U.S. v. Garcia Mendoza

• Decision Date: 06 November 2009
• Docket Number: No. 08-41052.,08-41052.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Noe GARCIA MENDOZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

587 F.3d 682

UNITED STATES of America, Plaintiff-Appellee, v. Noe GARCIA MENDOZA, Defendant-Appellant.

No. 08-41052.

United States Court of Appeals, Fifth Circuit.

November 6, 2009.

Ernest Gonzalez, Plano, TX, for U.S.

John Hunter Smith (Court-Appointed), Nall, Pelley, Wynne & Smith, Sherman, TX, for Defendant-Appellant.

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

Before JONES, Chief Judge, and SMITH and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Noe Mendoza was convicted of conspiracy to possess with intent to manufacture and distribute methamphetamine in the Eastern District of Texas (the "Eastern district") and elsewhere, in violation of 21 U.S.C. § 846. He appeals his conviction and sentence. Finding no error, we affirm.

I. Factual and Procedural Background

On November 5, 2005, law enforcement officers working with the Drug Enforcement Administration task force in Shreveport, Louisiana, arrested Leroy Pena at a motel. During a consensual search of the hotel room, the officers found 160 grams of methamphetamine in a sock in the bathroom.

Pena agreed to identify his source, made five calls to Mendoza, and identified Mendoza as his source of supply from a photo line-up. Pena met Mendoza for the first time in the summer of 2005 but began receiving methamphetamine from him in mid-2004 through Elvis Grimes. During that business relationship, either Pena would pick up methamphetamine from Mendoza in Dallas, or Mendoza would deliver the drugs to Pena in Louisiana. The day before his arrest, Pena met Mendoza in Canton, Texas. Pena traveled from there, along with Mendoza's brother Benito, to the motel in Shreveport where he and Benito were arrested.

Grimes began selling drugs in 2002, met Pena in 2003, and formed a business relationship for the supply of methamphetamine with Mendoza in mid-2004. Grimes would transport the contraband from Dallas to Louisiana, where he would deliver it to Bobby Huck at Huck's house in Shreveport. Mendoza would accompany Grimes on the trip from Dallas to Shreveport on almost every occasion. During the time he was receiving methamphetamine from Mendoza, Grimes sold to customers who lived in Wylie and Princeton, Texas. Grimes estimated he purchased up to one hundred pounds of methamphetamine from Mendoza during the course of their relationship.

At trial, Fabian Garcia testified that from 1999 until 2000, he sold Mendoza a total of ten kilograms of cocaine. Mendoza objected to the admission of that extrinsic evidence under Federal Rule of Evidence 404(b). He argued that the evidence of previous drug transactions was irrelevant and severely prejudicial. The district court overruled the objection and gave a careful limiting instruction to the jury.

At the close of the government's case, Mendoza moved for acquittal, claiming that the government had not provided any evidence that the conspiracy alleged in the indictment had occurred in the Eastern District or that Mendoza was involved in the conspiracy. The district court denied the motion and found that venue had been established by a preponderance of the evidence. Mendoza also moved for a jury instruction on venue, which the court denied.

At sentencing, the court stated that it had fully considered 18 U.S.C. § 3553(a) in fashioning a sentence that was sufficient but not greater than necessary to comply with all the purposes of sentencing. The court sentenced Mendoza to 360 months, the minimum guideline sentence for an offense level of 42 and criminal history category of V. The court arrived at its calculation after considering the presentence report, and Mendoza explicitly stated he had no objection to the calculation.

Mendoza asked for a lower sentence on two grounds. He argued that his sentence was significantly higher than that of his co-defendants. The court considered but rejected that argument. Mendoza then asked the court to exercise its discretion in issuing a sentence below the guideline range, but the court ruled that the guideline range provided the appropriate sentence.

II. Sufficiency of the Evidence To Establish Venue for Count One

Mendoza contends that the government presented insufficient evidence to establish his involvement in a conspiracy in the Eastern District. In other words, he argues that the government did not present sufficient evidence of venue for Count One, so he should be acquitted.

We review the denial of a motion for judgment of acquittal de novo. United States v. Sanchez, 961 F.2d 1169, 1180 (5th Cir.1992). We will affirm a verdict if, viewing all the evidence in the light most favorable to the government, a rational jury could conclude, from the evidence presented at trial, that the government established venue by a preponderance of the evidence. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

"When an offense is begun in one district and completed in another, venue is proper in any district in which the offense was `begun, continued, or completed.'" United States v. Fells, 78 F.3d 168, 170 (5th Cir.1996) (quoting 18 U.S.C. § 3237(a)). Venue can be based on evidence of any single act that initiated, perpetuated, or completed the crime, id. at 171, and circumstantial evidence suffices to establish venue, United States v. Loe, 248 F.3d 449, 463 (5th Cir.2001).

