U.S. v. Guerrero-Cortez, GUERRERO-CORTEZ
| Citation | 110 F.3d 647 |
| Decision Date | 14 April 1997 |
| Docket Number | 95-3621,95-3624,GUERRERO-CORTEZ,D,GONZALEZ-GONZALE,Nos. 95-3615,s. 95-3615 |
| Parties | 46 Fed. R. Evid. Serv. 1398 UNITED STATES of America, Plaintiff-Appellee, v. Giovanny Armando, a/k/a Gil, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roberto SOLER, a/k/a Robert, a/k/a Bob, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Williamefendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Christopher Harlan, Kansas City, MO, argued, for G. Cortez.
John R. Osgood, argued, Lee's Summit, MO, for Soler.
John C. Aisenbrey, Kansas City, MO, argued (Jacqueline A. Cook, on the brief), for Gonzalez.
Before LOKEN, HEANEY, and JOHN R. GIBSON, Circuit Judges.
A jury convicted Giovanny Armando Guerrero-Cortez, Roberto Soler, and William Gonzalez-Gonzalez of conspiracy to possess with intent to distribute cocaine, and also convicted Soler and Gonzalez-Gonzalez of two counts of aiding and abetting the distribution of cocaine, all in violation of 21 U.S.C §§ 841(a)(1), 846 (1994). Guerrero-Cortez appeals arguing that the district court erred in denying his motion for acquittal as to the conspiracy count, and erred in admitting into evidence a letter he sent from jail. Soler and Gonzalez-Gonzalez appeal arguing that the district court erred in computing their sentences. We affirm all of the convictions, and the sentences imposed on Guerrero-Cortez and Gonzalez-Gonzalez, but reverse Soler's sentence and remand to the district court for reconsideration of Soler's argument that he is entitled to a reduction for acceptance of responsibility.
In late spring or early summer of 1994, Saul Acosta approached Michael Hood in Miami, Florida and asked him if he knew of any out-of-state individuals who desired to purchase cocaine. Acosta told Hood that Soler and Guerrero-Cortez would probably supply the cocaine for the transactions. Sometime thereafter, Acosta introduced Hood to Soler and Guerrero-Cortez. Unknown to Acosta, Hood previously had served as an informant for the Federal Bureau of Investigation.
Hood told Special Agent Joseph Twardowski that he knew individuals in Miami that desired to distribute cocaine in the Midwest. Based upon this information, Special Agents Twardowski and Larry Tongate devised a plan in which Hood would introduce Tongate, who would portray himself as a midwestern cocaine distributor, to the Miami individuals in order to purchase cocaine from them.
Hood then informed Acosta that he had a cocaine buyer in Kansas City named Larry. Larry was Special Agent Tongate. Because Hood had located a buyer, Acosta asked Guerrero-Cortez to supply cocaine for the sale. Guerrero-Cortez replied that he was waiting for a source to supply him with cocaine, and that there was a strong possibility that he could supply the necessary amounts of cocaine. Acosta contacted Hood and verified that he had a supplier for the sale and that he and his associates wanted to establish a long-term relationship with the Kansas City buyer that would involve regular monthly sales of multi-kilogram amounts of cocaine.
Hood and Acosta flew to Kansas City on September 8, 1994. Before departing, Acosta spoke to Soler and Guerrero-Cortez to ensure they could supply cocaine for the Kansas City buyer. They agreed to do so. Discussions between Acosta, Hood, and Tongate in Kansas City resulted in Tongate agreeing to purchase one kilogram of cocaine from Acosta for $26,000.
After this discussion, Acosta contacted his associates in Miami and told them to send the cocaine, which soon arrived in Kansas City. After receiving it, Tongate showed Acosta the $26,000 he owed for the cocaine. Tongate next went to the post office where he feigned mailing the money to Miami, after which Acosta told Tongate that he, Soler, Gonzalez-Gonzalez, and Guerrero-Cortez could continue their cocaine trafficking relationship, and agreed to send more cocaine to Tongate.
Acosta then returned to Miami. When the money did not arrive, however, Acosta attempted to return to Kansas City. When he arrived at the Miami airport to fly to Kansas City, Special Agents Tongate and Twardowski confronted Acosta. Acosta then agreed to cooperate in the investigation by arranging the delivery of a second kilogram of cocaine and by recording conversations with Soler, Guerrero-Cortez, and Gonzalez-Gonzalez, the others that were to be involved in the transaction.
Acosta then contacted Soler to ask him to send another kilogram of cocaine. Soler agreed to send the cocaine. Gonzalez-Gonzalez then mailed one kilogram of cocaine to Kansas City.
