U.S. v. Betancourt

• Decision Date: 17 August 2005
• Docket Number: No. 03-41590.,03-41590.
• Citation: 422 F.3d 240
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis BETANCOURT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

422 F.3d 240

UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis BETANCOURT, Defendant-Appellant.

No. 03-41590.

United States Court of Appeals, Fifth Circuit.

August 17, 2005.

COPYRIGHT MATERIAL OMITTED

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

Baltazar Salazar (argued), Houston, TX, for Defendant-Appellant.

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

Before GARWOOD, SMITH and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Jose Luis Betancourt was convicted of drug trafficking and forced to forfeit his interest in Texas lottery winnings of over $5 million because the ticket was purchased with proceeds of that trafficking. He appeals his sentence of 292 months and the forfeiture. Having carefully reviewed the record and the parties' submissions, we find no error in the sentencing or forfeiture and affirm the judgment of the district court.

I. FACTS AND PROCEEDINGS

A. Proceedings Below

On February 12, 2003, Betancourt was indicted for possession with intent to distribute more than five hundred grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. Fourteen days later, the grand jury returned a superseding indictment charging Betancourt with conspiracy to possess more than five kilograms of cocaine between September 2002 and January 2003, thirty-six grams of cocaine on January 16, 2003, and 1.63 kilograms on January 17, 2003. The superseding indictment also included a notice of the criminal forfeiture of $5,481,462.91 in Texas lottery proceeds, pursuant to 21 U.S.C. § 853, on the theory that the money was property derived from violations of 21 U.S.C. §§ 841 and 846.

At the conclusion of the trial, Betancourt was found guilty on all three counts of the superseding indictment. The jury then answered special interrogatories for the separate forfeiture phase and found that Betancourt purchased a winning Texas lottery ticket on December 11, 2002, "with proceeds the defendant obtained, directly or indirectly, during the course of the conspiracy of which [the jury had already] found him guilty, and there was no likely source for such property other than the conspiracy."

On June 25, 2003, the district court entered a preliminary order of forfeiture in the amount of $5,481,462.91, all of which was attributed to Betancourt's winning Texas lottery ticket. On November 4, 2003, the district court sentenced Betancourt to a term of 292 months of imprisonment to be followed by five years of supervised release.¹

B. Facts

(1) Cocaine Trafficking

Betancourt was convicted of possession with intent to distribute cocaine and conspiracy to possess cocaine. The government presented evidence to prove that Betancourt was not only involved in drug dealing, but was also the leader of an extensive cocaine distribution chain. Jose Denicio Esparza, the government's principal witness, first met Betancourt in 2000 and began buying cocaine from him. By mid-2002, the amount of cocaine Betancourt sold to Esparza gradually increased to approximately two ounces per day, every day except Sunday when Betancourt did not sell drugs. Esparza not only worked directly with Betancourt, but also sold cocaine purchased from Betancourt to many others. After winning the lottery, Betancourt taught Esparza how to run his cocaine business, and trained him to manage his "cut and dilute" scheme. The two agreed that Betancourt would front Esparza the cocaine, and Esparza in turn would handle the day-to-day operations.

Betancourt was also acquainted with Ramon Negrete who testified that Esparza's residence served as a central meeting place for numerous drug dealers buying cocaine from Betancourt. Negrete observed countless drug deals, and he was continually in contact with United States Bureau of Immigration and Customs Enforcement ("Customs") agents in his capacity as a confidential informant, providing them with information regarding Betancourt's cocaine trafficking.

Betancourt eventually relocated his base of operations from Esparza's home to Negrete's home, which provided Negrete with the ability to observe Betancourt's drug deals first-hand. Negrete testified that Betancourt sold packages of cocaine varying from a quarter ounce to three ounces in weight, six days a week, and that Betancourt always placed his drug proceeds in a small black bag that he carried on his person at all times. Negrete's observations provided evidence that Betancourt was not guilty of simple cocaine possession on a few occasions, but rather that he was a primary supplier for numerous other dealers.

By November 2002, Betancourt was prepared to expand his drug dealing enterprise and instructed Negrete to first build him a "clavito" or little compartment with sufficient space to hold two to three kilograms of cocaine. Betancourt told Negrete that he was a ten kilogram a week dealer, and he asked Negrete to remodel his warehouse to store 100 kilograms of cocaine for Betancourt.