As can be deduced from the above, the venue inquiry is intimately tied to the offense charged. United States v. Strain, 396 F.3d 689, 693 (5th Cir.2005). Mendoza was indicted under 21 U.S.C. § 846 for conspiracy to possess with intent to manufacture and distribute methamphetamine in the Eastern District and elsewhere. Thus, the issue we must address is whether a reasonable jury could conclude, on the basis of the government's evidence, that Mendoza participated in a conspiracy to manufacture and distribute methamphetamine that "was begun, continued, or completed" in the Eastern District.

"In cases involving conspiracy offenses, venue is proper in any district where the agreement was formed or an overt act occurred." United States v. Caldwell, 16 F.3d 623, 624 (5th Cir.1994) (citations omitted). The record, viewed in the light most favorable to the government, demonstrates that several overt acts occurred in the Eastern District.

Firstly, the record shows a pattern of drug trafficking between Dallas and Shreveport, which are connected via Interstate 20. The distance is less than 200 miles; the route passes directly through the Eastern District. Traveling from Dallas to Shreveport without passing through the Eastern District would be a quixotic endeavor for anyone, much less drug traffickers facing innumerable risks of apprehension: One would have to drive west from Dallas to Fort Worth, north into Oklahoma, east into Arkansas, then south into Louisiana, a total of well over 700 miles. The circumstantial evidence in the record supports the inference that Mendoza's co-conspirators traveled through the Eastern District while transporting methamphetamine from Dallas to Shreveport. The government in closing explained this reasoning to the jury as "common sense." (R. 998).

And as we stated earlier, a jury may infer venue from circumstantial evidence in the record as a whole. United States v. White, 611 F.2d 531, 534-35 (5th Cir.1980). A reasonable jury, by a preponderance of the evidence, could conclude that Mendoza and his co-conspirators regularly transported contraband through the Eastern District. That conclusion alone would support venue, for one co-conspirator's travel through a judicial district in furtherance of the crime alleged establishes venue as to all co-conspirators.¹

Secondly, Leroy Pena testified that he met Mendoza in Canton, Texas, on November 4, 2005, and drove from Canton to Shreveport on November 5. (R. 649). Canton is in the Eastern District. Pena testified that Mendoza was his supplier and that he distributed two to three pounds of Mendoza's supply in Louisiana per week. (R. 645). On November 5, the day Pena left Canton, he was arrested in a hotel room in Shreveport with more than half a pound of methamphetamine. In the context of Pena's testimony as a whole, a rational jury could conclude, by a preponderance of the evidence, that the Canton meeting was an act in furtherance of the offense charged.

Finally, Elvis Grimes testified that he sold to customers who lived in Wylie and Princeton, Texas, in the Eastern District. (R. 743, 749). Grimes estimated that he bought up to one hundred pounds of methamphetamine from Mendoza during the course of their business relationship. (R. 731). A reasonable jury could conclude, on the basis of this evidence, that an overt act in furtherance of the charged conspiracy occurred in the Eastern District.

Mendoza argues there is insufficient evidence of his involvement in the charged conspiracy. That argument is meritless. For conspiracy convictions under 21 U.S.C. § 846, the government must prove beyond a reasonable doubt "(1) the existence of an agreement between two or more persons to violate narcotics law; (2) the defendant's knowledge of the agreement; and (3) the defendant's voluntary participation in the agreement." United States v. Gonzalez, 76 F.3d 1339, 1346 (5th Cir.1996). Pena identified Mendoza from a photo-line-up as his supplier. (R. 652). He routinely traveled to Dallas to pick up methamphetamine from Mendoza, (R. 642-44), or Mendoza would deliver it to him in Louisiana. (R. 644). The extensive evidence in the record adequately supports the jury's finding that Mendoza was in knowing agreement with Pena and others to distribute methamphetamine and that he voluntarily participated in that agreement.

III. Refusal To Instruct on Venue

Mendoza moved for a jury instruction on venue, which the district court denied, reasoning that because Mendoza had not offered any contradictory testimony on venue, a jury instruction was inappropriate. (R. 948). "[F]ailure to instruct on venue is...