U.S. v. Hernandez

• Decision Date: 22 August 2002
• Docket Number: No. 02-1162.,02-1162.
• Citation: 299 F.3d 984
• Parties: UNITED STATES of America, Appellee, v. Justin Gabriel HERNANDEZ, also known as Jay, also known as Manuel Hernandez, also known as Joshua Thomas Romero, also known as Patrick Joseph Campanella, also known as Justin West, also known as Michael Jerry Garcia, also known as Phillip S. Varela, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

299 F.3d 984

UNITED STATES of America, Appellee, v. Justin Gabriel HERNANDEZ, also known as Jay, also known as Manuel Hernandez, also known as Joshua Thomas Romero, also known as Patrick Joseph Campanella, also known as Justin West, also known as Michael Jerry Garcia, also known as Phillip S. Varela, Appellant.

No. 02-1162.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2002.

Filed: August 22, 2002.

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Gregory C. Damman, argued, Seward, NE, for appellant.

Sara E. Fullerton, argued, Lincoln, NE, for appellee.

Before RILEY, BEAM, and MELLOY, Circuit Judges.

BEAM, Circuit Judge.

Justin Gabriel Hernandez was convicted by a jury of conspiracy to distribute and possess with intent to distribute methamphetamine, cocaine, and marijuana, in violation of 21 U.S.C. § 846, and of distribution and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court¹ sentenced him to 360 months' imprisonment. Hernandez appeals his conviction and sentence, claiming a variety of errors. We affirm.

I. SUFFICIENCY OF THE EVIDENCE

Hernandez first argues that the evidence was insufficient to support his conviction for conspiracy to distribute methamphetamine. Reviewing a jury verdict for sufficiency of the evidence requires us to review the evidence in the light most favorable to the verdict, accepting all reasonable inferences as established. United States v. Jimenez-Villasenor, 270 F.3d 554, 558 (8th Cir.2001). A conviction by a jury is reversed only if no reasonable jury could have concluded that the defendant was guilty beyond a reasonable doubt on each essential element of the charge. Id. "This standard is a strict one, and a jury verdict should not be overturned lightly." Id.

To prove that a defendant was a member of a conspiracy to distribute controlled substances, the government must demonstrate that there was a conspiracy (or agreement) to distribute controlled substances, that the defendant knew of the conspiracy, and that he intentionally joined the conspiracy. Id. A defendant's mere presence and knowledge that someone else who was present intended to sell drugs are insufficient to establish membership in a conspiracy. Id. However, the government may prove a conspiracy by circumstantial evidence or by inference from the parties' actions. Id. Once a conspiracy's existence has been established, slight evidence connecting a defendant to it may be sufficient to prove the defendant's involvement. Id.

At trial, Melanie Tucker and Hoyt Matthew Hedgecock, also known as "Matt," testified against Hernandez pursuant to agreements to cooperate with the government in exchange for motions to reduce their sentences. Hernandez contends that:

the Government's case consisted of the testimony of two cooperating witnesses — Mr. Hedgecock and Ms. Tucker — who made vague statements as to the nature and extent of Mr. Hernandez's participation in the alleged conspiracy. Their testimony was filled with assumptions and speculation as to the identities of individuals in Colorado who were allegedly supplying drugs and the reasons that Mr. Hernandez was associating with them. There were also inconsistencies and statements lacking credibility in their testimony.

Although Hernandez' argument may implicate the credibility of the government's witnesses, assessments of credibility are the province of the fact-finder. United States v. Davis, 103 F.3d 660, 674 (8th Cir.1996). He fails to undermine the sufficiency of the evidence. For instance, the government presented testimony by Hedgecock that Hernandez owed a drug distributor from Denver, known as "Jeremy," "a lot of money" and "so Jeremy sent [Hernandez] out to Nebraska so he could make a little money." After Hernandez came to Nebraska, he moved in with Hedgecock. Hedgecock testified that he and Hernandez started getting larger quantities of drugs from Jeremy because Hernandez was "more trustworthy" than Hedgecock's previous co-distributor. Hedgecock further testified that Hernandez traveled to Denver several times with either himself or Tucker to bring drugs back to Nebraska, and that on one occasion, they obtained from Jeremy approximately a pound of methamphetamine, a half-kilo of cocaine, and ten pounds of marijuana. Tucker testified that she had accompanied Hernandez to collect money on various occasions. She also testified that sometime after she drove Hedgecock to deliver cocaine to a customer, Hernandez told Hedgecock that he needed to go collect payment from that customer and instructed him to take a gun. Tucker further testified that she had observed Hernandez getting a "white powdery substance" out of a safe for Hedgecock. Hedgecock testified that he and Hernandez kept drugs and money in the safe, and that Hernandez kept larger quantities of drugs in the attic. Tucker testified that, upon Hernandez' instruction she had wired drug money from Hernandez to Jeremy in Denver.

