U.S. v. Atencio

• Decision Date: 20 January 2006
• Docket Number: No. 05-2022.,No. 04-2325.,04-2325.,05-2022.
• Citation: 435 F.3d 1222
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward ATENCIO and Eva Palma Atencio, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

435 F.3d 1222

UNITED STATES of America, Plaintiff-Appellee, v. Edward ATENCIO and Eva Palma Atencio, Defendants-Appellants.

No. 04-2325.

No. 05-2022.

United States Court of Appeals, Tenth Circuit.

January 20, 2006.

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David J. Pire (Phillip C. Gregory with him on the briefs), for Defendants-Appellants.

Laura Fashing (David C. Iglesias with her on the brief), for Plaintiff-Appellee.

Before McCONNELL, HOLLOWAY and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.

In December 2003, a grand jury returned a nine-count indictment against Edward and Eva Atencio for violations of federal drug laws, transportation of money derived from a criminal offense, and criminal forfeiture. This appeal concerns only the first seven counts.

Count 1, the most serious charge and the principal subject of this appeal, alleged that for a period of approximately 52 months from January 1999 to May 2003, the Atencios engaged in a continuing criminal enterprise under 21 U.S.C. §§ 848(b) and 848(c) through a continuing series of violations of federal drug laws involving at least 30,000 kilograms of marijuana and 150 kilograms of cocaine. Count 2 charged the Atencios, under 21 U.S.C. § 846, with conspiracy to possess with intent to distribute more than 5 kilograms of cocaine and 1,000 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Counts 3, 4, 5 and 6 charged that the Atencios had maintained four places for distribution of controlled substances in violation of 21 U.S.C. §§ 856(a)(1) and 856(b). Count 7 charged them with possession with intent to distribute more than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

I. Facts and Procedural Background

At trial, the government's witnesses included three individuals who had worked as drug transporters for the Atencios. The first, Leta Quesada, transported drugs, money, and other supplies for the Atencios from October 1999 to October 2000, when she was arrested at the Mexican border carrying 200 pounds of marijuana. During that time she transported roughly 10,000 pounds of marijuana over the course of more than 50 trips to Mexico, each time driving a Mitsubishi convertible that could hold just over 200 pounds. She also participated in transactions involving 4 or 5 kilograms of cocaine. Ms. Quesada primarily took direction from Edward Atencio, although Eva Atencio attended about half of her deliveries and sometimes paid Ms. Quesada directly. She knew of at least two other drivers, a husband and wife, who worked for the organization.

The second drug transporter, Mario Duran, worked for the Atencios from early 2003 to May 2003, when he too was arrested at the Mexican border carrying 213 pounds of marijuana. All told, Mr. Duran transported just under 900 pounds of marijuana. He primarily took direction from Eva Atencio, but he referred to both Atencios as his "bosses." R. Vol. I, p. 404. After he returned empty-handed from one trip because workers in Mexico had not loaded his vehicle on time, Eva Atencio angrily phoned her father, her brother, and another man named "Popeye" in Mexico. She chastised them, complaining that the loaders "weren't doing their job, and she wasn't paying them to just slack around." R. Vol. II, p. 466. During his trips to Mexico, Mr. Duran learned of three other individuals (Debbie, Alfred, and Willie) who transported cocaine and marijuana for the Atencios, and he once watched as workers loaded about 15 boxes of cocaine into an RV for shipment. Later, Mr. Duran cooperated with the authorities and recorded a conversation with the Atencios. During that conversation, Eva Atencio gave specific directions to Mr. Duran and acknowledged giving instructions to her father and Popeye as well. The third drug transporter, Angela Ramirez, began working for the Atencios in 1999. She made a total of approximately 35 deliveries of marijuana to a particular house in Albuquerque, New Mexico, as well as "a couple" deliveries elsewhere. Id. at 599. Each trip involved less than 100 pounds of marijuana, so Ms. Ramirez transported a total of less than 3,500 pounds. She was hired by Edward Atencio, but "ordinarily" received payment from Eva Atencio.

