U.S. v. Farias, 05-40468.

• Citation: 469 F.3d 393
• Decision Date: 02 November 2006
• Docket Number: No. 05-40468.,05-40468.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge Valencia FARIAS; Adrian Valencia Farias, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

469 F.3d 393

UNITED STATES of America, Plaintiff-Appellee, v. Jorge Valencia FARIAS; Adrian Valencia Farias, Defendants-Appellants.

No. 05-40468.

United States Court of Appeals, Fifth Circuit.

November 2, 2006.

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Heather Harris Rattan, Asst. U.S. Atty., Plano, TX, Vijay Shanker (argued), U.S. Dept. of Justice, Washington, DC, for U.S.

Denise S. Benson, Asst. Fed. Pub. Def. (argued), Sherman, TX, Amy E. Blalock, Asst. Fed. Pub. Def., Tyler, TX, for Jorge Farias.

John Thomas Haughton (argued), Law Office of John T. Haughton, Denton, TX, for Adrian Farias,

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

Before HIGGINBOTHAM, DENNIS and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury convicted defendants, brothers Jorge and Adrian Farias, of conspiracy to manufacture and distribute illegal drugs. On appeal, Jorge argues that a prior plea agreement should have precluded his prosecution. Jorge and Adrian both argue insufficient evidence and improper sentencing. We AFFIRM the convictions and sentences.

I

On September 18, 2002, Jorge Farias drove an associate named Nadim Safdar and two other men to Lewisville, Texas to collect a drug debt. While Safdar tried to collect from the customer inside the customer's house, Jorge and the other men, waiting outside in the car, blew the horn and yelled. When Safdar returned to the car, Lewisville police officers arrived, responding to a call that people were hollering in the street. Noticing that the car was parked the wrong way and the smell of burning marijuana, the officers asked the men to exit the car while they searched it.

The officers saw, on the floorboard of the driver's side, where Jorge had been sitting, a pair of brown gloves with the open ends back-to-back. Picking up the gloves, they found a semi-automatic pistol hidden inside. They arrested Jorge for unlawfully carrying the gun and, while searching the car incident to that arrest, found drug distribution paraphernalia and about 100 grams of methamphetamine.¹

While Jorge was in Denton County Jail, a jail officer called the INS and reported Jorge's arrest. The INS investigated and, on December 11, 2002, a federal grand jury in the Eastern District of Texas indicted Jorge for illegal reentry after removal. On January 29, 2003, Jorge plead guilty pursuant to a plea agreement containing the following clauses:

4. [Jorge agrees to]: "fully, completely and honestly cooperate with the United States in its ongoing investigation by giving interviews to [the INS] and testimony before the grand jury and during the trial of this or any related investigation."

9. [The Government agrees not to:] "charge [Jorge] with any other criminal violations concerning activities committed prior to the date of this agreement which the Defendant makes known to the United States and which do not involve crimes of violence or Title 26 offenses."

11. [Both parties agree that:] "this agreement contemplates the full and honest cooperation of [Jorge] at all times ...."

13. [Both parties agree that:] "each party will be bound by the agreement only if all conditions set forth herein are met."

Meanwhile, Jorge's brother Adrian was also dealing drugs. Denton, Texas police officers arrested him on March 16, 2000 during a sting, after which he was found with 897.67 grams of methamphetamine mixture, and Dallas police officers arrested him on November 18, 2003 for public intoxication, after which he was found with heroin, in a pill bottle similar to that used by other family members dealing drugs.

Throughout this time, and through several stings from 1999 to 2003, the Government was piecing together an extensive drug distribution conspiracy involving defendants and various spouses, girlfriends, and other relatives and headed by older brother Jesus ("Chuy"). On October 14, 2004, a federal grand jury in the Eastern District of Texas indicted Jorge, Adrian, and several other co-defendants for conspiracy with intent to manufacture and distribute amphetamine, methamphetamine, heroin, cocaine, and marijuana from 1999 through October 14, 2004. Citing the September 28, 2002 incident, it also indicted Jorge under 18 U.S.C. § 924(c)(1) for using or carrying a firearm during a drug trafficking crime.

Jorge moved to dismiss the conspiracy count, arguing that his earlier plea agreement precluded it. The district court denied the motion. A jury found both defendants guilty of conspiracy but acquitted Jorge of the gun charge. The court sentenced Adrian to 120 months and Jorge to 121 months after denying Jorge's request for an adjustment for acceptance of responsibility and finding that he possessed a gun during the underlying conspiracy offense.

