672 F.3d 320 (5th Cir. 2012), 07-41041, United States v. Delgado

Docket Nº:07-41041.
Citation:672 F.3d 320
Opinion Judge:GRAVES, Circuit Judges.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Maria Aide DELGADO, Defendant-Appellant.
Attorney:James Lee Turner (argued), John Richard Berry, Renata Ann Gowie, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee. Marjorie A. Meyers, Fed. Pub. Def., Timothy William Crooks, Margaret Christina Ling (argued), H. Michael Sokolow, Asst. Fed. Pub. Defenders, for Defendant-Appellant.
Judge Panel:Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, WIENER, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES and EDITH BROWN CLEMENT, Circuit Judge, joined by EDITH H. JONES, Chief Judge, and KING, E. GRADY JOLLY, W. EUGENE DAVIS, JERRY E. SMITH, EMILIO M. G...
Case Date:February 22, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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672 F.3d 320 (5th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Maria Aide DELGADO, Defendant-Appellant.

No. 07-41041.

United States Court of Appeals, Fifth Circuit.

February 22, 2012

As Revised Feb. 28, 2012.

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James Lee Turner (argued), John Richard Berry, Renata Ann Gowie, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Fed. Pub. Def., Timothy William Crooks, Margaret Christina Ling (argued), H. Michael Sokolow, Asst. Fed. Pub. Defenders, for Defendant-Appellant.

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

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, WIENER, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES and

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GRAVES, Circuit Judges. [*]

EDITH BROWN CLEMENT, Circuit Judge, joined by EDITH H. JONES, Chief Judge, and KING, E. GRADY JOLLY, W. EUGENE DAVIS, JERRY E. SMITH, EMILIO M. GARZA, BENAVIDES, CARL E. STEWART, PRADO, OWEN, JENNIFER WALKER ELROD, LESLIE H. SOUTHWICK and GRAVES, Circuit Judges:

Defendant-Appellant Maria Aide Delgado was convicted of (1) possession of marijuana with the intent to distribute and (2) conspiracy to commit the same offense. 21 U.S.C. § 841(a)(1) & (b)(1)(B); 18 U.S.C. § 371. She was sentenced to a concurrent term of 100 months' imprisonment for each conviction. Delgado appealed. A divided panel of this court vacated her convictions and sentences, dismissed the conspiracy charge, and remanded the case for further proceedings on the possession with intent to distribute charge. United States v. Delgado, 631 F.3d 685 (5th Cir.2011). The panel opinion was vacated by our decision to rehear the case en banc. United States v. Delgado, 646 F.3d 222 (5th Cir.2011). For the reasons stated below, we now affirm Delgado's convictions and sentence.

I. FACTS AND PROCEEDINGS

Delgado was the sole owner-operator of TJ Trucking, a company that shipped Mexican produce from Laredo, Texas to destinations throughout the United States. Bartolome Vasquez, a Mexican legal resident employed by a Laredo produce broker and shipper, had, at the time of Delgado's trial, known and done business with Delgado for almost four years, during which time he assembled shipments of Mexican produce to be hauled by TJ Trucking. Vasquez dealt regularly with Delgado and estimated that they spoke approximately four times per month to arrange shipments. According to Vasquez's testimony, he regarded Delgado as a legitimate trucking business operator until, on September 8, 2006, she offered to pay him $10,000 if he would commingle 500 pounds of marijuana in a TJ Trucking delivery of Mexican broccoli to North Carolina. He refused her offer and immediately reported the incident to Immigration and Customs Enforcement (ICE) officers in Laredo. He then secretly began working with ICE officers, withdrew his initial refusal of Delgado's offer, and agreed to begin making arrangements for the concealed drug shipment. In cooperation with the ICE officers, Vasquez taped phone conversations he had with Delgado about the arrangements. These recordings confirmed that, in order to disguise the nature of the shipment, Delgado asked Vasquez to prepare two bills of lading— one for North Carolina, where the marijuana was bound, and one for New York, where the broccoli was bound. In the same taped conversation, Delgado and Vasquez discussed, in guarded language that Vasquez explicated on the stand, the number of boxes of broccoli that would have to be opened to hold the marijuana; that the truck's interior would have to be heated to melt off some of the ice in which the broccoli was packed so that the increased weight of the marijuana would not arouse suspicion at a weigh station; and the possibility that the marijuana would be loaded at a different warehouse to avoid a run-in with Vasquez's supervisor. The ICE officers had planned to have Delgado deliver the truck containing the marijuana to rendezvous with Vasquez on September 11, 2006, at a government-controlled warehouse

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in Laredo, where they would make arrests and seize the drugs. The shipment was canceled, however, after, as Vasquez explained, " the person who was going to work with [Delgado]" — that is, the intended recipient— was arrested. Delgado called Vasquez to tell him that the shipment was off, that the bundles of marijuana were still in the cab of her truck, and that she was waiting until night to unload them and return them to an unnamed supplier.