Other witnesses at trial included Eva Atencio's uncle, Jose Del Carmelo Palma-Amaya ("Mr.Palma"), who testified that he had seen the Atencios storing 200 pounds of marijuana and 10 or 15 kilograms of cocaine. On one occasion, he had seen 25 kilograms of cocaine stored in an RV parked outside the Atencios' residence on Pajarito Road in Albuquerque (hereinafter "the Pajarito Road residence"), which was the place for distribution charged in Count 4. He knew of at least four drivers (his brother Rogelio, Carmen Romero, and Blanca Guerro and her husband Paco) who worked for the Atencios transporting drugs. He described Edward and Eva Atencio as two of the three "bosses" of the organization, and testified that each of the drivers worked "for them," by which he meant "Ed and Eva Atencio." Id. at 673-76.

The government also introduced, over the objection of defense counsel, the videotape deposition of Jesus Felipe Gambino Madrid, a brother-in-law of Eva Atencio. Mr. Gambino Madrid witnessed Edward Atencio's receipt of three shipments of marijuana, totaling 540 pounds.

The government submitted physical evidence, including drugs, packaging equipment, weapons and ammunition, seized from the four locations named in the indictment. Among the papers seized were drug ledgers obtained from three of those locations. One ledger, recovered from the Pajarito Road residence, documented cocaine transactions for a nine-month period from August 3, 2002 to April 29, 2003, and reflected receipts of 291 kilograms of cocaine. An expert witness, Agent Rene Medina, testified that based on the testimony of the witnesses and his review of the ledgers, extrapolating those data over the length of the conspiracy from January 1999 to May 2003, the Atencios' conspiracy involved approximately 1,891 kilograms of cocaine and a "conservative estimate" of 40,239 kilograms (88,712 pounds) of marijuana. R. Vol. II, pp. 890, 893.

In his closing argument, counsel for Edward Atencio told the jury:

This is a guy who, according to them, had a 60 million dollar operation; but yet, when he was free for 80 days, stayed around, went to court, didn't try to hide, didn't run. Does it look like a guy who had that much to lose would stay around in town?

R. Vol. III, p. 985. During the government's rebuttal, the following exchange occurred:

[Prosecutor:] [The defense] makes much of Ed Atencio being out from May 6 and through July 22.... Flee to Mexico? Should he have fled to Mexico? I want you to recall what this organization involved.... This was a multi-million-dollar operation. Eva Atencio was in jail.

[Defense Counsel:] I object to that, Your Honor.

[Prosecutor:] Your Honor, Ed Atencio is supposed to go to Mexico, to Eva Palma's family, without Eva? Where was he supposed to flee?

Id. at 1012-13. The district court made no immediate ruling on the objection, although it had already instructed the jury to base its verdict "solely upon the evidence," noting that "any statements, objections, or arguments made by the lawyers are not evidence." Id. at 935-36. The district court ultimately denied Eva Atencio's motion for a mistrial on the basis of the comment.

The jury convicted both Edward and Eva Atencio on all counts. In returning its verdict of guilty on Count 1 for a continuing criminal enterprise, the jury found that "the offense charged in Count 1 involved at least 30,000 kilograms of marijuana... or 150 kilograms of cocaine." R. Vol. I, p. 111. [Jury instruction 8D] Each of the defendants received a mandatory life sentence under Count 1, an additional life sentence under Count 2, a 240-month sentence under Counts 3-7, and a 60-month sentence for transportation of money derived from a criminal offense. The district court ordered that the sentences should run concurrently.

On appeal, the Atencios raise several challenges to their convictions under the continuing criminal enterprise statute. They also argue that their sentences for conspiracy violate their rights under the Double Jeopardy Clause because conspiracy is a lesser included offense of a continuing criminal enterprise. They object to two aspects of the trial itself: the admission of the videotape deposition of Mr. Gambino Madrid, and the prosecutor's statement during closing arguments that "Eva Atencio is in jail." We reverse as to the separate sentence for conspiracy, as conceded by the government, and remand to the district court with instructions to vacate that sentence. As to all other issues, we affirm the judgment of the district court.

II. Continuing Criminal Enterprise Challenges

The Atencios appeal on several grounds from their convictions under the continuing criminal enterprise ("CCE") statute, which provides in pertinent part that:

(b) Any person who engages in a continuing criminal enterprise shall be imprisoned for life ... if ...

(2)(A) the violation referred to in subsection (c)(1) of this section involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of this title....

(c) ... [A] person is engaged in a continuing criminal enterprise if—

(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter—

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources.

21 U.S.C. § 848. The Atencios raise several challenges under the statute: (1) that the...