does not reflect the scale of
the offense, the court shall approximate the quantity of the
controlled substance." U.S.S.G. § 2D1.1, comment. (n.12). We
therefore conclude that the court properly calculated the amount of
drugs attributable to Macias and Gandara.
B. Weapon Enhancement
Macias challenges the district court's finding that a two-
level enhancement was warranted for the possession or use of a
dangerous weapon on the drug conspiracy counts, the kidnapping
counts, and the telephone counts. The district court's
22
determination that a weapon was present and that its possession by
a co-conspirator was foreseeable is a factual finding reviewable
for clear error.5
The district court applied the enhancement to the drug
conspiracy counts pursuant to U.S.S.G. § 2D1.1(b)(1). The increase
applies if a dangerous weapon was possessed during the course of
manufacturing, importing, exporting, or trafficking in narcotics,
including attempting or conspiring to do so. Id. If only a
coconspirator possessed a dangerous weapon, the enhancement applies
if his possession was reasonably foreseeable to the defendant.
Sparks, 2 F.3d at 586-87. A court "'may ordinarily infer that a
defendant should have foreseen a codefendant's possession of a
dangerous weapon, such as a firearm, if the government demonstrates
that another participant knowingly possessed a weapon while he and
the defendant committed the offense.'" Id. (quoting United States
v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990)).
The district court expressly stated that it was basing the
enhancement on a confrontation between Macias and Alejandro Navarro
regarding missing proceeds from a drug transaction. Navarro
testified that he saw a gun in the belt of Julio Bustillos, who
accompanied Macias to the confrontation.
Macias argues that the enhancement should not have been
applied because "Navarro did not testify that Macias possessed a
5
United States v. Sparks, 2 F.3d 574, 587 (5th Cir. 1993)
(foreseeability), cert. denied, 114 S. Ct. 720, and cert. denied, 114 S. Ct. 899,
and cert. denied, 114 S. Ct. 1548 (1994); United States v. Fierro, 38 F.3d 761,
775 (5th Cir. 1994) (presence of weapon), cert. denied, 115 S. Ct. 1388, and
cert. denied, 115 S. Ct. 1341 (1995).
23
weapon, knew that [Bustillos] had a gun, or was in a position to
have seen that [Bustillos] possessed a gun." Even if Macias did
not know that Bustillos was carrying a gun, however, the court
could properly infer, from the fact that Bustillos actually had a
gun, that he could have reasonably foreseen that Bustillos would
have one. Sparks, 2 F.3d at 586-87.
Macias also complains that the court improperly applied the
enhancement to the telephone counts. We cannot determine whether
the enhancement should have been applied, however, because the
district court applied the wrong sentencing guideline. The court
adopted the PSR's recommendations in toto on the telephone counts,
although the PSR applied U.S.S.G. § 2E1.4 to those counts. That
section determines the sentence for violations of 18 U.S.C. § 1958
(prohibiting the use of interstate facilities in the commission of
murder-for-hire). The PSR should have applied U.S.S.G. § 2E1.2,
which controls the sentence for violations of 18 U.S.C. § 1952
(prohibiting the use of interstate facilities in aid of a
racketeering enterprise). We therefore vacate Macias's sentence on
counts ten and eleven and remand for resentencing under U.S.S.G.
§ 2E1.2.
Macias finally attacks the district court's finding that an
enhancement was appropriate with respect to the kidnapping counts.
U.S.S.G. § 2A4.1(b)(3) provides for a two-level enhancement for use
of a dangerous weapon in kidnapping, abducting or unlawfully
restraining another. "'A dangerous weapon was used' means that a
firearm was discharged . . . or 'otherwise used.'" Id. at § 2A4.1,
24
comment. (n.2). "'Otherwise used' means . . . that the conduct did
not amount to the discharge of a firearm but was more than
brandishing, displaying or possessing a firearm or other dangerous
weapon.” Id. at § 1B1.1, comment. (n.1(g)).
The kidnapping counts were based on the abduction of Ricardo
Olivares and Humberto Adame. The government presented evidence
that Adame was hit with a gun and that Olivares had a gun put to
his back. It was not clear error for the district court to enhance
Macias's sentence on this basis.
