U.S. v. Jimenez

• Decision Date: 07 December 2007
• Docket Number: No. 04-40355.,04-40355.
• Citation: 509 F.3d 682
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Alredo JIMENEZ; Jose A. Morales, also known as Camaron; Benito Villarreal; Juan Contreras, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

509 F.3d 682

UNITED STATES of America, Plaintiff-Appellee, v. Jose Alredo JIMENEZ; Jose A. Morales, also known as Camaron; Benito Villarreal; Juan Contreras, Defendants-Appellants.

No. 04-40355.

United States Court of Appeals, Fifth Circuit.

December 7, 2007.

Mark Michael Dowd (argued), Brownsville, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Kimberly S. Keller (argued), The Keller Law Firm, San Antonio, TX, for Jimenez.

Larry Chris Iles (argued), Rockport, TX, for Morales.

Edmund Keith Cyganiewicz (argued), Law Office of Edmund Cyganiewicz, Brownsville, TX, for Villarreal.

Larry L. Warner (argued), Law Offices of Larry Warner, Brownsville, TX, for Contreras.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, Chief Judge, and STEWART and CLEMENT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Appellants Jose A. Jimenez, Juan Contreras, Jose A. Morales, and Benito Villarreal were convicted on numerous counts for their involvement in a drug trafficking ring. They appeal their convictions and sentences, alleging numerous grounds of error at trial and sentencing. We vacate the sentences of Jimenez, Morales, and Villarreal and remand for resentencing in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm the judgment of the district court in all other respects.

I. FACTUAL AND PROCEDURAL HISTORY

This appeal involves a complex drug-trafficking ring that operated in South Texas. At all relevant times, Jimenez served as Constable for Precinct Seven, Cameron County, Texas; Villarreal was one of Jimenez's Sergeants; and Contreras was one of Jimenez's Deputies (collectively the "Constables"). Morales was not a law enforcement officer, but worked with the Constables and arranged for drugs to cross the Rio Grande river within Precinct Seven. Once the shipments, usually marijuana, but on one occasion cocaine, reached the United States side of the river, the Constables took possession, delivered the loads to the drug traffickers, and then provided escort for the drug traffickers until the loads safely arrived at stash houses. Jimenez commanded the Constables' operation, while Contreras and Villarreal were directly involved in retrieving the loads from the edge of the river, delivering the loads to drug traffickers, and providing escort for the traffickers to the stash houses.

Starting in July of 2000, Border Patrol agents began noticing a pattern of suspicious activity on the part of the Constables. The Constables were frequently seen near the river on private property, where they had no authority to be, ostensibly conducting drug interdiction efforts. Though the Constables claimed to be "laying in" for drug traffickers or responding to calls, the Constables' duty ledger recorded no such calls or activity. On more than one occasion Border Patrol agents found the Constables hiding in the brush near the river, armed with rifles and wearing unmarked camouflage fatigues. Despite the danger of friendly-fire incidents, the Constables refused to keep the Border Patrol apprised of these "drug interdiction" efforts.

Meanwhile, the Constables themselves were keeping close tabs on the Border Patrol agents' activity. Evidence at trial indicated the Constables were monitoring Border Patrol radio traffic. The Constables were also aggressive about obtaining information from Border Patrol agents concerning interdiction efforts, hot spots for alien and drug crossings, and sensor locations. In December 2000, Contreras quizzed a Border Patrol agent in detail about a drug seizure two days earlier — a seizure that Border Patrol had not reported to other agencies or otherwise made public. Throughout the year 2000, the Constables were frequently seen in close proximity to locations where it appeared drugs had recently crossed the river. Constables were seen eliminating signs of crossings on the river bank, parking on the river's edge, and driving at high rates of speed to and from the river. When questioned about their activities, the Constables offered inconsistent explanations of their behavior.

On February 22, 2001, Border Patrol agents responded to a sensor alert on the river's edge and found Constables Villarreal and Contreras in the vicinity. Contreras had 292 pounds of marijuana in the trunk of his vehicle, in four wet, muddy parcels. Contreras claimed to have seized the marijuana and loaded it into the trunk himself, though his uniform was clean and showed no signs of lifting close to 300 pounds of wet, muddy marijuana. Meanwhile, another Border Patrol agent discovered an additional 400 pounds of marijuana concealed at the river's edge, as well as five or six individuals in their underwear who, upon seeing the agent, swam across the river to Mexico. The agent also found tire marks and boot tracks indicating Contreras had been there recently.

