U.S. v. Lopez

• Decision Date: 07 October 2004
• Docket Number: No. 03-3433.,No. 03-3434.,03-3433.,03-3434.
• Citation: 384 F.3d 937
• Parties: UNITED STATES of America, Appellee, v. Ulises Ariel LOPEZ, Appellant. United States of America, Appellee, v. Israel Gonzales-Lara, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

384 F.3d 937

UNITED STATES of America, Appellee, v. Ulises Ariel LOPEZ, Appellant.

United States of America, Appellee, v. Israel Gonzales-Lara, Appellant.

No. 03-3433.

No. 03-3434.

United States Court of Appeals, Eighth Circuit.

Submitted: May 11, 2004.

Filed: October 7, 2004.

Appeal from the United States District Court for the Southern District of Iowa, James E. Gritzner, J.

COPYRIGHT MATERIAL OMITTED

Terry Wright, argued, Des Moines, IA, for Appellant Lopez in Case No. 03-3433.

John F. Fatino, argued, Des Moines, IA, for Appellant Gonzales-Lara in Case No. 03-3434.

John S. Courter, Asst. U.S. Atty., argued, Des Moines, IA, for Appellee USA.

Before LOKEN, Chief Judge, BRIGHT, and SMITH, Circuit Judges.

PER CURIAM.

The Government tried Ulises Ariel Lopez and Israel Gonzales-Lara together on charges arising out of a drug conspiracy that took place in Des Moines, Iowa. Lopez appeals his convictions after a jury found him guilty of conspiring to distribute methamphetamine and of possessing methamphetamine with intent to distribute. See 21 U.S.C. §§ 841(a)(1); 841(b)(1)(A); and 846. Lara appeals his conviction and sentence after a jury found him guilty of conspiring to distribute methamphetamine. See 21 U.S.C. §§ 841(a)(1) and 846. We consolidated the appeals. For reversal, Lopez argues that the district court erred by admitting hearsay evidence. Lara raises additional claims of error that he argues rendered his trial fundamentally unfair. Lastly, Lara argues that the district court erred in enhancing his offense level for possessing a firearm. For the following reasons, we affirm Lopez's and Lara's convictions and Lopez's sentence. We vacate the enhancement to Lara's sentence for possession of a firearm and remand his sentence for further consideration.

I. Background

We recite the facts in the light most favorable to the jury's verdict. See United States v. McCracken, 110 F.3d 535, 540 (8th Cir.1997). Felix Baccam and Israel Gonzales-Lara a/k/a Isaac Ramos met at a Des Moines, Iowa night club in May of 2002. During their encounter, Baccam expressed interest in distributing methamphetamine and Lara agreed to supply Baccam with methamphetamine. According to the agreement, Lara would "front" Baccam the methamphetamine and would receive payment after Baccam sold it to his buyer, Joe Hernandez. At first, Lara provided Baccam with one pound of methamphetamine every seven to ten days. After a few months, Baccam requested more methamphetamine and Lara provided him with two pounds every seven to ten days. A short time later, Baccam informed Lara that he could sell additional amounts of methamphetamine. Lara increased the amount he provided to three pounds. At the first three-pound delivery, Lara introduced Baccam to his supplier, Ulises Ariel Lopez. Baccam paid Lara in cash for the previous delivery and Lara gave the money to Lopez.

Unbeknownst to Baccam, police arrested his buyer, Hernandez, on simple possession charges. In cooperation with the police department, Hernandez told police he bought methamphetamine from Baccam. He provided the police with information about past drug transactions including the location of the transactions and a description of the vehicle Baccam drove to the transactions. He arranged to meet Baccam for another delivery and police set up surveillance at the location.

On October 2, 2002, Lopez accompanied Lara to deliver another three pounds of methamphetamine to Baccam. Lara gave the methamphetamine to Baccam. Baccam left to deliver the methamphetamine to his buyer and Lopez accompanied him. Police stopped Baccam's vehicle when it approached the location. The police recovered three pounds of methamphetamine from the floor behind the passenger seat and a loaded .380 caliber pistol from under the driver's seat. The police arrested both Baccam and Lopez. Later that evening, police arrested Lara on unrelated charges and took him to the Polk County Jail, where police later learned of Lara's participation in the conspiracy.

The Grand Jury returned a three-count indictment. Count one charged Lara, Lopez and Baccam with conspiracy to knowingly and intentionally distribute methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. Count two charged Lopez and Baccam with possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Count three charged Baccam with possession of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Baccam pleaded guilty to counts two and three and testified at trial against Lara and Lopez.

