U.S. v. Fierro
| Decision Date | 11 November 1994 |
| Docket Number | No. 92-2370,92-2370 |
| Citation | 38 F.3d 761 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Wisting R. FIERRO, Olga L. Martinez, Jaime Ibanez a/k/a Ibania, Jesus A. Serna, Defendants-Appellants, Jose J. Grajales, Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wisting Fierro, pro se.
Olga Martinez, pro se.
Thomas J. Bevans, Houston, TX, for Ibanez.
Jesus A. Serna, pro se.
Evelyn Graham Rodriquez, Houston, TX (Court-appointed), for Serna.
Richard B. Kuniansky, Houston, TX (Court-appointed), for Grajales.
Paula Offenhauser, Asst. U.S. Atty., Houston, TX, Ronald G. Woods, U.S. Atty., Houston, TX, for U.S.
Appeals from the United States District Court for the Southern District of Texas.
Before REAVLEY, DeMOSS and STEWART, Circuit Judges.
This case began in November 1991 with an investigation by Houston police and IRS agents into a narcotics conspiracy involving approximately 178 kilograms of cocaine. The five defendant-appellants, Wisting Fierro, Olga Martinez, Jesus Serna, Jaime Ibanez and Jose Grajales, were charged in a January 8, 1992 superseding indictment with:
Count 1: conspiracy to possess cocaine with the intent to distribute, 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A), 846;
Count 2: aiding/abetting possession of cocaine, 18 U.S.C. Sec. 2; and
Count 3: conspiracy to commit money laundering, 18 U.S.C. Secs. 371, 1956(a)(1)(A)(i).
In addition, Grajales and Serna were each indicted on a substantive count of cocaine possession with the intent to distribute. On April 24, 1992, after a 11-day trial, the jury convicted all five defendants on all counts. The district court sentenced the defendants as follows: Grajales received 240 months each on Counts 1 and 2, and 60 months on Count 3. Serna received 188 months each on Counts 1 and 2, and 60 months on Count 3. Fierro received 293 months each on Counts 1 and 2, and 60 months on Count 3. Ibanez received 151 months each on Counts 1 and 2, and 120 months on Count 3. Martinez received 121 months each on Counts 1 and 2, and 60 months on Count 3. The judge ordered all terms of imprisonment to be served concurrently. Each defendant also received: (1) a $150 assessment of mandatory costs, and (2) two five-year terms of supervised release on Counts 1 and 2, and three years of supervised release on Count 3 (also to be served concurrently).
All five defendants have appealed their convictions and sentences, raising various grounds for reversal. The government has brought a cross-appeal to challenge Grajales' sentence.
We affirm the convictions of all defendants on all counts, and we affirm the sentences imposed on defendants Fierro, Martinez, Serna and Ibanez. We hold that the government's cross-appeal has merit, and we therefore vacate Grajales' sentence and remand his case for re-sentencing.
The facts and evidence relating particularly to each defendant are discussed at length later in this opinion, so our initial factual summary will be brief. On November 12 1991, Houston police and IRS officers began surveillance of a house at 17026 French Road ("the French Road house") after they received information from a confidential informant. During a four-day period of surveillance ending November 16, 1991, Fierro, Martinez, Serna and Ibanez were observed (1) coming and going, sometimes carrying packages, bundles or bags, to and from the French Road house and an apartment at 8791 Hammerly ("the Hammerly apartment"); (2) driving to other locations in their vehicles; (3) making numerous phone calls on pay phones and mobile phones as well as answering pager calls; (4) meeting briefly with other unknown people in parking lots or at business establishments; and (5) engaging in "counter-surveillance"-type conduct that showed their suspicion that they were being watched. In addition, before and after meetings with the other defendants, Serna was seen going in and out of a third residence at 7831 Prestwood ("the Prestwood house" or "the stash house"). At about 3 p.m. on November 16, 1991, Serna arrived at the Prestwood house, stayed about 20 minutes and emerged with a weighted blue denim bag, which had been seen previously in Martinez' possession. After driving to a gas station to make a phone call, Serna drove to the rear of a warehouse on Harwin Street, took the blue denim bag into the brush and returned to his car without the bag. Officers immediately recovered the bag, which contained four kilograms of cocaine wrapped with tape and Spanish-language newspaper. After leaving the warehouse area, Serna made and received a telephone call from a pay phone and then was apprehended. Fearing that Serna had alerted the others, officers began procedures to secure search warrants for the three residences. Just minutes after Serna had made his last phone call and was arrested, Grajales was seen arriving at the Prestwood house and attempting to leave three minutes later. Grajales was carrying a key to the Prestwood house, and Grajales' personal documents and photographs were found inside the house. A neighbor testified that Grajales had lived in the Prestwood house for nine months to a year. A subsequent search pursuant to warrant at the Prestwood house uncovered, among other items, 84 kilograms of cocaine (of similar purity to the 4 kilograms in the denim bag) found in the kitchen cabinets and garage; a 9mm semi-automatic pistol and two boxes of ammunition; a suitcase, bag and box stuffed with cash totaling $1,132,146; a digital scale; a pager; rolls of duct tape; a police radio scanner and an adding machine. Also found were several tally documents and adding machine tapes, indicating that the money had been counted and bundled by denomination with rubber bands.
