U.S. v. Zapata

• Decision Date: 31 October 2008
• Docket Number: No. 07-1001.,No. 06-1543.,No. 06-1541.,No. 06-1542.,06-1541.,06-1542.,06-1543.,07-1001.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arnoldo ZAPATA, a/k/a Lolo; Sergio Hernandez-Zapata, a/k/a Tito, a/k/a Titillo, a/k/a Lucas; Lilian Galvan, a/k/a Petunia, a/k/a Yiya; Jaime Zapata, a/k/a Rudy, a/k/a Jimmy, a/k/a Chasco, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

546 F.3d 1179

UNITED STATES of America, Plaintiff-Appellee, v. Arnoldo ZAPATA, a/k/a Lolo; Sergio Hernandez-Zapata, a/k/a Tito, a/k/a Titillo, a/k/a Lucas; Lilian Galvan, a/k/a Petunia, a/k/a Yiya; Jaime Zapata, a/k/a Rudy, a/k/a Jimmy, a/k/a Chasco, Defendants-Appellants.

No. 06-1541.

No. 06-1542.

No. 06-1543.

No. 07-1001.

United States Court of Appeals, Tenth Circuit.

October 31, 2008.

Philip A. Cherner, Esq., Law Office of Philip A. Cherner, appearing for Appellant Sergio Zapata-Hernandez.

Richard N. Stuckey (Jennifer L. Gedde, with him on the briefs), Denver, CO, appearing for Appellant Jaime Zapata.

Martha Paluch, Assistant United States Attorney (Troy A. Eid, United States Attorney, with her on the brief), Office of the United States Attorney for the District of Colorado, Denver, CO, appearing for Appellee.

Submitted on the briefs:^* Robert S. Berger, Denver, CO, for Appellant Arnoldo Zapata.

Anthony M. Noble, The Joffe Law Firm, Denver, CO, for Appellant Lilian Galvan.

Megan L. Hayes, Laramie, WY, for Appellant Humberto Galvan.

Before TACHA, KELLY, and McWILLIAMS, Circuit Judges.

ORDER

TACHA, Circuit Judge.

Jaime Zapata has filed a petition for panel rehearing in 07-1001. Upon consideration of his rehearing petition, the panel has amended the opinion previously filed in this court. The amended opinion is attached to this order. The petition for rehearing is denied.

Appellant Arnoldo Zapata's "motion for en banc" in 06-1541 is construed as a petition for rehearing and is denied. Appellant Sergio Hernandez-Zapata's petition for rehearing en banc in 06-1542 is denied. Appellant Lilian Galvan's "motion for en banc" in 06-1543 is construed as a petition for rehearing and is also denied.

No member of the court called for a poll in either of the en banc petitions.

OPINION

Eighteen individuals, all members of the Zapata family or close family friends, were charged in a thirty-five-count indictment stemming from a large-scale cocaine trafficking scheme. Several of them pleaded guilty and testified against their co-defendants in exchange for reduced sentences. Five defendants ultimately were tried before a single jury and convicted of, among other counts, conspiring to distribute five kilograms or more of a substance containing cocaine. See 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii). Those defendants—Sergio Zapata-Hernandez, Arnoldo Zapata, Jaime Zapata, Lilian Galvan, and Humberto Galvan—now individually appeal their convictions and sentences. Because of overlapping factual and legal issues, we decide their appeals in this single opinion. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

I. BACKGROUND

Carlos Zapata was the undisputed leader of a cocaine trafficking operation and he would negotiate directly with an individual named "Primo" who resided in Juarez, Mexico. Primo supplied Carlos¹ with cocaine to distribute in the Denver, Colorado area. Carlos would travel to Juarez and pay Primo $11,500 for each kilogram of cocaine that Primo agreed to supply.

Carlos testified that the cocaine he purchased was also for his brothers Sergio Zapata-Hernandez, Jose Alfredo Zapata, Arnoldo Zapata, and Jaime Zapata, and his friends Fabian Miranda-Urbina and Efrain Venzor. These seven men were referred to as "owners" or "investors" in the operation. Each individual would pay Carlos in advance to buy specified numbers of kilograms from Primo. For example, Carlos testified that between April and August of 2004, on each of several trips to Mexico he generally bought ten to twelve kilograms for himself, ten kilograms for Sergio, two kilograms each for Arnoldo, Jaime, Jose Alfredo, and Efrain, and two to three kilograms for Fabian.

After Carlos paid Primo in Juarez, he would return to his home in Denver. Zapata family friends Jaime Armendariz and Arturo Jimenez smuggled the cocaine, which was hidden in their vehicles, across the border into El Paso, Texas. These two "transporters" delivered the drugs to the homes of Carlos's brothers, Jose Alfredo and Arnoldo, in El Paso. Mr. Armendariz, who was paid $500 per trip, testified specifically to at least twelve trips he made between Juarez and El Paso from April to August 2004; he also testified that he supplied Mr. Jimenez with loads of cocaine to transport into El Paso approximately forty to forty-five times. Each load contained about four or five kilograms.