II

Jorge notes that the Government must have known of the September 18 drug arrest at the time of his plea agreement because that arrest led to the INS investigation, immigration indictment, and eventual plea. Therefore, he contends, the Government knew at that time of the "offenses subsequently charged against [him]" in this case, hence paragraph nine of the agreement precludes his prosecution for conspiracy. He also vaguely asserts that double jeopardy precludes that prosecution.²

We review de novo whether the Government breached a plea agreement, accepting the district court's factual findings unless clearly erroneous.³ We construe the agreement like a contract, seeking to determine the defendant's "reasonable understanding" of the agreement and construing ambiguity against the Government.⁴

Jorge's argument fails because the plea agreement precludes prosecution only for crimes "ma[d]e known" by Jorge, and Jorge did not "make known" the conspiracy. The Government discovered it through independent investigation. And some of the individual acts proving the conspiracy relied on by the Government at trial occurred after the plea agreement. Of course the Government can grant transactional immunity,⁵ it did not do so here. We find no ambiguity: Jorge's plea agreement did not preclude his later indictment for conspiracy.

III

Jorge and Adrian both argue here the sufficiency of the evidence and at trial moved for judgment of acquittal at the close of all evidence. Hence we "view[] the evidence in the light most favorable to the prosecution," asking whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."⁶

To prove conspiracy, the evidence must show: 1) an agreement between the defendant and one or more people to violate the drug laws; 2) that the defendant knew of the conspiracy and intended to join it; and 3) that the defendant voluntarily participated in the conspiracy.⁷ "An express agreement is not required; a tacit, mutual agreement with common purpose, design, and understanding will suffice."⁸ Because secrecy is the norm, each element may be established by circumstantial evidence.⁹

Jorge summarily attacks the proof on each element, arguing that the Government showed only "mere association" with the alleged co-conspirators and "mere presence" around drug activity, not an agreement, no knowledge of a conspiracy or its objective, and no voluntary participation. He does not mention the Government's evidence, aside from stating that "[t]he [G]overnment's main witness indicated that she did not know [Jorge]." He focuses the rest of his argument on "interdependence," citing various Tenth Circuit cases requiring that a co-conspirator rely on the conduct of others and facilitate the endeavors of other co-conspirators or the venture as a whole. Essentially, he argues that a bunch of drug dealers with the same desire operating in the same area are not, without more, co-conspirators, even if they sell to or buy from the same people—in the vernacular, it is a rimless conspiracy.

Sufficient evidence supported the verdict. In addition to damning testimony by several of Jorge's acquaintances, describing, for example, how Jorge supplied drugs to Miguel Nava after Adrian stopped doing so and how Chuy helped collect Safdar's debt to Jorge after Jorge was jailed, the Government introduced jail-house tapes revealing that Jorge, Adrian, Chuy and others discussed drug-debt collection attempts, territory, strategies to avoid police, price per ounce for methamphetamine, how to cut methamphetamine with cheaper substances, and a specific drug deal involving Adrian and Chuy. Furthermore, although we do not explicitly require "interdependence" in this circuit, there was plenty of evidence of "interdependence" here. In sum, a jury could easily find that Jorge was more than just a lone dealer operating in the same area as other dealers.

Adrian fares no better. Most of his argument parallels Jorge's and fails for the same reason. There is one wrinkle. The conspiracy spanned his eighteenth birthday, and the Government must show that the alleged conspirator ratified his involvement in the conspiracy after that birthday.¹⁰ Adrian argues that his conviction, like his eventual sentence, rests solely on his March 16, 2000 arrest, which occurred four days before his eighteenth birthday. Although that arrest was the focus of the case against Adrian, the Government presented much evidence that Adrian conspired after that arrest, including testimony that Adrian discussed drug sales on the telephone in Chuy's house in 2003, sold drugs as part of the conspiracy in 2003, discussed sales and debt collection with Chuy while Chuy was in jail in 2002 and 2003, and was arrested with heroin, in pill bottles similar to that used by co-conspirators, in 2003. Adrian attacks the weight and credibility of much of this evidence, but such attacks are improper on sufficiency review.¹¹ In short, the evidence shows that Adrian, like his brother, participated in an extensive conspiracy through at least 2003.

IV

Both defendants objected to their PSRs and sentences, renewing those objections here. We review de novo the...