Further investigation of Contreras's "seizure" produced inconsistent explanations from the various Constables. Ultimately, the Constables, Morales, and several others were arrested. On October 8, 2002, Jimenez, Contreras, Morales, and Villarreal were indicted in federal court in the Southern District of Texas.¹ All appellants were charged with conspiracy to possess with intent to distribute more than 1000 kilos of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) (count one) as well as two counts of possession with intent to distribute more than 100 kilos of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (counts four and five). Jimenez and Villarreal were each charged with one count of using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) and 2 (counts six and seven respectively); Contreras was charged with two counts of the same offense (counts six and seven). Morales was charged with an additional count of possession with intent to distribute 100 kilos or more of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) (count two).² Jimenez was also served with a notice of forfeiture regarding a parcel of real property in La Feria, Texas.

On June 24, 2003, the four Appellants proceeded to jury trial; testimony commenced on July 22, 2003. Over the course of the trial considerable evidence was presented against the Appellants, including the testimony of Border Patrol agents and co-conspirators, as well as documentary evidence, such as telephone records, all of which revealed a long-standing arrangement whereby the Constables, Morales, and others trafficked large drug shipments from Mexico. Morales confessed, but did not testify at trial. Part of his confession which implicated Contreras was admitted into evidence through the testimony of a government witness, Drug Enforcement Agent George Delaunay.³ After hearing Delaunay's testimony and from counsel, the district court permitted limited testimony regarding Morales' confession as related to the calls Morales made to Contreras' pager as well as related conversations he had with Contreras.⁴

On August 12, 2003, the jury returned its verdict. Jimenez was found guilty of all the counts for which he was indicted. The jury also found his interest in the property cited in the forfeiture count subject to forfeiture. Likewise, Contreras and Morales were found guilty of all the counts for which they were indicted. Villarreal was found guilty of one count of possession with intent to distribute, and he was acquitted of all other charges.

The district court sentenced each of the Appellants to lengthy prison terms. Jimenez was sentenced to life imprisonment, with a five-year term of supervised release on count one, 480 months imprisonment, with a five-year term of supervised release on both counts four and five, and 60 months imprisonment with a five-year term of supervised release on count six. The court ordered all but count six to run concurrently and also finalized the order of forfeiture against Jimenez. Contreras was sentenced to 292 months imprisonment, with concurrent five-year terms of supervised release on counts one, four and five. He was sentenced to 60 months imprisonment, with a three-year term of supervised release on count six and 300 months imprisonment, with a three-year term of supervised release on count seven. The court ordered that counts six and seven run consecutive to each other and to the other counts, for a total sentence of 652 months imprisonment. The district court sentenced Morales on counts two, four, and five to concurrent terms of imprisonment of 360 months, with concurrent terms of five-years of supervised release. Villarreal was sentenced to 132 months imprisonment, with a four-year term of supervised release on count five. All four Appellants timely filed their notices of appeal.

II. DISCUSSION

A. Sufficiency of the Evidence

Both Contreras and Villarreal challenge their convictions for aiding and abetting the possession with intent to distribute in excess of 100 kilos of marijuana. In order for a defendant to be convicted of possession with intent to distribute, the Government must prove that the defendant (1) knowingly (2) possessed marijuana (3) with intent to distribute it. United States v. Penaloza-Duarte, 473 F.3d 575, 579 (5th Cir.2006). To prove that a defendant aided and abetted, the Government must prove that the three elements of the substantive offense occurred and that the defendant associated with the criminal venture, purposefully participated in the criminal activity, and sought by his actions to make the venture succeed. See United States v. Delagarza-Villarreal, 141 F.3d 133, 140 (5th Cir.1997); 18 U.S.C. § 2. Contreras argues the evidence failed to show beyond a reasonable doubt that he possessed the drugs for any unlawful purpose. Rather, he contends that given that he was in uniform, on duty, and in a marked constable car, the evidence supports his assertion that he...