U.S. v. Alaniz
| Decision Date | 24 June 1998 |
| Docket Number | 97-3604 and 97-3605,97-3299,Nos. 97-3189,97-3300,97-3395,s. 97-3189 |
| Parties | 49 Fed. R. Evid. Serv. 977 UNITED STATES of America, Plaintiff-Appellee, v. Alberto ALANIZ, Jr., also known as Betin, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alejandro ALANIZ, also known as Alex, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alberto ALANIZ, Jr., also known as Betin, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alberto Reyna ALANIZ, also known as Beta, also known as Beto, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lonnie HENRY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Nick CUEVAS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William E. Shull, Liberty, MO, argued, for Alberto Reyna Alaniz.
Daniel Robert DeFoe, Blue Springs, MO, argued, for Alberto Alaniz, Jr.
John Alexander Lozano, Harrisonville, MO, argued, for Alejandro Alaniz.
Randall Brown Johnston, Columbia, MO, argued, for Lonnie Henry.
Ross C. Nigro, Jr., Kansas City, MO, argued, for Nick Cuevas.
William L. Meiners, Asst.U.S.Atty., Kansas City, MO, argued, for United States.
Before BOWMAN, Chief Judge, 1 McMILLIAN, and MURPHY, Circuit Judges.
Alberto Reyna Alaniz, Alejandro Alaniz, Alberto Alaniz, Jr., Nick Cuevas, and Lonnie Henry were all convicted of conspiracy to possess with intent to distribute marijuana, 21 U.S.C. § 846. In addition Alejandro Alaniz, Alberto Alaniz, Jr., and Lonnie Henry were convicted of criminal forfeiture, 21 U.S.C. § 853; Alberto Alaniz, Jr. was convicted of distribution of marijuana, 21 U.S.C. § 841; and Alberto Reyna Alaniz and Alejandro Alaniz were convicted of aiding and abetting the distribution of marijuana, 21 U.S.C. § 841. They appeal their convictions and the sentences imposed by the district court. 2 We affirm.
Evidence at trial indicated that in late 1993 appellants were engaged in the business of distributing marijuana. Under the supervision of Alberto Reyna Alaniz (Alberto) and the day to day direction of Alejandro Alaniz (Alejandro) marijuana was obtained, packaged, and distributed for sale. Marijuana was purchased from suppliers in Mexico and transported by couriers affiliated with the conspiracy from various points in south Texas to appellants and their affiliates in Kansas City, Missouri. Once the marijuana arrived in Kansas City it was stored at several safe houses around the city where it was weighed and repackaged for distribution under the supervision of Alberto, Alejandro, and Alberto Alaniz, Jr. (Alberto, Jr.). The marijuana was then sold on the street through a system of distributors including Lonnie Henry, Bryan Jones, and others.
The conspiracy handled a large amount of marijuana during its operation. Between October 1993 and September 1994 over 1,000 pounds of marijuana was transported to Kansas City from Fort Worth and an additional 600 pounds from Houston. Another 1,500 to 2,000 pounds was distributed between February and July 1995.
Nick Cuevas put Alejandro in contact with a supplier of methamphetamine, and the conspirators began to market it as well, using many of the same shipping channels and procedures developed for marijuana. One of the couriers, Roel Cantu, was stopped by law enforcement agents at the Kansas City airport who discovered he was carrying methamphetamine.
The conspiracy began to unravel when Sharon Hughes decided to cooperate with government officials. Sharon Hughes was the widow of T.B. Hughes who had owed Alberto money for drugs, and she was selling marijuana to pay off his debts. She allowed her phone conversations with members of the conspiracy to be recorded and wore a recording device on her person. The investigation continued and expanded until sufficient evidence was developed, and the members of the conspiracy were arrested.
Lonnie Henry and Nick Cuevas pled guilty to the charges against them, and the three members of the Alaniz family went to trial and were found guilty on all counts. Alberto was sentenced to 250 months for conspiracy with a concurrent term of 120 months for aiding and abetting. Alejandro received a life sentence on the conspiracy count and concurrent terms of 120 months on two aiding and abetting counts. Alberto, Jr. was sentenced to 240 months on the conspiracy count with a concurrent term of 120 months on the distribution count. Henry was sentenced to 76 months, and Cuevas to 168 months.