Law enforcement officers stopped Tucker and Hernandez in Nebraska after they returned from Denver with a substantial quantity of methamphetamine they had obtained from Jeremy. Tucker testified that just prior to being stopped, they delivered methamphetamine to Dan Zeiger. Upon leaving Zeiger's residence, Hernandez put a trash bag and scale in the trunk of the car driven by Tucker, and he rode as a passenger. Hernandez told Tucker that they "needed to drive to Omaha ... and see if [another person] wants the rest of this." When officers searched the vehicle, they found methamphetamine in the trunk.

The record generally suggests that Hernandez acted as an intermediary between those who were higher than him in the drug operation and those who were beneath him. A reasonable jury could have concluded that Hernandez was guilty of conspiring to distribute controlled substances beyond a reasonable doubt.

II. DENIAL OF BILL OF PARTICULARS

Hernandez next argues that the district court erred when it overruled his motion for a bill of particulars. Federal Rule of Criminal Procedure 7(f) states:

The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.

A bill of particulars serves to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at trial, and to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense when the indictment is too vague and indefinite. United States v. Birmley, 529 F.2d 103, 108 (6th Cir.1976). "To establish reversible error from the denial of a motion for a bill of particulars, a defendant must show that he was actually surprised at trial and suffered prejudice from the denial." United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir.1993).

Here, the district court denied Hernandez' first motion for a bill of particulars because Hernandez had failed to comply with the terms of the court's progression order. However, upon Hernandez' counsel submitting to the government questions covering essentially the same information requested in the bill of particulars, the government provided counsel with detailed responses. In comparing the responses submitted to Hernandez' counsel with the record, we find that the responses provided counsel with information that precluded surprise, and that Hernandez fails to establish that he was actually prejudiced by the denial.

III. ALLEGED GOVERNMENTAL SUPPRESSION OF FAVORABLE EVIDENCE

Next, Hernandez argues that the government suppressed evidence favorable to him in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the trial court erred when it determined no such violation had occurred. "To prove a Brady violation, a defendant must show that the prosecution suppressed the evidence, the evidence was favorable to the accused, and the evidence was material to the issue of guilt or punishment." United States v. Duke, 50 F.3d 571, 577 (8th Cir.1995). Evidence is material if there is a reasonable probability that the outcome of the proceeding would have been different if the evidence had been disclosed. Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). A "reasonable probability" is one that is sufficient to undermine confidence in the outcome of the proceeding. Clemmons v. Delo, 124 F.3d 944, 949 (8th Cir.1997).

Hernandez contends that after the car driven by Tucker and registered in her name was searched and drugs were located, Tucker advised the officer that Hernandez had an ownership interest in the car. He therefore argues that when the government opposed his motion to suppress based on Hernandez having no ownership interest in the car and, therefore, no standing to challenge the search, the government improperly withheld information as to the officer's knowledge of Hernandez' ownership interest. We need not parse this argument too deeply because Hernandez has shown no reasonable probability that the outcome of the motion to suppress hearing would have been different had the officer's knowledge been revealed. Tucker initially gave an officer consent to search the passenger compartment and, given that she was driving the vehicle and that it was registered in her name, the officer was justified in relying upon her consent. During that search, the officer arguably obtained probable cause to search the vehicle further when he located marijuana seeds and pieces of marijuana leaves in the passenger compartment. See United States v. Payne, 119 F.3d 637, 642 (8th Cir.1997) ("Police may search a car without a warrant if they have probable cause to believe that the...