U.S. v. Franklin

• Decision Date: 25 February 2009
• Docket Number: No. 07-10680.,07-10680.
• Citation: 561 F.3d 398
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro FRANKLIN; Julio Alejandro-Gonzalez; James Adam Guevara, also known as James Adam-Guevara; Rosalio Salazar-Ramirez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

561 F.3d 398

UNITED STATES of America, Plaintiff-Appellee, v. Pedro FRANKLIN; Julio Alejandro-Gonzalez; James Adam Guevara, also known as James Adam-Guevara; Rosalio Salazar-Ramirez, Defendants-Appellants.

No. 07-10680.

United States Court of Appeals, Fifth Circuit.

February 25, 2009.

Cara Foos Pierce (argued), Dallas, TX, for Plaintiff-Appellee.

Gary D. Smart (argued), Robinson & Smart, Arlington, TX, for Pedro Franklin.

Francisco Hernandez, Jr., Francisco Hernandez Law Firm, Fort Worth, TX, for Julio Alejandro-Gonzalez.

Douglas C. Greene (argued), Greene Law Firm, Arlington, TX, for James Adam Guevara.

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

Before HIGGINBOTHAM, ELROD and HAYNES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The four appellants were convicted and sentenced in the United States District Court for the Northern District of Texas for crimes relating to their roles in a Texas drug distribution conspiracy. They timely appealed.

I.

Investigations in early 2006 revealed that the appellants and others had formed a drug conspiracy involving methamphetamine distribution and transportation, mostly from Fort Worth, where the conspiracy was based, to points in West Texas. After an undercover investigation and the preparation of search warrants, police initiated surveillance, and arrested the defendants on January 19, 2006.

On that day, Rosalio Salazar-Ramirez picked up a black gym bag of drugs from David Puente-Hernandez's apartment; Julio Alejandro-Gonzalez dropped by the apartment shortly thereafter; and when the police finally executed search warrants on the apartment, they found drugs and drug paraphernalia as well as Jose Fernando Garcia and Puente-Hernandez, present in the apartment. Puente-Hernandez cooperated with the police and, by cell phone, convinced Salazar-Ramirez, who did not yet know of the bust, to bring to the house payment for the drugs he had picked up earlier in the day. When Salazar-Ramirez arrived—with $24,400 wrapped in cellophane and hidden under his shirt—the police arrested him. They found a loaded 9mm pistol under the driver's seat when they searched the car he drove. Puente-Hernandez also placed calls to a supplier, Alejandro-Gonzalez, and arranged a meeting, at which Alejandro-Gonzalez was arrested. Puente-Hernandez also called for a meeting with San Angelo-based drug purchasers, whose agents (James Adam Guevara and Pedro Franklin) were arrested upon their arrival. More than ten thousand dollars were hidden on Franklin's person upon his apprehension.

On February 16, 2006, a federal grand jury in the Northern District of Texas charged the seven individuals mentioned above with crimes related to the drug distribution conspiracy. Three defendants (Garcia, Raul-Hernandez, and Puente-Hernandez) pled guilty and served as government witnesses. The remaining four defendants were charged under a superceding indictment, and the case went to trial on February 12, 2007. At trial, undercover and other officers implicated the defendants in the conspiracy and introduced material evidence connecting each defendant to the conspiracy activities.

The co-conspirator Garcia testified at trial as to the involvement of Alejandro-Gonzalez, Salazar-Ramirez, Franklin, and Guevara in illegal drug distribution activities. He was not able to complete his testimony, however, nor were the other government witnesses, Raul-Hernandez and Puente-Hernandez, allowed to testify, because they violated the rule of sequestration —which the government neglected by failing to discuss it with their witnesses and by holding them together—speaking with one another during the lunch break after Garcia's morning of testimony. Once the violation was discovered, the court and defense extensively questioned all three men concerning the conversation, and the court refused to allow any further direct testimony from them after the violation.

On February 16, 2007, the jury convicted the four remaining defendants. It found each guilty of conspiracy to possess with intent to distribute 500 grams or more of methamphetamine¹ and additionally found Salazar-Ramirez guilty of possession of a firearm in relation to a drug trafficking case. The district court sentenced each of these defendants to five years of supervised release, in addition to imprisonment for 235 months (Alejandro-Gonzalez), 181 months (Salazar-Ramirez), and 151 months (Guevara and Franklin).

II.

