U.S. v. Chavez, 96-20622

• Decision Date: 04 August 1997
• Docket Number: No. 96-20622,96-20622
• Parties: 47 Fed. R. Evid. Serv. 606 UNITED STATES of America, Plaintiff-Appellee, v. Oscar CHAVEZ; Arturo Rodriguez Guerra; Miguel Perez Lopez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 342

119 F.3d 342

47 Fed. R. Evid. Serv. 606

UNITED STATES of America, Plaintiff-Appellee, v. Oscar CHAVEZ; Arturo Rodriguez Guerra; Miguel Perez Lopez,

Defendants-Appellants.

No. 96-20622.

United States Court of Appeals, Fifth Circuit.

Aug. 4, 1997.

Kathlyn Giannaula Snyder, Paula Camille Offenhauser, Assistant U.S. Attorney, Houston, TX, for Plaintiff-Appellee.

David B. Adler, Bellaire, TX, for Oscar Chavez, Defendant-Appellant.

Lourdes Rodriguez, Houston, TX, for Arturo Rodriguez Guerra, Defendant-Appellant.

Marjorie A. Meyers, Bennett, Secrest & Meyers, Houston, TX, for Miguel Perez Lopez, Defendant-Appellant.

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

Before KING, DAVIS and DEMOSS, Circuit Judges.

PER CURIAM:

Oscar Chavez, Arturo Rodriguez-Guerra, and Miguel Perez-Lopez appeal their convictions for conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. § 846, and for aiding and abetting the possession of marijuana with intent to distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). Miguel Perez-Lopez also appeals his conviction for using and carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c). Finally, Perez appeals an increase in his sentence for lying to the court during his sentencing hearing. Finding no error, we affirm the judgments of conviction and sentences.

I. BACKGROUND

Oscar Chavez ("Chavez"), Arturo Rodriguez-Guerra ("Rodriguez"), and Miguel Perez-Lopez ("Perez") were charged by indictment with conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. § 846, and with aiding and abetting the possession of marijuana with intent to distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). Perez was also charged with using and carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c).

The district court denied the defendants' motions for judgment of acquittal at the close of the government's case-in-chief and again at the close of the evidence, and the jury convicted each of the defendants as charged. Chavez was sentenced to 63 months confinement and a five-year term of supervised release, and was assessed a $12,500 fine and a $100 special assessment. Rodriguez was sentenced to 120 months confinement and a five-year term of supervised release, and was assessed a $12,500 fine and a $100 special assessment. Perez was sentenced to 78 months confinement on the drug counts, followed by 60 months confinement on the firearm count. He was additionally sentenced to a five-year term of supervised release, followed by a three-year term of supervised release, and was assessed a fine of $12,500 and a special assessment of $100.

The events leading to the indictment began in August 1995 when Donato "Rico" Chavez, a paid informant for various law enforcement agencies, contacted DEA agents Russell Reina and Wendell Campbell and offered to provide information on alleged drug dealer Oscar Chavez. The agents agreed to arrange a deal for 400 pounds of marijuana. Rico contacted Chavez and set up the purchase.

On September 27, 1995, Rico and Agent Reina, acting undercover and driving separate vehicles, met with the defendants at a restaurant. Chavez told Rico that Rodriguez was his friend and that Rodriguez had the "stuff." Chavez asked Rico if he had the money, and Rico replied that it was in Reina's truck. Rico, Chavez, and Rodriguez approached the passenger side of Reina's pickup, where Reina displayed a bag of cash through the open passenger window.

Rico gave Chavez the keys to the rented van that Rico had driven to the site. Chavez handed the keys to Rodriguez, who in turn handed them to a third person. Reina identified the third person as Perez, but Rico was certain it was not. The third person, identified as Perez by an agent on surveillance, departed in the van. Chavez then suggested that the rest of them leave the area. Rico, Chavez, and Rodriguez drove to a nearby Burger King, followed by Reina in the pickup truck. Reina claimed that Rodriguez drove in a manner that indicated he was attempting to avoid surveillance, although Rico testified that there was nothing unusual about their route.

Shortly after Rico, Chavez, Rodriguez, and Reina returned to the original restaurant, the van pulled into the parking lot. Reina observed a bulky package in the back seat of the van and gave the arrest signal. All three defendants were arrested. During the course of the arrest, Perez pulled a loaded firearm from his waistband, but threw it aside when overpowered by a police officer.