On January 16, 2003, U.S. Customs agents secretly recorded a conversation between Negrete and Betancourt with Negrete's cooperation. Betancourt incriminated himself by making various references to selling cocaine, as well as stating that he had three kilograms on hand. When Negrete attempted to buy cocaine from Betancourt, he responded to Negrete's request and said, "I can't do those right now because I have to—I have to feed a lot of people I have out there just like you. Just as I gave you one ounce right now today right now at this time, I already distributed seven pieces of [cocaine]."

Furthermore, Betancourt mentioned various people by name to whom he delivered cocaine and volunteered that he had "like about 12 [people] and they're all like you. That's it. I want to help them out. I want to help them out." Negrete and Special Agent Mena understood this last statement to mean that there were 12 individuals in addition to Negrete who sold cocaine for Betancourt. In this same meeting, Betancourt gave Negrete thirty-six grams of cocaine.

The Customs agents commenced surveillance of Betancourt's apartment, and arrested him on January 17, 2003. Betancourt consented to a search of his apartment, where agents seized one and a half kilograms of cocaine. The agents also found a significant amount of drug paraphernalia and concluded that Betancourt was selling cocaine in kilogram quantities out of his apartment.

(2) The Texas Lottery

Betancourt won the Texas lottery on December 11, 2002. In the forfeiture phase of trial, the government intended to show that Betancourt's interest in the winning Texas lottery ticket was purchased with proceeds from the sale of cocaine. Guadalupe Rosales, Betancourt's neighbor, would regularly pick the numbers for lottery tickets with the understanding that while Betancourt contributed ten dollars and Rosales only five dollars, the two men would split any winnings from the Texas lottery equally. Every time that Betancourt paid Rosales for his share of the lottery tickets, Betancourt would reach into the black bag he always carried to retrieve the money; this was the same bag into which he was regularly seen placing his drug proceeds.

(3) Sentencing

At sentencing, despite Betancourt's numerous objections to the PSR, the district court found that there was sufficient evidence to conclude by a preponderance of the evidence that he supplied cocaine "conservatively estimated at 102 kilograms." The district court also relied on the probation officer's determination that Betancourt was a leader or organizer of criminal activity which involved at least twelve participants. Betancourt's own admissions aided the probation officer in calculating the total amount of cocaine for which he was responsible.

Betancourt now appeals his sentence and the forfeiture, claiming that the district court erroneously calculated the overall quantity of cocaine attributable to him. He further objects to his classification as an "organizer or leader" of a criminal organization. Finally, he asks this Court to find that the forfeiture of his lottery proceeds was in violation of the Excessive Fines Clause of the Eighth Amendment to the Constitution.

II. DISCUSSION

A. Criminal Organization or Leadership

Betancourt argues that the district court erred in determining that he was a leader or organizer of an extensive criminal organization; this determination enhanced his sentence by four levels under section § 3B1.1(a) of the U.S. Sentencing Guidelines.

(1) Standard of Review

This Court reviews the district court's findings of fact with respect to sentencing under the clear error standard. United States v. Glinsey, 209 F.3d 386, 396 (5th Cir.2000). A finding of fact is not clearly erroneous "[a]s long as it is plausible in light of the record read as a whole." United States v. Morris, 46 F.3d 410, 419 (5th Cir.1995).

(2) The District Court's Application of U.S. Sentencing Guideline § 3B1.1

Section 3B1.1(a) provides that the district court shall increase the offense level by four levels "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S. SENTENCING GUIDELINES MANUAL § 3B1.1(a).

Betancourt's own tape-recorded admissions, the phone records presented at trial, and the testimony of Esparza and Negrete establish that the criminal activity involved more than five participants. Esparza sold cocaine he received from Betancourt to Mike Luna, Manuel Obregon, Gregorio Hernandez, Armando "La Liona" Rodriguez, Armando Hernandez, Roberto de Los Santos, Joe Cruz, Jesus "Chewy" Rodriguez, and several others. Betancourt told Esparza that he, Betancourt, sold cocaine to Noe Hernandez, Mike Luna, FNU Rolando, and others in the El Ranchito, San Benito, and Brownsville areas. Negrete saw Betancourt sell cocaine to Esparza, Leo Fuentes, Noe Hernandez, Mike...