U.S. v. Gallardo-Trapero, 97-50096
| Citation | 185 F.3d 307 |
| Decision Date | 11 August 1999 |
| Docket Number | No. 97-50096,97-50096 |
| Parties | (5th Cir. 1999) United States of America, Plaintiff-Appellee, v. Ruben Horacio Gallardo-Trapero, David Christopher Hernandez, and Luis Quintero De Avila, Defendants-Appellants |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Appeals from the United States District Court For the Western District of Texas
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
This direct criminal appeal arises from the conviction following jury trial of Appellants Ruben Gallardo, David Hernandez, and Luis Quintero for conspiracy to distribute and possess with intent to distribute marijuana in violation of 21 U.S.C. 846, 841(a)(1). For the reasons assigned, we affirm the convictions and sentences of the Appellants.
The government's evidence in this case demonstrated the existence of a drug organization funneling marijuana from California and Texas to several Midwestern cities. The complicated facts of this appeal involve numerous drug distributors and couriers. The government indicted ten co-conspirators as being part of a single drug conspiracy. Appellants Ruben Horacio Gallardo-Trapero (Gallardo), David Christopher Hernandez (Hernandez), and Luis Quintero de Avila (Quintero) were tried together and convicted for various roles in the drug conspiracy. Since detailed facts will be recounted in subsequent sections dealing with Appellants' specific claims, we will only sketch a general overview of the drug conspiracy here.
The government's case relied upon the testimony of the drug couriers involved in this conspiracy: John Langhout (Langhout) and Fred and Lucy Miller (the Millers). Langhout and the Millers were apparently selected because they do not fit any standard drug courier profiles: Langhout was in his mid-50s when he made these drug runs while Fred Miller was in his early 70s and Lucy Miller was in her mid-50s. Langhout and the Millers each made numerous trips delivering marijuana from southern California and Texas to Midwestern cities. They were originally drawn into this operation by an individual named Octavio Rivera (Rivera). John Langhout made his first drug run for Rivera on March 23, 1994, and took a car loaded with marijuana from Chula Vista, California, to Chicago and then Detroit. The Millers also made their first trip for Rivera (whom they knew by the name Mario) in late March 1994 from Chula Vista--which is south of San Diego--to Chicago and Detroit as well. For driving the loads of marijuana across the county, the couriers were usually paid $10,000.
Langhout and the Millers each made numerous deliveries. The first runs for both Langhout and the Millers originated in southern California. Later, Langhout and the Millers both made deliveries that began in Texas. On some occasions, Octavio Rivera would meet them in the drop-off city. On many other occasions, Langhout and the Millers delivered the marijuana to specified individuals in each of these cities. On all of the drug runs, the couriers communicated with Rivera and his associates by cellular phones and beepers. The Millers and Langhout would be instructed where to deliver the marijuana en route as they neared their Midwest destinations.
The Millers made ten drug runs in all, usually about once a month. They testified that they had delivered marijuana to David Hernandez in Detroit and had made other deliveries to Chicago, Indianapolis, and Piketon, Ohio. The Millers testified that on one trip to Chicago they contacted Octavio Rivera, apparently after losing their way, and that Rivera, Hernandez, and Quintero came to meet them in a pickup truck and led them to the place of delivery. In addition, Lucy Miller testified that after Octavio Rivera told them by phone that someone would come to their El Paso hotel with instructions as to a shipment, Gallardo was the person who came to their room. In May 1995, after the Millers were stopped for speeding in Missouri, the police discovered a marijuana shipment in their vehicle. Upon arrest, they agreed to cooperate with authorities in making a police-monitored delivery in Ohio. They pleaded guilty in federal court in Ohio and received a prison sentence of a year and one day.
John Langhout made approximately thirteen drug deliveries between March 1994 and February 1996. He testified that he made several drug deliveries to David Hernandez in Detroit and to other contacts in Indianapolis, Chicago, and Michigan City, Indiana. Langhout testified that on one trip he and Octavio Rivera traveled to Indianapolis and picked up marijuana from a previous delivery that was being returned because of poor quality by the contact there, Sergio Zamora (Zamora), and that he (Langhout) and Rivera took this load to Chicago and delivered it to Felipe Gomez (Gomez).1 Langhout's early trips originated in southern California, but he later picked up shipments in El Paso and Laredo, Texas. In late January 1995, Langhout went to El Paso at the request of Octavio Rivera, where he met Rivera, Felipe Gomez, and Ricardo Avila (Avila) in picking up a drug shipment. Langhout testified that he subsequently made other shipments of drugs for Rivera that Avila orchestrated.
