U.S. v. Garcia
| Decision Date | 06 May 2009 |
| Docket Number | No. 05-41424.,05-41424. |
| Citation | 567 F.3d 721 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Salvador GARCIA, Jr.; Jorge Rolando Garcia, Sr.; Toribio Arriaga-Guerrero, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mary Jane Harmon (argued), Kathlyn Giannaula Snyder and James Lee Turner, U.S. Asst. Attys., Houston, TX, for U.S.
Chris Flood, Charles Thomas Flood (argued), Flood & Flood, Houston, TX, for Salvador Garcia, Jr.
Kelly Keoki McKinnis (argued), McAllen, TX, for Jorge Rolando Garcia, Sr.
Jose Roberto Guerrero (argued) (Court-Appointed), Ramirez & Guerrero, LLP, McAllen, TX, for Toribo Arriaga-Guerrero.
Appeals from the United States District Court for the Southern District of Texas.
Before GARZA and ELROD, Circuit Judges, and HICKS,* District Judge.
A jury in the United States District Court for the Southern District of Texas convicted Salvador Garcia, Jr., Jorge Rolando Garcia, Sr., and Toribio Arriaga-Guerrero of multiple charges related to a drug-trafficking operation. The defendants appeal their convictions by challenging various district court rulings. We find no merit in the defendants' appeals and affirm the convictions on all counts.
"We recite the facts in the light most favorable to the verdict." United States v. Olis, 429 F.3d 540, 541 n. 1 (5th Cir.2005). In Rio Grande City, Texas, Salvador Garcia owned and controlled property on Midway Street that bordered the Rio Grande River. Salvador Garcia directed a drug trafficking operation that brought marijuana and cocaine across the Rio Grande river and into the United States through vehicle paths on his Midway property. In a typical instance, Salvador Garcia would approve a day's trafficking operation and Juan Garcia, Salvador Garcia's nephew, would direct the operation's specific conduct. Jorge Garcia, Salvador Garcia's brother and Juan Garcia's father, participated in the operation by providing an interim storage location for drugs at his home on Agua Verde Road. Toribio Arriaga-Guerrero participated in several capacities, sometimes assisting with the actual transportation of the drugs, and other times serving as a lookout for law enforcement agents. Several other persons participated in the operation at various times. Over the course of several months in 2003, the operation trafficked large amounts of both marijuana and cocaine on an almost daily basis.
On the morning of November 30, 2003, Salvador Garcia, Juan Garcia, Arriaga-Guerrero, and other participants planned to acquire and transport a large quantity of marijuana. Arriaga-Guerrero, who had left the operation some time during the preceding few weeks, informed Juan Garcia of his desire to return and asked for a role in that day's operation. Although Salvador Garcia opposed Arriaga-Guerrero's continued participation, Juan Garcia allowed it, and instructed Arriaga-Guerrero to serve as the operation's lookout at a nearby gas station. Arriaga-Guerrero agreed. Juan Garcia and two other participants drove a GMC Yukon to the river landing near the Midway property, loaded several hundred pounds of marijuana into the vehicle, and headed back to the Midway property where the group sometimes stored vehicles in sheds.
Meanwhile, ground sensors alerted United States Border Patrol agents to activity near the river landing. Two agents went to the river landing, discovered evidence of recent activity, and began following tire tracks towards the Midway property. Juan Garcia received warning of the approaching government agents, and left the other two members of the operation at the Midway property to tend to the load of marijuana. As immigration agents neared the Midway property compound and observed persons fleeing the vehicles, one of the agents saw two bundles of what the agent believed to be marijuana fall out of the Yukon. The agents' search of the Yukon, the other vehicles on the property, and the buildings there yielded 759 kilograms of marijuana, several firearms, and accompanying ammunition.
On December 2, 2003, officers conducting an unrelated investigation came upon Jorge Garcia's Agua Verde property, which emanated a strong odor of marijuana. After obtaining a warrant, the officers searched the home and seized 3,470 kilograms of marijuana, as well as another firearm and ammunition. One person testified that he saw Jorge Garcia flee the Agua Verde property near the time of the seizure.
In this case's first trial, the government charged Salvador Garcia and Arriaga-Guerrero with the following:
(1) Conspiracy to possess more than 1,000 kilograms of marijuana with intent to distribute from October through December 2, 2003, see 21 U.S.C. §§ 846, 841(a)(1), and
(2) Possession of approximately 759 kilograms of marijuana with intent to distribute on November 30, 2003, see § 841(a)(1).
The government also charged Salvador Garcia with the following:
(3) Maintaining drug-involved premises, see 21 U.S.C. § 856,
(4) Possession of firearms in furtherance of a crime, see 18 U.S.C. § 924(c)(1)(A), and
(5)-(26) Twenty-two counts of violating financial reporting requirements, see 31 U.S.C. § 5324(a).
