U.S. v. Hinojosa

• Decision Date: 03 April 1992
• Docket Number: No. 91-2260,91-2260
• Citation: 958 F.2d 624
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Humberto HINOJOSA and Carlos Lerma, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 624

958 F.2d 624

UNITED STATES of America, Plaintiff-Appellee, v. Humberto HINOJOSA and Carlos Lerma, Defendants-Appellants.

No. 91-2260.

United States Court of Appeals, Fifth Circuit.

April 3, 1992.

Mike DeGeurin, Houston, Tex., for Carlos Lerma.

Steven J. Lieberman, Kent A. Schaffer, Houston, Tex., for Hinojosa.

Peggy Morris Ronca, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, ¹ District Judge.

JERRE S. WILLIAMS, Circuit Judge:

Appellants Humberto Hinojosa and Carlos Lerma were both convicted of numerous drug related offenses. Both appellants insist the evidence was insufficient to support their convictions. They also claim the trial judge erred in calculating their sentences. Moreover, Hinojosa individually asserts he should be granted a new trial due to improprieties in the selection of the jury. We find appellants' arguments unpersuasive and affirm the convictions and sentences.

I. FACTS

Evidence was presented at trial that Carlos Lerma operated numerous businesses in the Houston area as a cover for an elaborate drug operation. One of Lerma's businesses was an auto paint and body shop. The body shop was run by Humberto Hinojosa who assisted Lerma in stripping down cars brought from Mexico and removing packages of marihuana concealed in the cars. The packages were then boxed and distributed. Much of the drugs was transported to Atlanta, Georgia.

In November 1985, Marion Meadows introduced Steven Miller to Hinojosa. Miller agreed to transport marihuana in his car from Texas to Georgia. Hinojosa supplied approximately 800 pounds of marihuana for the first trip to Atlanta.

Meadows and Miller followed Hinojosa's truck as they drove to Atlanta in Miller's car. Upon arriving in Atlanta, Hinojosa told Miller and Meadows to check into a particular hotel. At the hotel, a party unknown to Miller took Miller's car and Hinojosa's truck and unloaded the marihuana from the vehicles. Later, money was delivered to the hotel. Miller was instructed to count the money and Hinojosa told him he could keep all the one and five dollar bills. The money totalled approximately $150,000. Miller and Meadows returned to Texas with the money, and they delivered it to Lerma at his auto body shop.

Through January 1986, Miller made approximately five more trips to Atlanta, taking between 300 and 500 pounds of marihuana each time and returning with the money. The procedures sometimes varied, but the trips always involved the same people. After January of 1986, Miller and Meadows made two or three more trips, but they stopped after Meadows suspected he was under investigation. Meadows had been stopped at the Atlanta airport, and a Drug Enforcement Administration agent discovered $169,000 and six marihuana cigarettes in his duffle bag. After Meadows returned to Houston, he met with Lerma and Hinojosa to discuss the government's seizure of the money. Because of the incident at the airport, Miller and Meadows then stopped transporting marihuana for Hinojosa and Lerma.

In the summer of 1987, Miller again began driving marihuana from Houston to Atlanta because he needed the work. During the summer, Miller made four or five trips. On each trip he hauled approximately 300 pounds of marihuana, and on one trip, he transported six kilos of cocaine. Hinojosa accompanied Miller on two of the trips. Miller was arrested in Orange County, Texas for possession of less than an ounce of marihuana in July 1987. He then moved to Atlanta and ceased transporting drugs for Hinojosa and Lerma. He did, however, continue his association with the defendants. In fact, Miller purchased cocaine and marihuana from Hinojosa for the purpose of resale.

On March 27, 1988, Miller was again arrested. The charge was possession of marihuana and LSD. Following his arrest, Miller agreed to cooperate with the Georgia police. He told them that Hinojosa was his source and that Hinojosa would be coming to Atlanta. Upon Hinojosa's arrival in Atlanta, Miller was temporarily released from jail so he could meet Hinojosa to receive a kilo of cocaine. Miller wore a "body-bug" during the transaction. After the transaction, Miller was returned to custody, and Hinojosa was arrested in his motel room.

Evidence was introduced to show that throughout the same time period, Lerma was involved in numerous other drug transactions. On two occasions in the summer of 1987, Lerma and Roger Solis transported between 500 and 900 pounds of marihuana from Laredo to Houston. Solis also drove two separate loads of marihuana to South Carolina. On the first trip to South Carolina, the marihuana was loaded at Lerma's house, and Solis drove in tandem with Ricardo Montalvan (a/k/a Valentin). On the second trip, Solis was stopped en route with the load and was arrested.

