U.S. v. Olguin

• Decision Date: 07 June 2011
• Docket Number: No. 09–10916.,09–10916.
• Citation: 643 F.3d 384
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Julian OLGUIN, Jr.; Robert Losoya, also known as Minnesota; Juan Antonio Ledesma; Hector Daniel Macias, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

643 F.3d 384

UNITED STATES of America, Plaintiff–Appellee,

v.Julian OLGUIN, Jr.; Robert Losoya, also known as Minnesota; Juan Antonio Ledesma; Hector Daniel Macias, Defendants–Appellants.

No. 09–10916.

United States Court of Appeals, Fifth Circuit.

June 7, 2011.

Chad E. Meacham (argued), Cara Foos Pierce, Asst. U.S. Attys., Dallas, TX, Nancy E. Larson, Asst. U.S. Atty., Fort Worth, TX, for Plaintiff–Appellee.David Leonard Richards (argued), (Court–Appointed), Fort Worth, TX, for Defendant–Appellant Julian Olguin, Jr.Leigh Warren Davis (argued), (Court–Appointed), Bedford, TX, for Defendant–Appellant Robert Losoya.John Andrew Kuchera (argued), (Court–Appointed), Waco, TX, for Defendant–Appellant Juan Antonio Ledesma.John Hampton Read, II (argued), (Court–Appointed), Dallas, TX, for Defendant–Appellant Hector Daniel Macias.Appeals from the United States District Court for the Northern District of Texas.Before GARZA, STEWART and HAYNES, Circuit Judges.CARL E. STEWART, Circuit Judge:

Defendants–Appellants Julian Olguin, Jr. (“Olguin”), Robert Losoya (“Losoya”), Juan Antonio Ledesma (“Ledesma”), and Hector Daniel Macias (“Macias”) (collectively “Appellants”) bring this appeal challenging criminal convictions related to an enterprise to conspire, possess and distribute controlled substances. We AFFIRM.

I.

The facts of this case are largely undisputed. In early 2007, a traffic stop by Fort Worth, Texas police led to a drug seizure, which yielded an informant willing to make recorded telephone calls with a member of a Texas gang syndicate regarding drug transactions. Subsequent wiretaps implicated several members of the syndicate, including Losoya.

On June 4, 2008, Drug Enforcement Agency (“DEA”) Task Force agents received a tip from a confidential source (“CS”) that a major drug transaction was to take place at 1265 East Berry (“Berry Lot”) in Fort Worth, Texas. The CS told the DEA that a semi-tractor trailer loaded with marijuana would arrive at the Berry Lot, at which point a U–Haul truck would then take possession of the marijuana. The load of the marijuana was packed in twenty-five large bundles, totaling 2,010.65 pounds.

Based on the tip from the CS, DEA agents set up surveillance on the Berry Lot. The agents observed Ledesma driving a semi-tractor trailer, followed by a U–Haul driven by Olguin, and a sedan driven by Macias. DEA personnel observed Olguin park next to Ledesma and meet with Macias. DEA agents then converged on the scene during the meeting, approached the car with drug-sniffing dogs, and discovered the contents of the semi-tractor trailer. When asked for their reasons for being at the Berry Lot, all three provided mildly incredulous answers. Officers arrested all three.

Further investigation continued through phone records. Losoya was identified through 173 drug-related conversations and was subsequently identified as a leader of the trafficking enterprise. The recorded phone calls indicated that Losoya recruited members to the conspiracy, received money, gave orders, obtained firearms, and transported various types of drugs. Losoya was also arrested.

On November 19, 2008, a grand-jury in the Northern District of Texas charged the Appellants, along with thirty-one others, in a ninety-eight count superseding indictment. Most of the others implicated pled guilty; a few remained fugitives. Count 1 of the indictment charged Olguin, Ledesma, Macias, and Losoya with conspiracy to distribute a controlled substance and to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) and (b)(1)(A). Count 11 of the indictment charged Olguin, Ledesma, and Macias with possession of a controlled substance with the intent to distribute and aiding and abetting, based on the contents of the semi-tractor trailer. Losoya was additionally charged with two firearms charges and twenty-eight other charges.

At the close of the Government's case, the district court denied each Appellant's motion for judgment of acquittal as to the conspiracy charge. After a jury trial, all four were convicted of Count 1. Olguin, Macias, and Ledesma were convicted of Count 11. Losoya was additionally convicted of all but one of the remaining thirty counts pending against him. Prior to sentencing, but after the jury delivered its convictions, Losoya was found to have authorized “mulettas” or “hits” (calls for murder) from behind prison, against those who cooperated with the Government.