Langhout testified that at some point Ricardo Avila "stole" him for a run out of El Paso. Langhout said that Avila, and not Rivera, was his boss for that shipment which he took to Chicago. Although Langhout testified that he considered this to be a separate operation, he also claimed that Octavio Rivera and Ricardo Avila were "associates" and that as a driver he was kept in the dark about specific information regarding their relationship within the illicit drug activities. Langhout was arrested on a drug run in Del Rio, Texas, on October 4, 1995, along with Ricardo Avila. Langhout agreed to cooperate with the government and, pursuant thereto, acceded to Gomez's request to undertake a shipment from south Texas. The preliminary activity involving this shipment in McAllen, Texas, led to the arrests of Gomez, Gallardo, and Quintero.
Langhout testified that he met Gomez and Quintero in McAllen about the drug run. Langhout testified that he was being "stolen" again--this time, by Gomez and Quintero from Avila. Gomez also testified that he was acting under the orders of Roberto and Javier Lopez. After the marijuana shipment failed to arrive in McAllen within a few days, Langhout returned to El Paso. When the marijuana load eventually arrived, Langhout alerted the Drug Enforcement Administration (DEA) agents and returned to McAllen in a Lincoln Towncar, ostensibly to pick up the cargo. On February 15, 1996, Langhout gave Gomez possession of the Lincoln Towncar for the purpose of loading it with marijuana. Under DEA surveillance, Gomez followed Quintero to a location near the house where the marijuana was located. Quintero parked the Toyota Camry he was driving, got into the Lincoln Towncar, and went with Gomez to Gallardo's house at 2100 North Eighth Street. Gomez backed the car into the garage. After approximately twenty minutes, Gomez drove away in the Lincoln Towncar and Quintero and Gallardo departed in the Toyota Camry. Gomez was arrested when he reached Langhout's hotel; the Lincoln Towncar's trunk contained 454 pounds of marijuana. Quintero and Gallardo were arrested shortly afterwards. No drugs were found in the Camry, but Quintero possessed a drug ledger and Gallardo had several small pieces of paper bearing names and phone numbers. Gallardo was informed of his Miranda rights but he talked with the DEA Agents and consented to a search of his house. There, the agents found 43 bundles of marijuana weighing 638 pounds.
On April 10, 1996, Appellant Hernandez was arrested in Detroit. In the spring of 1996, an arrest warrant for Hernandez had been issued in the Western District of Texas in connection with this conspiracy. Previously, in August 1995, Hernandez had been stopped in the Detroit airport (after using cash to purchase a one-way ticket to Orange County, California) and was found to be carrying approximately $49,000 in cash on his person. Hernandez had placed the bundles of cash around his lower back and these were kept in place by his tucked-in shirt.
Gallardo, Hernandez, and Quintero were tried together. Gomez pleaded guilty and testified against them at trial. The Millers both served time after they pleaded guilty in federal court in Ohio. Langhout was never prosecuted for his participation. Likewise, Avila was never prosecuted following his arrest. Insofar as the record discloses, neither Octavio Rivera, Roberto Lopez, or Javier Lopez was ever apprehended or charged in connection with this conspiracy.
Appellants Hernandez and Quintero contend that a material variance existed between their indictment for a single conspiracy, and the evidence adduced at trial which, they contend, pointed to the existence of multiple conspiracies. They contend that there was insufficient evidence tying together all the individuals and drug transactions brought forward at trial. Fatal variance claims spring from protections in the Fifth and Sixth Amendments and are the right "not to be tried en masse for the conglomeration of distinct and separate offenses committed by others." Kotteakos v. United States, 328 U.S. 750, 775 (1946).
Appellants Hernandez and Quintero fashioned this fatal variance claim as an appeal of the trial court's denial of their motions for a judgment of acquittal. They assert that the district court erred in not granting their motion for a judgment of acquittal because the evidence precluded a finding that a single conspiracy existed. Their motion for a judgment of acquittal is treated as a challenge to the sufficiency of the evidence to convict. United States v Medina, 161 F.3d 867, 872 (5th Cir. 1998), cert. denied, ...
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