U.S. v. Corona-Verbera

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Trott
• Citation: U.S. v. Corona-Verbera, 509 F.3d 1105 (9th Cir. 2007)
• Decision Date: 07 December 2007
• Docket Number: No. 06-10538.,06-10538.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Felipe de Jesus CORONA-VERBERA, Defendant-Appellant.

509 F.3d 1105

UNITED STATES of America, Plaintiff-Appellee, v. Felipe de Jesus CORONA-VERBERA, Defendant-Appellant.

No. 06-10538.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 15, 2007.

Filed December 7, 2007.

Andrea L. Matheson, Matheson Law Firm, P.C., Tucson, AZ, for the defendant-appellant.

George Ferko, Assistant United States Attorney, Tucson, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Frank R. Zapata, District Judge, Presiding. D.C. No. CR-91-00446-FRZ.

Before: ROBERT R. BEEZER, STEPHEN S. TROTT, and N. RANDY SMITH, Circuit Judges.

TROTT, Circuit Judge:

Felipe de Jesus Corona-Verbera ("Corona-Verbera") appeals his jury conviction and four concurrent eighteen-year sentences for (1) conspiracy to import cocaine in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(B)(ii), and 963; (2) conspiracy to possess with intent to distribute marijuana and cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), 841(b)(1)(A)(ii)(II), and 846; (3) importation of cocaine in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(1)(B)(ii), and 18 U.S.C. § 2; and (4) possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)(II), and 18 U.S.C. § 2. We must decide (1) whether a nearly five-year delay between events giving rise to the indictment and the return of the indictment constituted a due process violation; (2) whether, in spite of a nearly eight-year delay between the indictment and arrest, our government was diligent in searching for Corona-Verbera and bringing him to trial; (3) whether there was sufficient evidence to convict Corona-Verbera on all four counts; and (4) whether four concurrent eighteen-year sentences were unreasonable. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I BACKGROUND

The Sinaloa Cartel, led by Joaquin Guzman Loera ("El Chappo"),¹ was one of the largest drug trafficking organizations in Mexico during the late 1980s. One of El Chappo's "top aids," co-conspirator Angel Martinez-Martinez ("Martinez"), testified at Corona-Verbera's trial that the purpose of the Sinaloa Cartel was to obtain drugs, primarily cocaine, and smuggle the drugs into the United States for sale.

Corona-Verbera's current legal troubles stem from his involvement with the Sinaloa Cartel. The story, as it pertains to Corona-Verbera, began in May of 1990, when, as a result of a tip, United States Customs agents set up surveillance on a warehouse in Douglas, Arizona ("Douglas Warehouse"). The agents followed a flatbed truck from the Douglas Warehouse to a farmhouse complex in Queen Creek, Arizona ("Queen Creek Complex"). They maintained surveillance on the Queen Creek Complex for two days. During those two days of surveillance, law enforcement officials observed "flashes" emanating from inside one of the structures that they believed were caused by either welding or cutting with a torch.

On May 11, 1990, agents obtained and executed a search warrant for the Queen Creek Complex. During the search, they discovered an empty false compartment underneath the bed of the flatbed truck they had followed from the Douglas Warehouse. The agents subsequently seized 2,037 pounds of cocaine from boxes in a building in the Queen Creek Complex.

Following the Queen Creek seizure, on May 17, 1990, the agents executed a search warrant at the Douglas Warehouse. To their surprise, they discovered a steel drainage grate in the floor covering a door disguised as a concrete plate. The door could not be opened manually, so agents used a jackhammer to break through it. Underneath, they found a tunnel.

The tunnel ("Douglas Tunnel") was approximately 200 feet long and ran from the Douglas Warehouse under the border to the home of Francisco Camarena-Macias ("Camarena") in Agua Prieta, Mexico. Martinez testified that Camarena was El Chappo's attorney. The concrete-lined tunnel was equipped with a cart similar to a miner's cart, electricity, a ladder, an air compressor system, a pulley system like that of an elevator, and tubular piping that was used to drain water from the tunnel.

On the Mexico side, the tunnel was accessed by activating a hydraulic system inside the Camarena residence. When the agents turned on what appeared to be a water spigot located outside of the house, the spigot activated the hydraulic system and raised a false sub-floor under a pool table, revealing the entrance to the tunnel.

At Corona-Verbera's trial, Martinez testified that one of the Sinaloa Cartel's primary entry points for smuggling drugs was the Agua Prieta, Mexico and Douglas, Arizona border. He said that to facilitate moving drugs from Mexico into the United States, El Chappo asked Corona-Verbera to build a tunnel between Agua Prieta and Douglas. Martinez testified that El Chappo told him that "the architect Corona made me a f* * * * * * cool tunnel."