C. Enhancement for Restraint of Victim
Macias and Gandara next complain that the district court erred
by applying a two-level enhancement to their sentences on the
conspiracy counts for the physical restraint of a victim. U.S.S.G.
§ 3A1.3 authorizes a two-level enhancement "[i]f a victim was
physically restrained in the course of the offense." The
defendants argue that the enhancement should not apply to them for
two reasons. First, the persons physically restrained were not
"victims," but coconspirators. Second, it would be impermissible
double counting to apply the enhancement for unlawful restraint and
also to sentence the defendants for kidnapping.
The first argument rests on an narrow construction of the term
"victim" in § 3A1.3. The defendants read "victim" to mean "victim
of the offense." We agree that Olivares and Adame were not
"victims" of the conspiracy offense, and if we read § 3A1.3 to mean
"victims of the offense," the enhancement could not apply. The
25
plain language of § 3A1.3 refers only to "victims," however, and we
believe this means any "victim" of restraint. See United States v.
Vought, 69 F.3d 1498, 1502 (9th Cir. 1995) (interpreting § 3A1.3 in
same manner). We also note that the guidelines do frequently use
the term "victim of the offense," leading us to believe that the
Sentencing Commission may have deliberately chosen not to use that
phrase here.6 The court correctly applied the enhancement because
Olivares and Adame were "victims" of unlawful restraint.
The defendants further argue that application of the
enhancement to the drug conspiracy counts is impermissible double
counting because they also received sentences on the kidnapping
counts. They rely on United States v. Harris, 959 F.2d 246 (D.C.
Cir.), cert. denied, 113 S. Ct. 362, and cert. denied, 113 S. Ct.
362, and cert. denied, 113 S. Ct. 364 (1992), and on application
note 2 to U.S.S.G. § 3A1.3 to support their proposition.
This argument is without merit. Application note 2 states:
Do not apply this adjustment where the offense guideline
specifically incorporates this factor, or where the
unlawful restraint of the victim is an element of the
offense itself (e.g., this adjustment does not apply to
offenses covered by § 2A4.1 (Kidnapping, Abduction or
Unlawful Restraint)).
U.S.S.G. § 3A1.3, comment. (n.2). Unlawful restraint is not an
element of conspiracy to import or distribute drugs, the offense
for which the defendants were sentenced. Application note 2 is
6
See, e.g., U.S.S.G. § 3A1.1 (two-level increase "[i]f the defendant
knew or should have known that a victim of the offense was unusually vulnerable")
(emphasis added); § 3A1.2, comment. (n.1) (three-level increase for official
victim applies "when specified individuals are victims of the offense") (emphasis
added).
26
therefore inapplicable.
Nor does Harris support the defendants' argument. Harris held
that an enhancement for possession of a firearm during a drug
conspiracy did not apply to a defendant who received a separate
sentence for using or carrying a firearm during a drug conspiracy.
Harris, 959 F.2d at 266-67. The court relied upon U.S.S.G.
§ 2K2.4, comment. (n.2), which states:
Where a sentence under this section [for carrying or
using a firearm during a crime] is imposed in conjunction
with a sentence for an underlying offense [the drug
conspiracy], any specific offense characteristic for the
possession, use, or discharge of an explosive or firearm
. . . is not to be applied in respect to the guideline
for the underlying offense.
In contrast, the enhancement for victim restraint is prohibited
only where "unlawful restraint of the victim is an element of the
offense itself." U.S.S.G. § 3A1.3, comment. (n.2).
Double counting is impermissible only where the guidelines at
issue prohibit it. United States v. Box, 50 F.3d 345, 359 (5th
Cir.), cert. denied, 116 S. Ct. 309 (1995), and cert. denied, 64
U.S.L.W. 3466 (U.S. Jan. 8, 1996); United States v. Godfrey, 25
F.3d 263, 264 (5th Cir.), cert. denied, 115 S. Ct. 429 (1994). The
guidelines at issue in Harris did specifically forbid double
counting, but § 3A1.3 does not.7
D. Enhancement for Role in Conspiracy
7
This result is hardly unfair to the defendants. Because their
sentence on the kidnapping counts runs concurrently with their sentence on the
conspiracy counts, and is less than the sentence on the conspiracy counts, it is
only through the enhancement to the conspiracy counts that the defendants will
suffer any penalty for the kidnapping.
