882 F.2d 1059 (6th Cir. 1989), 88-3604, United States v. Rodriguez

Docket Nº88-3604.
Citation882 F.2d 1059
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Felino RODRIGUEZ, Defendant-Appellant.
Case DateAugust 15, 1989
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1059

882 F.2d 1059 (6th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Felino RODRIGUEZ, Defendant-Appellant.

No. 88-3604.

United States Court of Appeals, Sixth Circuit

August 15, 1989

Argued May 23, 1989.

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[Copyrighted Material Omitted]

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Gregory Lockhart, Gary L. Spartis (argued), Office of the U.S. Atty., Columbus, Ohio, for plaintiff-appellee.

John F. Jackson (argued), Columbus, Ohio, for defendant-appellant.

Before MILBURN, Circuit Judge, PECK, Senior Circuit Judge, and ALDRICH, District Judge [*].

MILBURN, Circuit Judge.

Defendant-appellant Felino Rodriguez ("defendant") appeals his jury conviction for possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Defendant also challenges the sentence imposed upon him by the district court, arguing that the court erroneously departed from the sentencing range as established by the United States Sentencing Commission Guidelines ("the Guidelines"). 1 For the reasons that follow, we affirm.

I.

A.

On December 10, 1987, a federal grand jury returned a two-count indictment charging defendant as follows: Count I, knowingly, intentionally, and unlawfully possessing with the intent to distribute cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1); and Count II, knowingly, intentionally, and unlawfully distributing cocaine also in violation of 21 U.S.C. Sec. 841(a)(1). The indictment alleged this activity occurred on or about December 3, 1987.

A jury trial commenced on March 1, 1988, and on March 9, 1988, the jury returned a verdict of guilty with respect to Count I of the indictment but found defendant not guilty as to Count II. After a presentence investigation report was completed, the district court held a sentencing hearing on July 5, 1988. The court stated that application of the Guidelines required a range of imprisonment of thirty to thirty-

Page 1062

seven months. The court, however, departed from the guidelines and sentenced defendant to a six-year term of imprisonment to be followed by a five-year period of supervised release. The court also imposed a special assessment of $50.00. In imposing this sentence, the district court considered the facts and circumstances of the case and determined that an upward departure from the guidelines was warranted. This timely appeal followed.

B.

In November 1987, detectives of the Franklin County, Ohio, Sheriff's Department were conducting an undercover investigation into drug activity in the northern area of Columbus, Ohio. During the course of this investigation, undercover detectives met with two individuals, Frank Hernandez and his girl friend, Janine Leonard, to discuss the purchase of narcotics. On November 24, 1987, Detectives Mike Spiert and Mike Powell drove to Hernandez's home located at 3552 Livingston Avenue, Columbus, Ohio, and purchased one ounce of cocaine for $1,400.00. To complete this transaction, Hernandez drove to 1368 Meadow Avenue, later identified as defendant's home.

During the November 24, 1987, meeting, the detectives and Hernandez also discussed a future purchase of one-half ounce of cocaine in exchange for a VCR, clothes, and $100.00. It was agreed that Hernandez would provide the detectives with one-half ounce of cocaine in trade for these items.

On November 27, 1987, Detective Spiert spoke with Hernandez about the possibility of purchasing eight ounces of cocaine. On December 1, 1987, Spiert went to Hernandez's home to discuss further the possibility of completing this cocaine transaction.

On December 3, 1987, Detectives Spiert and Powell went to Hernandez's home to complete the deal for one-half ounce of cocaine. During this time, Detective Spiert again mentioned the possibility of purchasing eight ounces of cocaine from Hernandez. No definite agreement was reached, and Hernandez left his apartment with Leonard to obtain the one-half ounce of cocaine.

When Hernandez and Leonard left, they were driving a cream-colored jeep. A surveillance team followed, but temporarily lost sight of the vehicle. The surveillance team later found the jeep parked at 37 McMillen Avenue, Columbus, Ohio. After a short time, the jeep left the McMillen Avenue address. The same surveillance team again lost sight of the vehicle for approximately three to five minutes but then located it at 1368 Meadow Avenue in Columbus.

