U.S. v. Galvan

• Decision Date: 18 December 1991
• Docket Number: 90-2590,Nos. 90-2589,s. 90-2589
• Citation: 949 F.2d 777
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Apolonia GALVAN, a/k/a Paula Galvan, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 777

949 F.2d 777

UNITED STATES of America, Plaintiff-Appellee, v. Apolonia GALVAN, a/k/a Paula Galvan, Defendant-Appellant.

Nos. 90-2589, 90-2590.

United States Court of Appeals, Fifth Circuit.

Dec. 18, 1991.

Thomas W. McQuage (court-appointed), Galveston, Tex., for defendant-appellant.

Paula C. Offenhauser, Asst. U.S. Atty., and Ronald G. Woods, U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, WILLIAMS and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Apolonia Galvan appeals her conviction for three counts of attempting to kill a cooperating witness/informer, contending that two are multiplicious and that the evidence was insufficient to support one of them. She also asserts that the evidence was insufficient to support her conviction on two counts of illegal possession of a firearm and that the district court relied on erroneous information in sentencing her on these counts and on her guilty plea to a drug offense. We AFFIRM.

I.

As part of an investigation of organizations believed to be trafficking drugs, agents initiated electronic surveillance of the Hernandez Organization. A wiretap conducted between August and October 1987 uncovered a distribution network and implicated over 50 targets. The kingpin, Albert Salinas, Jr., employed Apolonia Galvan to consummate various narcotics transactions. Between March and October 1987, agents recorded conversations between Galvan and Salinas, in which they discussed transactions involving over 2000 grams of cocaine and over 2000 pounds of marijuana.

In the fall of 1986, Raul Herrera, on parole from a state drug conviction involving heroin, contacted the FBI and volunteered to serve as a confidential informer. Over a two year period beginning that fall, and in connection with the FBI's "Operation White Gold", Herrera participated in numerous controlled meetings and telephone calls with targeted individuals, including Galvan.

In March 1987, Galvan met with Herrera on several occasions under videotape surveillance at his apartment. On one occasion in early March, she offered to supply him kilogram quantities of cocaine. Later that month, they negotiated a 1000-pound delivery of marijuana. That same day, Galvan sold a one and one-half pound sample of marijuana to Herrera. In June 1987 at Galvan's house, they again discussed a kilogram cocaine transaction, while Herrera was wearing a concealed recorder.

Herrera negotiated, however, an illegal cocaine transaction with Salinas, during the course of a wiretap of Salinas. In November 1988, Herrera was arrested and indicted along with other individuals, including Galvan, targeted in Operation White Gold. Both Galvan and Herrera were released on bond.

On May 15, 1989, transcripts of recorded conversations between Herrera and targeted individuals were released. Four days later, Herrera pleaded guilty to unlawful use of a communication device to facilitate the commission of a felony. In exchange, he agreed to testify against the other defendants in the drug conspiracy proceeding.

On May 20, 1989, Herrera was in his apartment. He admitted his brother, Eddie Herrera (Eddie), and Galvan; and Eddie began trying to restrain him. Galvan shouted remarks about Herrera being "wired" and working with the FBI to videotape drug transactions involving her. She fired three shots at him, hitting him each time; she and Eddie then departed. Herrera retrieved his own handgun. He opened the door and overheard Galvan say "I'm going to go back and finish him off". He shot at her as she opened the front door and at her and Eddie as they fled. Galvan turned herself in to the police, and Herrera recovered from his injuries. Galvan's gun was never recovered.

In the drug conspiracy proceeding, a March 1990 superseding information charged Galvan with conspiracy to possess with intent to distribute less than 50 kilograms of marijuana, during the period before October 1986 to late October 1987, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846. She pleaded guilty in March 1990, after trial earlier that month of the witness tampering proceeding.

In that proceeding, Galvan was charged by superseding indictment in August 1989 with: attempting to kill a person with intent to prevent his attendance at an official proceeding, in violation of 18 U.S.C. § 1512(a)(1)(A) (count 1); attempting to kill a person with intent to prevent his communication to law enforcement officials and a federal judge of information about the commission of a federal offense, in violation of 18 U.S.C. § 1512(a)(1)(C) (count 2); retaliation against a witness-informer, in violation of 18 U.S.C. § 1513(a)(2) (count 3); illegal receipt of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (count 4); and illegal receipt of a firearm while under indictment for a felony, in violation of 18 U.S.C. § 922(n) (count 5). In March 1990, a jury convicted her on all counts.

