U.S. v. Gaytan

• Decision Date: 23 January 1996
• Docket Number: No. 95-50055,95-50055
• Citation: 74 F.3d 545
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfredo GAYTAN, Jesus Gregario Macias-Munoz, a/k/a Jesse Macias, and Rene Gandara-Granillo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 545

74 F.3d 545

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo GAYTAN, Jesus Gregario Macias-Munoz, a/k/a Jesse Macias, and Rene Gandara-Granillo, Defendants-Appellants.

No. 95-50055.

United States Court of Appeals Fifth Circuit.

Jan. 23, 1996.

Richard L. Durbin, Jr., Asst. U.S. Atty., Diane D. Kirstein, Office of the United States Atty., San Antonio, TX, for plaintiff-appellee.

David L. Botsford, Botsford & Sauer, Austin, TX, for defendant-appellant.

Appeals from the United States District Court for the Western District of Texas.

Before GARWOOD, SMITH and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The defendants appeal their convictions and sentences on a number of charges arising from their involvement in a massive drug trafficking conspiracy. We affirm in part, reverse in part, vacate in part, and remand for resentencing.

I.

Between June 1988 and June 1992, Rene Gandara-Granillo ("Gandara") and Jesse Macias-Munoz ("Macias") were the leaders of a large-scale cocaine operation based in El Paso, Texas. Besides trafficking in cocaine, they arranged the kidnapping, torture, and interrogation of several of their associates who failed to account for missing cocaine or funds. Alfredo Gaytan was a lower-level operative in the conspiracy who participated in several meetings involving the drug transactions, and on at least one occasion stored and counted large quantities of cocaine at his residence. Altogether, the conspirators may have moved over 8,000 kilograms of cocaine during the course of several years.

A federal investigation utilized undercover agents, extensive surveillance, wiretapping of the defendants' cellular phones, information provided by coconspirator, and the co-conspirators' post-arrest statements. The investigation culminated in an eleven-count indictment charging the defendants with conspiracy to import cocaine (count one), conspiracy to possess cocaine with intent to distribute (count two), money laundering (counts three through seven), conspiracy to kidnap (counts eight and nine), and use of a telephone with intent to commit a crime of violence (counts ten and eleven). Counts one and two named thirteen coconspirators and referred to others "known and unknown."

After a lengthy trial, Macias was found guilty on counts one, two, three, six, eight, nine, ten, and eleven; Gandara was found guilty on counts two, four, five and eight; and Gaytan was found guilty on count two but acquitted as to count one. Macias and Gandara were sentenced to life imprisonment, while Gaytan received a 188-month sentence.

II. Alleged Errors in the Indictment

Counts one and two charged criminal conspiracy. The defendants assert that their convictions on these counts must be reversed because (1) the indictment failed to provide adequate notice of the charges; (2) there was a fatal variance between the indictment and the evidence produced at trial; and (3) the district court refused their requested multiple conspiracy instruction.

A. Adequate Notice of the Charges

We review the sufficiency of an indictment de novo. United States v. Nevers, 7 F.3d 59, 62 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1124, 127 L.Ed.2d 432 (1994). We will not reverse convictions for minor deficiencies in the indictment that cause no prejudice. United States v. Flores, 63 F.3d 1342, 1360 (5th Cir.1995); United States v. Chappell, 6 F.3d 1095, 1099 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1232, 127 L.Ed.2d 576 and cert. denied, --- U.S. ----, 114 S.Ct. 1235, 127 L.Ed.2d 579 (1994).

The defendants complain that counts one and two are "factually barren" and violate both FED.R.CRIM.P. 7(c)(1) and the Sixth Amendment, because "[a]llegations such as time, dates, places and persons involved and specific criminal acts, [sic] necessary to know the nature of the charges and prepare a defense simply are lacking." More particularly, the defendants argue that their attorneys could not adequately investigate the circumstances or the persons involved in any of the specific transactions involved in the alleged conspiracy.

The Sixth Amendment requires that an indictment (1) enumerate each prima facie element of the charged offense; (2) fairly inform the defendant of the charges filed against him; and (3) provide the defendant with a double jeopardy defense against future prosecutions. United States v. Arlen, 947 F.2d 139, 144 (5th Cir.1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1480, 117 L.Ed.2d 623 (1992). The dictates of FED.R.CRIM.P. 7 are essentially the same. See United States v. Ellender, 947 F.2d 748 (5th Cir.1991); see also Nevers, 7 F.3d at 62.