II. DISCUSSION

A. Sufficiency of the Evidence to Support a Finding of Predisposition Against Chavez

Chavez contends that the district court erred in failing to grant his motions for judgment of acquittal because there was insufficient evidence to support a finding of predisposition against him. He argues that he properly raised the defense of entrapment at trial and the government failed to meet its burden of proving beyond a reasonable doubt that he was predisposed to commit the charged drug offense.

"When the government ... has induced an individual to break the law, and the defense of entrapment is at issue, the prosecution must prove beyond a reasonable doubt that the defendant was inclined to commit the criminal act even before he was approached by government agents." United States v. Byrd, 31 F.3d 1329, 1334-35 (5th Cir.1994) (citing Jacobson v. United States, 503 U.S. 540, 548-49, 112 S.Ct. 1535, 1540-41, 118 L.Ed.2d 174 (1992)), cert. denied, 514 U.S. 1052, 115 S.Ct. 1432, 131 L.Ed.2d 313 (1995). Using a sufficiency of the evidence analysis, this court must accept the facts in the light most favorable to the guilty verdict and may reverse only if no rational jury could have found predisposition beyond a reasonable doubt. Id. at 1335. Many factors may indicate a defendant's predisposition, including "a showing of a defendant's desire for profit, his eagerness to participate in the transaction, his ready response to the government's inducement offer, or his demonstrated knowledge or experience in the criminal activity under investigation." United States v. Madrigal, 43 F.3d 1367, 1370 (10th Cir.1994) (internal quotation omitted), cert. denied, 514 U.S. 1089, 115 S.Ct. 1808, 131 L.Ed.2d 733 (1995).

Rico testified that when he first met Chavez through Rico's friend Santos, Santos purchased marijuana from Chavez. Furthermore, Chavez readily agreed to arrange a drug deal when Rico told him he had a buyer, and Chavez demonstrated knowledge of his role as a broker during the drug transaction. A jury could reasonably infer from this evidence that Chavez was predisposed to commit the offense.

B. Fifteen-Year-Old Conviction

Rodriguez argues that the district court abused its discretion in permitting the government to introduce his 1979 conviction for conspiracy to possess with intent to distribute cocaine. Rodriguez contends that the prior conviction is so remote that its prejudicial value outweighs its probative value.

Extrinsic evidence is properly admitted under Federal Rule of Evidence 404(b) ¹ only if it is relevant to an issue other than the defendant's character and its probative value is not substantially outweighed by the danger of unfair prejudice. United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). We review the district court's ruling under Rules 403 ² and 404(b) for abuse of discretion. United States v. Gadison, 8 F.3d 186, 192 (5th Cir.1993).

The admission of extrinsic evidence is permissible under Rule 404(b) when a defendant places his intent at issue in a drug conspiracy case by pleading not guilty. United States v. Wilwright, 56 F.3d 586, 589 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 345, 133 L.Ed.2d 242 (1995). Although the temporal remoteness of extrinsic evidence introduced to show intent weakens its probative value, the age of a prior conviction has never been held to be a per se bar to its use under Rule 404. See United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 264, 136 L.Ed.2d 189 (1996). Instead, we apply the test set forth in Beechum.

This court stated in Beechum that "[t]he task for the court in its ascertainment of probative value and unfair prejudice under rule 403 calls for a common sense assessment of all the circumstances surrounding the extrinsic offense." 582 F.2d at 914. The probative value of extrinsic evidence is not an absolute, but must be determined with regard to various factors, such as the extent to which the defendant's unlawful intent is established by other evidence, the overall similarity of the extrinsic and charged offenses, and the amount of time that separates the extrinsic and charged offenses. Id. at 914-15.

Applying the Beechum test, the district court found:

Well, this is probative to show that [Rodriguez] wasn't merely present, that he had knowledge and intent.

...

In this case, the evidence of the prior conviction is relevant. It involves the same crime. Even though it's an old conviction, it is for conspiracy to possess with intent to distribute cocaine....

I think the admission of this prior conviction makes it more likely than not that the jury will find that the defendant was not a mere spectator, but that he had knowledge and intent to possess with intent to distribute.

The second criteria is whether the relevance is substantially outweighed by the prejudice to the defendant. And it's not mere prejudice in the sense that he might be convicted. It's undue or unfair prejudice.

I conclude that relevance in this case is not substantially outweighed by the prejudice to the defendant where the other evidence of the defendant's guilt is either circumstantial or is not strong in the sense...