During this time, members of another surveillance team were observing activity at 1368 Meadow Avenue. At approximately 2:30 p.m., a detective saw defendant pull into the driveway in a 1973 Ford. Defendant exited the vehicle and entered the house by use of a key.

A short time later, defendant was observed leaving 1368 Meadow Avenue and walking towards a nearby restaurant where the jeep was then parked. When defendant got to the jeep, the surveillance team noticed a female exit the jeep and enter the restaurant while Hernandez stayed in the jeep. Defendant got in, spoke to Hernandez, and then the female returned. She boarded the jeep, and the three then drove back to 1368 Meadow Avenue. Defendant, Hernandez, and Leonard went into the house, and approximately twenty minutes later, Hernandez and Leonard left.

A search of 1368 Meadow Avenue was conducted at approximately 4:30 p.m. on December 3, 1987. Defendant was apprehended in the back of the house without incident. He was taken inside and placed in the dining room area, where he stayed while the search was conducted. During the search, scales commonly used in drug trafficking were found. A briefcase was also found in a dresser, and when a police dog alerted police to the briefcase, it was opened. Inside the briefcase was approximately $5,850.00 in cash and identification papers belonging to defendant. In addition to the briefcase, cash, and scales, the

Page 1063

search revealed a loaded .25 caliber automatic handgun and eight ounces of cocaine in individually wrapped packages. Defendant was arrested after the detectives discovered the cocaine.

On appeal defendant raises four issues as follows: (1) whether the district court erred in denying defendant's motion for judgment of acquittal as defendant argues that insufficient evidence was presented to support the jury's verdict, (2) whether the district court erred in admitting certain rebuttal testimony, (3) whether the district court erred in permitting testimony regarding narcotics transactions occurring on November 24, 1987, and (4) whether the district court erred in departing from the Sentencing Guidelines.

II.

A.

Defendant argues that his motion for judgment of acquittal should have been granted as there was insufficient evidence to convince the jury beyond a reasonable doubt that he was guilty of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). We reject this argument because: (1) defendant did not preserve his right to challenge the sufficiency of the evidence; and (2) assuming defendant preserved this issue for purposes of appeal, sufficient evidence was presented to support defendant's conviction.

At the close of the government's case-in-chief, defense counsel moved for judgment of acquittal pursuant to Fed.R.Crim.P. 29. Defense counsel, however, failed to renew his Rule 29 motion at the close of all the evidence. "Absent a manifest miscarriage of justice, we are unable to review the district court's denial of a Rule 29 Motion where the defendant did not renew that Motion at the close of all the evidence." United States v. Faymore, 736 F.2d 328, 334 (6th Cir.), cert. denied, 469 U.S. 868, 105 S.Ct. 213, 83 L.Ed.2d 143 (1984) (emphasis in original). See also United States v. Van Dyke, 605 F.2d 220, 225 (6th Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979); United States v. Denton, 556 F.2d 811, 817 (6th Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 269, 54 L.Ed.2d 178 (1977). Defendant has therefore waived his objection to the sufficiency of the evidence except to determine whether a "manifest miscarriage of justice" has occurred. Faymore, 736 F.2d at 334.

We conclude, however, that no such injustice has occurred in the present case. The evidence presented to the jury disclosed that when Hernandez told undercover detectives that he had to obtain cocaine for a given transaction, he drove to defendant's house. Hernandez then returned to conclude the cocaine transaction with the detectives. A search of defendant's house at 1368 Meadow Avenue produced eight ounces of cocaine. This amount was the same amount that the detectives were negotiating to purchase from Hernandez. The jury could infer from this evidence that Hernandez obtained his cocaine from defendant. Although the jury acquitted defendant on Count II, this is not inconsistent with the conviction on Count I regarding possession with intent to distribute cocaine.

