97 F.3d 782 (5th Cir. 1996), 95-10755, United States v. Sotelo
| Citation | 97 F.3d 782 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Edward Ruben SOTELO, Ernesto Castro Quintana, Henry Arguijo, Gary Artiaga, Lawrence Anthony Flores, and Joe Angelo Sotelo, Jr., Defendants-Appellants. |
| Case Date | October 08, 1996 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fifth Circuit |
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Rehearing Denied Nov. 20, 1996.
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Delonia Anita Watson, U.S. Attorney's Office, Dallas, TX, for the U.S.
John H. Hagler, Dallas, TX, for Edward Ruben Sotelo.
Richard Alley, Fort Worth, TX, for Lawrence Anthony Flores.
Donel Lee Davidson, Bedford, TX, for Joe Angelo Sotelo.
Lawrence Brown, Fort Worth, TX, for Ernesto Castro Quintana.
Donald S. Gandy, Evans, Gandy, Daniel & Moore, Fort Worth, TX, for Henry Arguijo.
Jimmy Don Carter, Fort Worth, TX, for Gary Artiaga.
Appeals from the United States District Court for the Northern District of Texas.
Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Defendants-Appellants challenge their convictions and sentences relating to a drug trafficking conspiracy. Finding no reversible error, we affirm.
I. BACKGROUND
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Proceedings in the district court
Appellants were charged in a twelve-count indictment involving a marijuana and cocaine distribution conspiracy in the Fort Worth, Texas area that began in 1990 and continued through January 19, 1995. A jury returned guilty verdicts as to all six appellants on the conspiracy count (Count 1). Henry Arguijo, ("Arguijo") who was named only in the conspiracy count, received a 160 month prison term for his conviction on Court 1.
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In addition to the conspiracy conviction, Edward Sotelo was found guilty of continuing criminal enterprise (Count 2), possession of cocaine with intent to distribute (Counts 6 & 10), use of a communication facility to commit a felony (Counts 7, 8 & 9), possession of marijuana with intent to distribute (Count 11) and distribution of cocaine (count 12). 1 He was sentenced to life in prison 2 and given a $50,000 fine.
Joe Sotelo was found guilty of possession of cocaine with intent to distribute (Count 6) as well as the conspiracy conviction. He was also sentenced to life in prison.
Ernest Quintana ("Quintana") was found guilty of possession of cocaine and marijuana with intent to distribute (Counts 10 & 11) in addition to the conspiracy count. He received 151 months in prison.
Lawrence Flores ("Flores") was found guilty of distribution of cocaine (Count 12) and conspiracy. He was sentenced to 235 months in prison.
Gary Artiaga ("Artiaga") was convicted for using a communication facility to commit a felony (Count 9) and conspiracy. The district court sentenced him to 270 months in prison and a $25,000 fine.
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Facts
From 1988 to 1992 Edward Sotelo worked for Arguijo, delivering cocaine purchases ordered from Arguijo. Beginning in early 1992, purchasers begin ordering cocaine directly from Edward Sotelo. Although Edward Sotelo still did drug business with Arguijo, it appears that they were peers or that Arguijo began working for Edward Sotelo after 1992. Twelve narcotics offenders and numerous law enforcement officers testified at trial about the general operation of the Sotelo drug business and the following specific incidents.
Video surveillance on a warehouse leased by Artiaga revealed little traffic, but included visits by Edward Sotelo, Artiaga, Flores. A video tape was introduced at trial showing Edward Sotelo, Flores and Government witness Troy Williams at the warehouse. Williams, who purchased 60-70 kilograms from the Sotelo organization between 1991 and 1994, testified that he sometimes picked up his cocaine from the warehouse. Williams also testified concerning drug deals with Artiaga, Flores and Joe Sotelo.
Appellants' codefendant Eric Bryant pleaded guilty to drug charges and testified at trial about his eight-year history as a drug customer of the Sotelo drug organization. He normally purchased cocaine in kilogram quantities, cooked it into crack and sold the crack. On June 2, 1994, police intercepted telephone conversations from Edward Sotelo's residence in which Edward Sotelo set up a two-kilogram cocaine transaction. Joe Sotelo then delivered approximately a kilogram of cocaine to Eric Bryant in a cereal box. Police, who had been watching the transaction, stopped Bryant shortly after the transaction and recovered the box of cocaine.
