U.S. v. Guerra

• Decision Date: 09 May 1997
• Docket Number: No. 96-2235EM,96-2235EM
• Citation: 113 F.3d 809
• Parties: 47 Fed. R. Evid. Serv. 126 UNITED STATES of America, Plaintiff/Appellee, v. Jose Erik GUERRA, Defendant/Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 809

113 F.3d 809

47 Fed. R. Evid. Serv. 126

UNITED STATES of America, Plaintiff/Appellee, v. Jose Erik GUERRA, Defendant/Appellant.

No. 96-2235EM.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 11, 1997.

Decided May 9, 1997.

Rodolfo Rivera, argued, St. Louis, MO, for defendant/appellant.

Michael A. Price, argued, Cape Girardeau, MO, for plaintiff/appellee.

Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and BATTEY, ^* Chief District Judge.

BATTEY, Chief District Judge.

Following a jury trial, Jose Erik Guerra ("appellant" or "Guerra") was convicted of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Guerra appeals his conviction from the district court ¹ on the following issues: (1) the district court erred in admitting a coconspirator's out-of-court statements pursuant to Fed.R.Evid.801(d)(2)(E); (2) the prosecutor's statement in closing amounted to vouching for the credibility of a witness; (3) the prosecutor's questions regarding appellant's status as an illegal alien constituted prosecutorial misconduct; (4) the district court committed plain error; (5) the prosecutor erred in eliciting testimony as to appellant's post-Miranda silence; (6) the district court erred in determining the quantity of drugs which it attributed to appellant; and (7) the district court erred in adding a four-level enhancement for a leadership role. ² We affirm appellant's conviction and sentence.

I. Background

This case involves an extensive multi-party conspiracy involving the distribution of methamphetamine in Missouri. In a week-long trial, the government established a conspiracy between several individuals including appellant Guerra. Three of Guerra's coconspirators, Darrell Jones ("Jones"), Brandy Cordova ("Cordova"), and Dianne Whyde ("Whyde"), testified at trial. Coconspirator Antonio Espinosa-Montero ("Montero") absconded prior to trial. The evidence demonstrated that Cordova, Jones, and Montero were the distributors, and Guerra was the California manufacturer and Montero's supplier.

In 1994, Jones, a truck driver and part-time drug dealer, became fully involved in distributing methamphetamine. (Tr. 2-204). He purchased quantities of methamphetamine from Cordova, who was Jones' California connection. (Tr. 2-204, 2-206). Jones would obtain the drugs in California and return to Missouri where the drugs were distributed. Jones did not know that Guerra was Cordova's source. (Tr. 2-219).

On January 20, 1995, Jones arranged to purchase some methamphetamine from Cordova. The exchange took place in a room at the Residence Inn in Ontario, California. (Tr. 2-215, 217) On that day, Jones noticed a black car in the parking lot. (Tr. 2-218). Jones later identified the individual whom he saw in the car as Montero. (Tr. 2-220, 2-221).

Cordova lived in a remote desert ranch with his girlfriend, Whyde. Whyde assisted Cordova by taking messages from his distributors and relaying these messages to Cordova. Beginning in October of 1994, Cordova's source for his methamphetamine was Montero. Whyde testified that Montero had come to their ranch and that he and Cordova would go to the garage to "do their business." (Tr. 3-18). Cordova told Jones that he had a new source, and Jones confirmed this fact because the quality of the drugs he was receiving improved. (Tr. 2-210). Cordova testified that Montero told him that he received the manufactured methamphetamine from "a pesado," meaning a drug lord in Spanish. (Tr. 3-68). Cordova interpreted this to mean the main man, the manufacturer. (Tr. 3-67). Montero later revealed his source as Guerra. (Tr. 3-80).

In February of 1995, Jones was arrested in possession of a large amount of cash and drug paraphernalia. (Tr. 2-27). Officers also seized a phone list which contained Cordova's number. (Tr. 2-33). Jones agreed to cooperate with law enforcement in setting up a buy-bust in California. The buy-bust took place on March 7, 1995, in Ontario, California. (Tr. 2-166).

On March 2, 1995, Jones placed a recorded call to Cordova's residence. Jones talked to Whyde and told her that he would be making a trip out to California the following week. (Tr. 2-161). In California, on March 7, 1995, Jones again called Cordova's residence. He spoke with Whyde and told her that he was there to buy. (Tr. 2-226). Cordova called Jones back and told him it would take a couple hours for him to arrive. Jones requested two and one-half pounds of methamphetamine. Cordova agreed to bring three pounds. (Tr. 2-228).

