U.S. v. Placensia, 03-1604.

• Citation: 352 F.3d 1157
• Decision Date: 18 December 2003
• Docket Number: No. 03-1604.,03-1604.
• Parties: UNITED STATES of America, Appellee, v. Rosario PLACENSIA, also known as Cheyenne, also known as Jaime, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

352 F.3d 1157

UNITED STATES of America, Appellee, v. Rosario PLACENSIA, also known as Cheyenne, also known as Jaime, Appellant.

No. 03-1604.

United States Court of Appeals, Eighth Circuit.

Submitted: October 20, 2003.

Filed: December 18, 2003.

Amended December 29, 2003.

COPYRIGHT MATERIAL OMITTED

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Robert L. Sikma, argued, Sioux City, Iowa, for appellant.

Jamie D. Bowerst, AUSA, argued, Sioux City, Iowa, for appellee.

Before BYE, JOHN R. GIBSON, and MELLOY, Circuit Judges.

BYE, Circuit Judge.

Rosario Placensia was convicted of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 860(a) and sentenced to 262 months imprisonment. On appeal, he challenges the district court's¹ denial of his motion for new trial and application of the Sentencing Guidelines. We affirm.

I

Rosario was allegedly part of a drug trafficking conspiracy operating in Iowa, Nebraska, South Dakota, and California. He received methamphetamine from sources in California and distributed the drugs to other dealers after arranging and facilitating the shipment of the drugs from California to South Sioux City, Nebraska. The evidence establishing Rosario's involvement in the conspiracy centered on several incidents. They are below discussed in turn.

The first incident involves a police search of a house in Sioux City, Iowa, in July 1997. Following the search, the police detained Rosario and three of his brothers, Alvarado² Placensia, a/k/a "Bule," Jose and Jaime, along with three other individuals. Alvarado and Rosario were returned to Mexico because they were illegal aliens. The search uncovered no drugs; however police did find a can containing $25,000 and a small bag of white powder.

The second incident involves the execution of a drug search warrant in February 1998 at an apartment in South Sioux City. Rosario saw the same officer who had previously returned him to Mexico and attempted to run away. He was apprehended because of his status as an illegal alien, but was allowed to go free. The search uncovered $8,700 hidden in a vacuum cleaner which had been mailed to the apartment from California. As in the previous search warrant incident, Rosario's brother Alvarado was also present at the scene.

Jaime Romo testified at trial pursuant to a plea agreement as to the third series of events, and his testimony indicated the following: Rosario recruited Romo in 1999 to transport methamphetamine and drug money between Turlock, California, and South Sioux City. The two spent time together at a communal trailer house in South Sioux City. Although Romo did not immediately agree to be recruited, he agreed to transport the drugs after being offered $5,000.

Romo was paid $5,000 per drug-carrying trip. In the first of three such trips, Rosario had Romo's "brother-in-law's brother" give him the transport car and money in California. Romo was told to call the trailer number when he arrived in South Sioux City. He did so, and Rosario and Alvarado then unloaded the drugs from the transport car. Rosario gave him $500 to cover expenses for the trip back to California.

Romo testified that less than one year later he delivered a pickup truck he got in California from his "brother-in-law's brother" to Rosario and Alvarado. When he delivered the truck to Rosario in South Sioux City, Rosario left with the truck and later returned it to Romo. Rosario then told him "it was ready to go." Rosario again gave Romo $500 to cover expenses for the trip back to California. On his way back to California, Romo was stopped by police in Utah. Officers searched the truck and found $15,000 cash hidden inside. Romo testified the police kept the $15,000 and released the truck.

In July 2001, Rosario called Romo and asked him to transport methamphetamine a third time. Romo met him, and the two discussed the details of the trip. Rosario later dropped off an automobile containing what Romo said was 16 pounds of methamphetamine. Rosario gave Romo money for the trip and instructed him to call when he got to Nebraska. While en route to meet Rosario, he was stopped by police in Lincoln, Nebraska. Police searched the car and found methamphetamine. All told, Romo testified he delivered approximately 36 pounds of methamphetamine for Rosario in the three trips.

Upon his arrest, Romo agreed to cooperate with law enforcement officers. With police assistance, he tape-recorded telephone conversations with Rosario and Alvarado in an attempt to complete a controlled delivery of the drugs. The conversations were in Spanish. The tapes revealed Romo called Rosario and Alvarado, who told him to deliver a car containing the drugs to a third person. Rosario stated he did not want anything to do with the car at that time because he was suspicious police were watching him. Romo then delivered the methamphetamine as directed.