Kevin Blevins, another Government witness, began purchasing drugs from Edward Sotelo and Quintana in 1993. At first he bought large amounts of marijuana and small amounts of cocaine, but later increased his cocaine purchases to kilogram quantities. In August 1994, Blevins was arrested. During the arrest Edward Sotelo paged him several times. Blevins agreed to answer the page and set up a drug buy from Edward Sotelo. An undercover policeman went with Blevins to the buy. Edward Sotelo, who was driving the car, and Quintana, the passenger, were spooked by the undercover officer's presence and fled the scene. During the subsequent high-speed chase, a bag containing ten pounds of marijuana and a kilogram of cocaine was thrown from the car.
On June 18, 1993, Juan Robles, one of Sotelo's suppliers, sold five kilograms of cocaine
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to Joe Sotelo, received payment but delivered flour instead of cocaine. To make Robles return the money, Joe Sotelo, Edward Sotelo, Flores and another man, kidnapped Robles's fourteen-year-old brother, Gilberto Robles. Gilberto was threatened and hit, but sustained no injury except a small bump on the head. The police got involved, but were hindered because Gilberto was too scared of the Sotelos to cooperate with the police. He was eventually returned home by the police.
Arthur Franklin, another Government witness, was arrested for a drug offense and had agreed to cooperate with the DEA before he became involved with the Sotelo organization. He set up a 5-kilogram cocaine deal with Edward Sotelo. When the cocaine was delivered, the police monitored the transaction and Edward Sotelo and Flores were arrested.
II. SUFFICIENCY OF THE EVIDENCE
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Standard of review
A conviction must be allowed to stand if, after viewing the evidence in the light most favorable to the prosecution, the reviewing court finds that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
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Edward Sotelo
Edward Sotelo challenges the sufficiency of the evidence to support his convictions on Count 2, Continuing Criminal Enterprise and Count 12, Distribution of Cocaine.
A conviction for Continuing Criminal Enterprise (CCE) requires proof that a defendant organized, supervised or managed five or more persons in a continuing series of drug violations from which the defendant obtained substantial income. See 21 U.S.C. § 848. "Such relationships need not have existed at the same moment in time. It is sufficient if there exist separate, individual relations of control with at least five persons. Furthermore, the requisite five persons need not act in concert at the same time. Additionally, the same type of superior-subordinate relationship need not exist between the supervisor and each of the five other persons involved." United States v. Phillips, 664 F.2d 971, 1013 (5th Cir.1981) (citations omitted), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). The Government need not prove that the defendant is the "single ringleader." Id. at 1034.
Edward Sotelo argues that the evidence proved separate multiple conspiracies rather than a single conspiracy. He contends that he was acting independently from other individuals, as evidenced by referrals to Sotelo from other drug sellers when they did not have enough cocaine to fill an order. In determining whether single or multiple conspiracies exist, this Court looks at three factors: (1) the existence of a common goal; (2) the nature of the scheme; and (3) overlap of the participants. United States v. Maceo, 947 F.2d 1191, 1196 (5th Cir.1991), cert. denied, 503 U.S. 949, 112 S.Ct. 1510, 117 L.Ed.2d 647 (1992). First, the common goal was the sale of cocaine and marijuana; second, the nature of the scheme, to sell large quantities of drugs to others who were responsible for retailing it, is consistent throughout the evidence; and third, all of the indicted codefendants and cooperating Government witnesses were interrelated except witness Arthur Franklin, who came in at the end as an undercover informant. The evidence in the record is sufficient to establish Edward Sotelo's criminal liability for a CCE under the criteria set out in Phillips. Edward Sotelo's attack on his Continuing Criminal Enterprise conviction is without merit.
In order to prove that a defendant distributed a controlled substance, the Government must prove that the defendant (1) knowingly (2) distributed (3) the controlled substance. See 21 U.S.C. § 841(a)(1). Count 12 charged Edward Sotelo and Flores with distribution of cocaine in connection with the drug buy set up by Franklin, after which Edward Sotelo and Flores were arrested. Sotelo contends that his conviction in Count 12 rests solely on the perjured testimony of Arthur Franklin. There is no basis in the record before this Court for
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labeling Franklin's testimony perjured. Although his credibility was damaged because he continued to sell drugs after he agreed to work for the Government, his testimony about the specifics of the drug buy underlying Count 12 are corroborated by a taped phone conversation and by the testimony of the police officer that was posted outside the apartment during the...
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