Later in the evening of November 16, 1991, the French Road house was also searched pursuant to warrant. No drugs or large amounts of money were found there, but several "kilogram wrappings" made of tape and Spanish-language newspapers were found in the kitchen. The wrappings were similar to those around the kilograms found at the Prestwood house and in the bag abandoned by Serna. The search of the French Road house also uncovered several notebooks and documents identified as drug ledgers. The Hammerly apartment and Ibanez' car were searched after Ibanez signed a consent form. A wallet and a small address book containing drug ledger information were seized from Ibanez's car. Fierro, Martinez and Ibanez were arrested at the apartment. Various items of evidence found at the three residences connected the defendants with each other and with the drug operation. Documents found in the French Road house revealed that thousands of dollars had been sent by wire transfer to Columbia, by or on behalf of the defendants. The money was sent in amounts of less than $10,000 at a time to avoid triggering a currency report to the Internal Revenue Service.
The five defendants raise various issues to challenge their convictions and sentences:
(1) Was the evidence sufficient to convict each defendant for (a) conspiracy to possess cocaine, (b) aiding and abetting cocaine possession, and (c) conspiracy to commit money laundering?
(2) Did Ibanez voluntarily consent to a search of his apartment and vehicle?
(3) Was the prosecutor's closing argument so improper that it raised doubt as to the correctness of the jury's verdict?
(4) Did the trial court err in instructing the jury on "deliberate ignorance?"
(5) Did the district court abuse its discretion in admitting certain "drug ledger" documents into evidence?
(6) Did the trial court clearly err in sentencing?
The elements of a drug conspiracy are: (1) the existence of an agreement to possess narcotics with the intent to distribute, (2) knowledge of the agreement, and (3) voluntary participation in the agreement. United States v. Mergerson, 4 F.3d 337, 341 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994). The jury may infer a conspiracy from circumstantial evidence and may rely upon presence and association, along with other evidence. Proof of an overt act in furtherance of the conspiracy is not required; a common purpose and plan may be inferred from a development and collection of circumstances. United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir.1989). Aiding and abetting has three elements: The defendant must have (1) associated with a criminal venture, (2) participated in the venture, and (3) sought by action to make the venture successful. Mergerson, 4 F.3d at 342. Five elements must be proven for a conviction for conspiracy to launder money: (1) there is a conspiratorial agreement, (2) one conspirator knowingly commits an overt act by participating in a financial transaction, (3) the financial transaction involves the proceeds of an unlawful activity, (4) the conspirator participating in the transaction had the intent to promote or further that unlawful activity, and (5) the transaction affected interstate or foreign commerce. United States v. Thomas, 12 F.3d 1350, 1360 (5th Cir.), cert. denied sub. nom. Sanchez v. United States, --- U.S. ----, 114 S.Ct. 1861, 128 L.Ed.2d 483 (1994); see also 18 U.S.C. Sec. 1956(c).
When reviewing a challenge to the sufficiency of the evidence to support a conviction, the appellate court must consider all evidence in the light most favorable to the guilty verdict and accept all reasonable inferences tending to support the verdict. The ultimate inquiry is whether a rational trier of fact could have found guilt on each count beyond a reasonable doubt. United States v. Huntress, 956 F.2d 1309, 1318 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2330, 124 L.Ed.2d 243 (1993) ().
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