Galvan was sentenced jointly for both sets of offenses. For the drug offense, she was sentenced (pre-guidelines) to 10 years' imprisonment, to run concurrently with her sentence in the witness tampering proceeding, a $50 special assessment, and a four-year special parole term, to run concurrently with the supervised release term in the witness tampering proceeding. In the witness tampering proceeding, she was sentenced (under the guidelines) to 188 months each on counts one and two; 120 months each on counts three and four; and 60 months on count five, all to run concurrently with each other and with the sentence in the drug conspiracy proceeding, along with three years' supervised release, and a $250 special assessment. The district court also ordered that Galvan pay restitution to Raul Herrera for expenses in the amount of $7,721.88.

II.

Galvan contends that her convictions and sentences for the witness offenses under 18 U.S.C. § 1512 are multiplicious. ¹ She likewise challenges the sufficiency of the evidence (1) that she attempted to kill Herrera with the intent to prevent his communication of information relating to a federal crime; and (2) that the firearm she was convicted of possessing traveled in interstate commerce. Finally, Galvan contends that the information the district court relied on in sentencing was unreliable and that she should be granted a new sentencing hearing.

A.

Galvan maintains that her convictions and sentences for violating 18 U.S.C. §§ 1512(a)(1)(A) (attempting to kill person to prevent his attendance at an official proceeding) and 1512(a)(1)(C) (attempting to kill person to prevent his communication of information relating to the commission of a federal offense) are multiplicious and, therefore, violate the Fifth Amendment proscription against double jeopardy. ²

" 'Multiplicity' is charging a single offense in more than one count in an indictment. Accordingly, it 'addresses double jeopardy; and where the jury is allowed to return convictions on multiplicious counts, the remedy is to remand for resentencing, with the government dismissing the count(s) that created the multiplicity.' " United States v. Lemons, 941 F.2d 309, 317 (5th Cir.1991) (quoting United States v. Moody, 923 F.2d 341, 347 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 80, 116 L.Ed.2d 54 (1991)). " 'The chief danger raised by a multiplicious indictment is the possibility that the defendant will receive more than one sentence for a single offense.' " Id. (quoting United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir.), cert. denied, 474 U.S. 825, 106 S.Ct. 81, 88 L.Ed.2d 66 (1985)).

Conceding that she did not raise this issue in the district court, Galvan contends, nevertheless, that she may raise it on appeal. As discussed infra, she is, in part, correct: she may challenge multiplicity of sentences. To preserve for appeal an objection based on multiplicity of the indictment, the defendant must raise it in a pre-trial motion pursuant to Fed.R.Crim.P. 12(b). United States v. Munoz-Romo, 947 F.2d 170, 174 (5th Cir.1991); United States v. Stovall, 825 F.2d 817, 821 (5th Cir.1987). By not doing so, a defendant waives her objection to multiplicity in the indictment. Munoz-Romo, 947 F.2d at 174; Lemons, 941 F.2d at 316 n. 4. As noted, Galvan acknowledges not having filed the requisite pre-trial motion; because she did not, she may not challenge the convictions as multiplicious.

But, as we stated in Munoz-Romo:

Despite this waiver, "[a] complaint about multiplicity of sentences ... can be raised for the first time on appeal." Stovall, 825 F.2d at 821. But, if the sentences are to be served concurrently, a defendant is still precluded from asserting a multiplicity claim not raised prior to trial. [United States v. ] Marroquin, 885 F.2d [1240,] 1245 [ (5th Cir.1989), cert. denied, 494 U.S. 1079, 110 S.Ct. 1807, 108 L.Ed.2d 938 (1990) ]. However, if monetary assessments under 18 U.S.C. § 3013 are imposed on separate counts of conviction, the sentences on those counts are not concurrent, and the concurrent sentence doctrine does not apply. Ray v. United States, 481 U.S. 736, 736-37, 107 S.Ct. 2093, 2093-94, 95 L.Ed.2d 693 (1987); Marroquin, 885 F.2d at 1245.

947 F.2d at 174. As noted, a $50 special assessment was imposed against Galvan on each count of conviction. Accordingly, on appeal she may raise multiplicity of sentences. See id. at 175.

In deciding whether Galvan is correct that Congress did not intend to permit multiple punishments for violations of §§ 1512(a)(1)(A) and (C), "our starting point must be the language of the statute[ ]." Albernaz v. United States, 450 U.S. 333, 336, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981). "Absent a 'clearly expressed legislative intention to the contrary, the language must ordinarily be regarded as conclusive.' " Id. (quoting Consumers Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d...