Post-conviction, Appellants waived a jury trial on asset forfeiture. The Government's evidence indicated that the total amount of the money attributable to the criminal enterprise was $12 million. The Government moved the court for asset forfeiture judgments of $2 million against each Appellant. The district court granted the Government's motion and found each of the four jointly and severally liable for $2 million. Along with their forfeiture judgment, each defendant was sentenced to prison time. Ledesma was sentenced to 136 months' imprisonment, Olguin to 120 months' imprisonment, and Macias to 264 months' imprisonment. With respect to Losoya, the district court adopted the Pre Sentence Report's (“PSR”) recommendation of 480 months, over Losoya's objections. Inherent in the term were two enhancements: one for Losoya's role as a leader/organizer of the conspiracy; the second enhancement was for obstruction of justice. This appeal followed.

II.

On appeal, Ledesma challenges the district court's admission of certain Federal Rule of Evidence 404(b) testimony, and the district court's admission of phone records. Macias challenges the district court's admission of phone calls and transcripts of calls as a violation of his rights under the Confrontation Clause. Ledesma and Macias challenge the sufficiency of the evidence to support the conspiracy charge. Olguin challenges as error the district court's forfeiture judgment against him. Together, Ledesma and Olguin challenge the district court's finding of joint and several liability for $2 million. Ledesma and Losoya also challenge the district court's calculation of the liability amount, $2 million. Lastly, Losoya challenges the two sentencing enhancements added to his base offense level at sentencing.

A.

At trial and pursuant to Rule 404(b), the Government introduced evidence of Ledesma's involvement in two prior drug transactions to demonstrate Ledesma's intent and knowledge regarding the contents of the semi-tractor trailer that he was driving shortly before his arrest at the Berry Lot. In 2003, Ledesma was arrested at a border check-point in Laredo, Texas after pounds of marijuana were detected by drug-sniffing dogs and indeed found in his tractor trailer. The Government introduced evidence of the 2003 incident through the testimony of a Border Patrol agent and photographs of the contents of the trailer. In 2006, after a routine traffic stop, police discovered $381,600 in cash hidden in the speakers of a tractor trailer driven by Ledesma. Then, too, Ledesma was arrested. On both occasions, controlled substances were found in Ledesma's vehicles.

Ledesma argues that the admission of the two prior drug transactions was unduly prejudicial and that the Government had other evidence to show knowledge and intent. The Government contends that the district court properly admitted evidence of the prior arrests because Ledesma's counsel denied Ledesma's intent and knowledge regarding the contents of the semi-tractor trailer.

We review the admission of Rule 404(b) evidence for an abuse of discretion with a heightened review in criminal cases. United States v. Pompa, 434 F.3d 800, 805 (5th Cir.2005). Such a review demands that the evidence be strictly relevant to the particular offense charged. United States v. Hawley, 516 F.3d 264, 266 (5th Cir.2008). Rule 404(b) indicates that “ ‘Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.’ But such evidence is ‘admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’ ” Id. at 267 (citing Fed. R.E. 404(b)) (emphasis added).

In United States v. Beechum, this court outlined a two-pronged test to determine if an abuse of discretion occurred with respect to the admission of Rule 404(b) testimony. 582 F.2d 898, 911 (5th Cir.1978) (en banc); see also United States v. McCall, 553 F.3d 821, 827 (5th Cir.2008). First, “it must be determined that the extrinsic evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of [R]ule 403.” Beechum, 582 F.2d at 911. Evidence is relevant “if it has the tendency to make the existence of any” consequential fact “to the determination of the action more or less probable than it would be without the evidence.” Fed. R.E. 401.

This court has held that evidence of prior acts is admissible to establish a defendant's intent and knowledge. United States v. Arnold, 467 F.3d 880, 885 (5th Cir.2006). A defendant's not-guilty plea intuitively puts his intent and knowledge into issue. McCall, 553 F.3d at 828. Here, under the two-pronged Beechum test, the district court properly admitted the evidence.

First, the Government introduced the evidence not to demonstrate his character, but rather his intent or knowledge of drugs in the trailer. As the Government correctly indicates, the district court specifically noted intent and knowledge in determining the relevancy of the past events. Thus, they were probative to an issue other than his character, and thereby satisfy the first prong of this court's framework under Beechum. Moreover, any prejudicial effect is significantly outweighed by the probative value, for at least two reasons.

First, the...