Salvador Garcia and Arriaga-Guerrero presented motions for acquittal on all counts at the end of the government's case-in-chief, and again before the district court charged the jury; the district court denied the motions. The jury failed to return a verdict on Counts One through Four, and the district court declared a mistrial as to those counts.1
For the second trial, the government's superceding indictment charged Salvador Garcia, Arriaga-Guerrero, and Jorge Garcia with identical versions of the first trial's Count One conspiracy and Count Two possession charge. The indictment also charged Salvador Garcia with identical versions of the Count Three drug-involved premises and Count Four firearm charges. New Count Five charged Salvador Garcia and Jorge Garcia with possession of more than 1000 kilograms of marijuana with intent to distribute on December 2, 2003. See 21 U.S.C. §§ 846, 841(a)(1). The jury found Salvador Garcia guilty of all but the firearms charge, and the district court sentenced him to a 365-month term of imprisonment. The jury found Arriaga-Guerrero guilty of the conspiracy and possession charges, and the district court sentenced him to a 240-month term of imprisonment. The jury found Jorge Garcia guilty of the conspiracy and possession charges, and the district court sentenced him to a 235-month term of imprisonment.
All three defendants appealed. We have jurisdiction over these appeals from final judgments. See 28 U.S.C. § 1291. We consolidated the appeals for purposes of argument and we now consolidate them for disposition. See Fed. R.App. P. 3(b)(2); United States v. Rabanal, 508 F.3d 741, 742 (5th Cir.2007).
In his first issue, Salvador Garcia challenges his convictions on all counts by arguing that the district court violated Federal Rule of Evidence 404(b) when it admitted evidence of cocaine trafficking and cocaine use. During the course of the four-day trial on the marijuana charges, the district court admitted evidence showing that Salvador Garcia's operation moved cocaine through the Midway property using the same vehicles and the same passageway, that the conspirators packaged the cocaine in bags of horse feed, and that Salvador Garcia took cocaine to McAllen, Texas. The district court also admitted evidence showing that Salvador Garcia gave members of the operation cocaine as payment for their work, and that the members consumed cocaine for the purpose of staying awake during the marijuana and cocaine trafficking operations. According to Salvador Garcia, the district court should have excluded the evidence under Rule 404(b) because the government failed to give Salvador Garcia notice of its introduction, and because the evidence's probative value did not outweigh its unfair prejudice.
Because Salvador Garcia failed to object when the government introduced the evidence,2 we review the district court's decisions for plain error only. See United States v. Akpan, 407 F.3d 360, 373 (5th Cir.2005); United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005).
An appellate court may not correct an error the defendant failed to raise in the district court unless there is "(1) error, (2) that is plain, and (3) that affects substantial rights." "If all three conditions are met an appellate court may then exercise its discretion to notice a forfeited error but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings."
Mares, 402 F.3d at 520 (citation omitted) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). Salvador Garcia's lack-of-notice argument fails because even if the government provided insufficient notice of its intent to introduce the cocaine evidence, Salvador Garcia failed to satisfy his burden of demonstrating the requisite prejudice. See Mares, 402 F.3d at 520; United States v. Duffaut, 314 F.3d 203, 209 (5th Cir.2002) ; see also United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ( ); Puckett v. United States, 129 S.Ct. 1423, 1433, 173 L.Ed.2d 266 (2009) (). Although Salvador Garcia's substantive 404(b)...
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United States v. El-Mezain, 09-10560
...of their own statements. We review the district court's alleged discovery error for an abuse of discretion. United States v. Garcia, 567 F.3d 721, 734 (5th Cir. 2009). We start by reviewing additional background information. During the course of its investigation in this case, the Governmen......
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United States v. El-Mezain, 09-10560
...of their own statements. We review the district court's alleged discovery error for an abuse of discretion. United States v. Garcia, 567 F.3d 721, 734 (5th Cir. 2009). We start by reviewing additional background information. During the course of its investigation in this case, the Governmen......
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United States v. El-Mezain, 09-10560
...of their own statements. We review the district court's alleged discovery error for an abuse of discretion. United States v. Garcia, 567 F.3d 721, 734 (5th Cir. 2009). We start by reviewing additional background information. During the course of its investigation in this case, the Governmen......
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United States v. El-Mezain, 09-10560
...of their own statements. We review the district court's alleged discovery error for an abuse of discretion. United States v. Garcia, 567 F.3d 721, 734 (5th Cir. 2009). We start by reviewing additional background information. During the course of its investigation in this case, the Governmen......