Acting on this information from Vasquez, government agents went to Delgado's securely fenced and gated property, on which there were several buildings including Delgado's residence, a barn, and multiple small storage sheds and dog kennels. The agents signaled their arrival with flashing lights, sirens, and bullhorns, but no one on the property responded. Approximately thirty minutes later, after being prompted by a phone call from a neighbor, Delgado came out of the house and spoke with the agents at the gate. She eventually allowed three agents onto the property to conduct a search. Before letting them enter her house, however, she left them on the doorstep without warning or explanation, went into the house, locked the door, and then emerged approximately ten minutes later, claiming that she had needed to use the bathroom.

Consistent with Vasquez's report, the agents found a tractor-trailer parked in the yard. Delgado told the agents that she did not have the keys to its locked cab; she claimed they were with the driver.1 Delgado also told the agents she could not contact the driver because she did not have his telephone number. The agents eventually were able to open the tractor-trailer cab without the key. In its sleeper berth, they found thirty-four bundles of marijuana, weighing 507 pounds. Delgado expressed no surprise at the discovery but denied knowing that the marijuana was in the cab. She blamed her " drivers," whose " names" she claimed she could not recall. In fact, Delgado employed only one driver at that time, with whom she worked on nearly a weekly basis.

Around the time the cab was opened, another agent entered a room of Delgado's house in which she kept approximately ten large, threatening dogs chained to the walls. Inside a cabinet, the agent found a garbage bag filled with wrapping material that smelled of marijuana and held what appeared to be marijuana seeds and residue. Delgado expressed no surprise at this discovery, either; she told the agent she thought the bags had been used to wrap potting soil. She also said they might have been placed in the house by a man named Peter, who worked for her. She told the agent she did not know Peter's last name and did not have his contact information. In addition to the drugs, agents seized a substantial amount of ammunition and four firearms from Delgado's residence, including a loaded TEC-9,2 but they did not arrest Delgado. Vasquez testified that Delgado called him after the search and expressed her anger that the agents had seized the drugs and guns. A month later, on October 11, 2006, ICE agents returned to Delgado's property

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with a search warrant, seized additional items, and arrested her.

Delgado was charged with possession of marijuana with the intent to distribute and conspiracy to commit the same offense, and following a two-day trial was convicted by a jury on both charges. The district court sentenced her to concurrent terms of 100 months' imprisonment.

II. DISCUSSION

A. Sufficiency of the Evidence

1. Standard of Review

Delgado's sole defense at trial was that she had no knowledge of the marijuana in her truck or of any plan to transport it.3 She did not move for a judgment of acquittal under Rule 29 on the grounds that the government had not presented adequate evidence of an agreement with co-conspirators, and she therefore failed to preserve this issue for appellate review. See United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir.1992). Delgado additionally failed to raise an insufficiency claim on appeal. In fact, in her opening brief before the panel, Delgado conceded that there was some evidence supporting her conspiracy conviction4 and requested a new trial on the conspiracy charge rather than a dismissal. Therefore, under this court's well-established precedent, Delgado had clearly forfeited any challenge to the sufficiency of the evidence supporting her conviction. See, e.g., Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744 (5th Cir.1987). The panel majority, however, scrutinized the sufficiency of the evidence and dismissed the conspiracy charge sua sponte. Delgado, 631 F.3d at 689, 693. We granted rehearing en banc in part to consider whether this sua sponte dismissal was appropriate and now conclude that it was not.

It is a long-standing rule that a defendant must make an appropriate objection at trial in order to preserve an issue for appeal. The Supreme Court, however, has long recognized the authority of the courts of appeals, as a limited exception to this general forfeiture rule, to correct particularly egregious forfeited errors. See United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936). In Atkinson, the Court articulated the " plain-error" standard to be applied to review of such unpreserved claims: " In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously...

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