In Ellender, defendants convicted of conspiracy to import marihuana challenged the sufficiency of the indictment for failure to specify the time, location, and precise dates of acts involved in the conspiracy. We held that the indictment language " 'commencing in or about the month of July, 1982, and continuing through the month of August, 1984 ...' " was sufficient. Id. at 755-56 ("The precise dates on which the appellant committed the alleged acts are not necessary."). We also held that the language "in the Western District of Louisiana, and elsewhere" was sufficient to identify the location of the conspiracy. Id. The language of the indictment before us is nearly identical and therefore sufficient. ¹

Nor is it fatal that the indictment failed to identify specific criminal acts constituting the alleged conspiracy. The purpose of the indictment is to provide the defendant with notice of the offense with which he is charged. See United States v. Hagmann, 950 F.2d 175, 182 (5th Cir.1991), cert. denied, 506 U.S. 835, 113 S.Ct. 108, 121 L.Ed.2d 66 (1992). "[A]n indictment need not allege an overt act in furtherance of the conspiracy if the indictment alleges a conspiracy to distribute drugs, the time the conspiracy was operative, and the statute allegedly violated." United States v. Khan, 728 F.2d 676, 681 (5th Cir.1984).

While the defendants complain of the indictment's failure to identify unindicted coconspirators, they concede that the prosecution produced a list of forty-seven individuals five days prior to trial pursuant to an order by the district court. Five days' notice is certainly less than ideal, but the defendants cite no cases requiring that the indictment name unindicted coconspirator, nor do they provide evidence of any prejudice arising from the government's failure to disclose these names earlier. We therefore find no error.

B. Fatal Variance

The defendants maintain that a fatal variance existed between the evidence presented at trial--which they allege demonstrated the existence of six separate conspiracies--and the indictment, which alleged a single conspiracy. We may reverse a conviction when the defendant both proves a variance between the government's evidence at trial and the allegations in the indictment and demonstrates that the variance prejudiced his substantial rights. United States v. Morris, 46 F.3d 410, 414 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2595, 132 L.Ed.2d 842, and cert. denied, --- U.S. ----, 115 S.Ct. 2595, 132 L.Ed.2d 842 (1995); United States v. Puig-Infante, 19 F.3d 929, 935-36 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994). We find no variance between the indictment and the evidence adduced at trial, and we therefore do not consider whether the defendants' substantial rights were prejudiced.

"We must affirm the jury's finding that the government proved a single conspiracy unless the evidence and all reasonable inferences, examined in the light most favorable to the government, would preclude reasonable jurors from finding a single conspiracy beyond a reasonable doubt." United States v. De Varona, 872 F.2d 114, 118 (5th Cir.1989). To establish the existence of a drug conspiracy, the government must prove "(1) the existence of an agreement between two or more persons to violate the narcotics laws; (2) that each conspirator knew of the conspiracy and intended to join it; and (3) that each alleged conspirator participated in the conspiracy." Morris, 46 F.3d at 414-15. Among the factors to be considered in determining whether a single conspiracy was proven by the government are (1) the existence of a common goal, (2) the nature of the scheme, and (3) whether the participants overlapped. Id. at 415; Puig-Infante, 19 F.3d at 936.

The evidence was sufficient to support a finding of a single conspiracy under the above standard. The common goal of the conspiracy was financial gain through the importation and distribution of cocaine from El Paso to California. The evidence demonstrated that each defendant played a particular role in the conspiracy. Intercepted conversations between Macias and Gandara, viewed in combination with testimony and tape recordings of each of them regarding other transactions, suggests that they were heavily involved in the planning and distribution of the cocaine. There was evidence that Gaytan counted and stored 115 kilograms of cocaine at his home at Macias's direction. Macias was also involved with the storage of money at Gaytan's residence. Taken in conjunction, the evidence demonstrates significant overlap between the defendants, with each performing special functions critical to the overall success of the enterprise. A reasonable juror considering this evidence could find that a single conspiracy existed. See Morris, 46 F.3d at 416 (holding that "the existence of a single conspiracy will be inferred where the activities of one aspect of the scheme are necessary or advantageous to the success of another aspect or to the overall success of the venture").

III. The Multiple Conspiracy Instruction

The defendants next argue that the court erred by denying their request to give the Fifth Circuit Pattern Jury Instruction. We review a refusal to give a requested jury instruction for abuse of discretion. Morris, 46 F.3d at 418. We...