U.S. v. Herrera, 00-51177.

• Citation: 289 F.3d 311
• Decision Date: 17 April 2002
• Docket Number: No. 00-51177.,00-51177.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ismael Holguin HERRERA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

289 F.3d 311

UNITED STATES of America, Plaintiff-Appellee, v. Ismael Holguin HERRERA, Defendant-Appellant.

No. 00-51177.

United States Court of Appeals, Fifth Circuit.

April 17, 2002.

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Joseph H. Gay, Jr., Asst. U.S. Atty., Mark Randolph Stelmach, Asst. U.S. Atty. (argued), San Antonio, TX, for Plaintiff-Appellee.

George McCall Secrest, Jr. (argued), Houston, TX, for Defendant-Appellant.

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

Before SMITH and DeMOSS, Circuit Judges, and DUPLANTIER,¹ District Judge.

DeMOSS, Circuit Judge:

In a superseding indictment returned on June 21, 2000, Appellant Ismael Holguin Herrera ("Ismael"), along with Octavio Herrera ("Octavio"), Sergio Juarez, Jesus Lucero ("Lucero"), and four other individuals were charged in Count 1 with, from 1986 to on or about December 9, 1999, conspiracy to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Ismael and Lucero were charged in Count 14 for aiding and abetting each other in the attempt to commit the offense of possession with intent to distribute more than 500 grams of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 846. Finally, Ismael was charged in Count 16 with, on or about December 9, 1999, knowingly possessing three specified firearms while an unlawful "user" of a controlled substance, in violation of 18 U.S.C. § 922(g)(3).

Ismael was tried by himself and was convicted of the three charged offenses by a jury. In a judgment filed on November 3, 2000, he was sentenced by the district court to imprisonment for 78 months on each count, to be served concurrently, supervised release for four years as to Counts 1 and 14, and three years as to Count 16, to be served concurrently. Ismael now appeals his conviction.

BACKGROUND

The Appellant, Ismael Herrera, also known as "Ish," was born in Chihuahua, Mexico, in 1950, and later became a naturalized citizen of the United States. In the early 1990s, Ismael began working as a paralegal in the Odessa, Texas, office of the Herrera Law Firm, operated by his nephew, Jesse Herrera. "Rick" Ignacio Lopez was an undercover agent for Sergeant Valenzuela in Odessa, Texas. Lopez told Valenzuela that he could make drug purchases from "the Herrera family" and that he had knowledge that Octavio Herrera² was a cocaine dealer. He had gained this knowledge through multiple interactions with Octavio, including an encounter with Ismael (in which Ismael indicated that he believed Lopez to be a "snitch"). These interactions took place in the early nineties. In 1998, Lopez got reacquainted with Octavio and started "hanging out with him" at Octavio's Gardendale ranch³ and other places. Late in 1998, Lopez asked Octavio if he could sell him some cocaine. Octavio instead offered to sell Lopez marijuana, apparently stating that "it was easier for him [Octavio] to control the marijuana and that his Uncle Ish would have to get the cocaine." Subsequent to a sale of two pounds of marijuana, Lopez was able to make purchases of cocaine from Octavio.

Over the next several months, from December 1998 to July 1999, Lopez purchased cocaine from Octavio six times. Lopez also made undercover purchases of three or four ounces of cocaine from Jesus Lucero.⁴ In conjunction with these undercover operations, the authorities also were intercepting the Herrera family's telephone conversations. In one conversation, intercepted on June 19, 1999, Jesse Herrera instructed Octavio, "You must call Ish to see if he has any Z's." Sergeant Mario Tinajero of the Texas Department of Public Safety ("DPS") testified that "Z's" is a slang word referring to ounces (short for "oz.'s") and that the conversation was in reference to cocaine. After this conversation, surveillance revealed that Octavio went to Ismael's residence. Another conversation, intercepted on June 21, 1999, revealed Ismael telling Octavio, "I'll go with you and we can readily make a deal and we'll park it over here." Sergeant Tinajero testified that the conversation appeared, from his experience, to be in relation to a drug deal.

Pursuant to these events, an undercover officer, Sergeant Teofilo Garcia, Jr., was introduced to Lucero. Lopez introduced Garcia as his cousin Thomas from out of town, and Garcia, acting in his undercover capacity, negotiated with Lucero to purchase three ounces of cocaine for $2,100 on July 2, 1999. This deal was completed and a second negotiation took place at Milo's Restaurant in Odessa. This time, Garcia asked for one kilogram of cocaine. Lucero informed Garcia that he could make the sale for $19,000. Garcia told Lucero that this price was too high, however.

