U.S. v. Narviz-Guerra

• Decision Date: 28 July 1998
• Docket Number: NARVIZ-GUERRA and L,No. 97-50298,97-50298
• Citation: 148 F.3d 530
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvaroarry Austin Grant, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 530

148 F.3d 530

UNITED STATES of America, Plaintiff-Appellee, v. Alvaro NARVIZ-GUERRA and Larry Austin Grant, Defendants-Appellants.

No. 97-50298.

United States Court of Appeals, Fifth Circuit.

July 28, 1998.

Rehearing Denied Aug. 27, 1998.

Richard L. Durbin, Jr., Asst. U.S. Atty., Philip Eugene Police, San Antonio, TX, for Plaintiff-Appellee.

George McCall Secrest, Jr., Bennett, Secrest & Meyers, Francisco Gerardo Medina, Medina & Vasquez, Houston, TX, for Alvaro Narvis-Guerra.

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

Before DUHE, BENAVIDES and STEWART, Circuit Judges.

DUHE, Circuit Judge:

Defendants Alvaro Narviz-Guerra ("Narviz") and Larry Grant ("Grant") were tried and convicted for possession of marijuana with the intent to distribute, conspiracy to possess marijuana, conspiracy to launder monetary instruments, and engaging in a continuing criminal enterprise. Narviz appeals his conviction arguing insufficiency of the evidence, lack of verdict unanimity, improper admission of hearsay, and double jeopardy. Second, he appeals his sentence arguing that the presentence report was unreliable. Third, he appeals the forfeiture of his truck contending that it was improperly forfeited under 21 U.S.C. § 853(a)(2). Grant appeals his conviction arguing that his right to a speedy trial was violated, that there was insufficient evidence to convict him of money laundering, and that the trial court failed to give a compensated witness instruction. He also appeals his sentence contending that the amount of marijuana for which he was held responsible was not reasonably foreseeable. We vacate Narviz's conviction for conspiracy to possess with the intent to distribute on the grounds it violates double jeopardy. We affirm Narviz's other convictions and his sentence. We also affirm Grant's conviction and sentence.

BACKGROUND

In early 1991, Narviz bought Las Moras Ranch, a 534 acre ranch which had previously been used to breed cattle and harvest pecans and was bordered by the Rio Grande and Las Moras Creek. Narviz made Grant foreman. Within six months, the ranch had deteriorated significantly, and Narviz was running so far behind on payments that the seller forced Grant off the ranch. Narviz, however, negotiated a settlement, and Grant returned to the ranch about a year later.

Narviz and Grant used the ranch to smuggle marijuana from Mexico into Texas and then moved it from the ranch to distributors for shipping throughout Texas. In November In June 1995, the Drug Enforcement Agency ("DEA") searched Narviz's ranch which they found in poor condition. The fences and pecan trees had deteriorated. The two houses on the ranch were unlocked; they contained little furniture, had broken windows and trash strewn about. Moreover, the agents found two bales of marijuana, marijuana residue, inner tubes, and burlap or fiberglass bags that had contained marijuana.

1993, Ricardo Perez ("Perez"), a fugitive who knew Narviz from past trafficking and still maintained contacts with American distributors, joined Narviz's organization. Perez contacted Narviz after meeting a pilot flying loads of marijuana to Narviz. They arranged the marijuana transactions so that Narviz remained unknown to Perez's associates. Narviz set up the deliveries by phone from Mexico while Perez directed the receipt, storage, and distribution in Texas. Over the next year and a half, between 12 and 18 loads of marijuana, weighing 200-600 pounds, were delivered to Perez's associates.

In July, the DEA arrested one of Perez's associates, Tony Hall ("Hall"), who began cooperating in the investigation. Hall set up a controlled buy with another associate, Craig Hillis ("Hillis"). Hillis, too, was arrested and began cooperating. Hillis consented to a search of his stash house where agents found about 100 pounds of a 400 pound load that had been delivered between August and October of 1994.

On September 22, 1995, Perez's wife contacted Hall and said that she wanted approval to put Narviz in touch with Hall. Three days later, Grant drove Narviz to a Houston restaurant where they met with Hall and an undercover agent to discuss the buying and selling of additional loads. On November 30, Narviz, Hall, and Grant met again at another restaurant near Houston. As Narviz and Grant left the restaurant, they were arrested. Narviz was tried and convicted of conspiracy to possess marijuana with the intent to distribute, six counts of possession with intent to distribute, conspiracy to launder monetary instruments, and engaging in a continuing criminal enterprise. He was sentenced to 360 months in prison. Grant was tried and convicted of conspiracy to possess marijuana, two counts of possession with intent to distribute and one count of conspiracy to launder monetary instruments. He was sentenced to 188 months. Both appeal their conviction and sentences.