A. Sufficiency of Drug Conspiracy Evidence

The standard required to overturn a conviction on grounds of insufficiency is high: "whether any juror could reasonably find the evidence established guilt beyond a reasonable doubt."² The reviewing court construes all evidence and inferences in the light most favorable to the prosecution.

The conspiracy charges require the government to establish that a conspiracy to unlawfully distribute methamphetamine existed, that the defendants knew of the conspiracy, and that they intentionally joined and participated in it. To establish whether there was a "single conspiracy," which is an element challenged by Alejandro-Gonzalez and Franklin, courts look to "(1) the existence of a common goal or purpose; (2) the nature of the scheme; and (3) overlapping participants in various dealings."³ This does not require that the participants in the conspiracy know the other participants, nor that each participate in every conspiracy action.

In this case, the single, charged conspiracy easily covers all of the appellants.⁴ The evidence involves the testimony of undercover officers, a co-conspirator, and extensive surveillance and evidence discovered during the day of the bust. Sufficient evidence directly implicates each defendant in the illegal drug conspiracy.⁵

B. Sufficiency of Firearm Conviction

To support Salazar-Ramirez's firearm conviction, the government must have provided sufficient evidence for a reasonable jury to find that (1) the defendant committed a drug trafficking crime; (2) he knowingly used or carried the firearm; and (3) he did so during and in relation to the crime.⁶ Salazar-Ramirez contests the sufficiency of the evidence as to the second and third elements.

As to the third element, Salazar-Ramirez notes that he did not take the weapon into the house with him when he entered to complete the drug transaction. But this is not required by the relevant statute. He carried a gun under the driver's seat when he drove to complete the transaction, and the fact that he did not retain immediate access to it throughout the time of the transaction cannot avail him.⁷ It was natural to want additional protection when he was carrying, concealed on his person, a large amount of cash; and the mere fact that he did not carry the gun into his co-conspirator's house does not mean he could not be convicted of carrying the gun in the course of the unlawful drug activities.⁸ (Salazar-Ramirez's brief on this point cites language from a Sixth Circuit decision on this element;⁹ but that decision has been overruled by later Supreme Court precedent, as that court has itself recognized.¹⁰)

As to the second element, "[t]he `carrying' requirement of Section 924(c) is met where a defendant operates a vehicle knowing the firearm is in the car."¹¹ Salazar-Ramirez claims that insufficient evidence exists for a reasonable juror to infer that he "knowingly" carried the weapon. He cites cases in which possession of the gun was otherwise admitted or demonstrated in meeting this element;¹² he notes that such further evidence is missing here. But in supporting his argument that the "knowing" element can be used to overcome a conviction, Salazar-Ramirez relies on cases in which drugs were well concealed —hidden compartment drug cases.¹³ In such cases the courts may require more than mere presence of contraband in a car to support a conviction that included a "knowledge" element. These cases are not directly analogous, as this gun was not particularly concealed, and as there is no argument that Salazar-Ramirez was possibly acting as an innocent, ignorant courier.

The hidden compartment cases support the use of circumstantial evidence as to knowledge, and such evidence is ample here. The police officer who found the gun testified that, when Salazar-Ramirez was in the vehicle, "[a]ll he would have to do was reach under the seat and he would have had immediate access to the gun." No evidence suggests that Salazar-Ramirez shared access to the car; indeed, he was apparently seen driving the same "red Dodge truck" earlier on the day in question, picking up the drugs for which he later in the day brought payment. And he was, of course, engaged in the dangerous business of large-scale contraband and currency transportation, a business in which guns are all but necessary tools of the trade. We recognize that most drivers or even owners of vehicles do not regularly check below the driver's seat, but again, we are not dealing with a potentially unwitting criminal. As Salazar-Ramirez ran his important and clearly criminal errands, a juror could reasonably infer that he was aware of the firearm conveniently close to hand. We do not establish a per se rule that a gun under a driver's seat will in all circumstances support an inference of knowledge, but under these circumstances, a reasonable juror could conclude that he was "knowingly" carrying the gun.

C. Guevara's Cell Phone

Guevara challenges the pre-trial and trial handling of a cell phone confiscated by police and introduced as evidence against him.

This court reviews evidentiary rulings on a heightened abuse of discretion basis.¹⁴ Even an abuse of discretion may not merit reversal if the error was harmless. Because the challenge here is on hearsay, the alleged error is non-constitutional. "Non-constitutional trial error is harmless unless it had `substantial and injurious effect or influence in determining the jury's verdict.'"¹⁵

Guevara's challenge...