Moreover, there was evidence showing that the defendant's possession of cocaine was with intent to distribute. The evidence consists of scales, commonly used to weigh drugs; cash, arguably obtained from drug transactions; and the handgun, which would be consistent with the protection and coercion common in transacting narcotics. Based on all the evidence, we find there was support for the jury's verdict and that no manifest injustice has occurred.

B.

Defendant testified in his own behalf and during cross-examination denied ever holding a handgun near someone's face. In rebuttal, the government called a witness who testified that she was present when defendant drew a pistol and pointed it at an individual defendant thought might betray him. On appeal defendant asserts that the

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district court should have excluded this testimony under Fed.R.Evid. 403 and 404.

We note that defense counsel failed to object to this testimony. Thus, our review is limited to determining whether plain error was committed in allowing the testimony. Fed.R.Crim.P...

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119 practice notes
  • 930 F.2d 495 (6th Cir. 1991), 90-3721, United States v. Feinman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • April 15, 1991
    ...them to the permissible grounds for departure. United States v. Kennedy, 893 F.2d 825, 827 (6th Cir.1990); United States v. Rodriguez, 882 F.2d 1059, 1066 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990). When departing from the Guidelines because a parti......
  • 32 F.3d 569 (6th Cir. 1994), 93-1674, U.S. v. Menichino
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • July 20, 1994
    ...the departure reasonable in its extent? United States v. Joan, 883 F.2d 491, 493-94 (6th Cir.1989); see also United States v. Rodriguez, 882 F.2d 1059, 1067 (6th Cir.1989),cert. denied, 493 U.S. 1084 (1990). As a general rule, the appellate court will defer to the sentencing court's "s......
  • 918 F.2d 647 (6th Cir. 1990), 90-5111, United States v. Duncan
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • November 8, 1990
    ...courts to choose the appropriate sentence. See United States v. Joan, 883 F.2d 491, 496 (6th Cir.1989); United States v. Rodriguez, 882 F.2d 1059, 1068 (6th Cir.1989) (recognizing that in departing from the Guidelines on appropriate factors, the district court's discretion in setting the se......
  • 70 F.3d 854 (6th Cir. 1995), 92-2144, United States v. Hart
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • November 16, 1995
    ...warranting departure actually exist in the particular case; and (3) whether the departure is reasonable. United States v. Rodriguez, 882 F.2d 1059, 1067 (6th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990); see also United States v. Bennett, 975 F.2d 305 (6th......
  • Request a trial to view additional results
119 cases
  • 930 F.2d 495 (6th Cir. 1991), 90-3721, United States v. Feinman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • April 15, 1991
    ...them to the permissible grounds for departure. United States v. Kennedy, 893 F.2d 825, 827 (6th Cir.1990); United States v. Rodriguez, 882 F.2d 1059, 1066 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990). When departing from the Guidelines because a parti......
  • 32 F.3d 569 (6th Cir. 1994), 93-1674, U.S. v. Menichino
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • July 20, 1994
    ...the departure reasonable in its extent? United States v. Joan, 883 F.2d 491, 493-94 (6th Cir.1989); see also United States v. Rodriguez, 882 F.2d 1059, 1067 (6th Cir.1989),cert. denied, 493 U.S. 1084 (1990). As a general rule, the appellate court will defer to the sentencing court's "s......
  • 918 F.2d 647 (6th Cir. 1990), 90-5111, United States v. Duncan
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • November 8, 1990
    ...courts to choose the appropriate sentence. See United States v. Joan, 883 F.2d 491, 496 (6th Cir.1989); United States v. Rodriguez, 882 F.2d 1059, 1068 (6th Cir.1989) (recognizing that in departing from the Guidelines on appropriate factors, the district court's discretion in setting the se......
  • 70 F.3d 854 (6th Cir. 1995), 92-2144, United States v. Hart
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • November 16, 1995
    ...warranting departure actually exist in the particular case; and (3) whether the departure is reasonable. United States v. Rodriguez, 882 F.2d 1059, 1067 (6th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990); see also United States v. Bennett, 975 F.2d 305 (6th......
  • Request a trial to view additional results