Testimony at trial indicated that one of Lerma's cocaine sources was his girlfriend, Jacquelyn Cruzco. In May 1988, Cruzco's house was searched pursuant to a valid search warrant. The police discovered $147,000 in cash, scales, drug paraphernalia, and marihuana at Cruzco's house. Lerma's briefcase was also searched, and the police found drug ledgers and a business card for an attorney named Lawrence Rothenberg. On the back of the card was a notation indicating that Lerma had paid $25,000 in legal expenses for Hinojosa. The briefcase also contained a memorandum regarding the events surrounding Hinojosa's arrest.

In August 1988, as a result both of information supplied by Miller and the arrest of Hinojosa, law enforcement officials in Houston obtained court-authorized wiretaps on several telephone numbers utilized by Lerma, and they also conducted surveillance on his activities. Numerous incriminating conversations between Lerma, Lionel Sosa, Lee Hernandez, Solis, Montalvan, Vincente Rivera, and Cruzco were recorded. These conversations involved drug transactions and delivery of money. Approximately nine conversations were recorded between Lerma, Lee Hernandez, and Lionel Sosa, regarding money Hernandez allegedly owed Lerma for cocaine. Sosa testified at trial that Lerma recruited him to sell cocaine. Sosa agreed to assist Lerma by directing cocaine customers to him. In August 1988, Sosa put Lerma in touch with Lee Hernandez for the purpose of conducting cocaine and marihuana transactions.

In a separate conversation, Lerma told Montalvan that Lerma and two others had purchased 10,000-12,000 pounds of marihuana, and that Lerma intended to set aside 2000-3000 pounds for Montalvan. Another series of calls involved a 1000-pound marihuana transaction between Lerma and Montalvan. Lerma had purchased the marihuana from Felix Castillo. He had shown samples of the marihuana to Montalvan, but Montalvan rejected the marihuana. Lerma was en route to return the marihuana to Castillo when he was arrested by surveillance agents. A search of his car produced two samples of marihuana totalling forty pounds, a gun, and drug ledgers.

Hinojosa was indicted and convicted of conspiracy to possess with intent to distribute in excess of 1000 kilograms of marihuana and in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846 and two counts of interstate travel in aid of racketeering in violation of 18 U.S.C. §§ 2, 1952(a)(1), and 1953(a)(3). He was sentenced to a total prison term of 235 months, followed by five years supervised release. Lerma was indicted and convicted of 51 counts, involving: conspiracy to possess with intent to distribute in excess of 1000 kilograms of marihuana and in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846; engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848; interstate travel in aid of racketeering in violation of 18 U.S.C. §§ 2 and 1952(a)(1); possession with intent to distribute in excess of 100 kilograms of marihuana in violation of 21 U.S.C. § 841(a)(1); possession with intent to distribute marihuana in violation of 21 U.S.C. § 841(a)(1); use of a telephone to facilitate the commission of a felony in violation of 21 U.S.C. §§ 846 and 843(b); carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); conducting financial transactions in violation of 18 U.S.C. § 1956(a)(1)(B)(i); engaging in monetary transactions in violation of 18 U.S.C. § 1957; and investing illegal proceeds in violation of 21 U.S.C. § 854. He was sentenced to a total prison term of 300 months, followed by five years supervised release. Both appellants filed timely appeals.

II. SUFFICIENCY OF THE EVIDENCE

Both Lerma and Hinojosa challenge the sufficiency of the evidence to support a portion of their conviction. We address each appellant's claim individually. In reviewing the sufficiency of the evidence, this Court views all evidence in the light most favorable to the government with all reasonable inferences and credibility choices to be made in support of the jury's verdict. The evidence is sufficient if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir.1990); United States v. Medina, 887 F.2d 528, 530 (5th Cir.1989).

Both Hinojosa and Lerma have a difficult burden to overcome because they did not object to the sufficiency of the evidence at the trial level. Without the objection, we extend even greater weight than is usual as to the jury's finding. A review of Hinojosa and Lerma's sufficiency claims is "limited to the determination of whether there was a manifest miscarriage of justice. Such a miscarriage would exist only if the record is devoid of evidence pointing to guilt." United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir.1989) (citations omitted).

Hinojosa challenges the sufficiency of the evidence with respect to his...