Martinez further testified he first met Corona-Verbera at El Chappo's residence in 1987. At that time, El Chappo introduced Corona-Verbera as "the architect Corona." Martinez said he "never saw anybody except architect Corona refer to Mr. Chappo Guzman in the informal `tu.'" He testified also that Corona-Verbera had built other structures for El Chappo, and had previously used hydraulic systems to design hidden underground "clavos," or stashes, for El Chappo. Adalberto Romero ("Romero"), an employee at Douglas Redi-Mix in Arizona, testified that he received a shipment of equipment consisting of pistons "like a hydraulic lift," water pumps, and generators for delivery into Mexico. When he questioned Corona-Verbera and Camarena about the equipment, they told him it was for a gas station in Guadalajara, Mexico.

William Woods ("Woods"), a contractor who poured concrete at the Douglas Warehouse, testified that he had been Corona-Verbera's friend. He said Corona-Verbera was the architect at the warehouse and was at the site "throughout the whole construction." Woods said that Corona-Verbera told him that the warehouse was supposed to be a washbay for trucks. He testified also that Corona-Verbera told him that the drains Woods' crew had installed at the site were too small and to tear them out.

Woods' testimony was corroborated by Boniface Lomeli ("Lomeli"), a concrete construction worker at the warehouse, and by Romero, who continued to work for Douglas Redi-Mix after Camarena bought the company. Lomeli testified that Corona-Verbera told him the purpose of the warehouse was to wash trucks. However, there was no plumbing or water in the warehouse. Lomeli testified also that the drainage grates in the warehouse were too high for water to drain. Lomeli testified further that Corona-Verbera had him rip out otherwise functional two-by-two drains that had been installed at the warehouse and replace them with two-by-four drains, regardless of the cost. The two-by-four drains concealed the door to the tunnel. Romero testified he told Corona-Verbera that there was no place for the drainage to actually drain, and Corona-Verbera told him it was none of his business and to pour the cement.

Shortly after the discovery of the tunnel, Corona-Verbera was charged in the District of Arizona on May 25, 1990, by complaint, with drug crimes, and a warrant was issued for his arrest.

The first indictment in this case was returned in 1988. On March 24, 1993, a federal grand jury returned a superceding indictment against others involved in the conspiracy, but still did not name Corona-Verbera as a defendant. On April 26, 1995, a federal grand jury returned a second superceding indictment. This indictment named Corona-Verbera as a defendant. A third superceding indictment also naming Corona-Verbera as a defendant was returned on August 8, 2001. Corona-Verbera was arrested in Mexico pursuant to a provisional arrest warrant on January 23, 2003. Extradition was granted to the United States on March 20, 2003.

Corona-Verbera's first appearance in court in the United States was on February 11, 2004. He subsequently asked for eight continuances, the first on March 4, 2004, and the last on October 7, 2005. On March 9, 2006, the district court judge denied Corona-Verbera's motions to dismiss for pre-indictment delay and violation of constitutional speedy trial rights. His trial began on March 14, 2006 and a guilty verdict was returned on March 29, 2006.

The pre-sentence report determined that Corona-Verbera's total offense level was forty. After applying a two-level enhancement because Corona-Verbera used his skills as an architect to facilitate the crime, the report recommended a sentence of 292 months due to the quantity of cocaine involved. At the sentencing hearing on August 21, 2006, Corona-Verbera objected to the two-level enhancement and to the recommended sentence because of the disparity between his recommended sentence and those of his co-conspirators. In its discretion, the district court sentenced Corona-Verbera to four concurrent eighteen-year sentences, a downward departure of more than six years, based on the disparity in sentencing with respect to his co-conspirators. The district court awarded Corona-Verbera credit for time served dating back to his arrest in Mexico.

II DISCUSSION

A. Pre-Indictment Delay

"The Fifth Amendment guarantees that defendants will not be denied due process as a result of excessive pre-indictment delay." United States v. Sherlock, 962 F.2d 1349, 1353 (9th Cir.1989). Generally, any delay between the commission of a crime and an indictment is limited by the statute of limitations. United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992). In some circumstances, however, "the Due Process Clause requires dismissal of an indictment brought within the [statute of] limitations period." Id.

We review for abuse of discretion a district court's denial of a motion to dismiss for pre-indictment delay under the Fifth Amendment's Due...