ANALYSIS

A. NARVIZ

1. DOUBLE JEOPARDY

Narviz argues, and the government concedes, that his conviction on Count One of the indictment must be vacated. Count One charged Narviz with conspiracy to possess marijuana with the intent to distribute. Because conspiracy is a lesser included offense of the continuing criminal enterprise charged in Count Three, his conviction on Count One violates double jeopardy. See Rutledge v. United States, 517 U.S. 292, 307, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); United States v. Dixon, 132 F.3d 192, 196 (5th Cir.1997). Though we vacate Narviz's conviction on Count One, we do not remand for resentencing. Where it is clear that the drug conspiracy conviction did not lead the district court to impose a harsher sentence for engaging in a continuing criminal enterprise ("CCE"), there is no need to remand. United States v. Dixon, 132 F.3d at 196. Here, Narviz was sentenced to 360 months for Counts One and Three with the terms to run concurrently; thus, the sentence for the CCE is no harsher than it would have been without the drug conspiracy conviction.

2. VERDICT UNANIMITY

Because Narviz's trial counsel did not object to the failure to give a specific instruction requiring unanimity, this Court reviews for plain error. United States v. Harris, 104 F.3d 1465, 1471 (5th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 103, 139 L.Ed.2d 57 (1997).

Narviz points out that he was charged with laundering monetary instruments under 18 U.S.C. §§ 1956(a)(2)(A) and (h) which proscribes transporting, transmitting, and transferring a monetary instrument or funds from or to the United States with the intent to carry on specified unlawful activity. When While Narviz accurately summarizes our holding in that case, Gipson simply does not apply here because Narviz was convicted of conspiracy and not the actual offense. Rather, we look to our holding United States v. Dillman, 15 F.3d 384, 391-92 (5th Cir.1994) which said that where an indictment alleged conspiracy to commit several offenses, the district court did not err in giving a general unanimity instruction. The Dillman court explained that when twelve jurors agree that a defendant agreed to commit a crime, all jurors do not have to agree about which offense the defendant personally intended to commit. There need be only one conspiracy to encompass the particular charged offense. Id. at 392. Here, the facts fall within Dillman 's reasoning. The judge gave a general unanimity charge, and the conspiracy to launder money encompasses moving money both to and from the United States. Thus, we cannot say that the district court plainly erred in failing to give a specific unanimity instruction.

the judge instructed the jury, he told them that the prosecution had to prove beyond a reasonable doubt that two or more agreed to launder money either by sending it from or to the United States. Narviz argues that this instruction was error because it is unclear whether Narviz was convicted of laundering money by sending it to or from the United States. He contends that our holding in United States v. Gipson, 553 F.2d 453 (5th Cir.1977) requires a specific unanimity instruction when a jury could find a defendant guilty on a single count under multiple theories of liability.

3. INSUFFICIENT EVIDENCE

Counts Four and Seven allege respectively that on or about October 1994 and July 20, 1995, Narviz unlawfully and knowingly possessed marijuana with intent to distribute. Narviz argues that the record does not show that the government proved any of the specified conduct. He contends that the government produced no evidence that Narviz possessed any marijuana on those specific dates. Rather, the government produced witnesses who testified to the loads that they, as co-conspirators, handled over the years.

This Court reviews the evidence in the light most favorable to, and with all reasonable inferences drawn in support of, the verdict. United States v. Thompson, 130 F.3d 676, 688 (5th Cir.1997). We must affirm Narviz's conviction under these counts if any rational trier of fact could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

To convict for possession with intent to distribute, the government must prove (1) knowing, (2) possession, (3) with intent to distribute. United States v. Lopez, 74 F.3d 575, 577 (5th Cir.), cert. denied 517 U.S. 1228, 116 S.Ct. 1867, 134 L.Ed.2d 964 (1996). Possession may be joint. United States v. Skipper, 74 F.3d 608, 611 (5th Cir.1996). A party to a conspiracy may be held responsible for a substantive offense that a co-conspirator commits in furtherance of the conspiracy even if the party did not participate in or have any knowledge of that offense. Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Thus, once the conspiracy and the defendant's knowing participation therein is proved beyond a reasonable doubt, a defendant is guilty of the substantive acts his partners committed in...