U.S. v. Delgado, No. 99-50635

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtDeMOSS
Citation256 F.3d 264
Parties(5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GUILLERMO DELGADO, also known as Enrique Hank Cervantes; BARRY WAYNE ALBURTIS, Defendants-Appellants
Decision Date26 June 2001
Docket NumberNo. 99-50635

Page 264

256 F.3d 264 (5th Cir. 2001)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
GUILLERMO DELGADO, also known as Enrique Hank Cervantes; BARRY WAYNE ALBURTIS, Defendants-Appellants.
No. 99-50635
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
June 26, 2001
REVISED JULY 17, 2001

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Appeals from the United States District Court for the Western District of Texas

Before JONES and DeMOSS, Circuit Judges, and BARZILAY,* District Judge.

DeMOSS, Circuit Judge:

Defendants-Appellants Guillermo Delgado and Barry Wayne Alburtis appeal their convictions and sentences for various charges including conspiracy to distribute and possess with intent to distribute in excess of 1,000 kilograms of marijuana. For the following reasons, we affirm both Delgado's and Alburtis' convictions and sentences.

I. BACKGROUND

On June 17, 1998, a grand jury indictment was returned against Delgado and Alburtis (cause number SA98-CR-233).

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Delgado and Alburtis were both charged with conspiracy to distribute and possession with intent to distribute in excess of 1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A) between January 1994 and February 1995 [Count One]. Moreover, Alburtis was charged with aiding and abetting others with possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) on or about December 21, 1994 [Count Two]; conspiracy to launder money in violation of 18 U.S.C. § 1956(H) beginning on or about January 1995 and continuing for approximately six months thereafter [Count Three]; and substantive money laundering in violation of 18 U.S.C. § 1956(a)(1)(A) [Counts Four, Five and Six].

Both Delgado and Alburtis were found guilty on each of their respective counts after jury trials. Delgado received 235 months imprisonment, five years of supervised release, and a $50 special assessment. Alburtis was sentenced to a term of 365 months for both Counts One and Two, and 60 months each for Counts Three through Six. All the terms were to run concurrently and were to be followed by five years of supervised release.

At the time of his prosecution, Delgado was serving a sentence of 78 to 97 months in federal prison for conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846 (cause number EP-97-CR-312-DB). That sentence related to a 1997 offense, while Delgado's second prosecution, which is the subject of his appeal, related to a conspiracy between 1994 and 1995. Thus, his earlier conviction for which he was serving time actually related to a later offense. The sentence for the second prosecution is to run concurrent with the 78 to 97 month term for the prior prosecution.

Similarly, Alburtis was in jail when the multiple-count indictment was levied against him. At the time of his second prosecution, which is the subject of his appeal, Alburtis had been serving a 120-month term for conspiracy to distribute and to possess with intent to distribute more than 1000 kilograms of marijuana and for a substantive money laundering violation (cause number SA-93-CR-285). He had been indicted in September 1993 for those two counts (and others) and had plead guilty to those two counts in September 1994. Because he was on bond pending designation, he did not go to prison for the first prosecution until February 1995. The 365-month term for the second prosecution is to run consecutive to his first sentence of 120 months.

II. DISCUSSION

On appeal, both defendants raise a number of issues. We review each defendant's issues separately and in turn.

A. Delgado's Appeal

In his brief, Delgado essentially raises two issues. First, Delgado maintains that the conspiracy alleged in cause number SA-98-CR-233 and the one that was alleged in cause number EP-97-CR-312-DB (for which he was serving time) are part of one long-term and extended conspiracy. Hence, he complains that his conviction and sentence for the conspiracy alleged in cause number SA-98-CR-233 violate the Double Jeopardy Clause of the Fifth Amendment because he has already been convicted and sentenced for his role in the drug conspiracy. Second, Delgado contends that the government failed to produce material exculpatory information in violation of Brady v. Maryland, 83 S. Ct. 1194 (1963), and the district court's pretrial order.

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We first note that whether a prosecution violates the Double Jeopardy Clause of the Fifth Amendment is a question of law and is reviewed de novo. United States v. Deshaw, 974 F.2d 667, 669 (5th Cir. 1992). We will accept the factual findings of the district court unless they are clearly erroneous. Id. If a defendant comes forward with a prima facie nonfrivolous double jeopardy claim, then the burden of establishing that the indictments charge separate crimes is on the government. United States v. Nichols, 741 F.2d 767, 770-71 (5th Cir. 1984) (quoting United States v. Stricklin, 591 F.2d 1112, 1118 (5th Cir. 1979)). "The defendant can establish a prima facie non-frivolous double jeopardy claim through indictments or other documentation to establish the earlier charges, or even through his own testimony." United States v. Ellender, 947 F.2d 748, 759 (5th Cir. 1991) (citing Stricklin, 591 F.2d at 118).

The government maintains that Delgado has failed to make out a prima facie case. It observes that Delgado did not file a special plea raising the double jeopardy issue, but raised the issue only at sentencing. In addition, the government asserts that Delgado has not tendered a copy of his indictment in the prior conviction, that the indictment is not in the record, and that he has not presented any evidence connecting the 1997 conviction with the instant case.