Cordova then called Montero and told him that Jones was in town. Montero said that he needed to call his "main guy." Cordova asked Montero if he was the same supplier who had brought the last delivery when Cordova had been waiting at Montero's house. Montero told him it was. After his telephone conversation with Montero, Cordova left for Montero's residence. When he arrived he saw the same car sitting in the driveway at the house which had dropped off the methamphetamine the previous time that he was at Montero's home. After Cordova arrived, Montero completed the delivery of the methamphetamine. Cordova observed that the driver of the vehicle was Guerra. Cordova was to meet Montero and the main guy after the delivery to Jones. Cordova went to the hotel to make the delivery to Jones where Cordova was arrested. (Tr. 3-100 through 3-108).

II. Fed.R.Evid. 801(d)(2)(E)

Guerra alleges that the court erred in admitting statements made by his alleged coconspirators. The statements were made by Montero to Cordova identifying Guerra as the source of Cordova's drugs. The court admitted the statement conditionally under Fed.R.Evid. 801(d)(2)(E). (Tr. 2-66). See United States v. Bell, 573 F.2d 1040 (8th Cir.1978) (permitting court to conditionally accept out-of-court statement made by an alleged coconspirator). At the conclusion of the evidence, the court admitted the statements permanently. (Tr. 4-192). We conclude that the trial judge did not err in admitting the statements of coconspirator Cordova. United States v. Escobar, 50 F.3d 1414, 1423 (8th Cir.1995).

For statements of a coconspirator to be admissible against a defendant, the government must prove by a preponderance of the evidence that (1) a conspiracy existed; (2) the defendant and the declarant were members of the conspiracy; and (3) the declaration was made during the course of and in furtherance of the conspiracy. Bell, 573 F.2d at 1043. See also Fed.R.Evid. 801(d)(2)(E). In Bourjaily v. United States, 483 U.S. 171, 181, 107 S.Ct. 2775, 2781, 97 L.Ed.2d 144 (1987), the Court held that "a court, in making a preliminary factual determination under Rule 801(d)(2)(E), may examine the hearsay statements sought to be admitted."

Cordova is the only coconspirator who testified regarding knowledge of Guerra's involvement within the conspiracy. Guerra objected to the following statements:

Q. Mr. Price: Did Montero ever tell you who he got that methamphetamine--excuse me--the manufactured methamphetamine from?

A. Mr Cordova: He said that there was this one guy that, you know, he was a pretty heavy guy, okay. He--

Q. Okay. What do you mean by heavy? You mean large and big or what?

A. No, sir. He was like the main guy that, you know, he's a manufacturer. And he said that he had access to as many pounds as I wanted, or Jonsie wanted to purchase maybe 30, 40 pounds, they had it for him. There was no problem at all.

...

Q. Now, if I understand your testimony, you mentioned the word "heavy." Did Montero speak English?

A. Very broken, but he could not understand it at all.

Q. What word did he use in Spanish to describe "heavy"?

A. Pesado.

Q. Pesado?

A. Yes.

Q. And what does that mean in Spanish to you?

A. It's slang for drug lords.

(Tr. 3-67, 3-68).

Later on, Guerra was identified.

Q. Was there ever a time that Mr. Montero told you who his particular main man was?

A. Yes, sir, he did. At one time, he did mention Guerra's name over here.

Q. And how did Mr. Montero pronounce that name?

A. Guerra.

(Tr. 3-80).

Guerra makes three objections regarding the statements set forth above: (1) that the statements referring to Guerra as "a heavy," "a main man," and "a pesado" were not made in furtherance of a conspiracy because the statements were "promotional puffery"; (2) that at the time of these statements Cordova and Montero had not yet formed a conspiracy; and (3) even though the statements infer that Guerra and Montero were coconspirators, they were not coconspirators in the charged conspiracy.

A. Statements in Furtherance of the Conspiracy

Whether a statement is made in furtherance of a conspiracy is given broad construction. United States v. Krevsky, 741 F.2d 1090, 1094 (8th Cir.1984). To establish that a statement was made in furtherance of a conspiracy, the government must show that the statements were more than informative and that they were made to "advance the objectives of the conspiracy." United States v. Baker, 98 F.3d 330, 336 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1456, 137 L.Ed.2d 561 (1997) (citations omitted). Statements of a coconspirator identifying a fellow coconspirator as his source of controlled substances is in furtherance of the conspiracy and therefore admissible. United States v. Womochil, 778 F.2d 1311, 1314 (8th Cir.1985) (quoting United States v. Anderson, 654 F.2d 1264, 1270 (8th Cir.1981), cert denied, 454 U.S. 1127, 102 S.Ct. 978, 71 L.Ed.2d 115 (1981)). See also Escobar, 50 F.3d at 1423 (citing United States v. Garcia, 893 F.2d 188, 190 (8th Cir.1990)); Krevsky, 741 F.2d at 1094 (holding that statement by a coconspirator to an undercover government agent describing the duties and responsibilities of the defendants in the drug smuggling operation was made in furtherance of the conspiracy). Montero's statements to Cordova were made to identify that he had a source for his controlled substances. Montero stated that he...