Acosta next met with Guerrero-Cortez at Acosta's home in Miami. During the visit, Acosta recorded Guerrero-Cortez reciting cocaine prices and making several statements concerning his involvement in cocaine trafficking activities, including that he had attempted to locate supply sources for more cocaine.
Authorities charged Soler, Gonzalez-Gonzalez, and Guerrero-Cortez with one count of conspiracy to possess with intent to distribute five or more kilograms of cocaine, and two counts of aiding and abetting the distribution of cocaine. Acosta originally was charged as a co-defendant, but he pled guilty to the conspiracy count. At trial, the jury convicted Soler and Gonzalez-Gonzalez on all three counts. The district court entered a judgment of acquittal as to the distribution charges against Guerrero-Cortez, but the jury found him guilty on the conspiracy count.
Guerrero-Cortez argues that the district court erred in denying his motion for a judgment of acquittal on the conspiracy charge. He argues that the evidence based on the testimony of cooperating witnesses was not sufficient to prove beyond a reasonable doubt that he entered into an agreement to possess cocaine with the intent to distribute. The government asserts that the testimony of Acosta, the corroborating testimony of Hood, and the incriminating statements of Guerrero-Cortez recorded by Acosta provide more than enough evidence to support the conviction.
In reviewing the sufficiency of the evidence to support a guilty verdict, we view the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict. We then uphold the conviction only if it is supported by substantial evidence. See United States v. Black Cloud, 101 F.3d 1258, 1263 (8th Cir.1996); see also Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469-70, 86 L.Ed. 680 (1942).
To prove that a conspiracy exists "the government must show an agreement between at least two people and that the agreement's objective was a violation of the law." United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.1996)(quotation omitted). The government can use direct or circumstantial evidence to prove the existence of an agreement. See id. Further, once the government proves that a drug conspiracy exists, "only slight evidence linking the defendant to the conspiracy is required to prove the defendant's involvement and support the conviction." Id.
There is enough evidence to support the jury's conclusion that an agreement existed between Guerrero-Cortez, Soler, Gonzalez-Gonzalez, and Acosta to supply cocaine to Tongate. Acosta, who was heavily involved in the drug trafficking and served as a link between Soler, Gonzalez-Gonzalez, Guerrero-Cortez, and Tongate, described the roles of each conspirator, including Guerrero-Cortez, in the trafficking scheme. Acosta also testified that Guerrero-Cortez agreed to supply him with cocaine for Tongate. It is not our duty to judge the credibility of a witness, this task instead rightfully belongs to the jury. See United States v. Jackson, 959 F.2d 81, 82 (8th Cir.), cert. denied, 506 U.S. 852, 113 S.Ct. 155, 121 L.Ed.2d 105 (1992). "A conviction resting on the testimony of a co-conspirator will not be reversed unless no reasonable juror could believe the incriminating testimony." Id. Because a reasonable juror could believe the testimony of Acosta, sufficient evidence exists to uphold the conviction. In addition, Hood's testimony generally corroborated Acosta's testimony. Finally, Guerrero-Cortez himself made several statements during a recorded conversation with Acosta concerning his involvement in cocaine trafficking activities.
A reasonable juror could believe that an agreement existed between Guerrero-Cortez and at least one of the other drug conspirators. We affirm the district court's denial of Guerrero-Cortez's motion for acquittal on the conspiracy count.
Guerrero-Cortez next contends that the district court erred in admitting a letter he sent to a friend, Maria Navarro, while he was imprisoned. The letter requested that Navarro inform Acosta's employer, Pattatuchi, that Acosta was an FBI informant. Guerrero-Cortez argues that the letter was not relevant and inadmissible because Acosta's employer had no real connection to the drug conspiracy. In addition, Guerrero-Cortez argues that even if the letter was relevant, the admission of the letter was unfairly prejudicial in violation of Federal Rule of Evidence 403.
We review evidentiary rulings for an abuse of discretion. See United States v. Hamell, 931 F.2d 466, 469 (8th Cir.), cert. denied, 502 U.S. 928, 112 S.Ct. 347, 116 L.Ed.2d 286 (1991). We will not reverse a conviction on the basis of an erroneous evidentiary ruling where the error is harmless. See United States v. Byler, 98 F.3d 391, 394 (8th Cir.1996); United States v. Carper, 942 F.2d 1298, 1301-02 (8th Cir.), cert. denied, 502 U.S. 993, 112 S.Ct. 614, 116 L.Ed.2d 636 (1991).
In this case the government argued that the letter was admissible because it was a threat that showed consciousness of guilt. Courts may consider evidence of threats or intimidation to government witnesses. See United States v. Maddox, 944 F.2d 1223, 1230 (6th Cir.), cert. denied, 502 U.S. 992, ...
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