The Alaniz defendants attack their convictions on a variety of grounds, some of which they all join in and others which are raised singly. These grounds include sufficiency of the evidence, improper forfeiture, evidentiary rulings by the district court, and restrictions placed on cross examination and the time for closing argument. 3
Alberto, Jr. argues that there was insufficient evidence to support his conviction for conspiracy to possess with intent to distribute marijuana. The conviction should be upheld unless the evidence viewed in the light most favorable to the verdict could not support a finding that he entered into an agreement with one or more individuals to possess marijuana with the intent to distribute it. U.S. v. Bascope-Zurita, 68 F.3d 1057, 1060 (8th Cir.1995). He does not dispute that a conspiracy existed between October 1993 and September 1995, but he claims that he was not a knowing participant. Once the existence of an agreement is established, however, only slight evidence linking a member to the conspiracy is required. U.S. v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.1996).
Several participants in the conspiracy testified about the involvement of Alberto, Jr.. Sharon Hughes testified that beginning in the summer of 1994, Alberto, Jr. obtained marijuana from one of the safehouses and from her late husband. William Turner testified that Alberto, Jr. solicited him to purchase marijuana and began selling to him on a regular basis beginning in late 1994. He also testified that when a dispute about payment arose, Alejandro and Alberto came with Alberto, Jr. to see him and threaten him with violence but that they eventually reached an agreement for him to pay off the debt. Bryan Jones testified that Alberto, Jr. was a primary distributor for the conspiracy, that he helped weigh and package the drugs for resale, and that he distributed an average of fifty pounds of marijuana per week. Cybil Hudson testified that Alberto, Jr. stored both marijuana and methamphetamine at the safehouses involved in the conspiracy, that he transported and distributed both drugs for the conspiracy, and that she once saw him separating a shipment of over 1,000 pounds of marijuana into quantities suitable for storage and distribution. This was sufficient evidence for the jury to find that Alberto, Jr., knowingly participated in the conspiracy to possess and distribute marijuana, and his conviction should be affirmed. Bascope-Zurita, 68 F.3d at 1060.
Alberto, Jr., also claims that the prosecution impermissibly varied from the conspiracy charged in the indictment by introducing evidence of a separate conspiracy to distribute methamphetamine. Since no objection was raised to the failure to give a jury instruction on multiple conspiracies, we review only for plain error. Fed.R.Crim.P. 52(b); Slaughter, 128 F.3d at 629. The evidence at trial indicated that methamphetamine was distributed by the same individuals involved in the marijuana conspiracy through the same channels and procedures. It was part of the activities of the conspirators who primarily distributed marijuana. Rather than being a distinct and separate conspiracy, the methamphetamine transactions were part of the operation of the marijuana conspiracy, U.S. v. Slaughter, 128 F.3d 623, 630 (8th Cir.1997), and it was not plain error to admit this evidence.
Another claim of insufficiency raised by Alberto, Jr., is that evidence was lacking to link the $2000 federal agents seized from him to the criminal activities of the conspiracy. The money was found in a ski jacket in a closet at one of the safehouses affiliated with the conspiracy and was folded in a manner consistent with drug trafficking. The closet also contained a letter addressed to Alberto, Jr. who was living at the safehouse at the time and had used it as a base to distribute drugs. Based on this evidence the jury could reasonably find that the money resulted from the criminal conspiracy, and the judgment of forfeiture should be affirmed. U.S. v. Wojcik, 60 F.3d 431, 434 (8th Cir.1995).
Both Alejandro and Alberto, Jr. object that evidence of their earlier drug convictions and of uncharged methamphetamine violations was improperly admitted. The government introduced certified copies of judgments of conviction against Alejandro for conspiracy with intent to distribute cocaine and against Alberto, Jr. for felony possession of marijuana. Evidence was also introduced that both men used the machinery of the conspiracy to deal methamphetamine contemporaneously with the marijuana distribution. The prosecutor provided notice of intent to use this evidence prior to trial.
Alejandro argues that evidence of his 1989 conspiracy conviction should not have been introduced because it involved cocaine, it was too remote in time, and its admission violated Rule 403. Alejandro's prior conspiracy conviction involved the sale and transport of both cocaine and marijuana in south Texas. This earlier activity in moving drugs for sale through shipment points in Texas was sufficiently similar to the present conspiracy to be probative of plan and intent under Rule 404(b). Fed.R.Evid. 404(b); U.S. v. Johnson, 977 F.2d 457, 458 (8th Cir.1992). The prior conviction was not too remote in time because Alejandro was incarcerated for almost the whole...
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