About the same time as the drug negotiations between Garcia and Lucero, separate events were unfolding at the Herrera Law Firm. Around the beginning of July (Ismael testified that it was approximately ten days before July 11), a person identifying himself as "Lalo" entered the Herrera Law Firm and introduced himself to Ismael using Ismael's drug-dealing brothers Raymond and Manuel as references.⁵ Lalo told Ismael that he had a kilogram of cocaine and he sought Ismael's help in distributing it. Ismael claims that he rejected this offer and had nothing more to do with attempting to introduce Lalo to prospective dealers. However, Lucero testified that Ismael gave him Lalo's pager number and informed him that Lalo was in Odessa from Mexico and that he wanted to meet Lucero so that they could make some money.

Lucero paged Lalo and several days later received a call from him. Lalo introduced himself as a friend of Raymond Herrera, and Lucero suggested a meeting at Milo's Restaurant. After speaking with Lalo, Lucero testified that he immediately called Ismael. This conversation was intercepted by authorities. The recording of the conversation revealed that Ismael was not surprised that Lalo called Lucero, and Ismael even reminded Lucero that his name was Lalo. The conversation also revealed that Ismael encouraged Lucero to undertake some sort of endeavor with Lalo, implying but never explicitly mentioning drugs. Ismael also further advised Lucero on how he should proceed. During this conversation, Lucero revealed to Ismael that he had a guy coming over on Tuesday (meaning undercover agent Garcia) and so he should have no problem moving the drugs.⁶ In another intercepted telephone call on July 11, 1999, Lucero confirmed that he would meet Lalo at Milo's Restaurant. Lucero then called Ismael, who instructed Lucero to come to his residence so that he could accompany him to the meeting. Surveillance officers confirmed that Lucero went by Ismael's and that the two men then went to the restaurant together in Ismael's Toyota Four Runner. The meeting at Milo's lasted approximately 25 minutes. Lucero testified that, at the restaurant, Ismael did most of the talking. Apparently Lalo indicated that he had one kilogram of cocaine available but wanted a partial payment up front of a couple of thousand dollars. Both Lucero and Ismael indicated that they did not have the money but asked Lalo to "front" them the cocaine because Lucero was "good for it." Lalo told them he would think about it. Ismael asserts, however, that he never went along with the intention to make a drug deal, but only to keep Lucero from consummating the deal.

One day later, in another intercepted phone conversation, Lalo told Lucero that he had spent some time with Lucero's uncle (though he never says which uncle, Lucero testified that he believed he meant Ismael), and a second meeting was arranged at the motel where Lalo was staying. Surveillance revealed that Lucero went to the motel and stayed approximately five minutes. Lucero testified that he again attempted to have Lalo front the cocaine because he believed that he could sell the whole kilogram to undercover agent Garcia. Lalo backed out, however, and left town without providing any cocaine to Lucero.

On July 13, 1999, Lucero met with undercover agent Garcia again at Milo's Restaurant. Garcia purchased three ounces of cocaine from Lucero and was told by Lucero that he would contact him regarding the sale of one kilogram of cocaine. On July 16, 1999, in another intercepted phone conversation, Lucero spoke to Ismael complaining that Sergio Juarez would not "front" Lucero a kilogram of cocaine. Sergio Juarez was Octavio's and Lucero's supplier of cocaine, and Ismael testified at trial that he knew that Juarez was their supplier. Lucero asked Ismael to help, and Ismael responded that he would see Juarez that coming Sunday at the Gardendale ranch.

Testimony at trial, including Ismael's own testimony, demonstrates that he was a user of cocaine during the last ten years. Ismael asserts, however, that he has not used cocaine since August 1999. In December 1999, Ismael's car was vacuumed and an ion scan revealed trace amounts of cocaine particulates in the car; there is no indication, however, how the particulates got in the car or where in the car the particulates came from. Evidence also showed that Ismael owned at least three firearms, which he possessed for various lengths of time: a .22 caliber derringer, which he had owned for at least two years; a Smith & Wesson .38 caliber revolver, which he had owned for about one year; and .380 Beretta 9mm semi-automatic pistol, which he had owned for four to six months. It was stipulated to at trial that the guns were functional and had traveled in interstate commerce.

DISCUSSION

Is the evidence sufficient to support the jury's guilty verdict as to Count 1, conspiracy to distribute more than 500 grams of cocaine?

Ismael claims that the evidence presented at trial was insufficient to support his conviction. When reviewing such a claim, this Court considers "the evidence, all reasonable inferences drawn from it and all credibility determinations in the light most favorable to the Government,...