U.S. v. Cordova

• Decision Date: 05 October 1998
• Docket Number: 98-1158SD and 98-1159SD,Nos. 98-1157S,s. 98-1157S
• Citation: 157 F.3d 587
• Parties: UNITED STATES of America, Appellee, v. Thomas Edward CORDOVA, Frankie Cordova, Harold Leonard Dominguez, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 587

157 F.3d 587

UNITED STATES of America, Appellee, v. Thomas Edward CORDOVA, Frankie Cordova, Harold Leonard

Dominguez, Appellants.

Nos. 98-1157SD, 98-1158SD and 98-1159SD.

United States Court of Appeals,

Eighth Circuit.

Submitted May 13, 1998.

Decided Oct. 5, 1998.

Rehearing Denied in No. 98-1159

Oct. 29, 1998.

Rehearing Denied in No. 98-1158

Nov. 12, 1998.

Rehearing Denied in No. 98-1157

Nov. 18, 1998.

Jon W. Dill, Rapid City, South Dakota, argued, for Thomas Edward Cardova in No. 98-1157;

Portia K. Browm, Rapid City, South Dakota, argued, for Frankie Cordova in No. 98-1158;

Daniel J. Sears, Lakewood, Colorado, argued, for Harold Dominguez in No. 98-1159.

Mark Vargo, Assistant U.S. Attorney, Rapid City, South Dakota, argued (Michelle G. Tapken, on the brief), for United States of America.

Before McMILLIAN, MORRIS SHEPPARD ARNOLD, Circuit Judges, and LAUGHREY, District Judge. ¹

LAUGHREY, District Judge.

These consolidated appeals arise out of the Defendants' convictions for conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1). Harold Leonard Dominguez ("Dominguez") challenges the sufficiency of the evidence to support his conviction, the admission of coconspirators' statements, and the quantity of drugs attributed to him at sentencing. Thomas Cordova claims that his motion for change of venue should have been granted and he was denied his right to a speedy trial. Frankie Cordova, Dominguez and Thomas Cordova all claim that they were denied a fair trial because the trial judge and a prospective juror made prejudicial statements during voir dire and the trial judge refused to give the Defendants' theory of defense instructions and restricted the cross-examination of government witnesses. We affirm.

I. Background

Viewing the evidence in the light most favorable to the government, the jury could have found the following facts were established at trial. Between 1994 and 1996, Jeff Mousel ("Mousel") traveled from South Dakota to Denver to purchase large quantities of marijuana from Thomas Cordova. Mousel was helped by Toby Ness ("Ness") and Clayton Williamson ("Williamson"). Mousel, Ness and Williamson also purchased cocaine from Frankie Cordova, the nephew of Thomas Cordova. During the two-year time period, the South Dakota men made over 50 trips to Denver and transported more than 300 pounds of marijuana back to South Dakota for sale.

Leonard Dominguez was the supplier of the marijuana that was being sold by Thomas Cordova to the South Dakota men. Thomas Cordova told Ness that his Uncle Leonard was the supplier of the marijuana and on several occasions Mousel, Ness, and Williamson observed Dominguez deliver the marijuana to Thomas Cordova, who then delivered it to the South Dakota men. Dominguez eventually gave his telephone number to Ness, Mousel and Williamson and said they could contact him directly when they wanted to buy marijuana. Thomas Cordova knew that Mousel, Ness, and Williamson were from South Dakota and that they were selling the drugs in South Dakota. Dominguez was also aware of these drug transactions in South Dakota.

II. Discussion

A. Sufficiency of the Evidence

Dominguez claims that there is insufficient evidence to support his conviction for conspiracy to distribute a controlled substance. In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the government, resolving evidentiary issues in favor of the government and accepting all reasonable inferences drawn from the evidence that supports the verdict. United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992), cert. denied, 505 U.S. 1211, 112 S.Ct. 3009, 120 L.Ed.2d 883 (1992). "A jury's verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable minded juror to conclude guilt beyond a reasonable doubt." Id. at 389.

To establish a drug conspiracy, the government must prove the existence of an agreement between two or more persons to violate federal narcotics law, the defendant's knowledge of the agreement, and the defendant's voluntary participation in the agreement. United States v. Hester, 140 F.3d 753, 760 (8th Cir.1998); United States v. Gonzales, 79 F.3d 413, 423 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 183, 136 L.Ed.2d 122 (1986). These elements may be established by reasonable inferences from the evidence. Henderson v. United States, 815 F.2d 1189, 1191 (8th Cir.1987). Dominguez does not contest the existence of a conspiracy to distribute marijuana in South Dakota. Rather he contends that there was insufficient evidence to show that he knew about or participated in the conspiracy. He claims that the government's case is based on the fact that he was related to Thomas Cordova, lived close by, was seen delivering boxes to Thomas Cordova, exchanged pleasantries with the South Dakota men on one occasion, and his phone number was found in their notebook. He asserts that even the jury was uncertain about Dominguez's involvement in the conspiracy because they sent a note to the judge during deliberations which asked: "Did the witnesses testify to any money or drugs being exchanged with Leonard directly or through Thomas in the presence of witnesses?" After a careful review of the lengthy record, we conclude that the government presented sufficient evidence to link Dominguez to the South Dakota conspiracy.