Subsequently, law enforcement officers began an extensive wire-tap investigation after obtaining a federal court order authorizing the interception of calls on telephones in the names of Juan Carlos Munoz, a/k/a "Charlie," and his brother Humberto Munoz Rodriguez, a/k/a Alexander Araiza, a/k/a "Beto." Both of these individuals were subsequently convicted of methamphetamine conspiracy after a jury trial. Of the approximately 1,800 telephone calls monitored in the wire-tap, about 250 were between Rosario and the Munoz brothers.

In one intercepted phone call, Rosario said two "narcos" had been following him. In another call, Rosario and the Munoz brothers discussed methamphetamine and cocaine using code names for drugs. Tapes of some of these calls were introduced at trial.

The government also introduced tape-recorded telephone calls to establish Rosario supplied drugs to Beto Munoz, who in turn supplied the drugs to others. There were also a series of telephone calls between persons identified as Shawn Stevens, a/k/a "Chava," Beto, Rosario, and Charlie Munoz. As a result of this series of calls, agents believed Rosario was going to supply Charlie Munoz with drugs and they would be delivered to Chava. These theories were borne out by subsequent surveillance.

The jury convicted Rosario of conspiracy to distribute methamphetamine, and the court sentenced him to 262 months imprisonment.

II

Rosario appeals the district court's denial of his motion for new trial. A defendant is not entitled to a new trial "unless `the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.'" United States v. Espinosa, 300 F.3d 981, 983 (8th Cir.2002) (citations omitted). A district court's decision on whether to grant a new trial is reviewed for abuse of discretion. United States v. Campos, 306 F.3d 577, 579 (8th Cir.2002). An abuse of discretion occurs "when a relevant factor that should have been given significant weight is not considered, when an irrelevant or improper factor is considered and given significant weight, or when all proper and no improper factors are considered, but the court in weighing those factors commits a clear error of judgment." United States v. McNeil, 90 F.3d 298, 300 (8th Cir.1996).

Rosario contends the evidence was insufficient to support the verdict. Such contention is without merit. Conviction of Rosario of conspiracy to distribute illegal drugs required the government to prove beyond a reasonable doubt (1) there was an agreement to distribute illegal drugs, (2) Rosario knew of the conspiracy, and (3) Rosario knowingly became part of the conspiracy. United States v. Mora-Higuera, 269 F.3d 905, 910 (8th Cir.2001). A conspiracy may be inferred entirely or in part from circumstantial evidence. Id. It is unnecessary for co-conspirators to know each other or the extent of the conspiracy. United States v. Cordova, 157 F.3d 587, 597 (8th Cir.1998).

We find there was ample evidence to establish the existence of a conspiracy and Rosario's knowing participation in it. The government presented evidence of guilt through tape-recorded telephone calls which provided strong evidence of Rosario arranging drug transactions; testimony from a co-conspirator stating Rosario was part of the conspiracy and providing details of how Rosario hired him to transport drugs and money between California and Nebraska; testimony from investigating officers concerning surveillance of Rosario and his associates; evidence Rosario used several aliases; and testimony from officers concerning evidence found at several search scenes where Rosario was present.

While Rosario challenges Romo's credibility, the district court was entitled to assess the credibility of Romo and find Romo's testimony, combined with the other evidence, sufficient to support the jury's guilty verdict. When evaluating a new trial motion based on allegations the evidence does not support the verdict, the trial court may "weigh the evidence and in doing so evaluate for itself the credibility of the witnesses." United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980).

The testimony of an accomplice alone may be sufficient to convict a defendant if the testimony is not incredible or insubstantial on its face. United States v. J.H.H., 22 F.3d 821, 830 (8th Cir.1994). This is true even if the testimony is uncorroborated. See id.; see also United States v. Aguayo-Delgado, 220 F.3d 926, 935 (8th Cir.2000). Also, Rosario's own tape-recorded statements corroborated aspects of Romo's testimony. As an example, Rosario directed Romo to deliver drugs to a third individual, because Rosario was "too hot" to meet Romo himself. Additionally, when Rosario's home was searched the day of his arrest, officers found the cell phone he used when talking to Romo. In this case, the evidence against Rosario was substantial and there is nothing to indicate the district court abused its discretion in denying his motion for a new trial based on insufficiency of the evidence.

Rosario contends the district court should be reversed...