Reviewing the record, we agree with the government that Delgado has failed to establish his prima facie case. Although Delgado suggested that the conspiracy alleged in cause number SA-98-CR-233 and the one that was alleged in cause number EP-97-CR-312-DB were the same during the trial, he never directly raised a double jeopardy claim before the district court. Even his objection to the pre-sentence report, which apparently forms the basis for his preservation of error, merely argued that the prior 1997 conviction should be defined as a related case and that, therefore, three criminal history category points should not be assigned for that conviction. Consistent with that approach, Delgado did not proffer a prima facie case for shifting the burden to the government on the double jeopardy issue. A limited amount of evidence, such as the judgment of conviction, supported the fact that Delgado had been convicted in 1997 of a conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846, but Delgado failed to proffer the indictment for the 1997 conviction or to testify with respect to that conviction.1 Without the 1997 conviction's indictment or testimony about that indictment, we are unduly hampered in determining whether the government in cause number SA-98-233 sought to prosecute Delgado for the same offense as that stated in the 1997 indictment or to obtain multiple punishments for the 1997 offense. By not presenting the specific circumstances surrounding his 1997 conspiracy charge and the facts supporting it, we conclude that Delgado has not satisfied his burden and, consequently, find his double jeopardy claim unavailing.

Delgado's second point of error concerns the government's alleged Brady violation and failure to comply with the district court's discovery order. He maintains that the government had information from the debriefing of certain individuals that would have demonstrated that the conspiracy charged in cause number SA-98-233 and the conspiracy for which he was charged and convicted in 1997 were the same thing. Specifically, the debriefing information indicated that some of the witnesses

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who testified about the conspiracy alleged in SA-98-233 may have been involved in the 1997 conspiracy for which Delgado was previously convicted.

According to the government, Delgado never raised this issue before the trial court. Furthermore, the government argues that nothing in the record contradicts its pre-trial representation that discoverable evidence and Brady material were provided to Delgado. Even if the information were not divulged, the government believes that nothing prejudicial occurred. It asserts that the result would not have been different because the debriefing statements about some of the witnesses only showed that those witnesses were still involved in the drug business in 1997, not that the drug conspiracy in 1997 was somehow the same as the one charged in cause number 98-SA-233.

Under Brady v. Maryland, exculpatory evidence is discoverable by the defendant where it is material to guilt or punishment. Information is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result would have been different. See United States v. Maloof, 205 F.3d 819, 827 (5th Cir.), cert. denied, 121 S. Ct. 176 (2000). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ellender, 947 F.2d at 756 (quoting United States v. Bagley, 105 S. Ct. 3375, 3383 (1985)) (internal quotation marks omitted).

Here, even if the government did not provide the debriefing statements to Delgado, we do not believe that those statements were material. Delgado's apparent basis for asserting his Brady claim is his belief that knowledge that some of the witnesses to the conspiracy in cause number SA-98-233 were possibly involved in the 1997 conspiracy would have induced the jury to acquit him based on double jeopardy. A double jeopardy claim, however, is a question of law that is properly the province of the district...

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119 practice notes
  • U.S. v. Ramos-Hernandez, No. MO-00-CR-141-F(25).
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 2 Enero 2002
    ...in the Midland indictment and the underlying conspiracy of the CCE count in the Pecos indictment are factually distinct. U.S. v. Delgado, 256 F.3d 264, 272 (5th The Fifth Circuit has stated: The essential issue in the double jeopardy analysis respecting conspiracy is whether one, or more th......
  • State v. Yoh, No. 00-160.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 8 Septiembre 2006
    ...supplemental briefing and reviewing sentence for plain error where Apprendi issued following notice of appeal); United States v. Delgado, 256 F.3d 264, 280 (5th Cir.2001) (reviewing sentencing decision for plain error where the issue was first raised in a supplemental brief following Appren......
  • United States v. El-Mezain, No. 09-10560
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 7 Diciembre 2011
    ...case. Whether a prosecution violates the Double Jeopardy Clause is a question of law that we review de novo. United States v. Delgado, 256 F.3d 264, 270 (5th Cir. 2001).Page 113 The Fifth Amendment's Double Jeopardy Clause "protects against a second prosecution for the same offense after co......
  • United States v. El-Mezain, No. 09-10560
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 7 Diciembre 2011
    ...Whether a prosecution violatesPage 113the Double Jeopardy Clause is a question of law that we review de novo. United States v. Delgado, 256 F.3d 264, 270 (5th Cir. 2001). The Fifth Amendment's Double Jeopardy Clause "protects against a second prosecution for the same offense after convictio......
  • Request a trial to view additional results
119 cases
  • U.S. v. Ramos-Hernandez, No. MO-00-CR-141-F(25).
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 2 Enero 2002
    ...in the Midland indictment and the underlying conspiracy of the CCE count in the Pecos indictment are factually distinct. U.S. v. Delgado, 256 F.3d 264, 272 (5th The Fifth Circuit has stated: The essential issue in the double jeopardy analysis respecting conspiracy is whether one, or more th......
  • State v. Yoh, No. 00-160.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 8 Septiembre 2006
    ...supplemental briefing and reviewing sentence for plain error where Apprendi issued following notice of appeal); United States v. Delgado, 256 F.3d 264, 280 (5th Cir.2001) (reviewing sentencing decision for plain error where the issue was first raised in a supplemental brief following Appren......
  • United States v. El-Mezain, No. 09-10560
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 7 Diciembre 2011
    ...case. Whether a prosecution violates the Double Jeopardy Clause is a question of law that we review de novo. United States v. Delgado, 256 F.3d 264, 270 (5th Cir. 2001).Page 113 The Fifth Amendment's Double Jeopardy Clause "protects against a second prosecution for the same offense after co......
  • United States v. El-Mezain, No. 09-10560
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 7 Diciembre 2011
    ...Whether a prosecution violatesPage 113the Double Jeopardy Clause is a question of law that we review de novo. United States v. Delgado, 256 F.3d 264, 270 (5th Cir. 2001). The Fifth Amendment's Double Jeopardy Clause "protects against a second prosecution for the same offense after convictio......
  • Request a trial to view additional results

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