Once the cocaine reached Jose Alfredo and Arnoldo in El Paso, Carlos would direct other transporters to drive the cocaine to Denver, usually hidden in eight to nine-kilogram quantities in the vehicle's spare tire. These transporters included Jose's son Ramon and daughter Ana, who lived in El Paso; Carlos's sister Artemisa, who lived in Denver; and Carlos's other sister, Lilian Galvan, who lived in Denver and was always accompanied by her husband Humberto Galvan. The transporters were paid $1000 per kilogram per trip, plus expense money.

Carlos testified that when the cocaine reached Denver either he, Sergio, Fabian, or Efrain would unload it and be responsible for paying the transporter. One time, a shipment was unloaded at Carlos's brother Oscar's house during a family gathering. Oscar testified that he was paid $2000 for storing the cocaine for a brief period in his basement. After the cocaine was unloaded, it was divided among the investors for them to sell at $17,000 per kilogram. Carlos, Sergio, and Jaime would sell their own shares, and at times they would sell kilograms for Jose Alfredo and Arnoldo.

Jesus Mejia was one of Carlos's regular customers. Mr. Mejia testified that between at least May 2002 and his arrest in February 2004, he bought loads of cocaine from Carlos to sell in Washington, D.C. At first, he bought every other month, but the frequency eventually increased to every month and then to twice per month. The amount of the loads also increased, from five kilograms at a time up to a high of twenty kilograms.

In December 2003, a Kansas state trooper stopped two of Mr. Mejia's smugglers as they were driving east near Manhattan. A consensual search uncovered twenty-one kilograms of cocaine in their vehicle's spare tire. Mr. Mejia testified that he paid $340,000 for this amount and could have sold it in Washington, D.C. for $500,000. The search and subsequent arrests of the smugglers produced evidence linking the cocaine to Carlos. Carlos's fingerprints were on the cocaine, and his phone number was stored in one of the smugglers' cell phones.

Mr. Mejia himself was arrested the following February after officers discovered twelve kilograms of cocaine in the vehicle he was driving. He agreed to cooperate with the government, and he later testified at the trial of the defendants in this case. According to Mr. Mejia, he and the two smugglers who were arrested in December 2003 made at least fifteen-to-twenty trips to smuggle cocaine from Denver to Washington, D.C., with the total number of kilograms smuggled "over the hundreds, two hundreds."

Beginning in April 2004, federal agents received authority to tap several cell phone numbers registered to Carlos and Fabian, as well as three push-to-talk phones registered to Arnoldo. Carlos, Sergio, Arnoldo, Jaime, and Fabian were using the phones. The authority for the wiretaps was based in part on information uncovered from Mr. Mejia's arrest, his smugglers' arrests, and traditional investigative techniques such as surveillance. Federal agents intercepted many phone calls between Carlos and his siblings, among the siblings, and between the Zapatas and Fabian and Efrain. At trial, the jury heard more than sixty of these calls.

On August 22, 2004, an FBI agent monitored a call from Carlos to his sister Artemisa, during which Carlos asked Artemisa where she was. Artemisa stated that she was ten miles from Raton, New Mexico, and that their sister Lilian was about ten miles in front of her. Officers with the Colorado State Patrol subsequently stopped the vehicle in which Lilian was a passenger. Her husband, Humberto, was driving and gave consent to search. Officers found eight kilograms of cocaine in the vehicle's spare tire. They issued arrest warrants, and all of the defendants were arrested and taken into federal custody on August 31.

On September 21, a grand jury returned a thirty-five-count indictment against eighteen defendants, including the five appellants. Count One of the indictment, the count most relevant to this appeal, charged all defendants with conspiring between May 1, 2002 and August 31, 2004 to distribute and possess with the intent to distribute five kilograms or more of a substance containing a detectable amount of cocaine in violation of 21 U.S.C. § 841(a)(1).

Only Sergio, Arnoldo, Jaime, and the Galvans proceeded to trial. The other defendants entered into plea agreements. In exchange for his cooperation, Carlos received a 180-month sentence, due in part to a departure under U.S.S.G. § 5K1.1(a)(1) for substantial assistance.

An eleven-day trial began on August 21, 2006. Government witnesses included Carlos, Jesus Mejia, Fabian Miranda-Urbina, Jaime Armendariz, Artemisa, Oscar, and Ana. Because Carlos led the conspiracy, his testimony helped the government tremendously. He described the scope of the conspiracy, explained the roles played by each defendant, and interpreted scores of recorded phone calls for the jury.

The jury ultimately found all five defendants guilty on the conspiracy count. The jury found Sergio, Jaime, and the Galvans guilty of at least one count of using a telephone while committing the conspiracy, in violation of 21 U.S.C. § 843(b) and (d). The jury also convicted the Galvans of traveling in interstate commerce with the intent to facilitate the conspiracy, in violation of 21 U.S.C. § 952(a)(2)(A). Finally, the jury convicted Sergio, Arnoldo, and the Galvans of at least one count each of knowingly and intentionally distributing and possessing with intent to distribute cocaine, or aiding and abetting...