Shawn Miller, Lara's cellmate, also testified at trial. Miller testified that while in the cell together, Lara described his role in a drug conspiracy with two other individuals. Lara told Miller that he acted as the middleman between Lopez and Baccam, receiving methamphetamine from Lopez and then giving it to Baccam to distribute. Lara also told Miller that he had six to eight more pounds of methamphetamine that he needed to unload. Miller agreed to help Lara get rid of the remaining methamphetamine. According to Miller, Lara's girlfriend deposited $1,400 in Miller's account to secure his cooperation in disposing of the drugs. Lara's girlfriend and Lara testified that she deposited the money as security for renting Miller's apartment.

Lara's attorney argued during opening statements that another individual named Isaac Ramos, not Lara, participated in the conspiracy with Baccam and Lopez. To support the argument Lara introduced testimony from Paul Feddersen, a state drug investigator. During the course of one of Feddersen's investigations he spoke to a man named Isaac Ramos by telephone. The Isaac Ramos that Feddersen spoke with had an Asian accent; Lara is Mexican. However, when officer Feddersen arrived to testify he brought with him a videotape showing Lara with the other drug conspirators. Before testifying, Feddersen showed the video to Lara and the Government. Despite the videotape, Lara presented Feddersen's testimony. The Government presented the video on cross-examination. Other witnesses, including Lara's girlfriend, testified that Lara used the name Isaac Ramos on many occasions.

The jury returned a guilty verdict on count one for both Lara and Lopez and count two for Lopez. The jury found beyond a reasonable doubt that the quantity of drugs possessed during the course of the conspiracy exceeded fifty grams of actual methamphetamine or 500 grams of a mixture or substance containing methamphetamine, but no further quantity determination was proved to the jury.

The presentence investigation reports for Lopez and Lara recommended a base offense level of 36. The level reflected the amounts of methamphetamine attributed to the conspiracy by the Government's main witnesses, Baccam and Miller. The presentence investigation reports also recommended that both Lopez and Lara receive a two-level enhancement for possession of a firearm by Baccam, a co-conspirator, pursuant to U.S.S.G. §§ 1B1.3(a)(1)(B) and 2D1.1(b) and a two-level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1 because both dishonestly testified on their own behalf during trial.

Lopez and Lara objected to the calculation of the base offense and argued that the amount attributed to the conspiracy be restricted to the amount seized by police when they arrested Baccam. The amount seized would support a base offense level of 32. See U.S.S.G. § 2D1.1(c). Lopez and Lara also objected to the firearm enhancement and Lara objected to the obstruction of justice enhancement.

The district court used a base level of 36 based on its calculation of the drug quantity described in Baccam's testimony. The district court applied the firearm enhancement to both Lara and Lopez but only applied the obstruction of justice enhancement to Lopez. The court sentenced Lopez to a term of 292 months imprisonment and Lara to a term of 235 months imprisonment. Lara and Lopez timely appealed.

II. Discussion

A. Lopez's Conviction

Lopez argues that the district court erred by allowing Miller's testimony to be introduced against him. We review a district court's decision to admit a co-conspirator's statement for abuse of discretion and reverse if the error substantially prejudiced the outcome. See United States v. Frazier, 280 F.3d 835, 848 (8th Cir.2002) and United States v. Beckman, 222 F.3d 512, 522 (8th Cir.2000). Rule 801(d)(2)(E) of the Federal Rules of Evidence allows a statement that would otherwise be hearsay to be admitted if a co-conspirator made the statement "during the course and in furtherance of the conspiracy." Lara approached Miller and asked him to dispose of methamphetamine. At this time, Miller became Lara's co-conspirator. Miller's testimony regarding statements made by Lara in furtherance of the conspiracy fall within the hearsay exception when introduced to show Lara's involvement in the conspiracy. The district court can properly admit evidence implicating one co-conspirator even if the evidence prejudices the other co-conspirator if it gives the jury a limiting instruction. See United States v. Frazier, 280 F.3d 835, 844 (8th Cir.2002).

Regardless of whether the district court properly admitted Miller's testimony, we do not reverse because the error did not prejudice the outcome of the case. "An error is harmless if the reviewing court, after viewing the entire record determines ... the error did not influence or had only a very slight influence on the verdict." United States v. Hafiz, 129 F.3d 1011, 1012 (8th Cir.1997) (citation omitted). Police arrested Lopez and Baccam en route to deliver drugs to Joe Hernandez. Police found three pounds of methamphetamine in the car directly behind Lopez on the floor behind the passenger seat. Additionally, Felix Baccam testified at trial that Lopez provided the drugs to Lara and that Lara paid Lopez for the drugs. Even without Miller's testimony, the jury had enough...