An agreement to join a conspiracy "need not be explicit but may be inferred from the facts and circumstances of the case." United States v. Evans, 970 F.2d 663, 669 (10th Cir.1992), cert. denied, 507 U.S. 922, 113 S.Ct. 1288, 122 L.Ed.2d 680 (1993). "Once the existence of a conspiracy is established, slight evidence connecting a defendant to the conspiracy is sufficient to support a conviction." United States v. Lomax, 34 F.3d 1405, 1412 (1994), cert. denied, 513 U.S. 1179, 115 S.Ct. 1164, 130 L.Ed.2d 1119 (1995). The conspiracy in this case involved an agreement to distribute marijuana in South Dakota. The evidence shows that Thomas Cordova sold over 300 pounds of marijuana to South Dakota residents knowing the marijuana was being distributed in South Dakota. The sales were made at regular and frequent intervals over a two-year period. Between visits, the coconspirators remained in contact by phone to arrange future buys. Telephone records document more than 100 calls between them during the two-year period.

Thomas Cordova said his Uncle Leonard was the supplier of the marijuana and that Thomas Cordova was only the middleman. Dominguez was seen by the South Dakota men on about 50 per cent of the trips to Denver. On one occasion, Ness saw Dominguez pull into the driveway at Thomas Cordova's house and give Thomas Cordova a duffle bag containing marijuana. The bag was then given by Thomas Cordova to Ness. On many other occasions, Ness and Mousel saw Dominguez arrive at Cordova's house with a 12-pack soda box. Dominguez would go into the bedroom with Thomas Cordova and the box. Thomas Cordova would then come out of the bedroom and get the money from Ness or Mousel. Thomas Cordova would return to the bedroom, at which point Dominguez exited the bedroom and the home. Thomas Cordova would then come out with the 12-pack soda box and deliver it to Mousel or Ness. The box contained the marijuana which they had just purchased. At other times, Ness saw Thomas Cordova go down the street toward Dominguez's house and then return with marijuana. Williamson once saw Dominguez in the alley with Thomas Cordova and Thomas Cordova returned to the house carrying a box of marijuana. Dominguez and the South Dakota men sometimes conversed and, on at least one occasion, Mousel spoke directly to Dominguez about the quality of the marijuana he was delivering. Eventually Dominguez gave the South Dakota men his telephone number so that they could call him directly for the marijuana. The telephone numbers of both Dominguez and Thomas Cordova were found in one of the coconspirator's notebook.

Given the quantity of drugs and the reoccurring pattern of sales, it is a reasonable inference that Dominguez knew these drugs were for distribution and not personal use. Given his close familial relation with Thomas Cordova and the fact that he was the supplier of marijuana to Thomas Cordova, it is logical to infer that Dominguez knew who was buying the drugs and where they were being taken. The conversations between Dominguez and the South Dakota men and his repeated presence at the drug transactions also creates a reasonable inference that Dominguez knew the purpose of the conspiracy and was a voluntary participant. Frequent contact between the defendants and joint appearances at drug transaction is evidence of an agreement to distribute drugs. United States v. Esparsen, 930 F.2d 1461, 1472 (10th Cir.1991), cert. denied, 502 U.S. 1036, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992); United States v. Horn, 946 F.2d 738, 743 (10th Cir.1991). Being the main supplier of drugs is sufficient to establish knowing participation in the conspiracy to distribute the drugs. United States v. Romero, 150 F.3d 821, 825 (8th Cir.1998). While the jury asked whether there was evidence of money or drugs being exchanged directly between Dominguez and the South Dakota men, the law does not require such an exchange to support a conviction for conspiracy. Furthermore, after the note, the judge instructed the jury that they must make their own decision based on their recollection of the evidence. Thereafter, the jury convicted Dominguez of conspiracy to distribute a controlled substance.

B. Restrictions on Testimony of Agent Hanson

Robert Hanson, a Special Agent of the United States Drug Enforcement Administration ("DEA"), conducted the investigation which resulted in the Defendants' arrests. During the trial, the Defendants questioned Agent Hanson about how he conducted his investigation, including things which he did not do. Hanson acknowledged that...