27
Macias and Gandara contest the four-level enhancement on all
counts for their leadership roles in the offenses. See U.S.S.G.
§ 3B1.1(a). We review for clear error the finding that the
defendants were leaders or organizers of the conspiracy. United
States v. Ayala, 47 F.3d 688, 689-90 (5th Cir. 1995).
Both defendants argue that they could not have occupied
leadership roles in the conspiracy because others were above them
in the hierarchy of the conspiracy. Gandara maintains that he was
simply a bookkeeper until his brother Jose Luis died in January
1991. Macias argues that he was subordinate to both Jose Luis and
Rene Gandara.
More than one person can qualify as a leader or organizer of
a conspiracy. U.S.S.G. § 3B1.1, comment. (n.4). During the course
of the trial, the government introduced significant evidence that
both Macias and Gandara exercised extensive control over others in
the organization, directing them in the distribution of the
cocaine, the collection of the proceeds, and the kidnapping and
intimidation of others. This evidence was sufficient to support
the determination that they were organizers or leaders of the
conspiracy.
E. Refusal To Grant Downward Departure
Macias and Gandara argue that the district court incorrectly
believed that it lacked the authority to depart downward in
sentencing. See United States v. Stewart, 37 F.3d 1449, 1450 (10th
Cir. 1994); United States v. Isom, 992 F.2d 91, 93 (6th Cir. 1993).
28
At sentencing, they urged the district court to depart downward.
The district court declined to do so, stating:
As far as the departure request, and also the alternative
request that the Court recommend executive clemency
. . . . I don't anticipate doing either one of those
things. On the contrary, I anticipate imposing sentence
within the guideline range on all of the various counts.
In light of this statement, we conclude that the court did
recognize its authority to depart downward.
F. Imposition of Life Imprisonment on Counts Ten and Eleven
The district court imposed a life sentence on Macias with
respect to counts ten and eleven, although the maximum penalty for
those offenses is imprisonment for five years. 18 U.S.C. § 1952.
The government concedes error, so we vacate Macias's sentence with
respect to those counts and remand for resentencing for a period of
no more than five years.
G. The Sentencing of Gaytan as a Minor Participant
Gaytan asserts that the district court erred in finding that
he was a "minor participant" in the conspiracy under U.S.S.G.
§ 3B1.2(b) rather than a "minimal participant" under U.S.S.G.
§ 3B1.2(a). As a result, he received only a two-point reduction in
his base offense level rather than the four-point reduction
afforded a "minimal participant."
The district court's finding on this issue is a factual
determination reviewed only for clear error. United States v.
Valencia, 44 F.3d 269, 272 (5th Cir. 1995). The Sentencing
29
Guidelines indicate that the downward adjustment for minimal
participation "will be infrequent[]" and cites as appropriate
examples of minimal participants "someone who played no other role
in a very large drug smuggling operation than to offload part of a
single marihuana shipment" or "an individual [who] was recruited as
a courier for a single smuggling transaction involving a small
amount of drugs." U.S.S.G. § 3B1.2, comment. (n.2). In contrast,
"a minor participant means any participant who is less culpable
than most other participants, but whose role could not be described
as minimal." Id., comment. (n.3).
The district court's finding that Gaytan "len[t] his property
to be used for the storing of drugs" and "acted as a chauffeur" to
carry people to where drugs were stored is supported by the record.
Given these findings, it was not clear error for the court to
conclude that Gaytan was a minor participant rather than a minimal
participant.
Macias’s conviction on all counts except count six is
AFFIRMED. Macias’s sentence on all counts except counts ten and
eleven is AFFIRMED. Gandara’s conviction and sentence on all
counts except count four are AFFIRMED. Gaytan’s conviction and
sentence are AFFIRMED. Macias’s conviction on count six and
Gandara’s conviction on count four are REVERSED. Macias’s sentence
on counts ten and eleven is VACATED and REMANDED for resentencing.
30