U.S. v. Puig-Infante, PUIG-INFANTE

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before JOHNSON, GARWOOD and JOLLY; GARWOOD
• Citation: 19 F.3d 929
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Antonio, a/k/a Alejandro Montana, Maria Abigail Puig, Juan Ernesto Castro-Cuellar, Araceli Castro, Perla De Los Santos, Defendants-Appellants.
• Decision Date: 13 April 1994
• Docket Number: No. 92-2503,PUIG-INFANTE

Page 929

19 F.3d 929 UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Antonio PUIG-INFANTE, a/k/a Alejandro Montana, Maria
Abigail Puig, Juan Ernesto Castro-Cuellar, Araceli
Castro, Perla De Los Santos,
Defendants-Appellants. No. 92-2503. United States Court of Appeals,
Fifth Circuit. April 13, 1994.

Page 933

Marjorie A. Meyers, Bennett & Secrest, Houston, TX (Court-appointed), for Puig-Infante.

Ralph R. Martinez, Houston, TX (Court-appointed), for Puig.

Russell V. Henderson, Houston, TX (Court-appointed), for Castro-Cuellar.

Frank Svetlik, Houston, TX, (Court-appointed), for Arceli Castro.

Robert A. Jones, Houston, TX (Court-appointed), for Delossantos.

Richard K. Harris, Paula C. Offenhauser, Asst. U.S. Attys., Lawrence D. Finder, U.S. Atty., Houston, TX, for appellee.

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

Before JOHNSON, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants-appellants were charged with and convicted of participating in a conspiracy involving the importation of marihuana from Mexico into the United States. Araceli Castro, Perla De Los Santos, Maria Abigail Puig (Abigail Puig), Juan Ernesto Castro-Cuellar (Juan Castro), and Jose Alejandro Puig-Infante (Jose Puig) were convicted of conspiracy, importation, and other drug charges. Appellants raise numerous issues on appeal. We affirm in part, reverse in part, and vacate and remand in part.

Facts and Proceedings Below

The story of this conspiracy begins sometime in 1986 or 1987, in Monterrey, Mexico, when Don Roman (Roman) entered into an agreement with Hector Villareal-Rojas (a/k/a Tito) to supply Tito with marihuana from Mexico. The two agreed that Roman would arrange for the marihuana to be driven from the interior of Mexico, across the United States border, and into Houston. Tito arranged on his own for distribution of the marihuana in Houston once it was delivered to him.

In 1987, Roman was arrested and his part of the operation was taken over by one of the delivery drivers, Alejandro Acosta (Acosta), and his family. Acosta would arrange to transport the marihuana from the interior of Mexico to the vicinity of Monterrey, Mexico, where it would be stored while awaiting transportation to the border city of Nuevo Laredo, Mexico, and ultimately into the United States through Laredo, Texas. Initially, Acosta was assisted by his wife, Martha Idalia Garcia-Bernal (a/k/a Martha Acosta), by his sisters, appellant Araceli Castro, appellant Perla De Los Santos, and appellant Abigail Puig (collectively, the sisters), and by his brother-in-law, appellant Juan Castro, as well as by various minor participants. Acosta's wife, sisters, and brother-in-law supplied the drivers to transport the marihuana (in what were known as runs or loads) from Monterrey to Nuevo Laredo, across International Bridge No. 2 into the United States at Laredo, through the United States Border Patrol checkpoint station on Interstate 35, and on to Houston. Additional such runs were made to Florida, Georgia, and San Antonio, Texas.

The organization developed a standard operating procedure. First, drivers were recruited and briefed on the procedures by one of the sisters. Aided by friends and relatives, the sisters would provide the drivers with documents and permits for travel in the Mexican interior. The drivers would then travel to Sabinas or Montemorelos, Mexico, where the vehicles were loaded with marihuana. An amount of marihuana ranging from forty to one hundred pounds would be divided into two-pound plastic bundles that were painted black to minimize detection and

Page 934

concealed in the fenderwells, under the front and rear bumpers, in the spare tire compartments, and in false gas compartments in the late model vehicles. The vehicles used for the runs were purchased by the organization and registered in the name of one of the drivers, to conceal the true ownership and purpose of their use.

After loading the marihuana, the drivers would return to Nuevo Laredo, wash their vehicles, and remove their Mexican travel sticker so that border patrol agents would not realize that they had been to the interior. From Nuevo Laredo they would cross the international border into Laredo. Once across the border, the drivers reported their safe passage to one of the sisters or to Martha Acosta; they reported again after they passed through the checkpoint at Cotulla, Texas. The loads were then delivered to Tito in Houston. After Tito unloaded the vehicles and weighed the marihuana, either he or the driver reported the number of pounds to the Acosta sisters in Laredo. The driver would then return to Laredo, often with cash payments for the load.

Appellant Jose Puig entered the conspiracy shortly after his release from the Webb County Jail on October 14, 1988. In December of 1988, Alejandro Acosta was arrested; after his arrest he directed his end of the operation from prison, and Tito began dealing directly with the sisters. After Acosta's arrest, the Puigs established a modus operandi somewhat distinct from Perla De Los Santos and the Castros, picking up their marihuana in different locations in Mexico and generally delivering the contraband to Georgia or Florida. Perla De Los Santos and the Castros continued to make their deliveries to Houston.

In February 1989, the Drug Enforcement Administration (DEA) seized a vehicle containing a load of marihuana which was registered in the name of one of the drivers, Gloria Valles (Valles). When confronted by the DEA, Valles agreed to become a paid informant. As part of the arrangement, Valles tape recorded a number of conversations with the appellants and also assisted the DEA in introducing into the conspiracy a confidential informant. In addition to the inroads into the conspiracy made through Valles, the DEA was also able to secure the cooperation of two other drivers who worked for the organization, ¹ as well as to introduce other undercover DEA agents into the conspiracy.

DEA surveillance lasted two years and the investigation produced a substantial amount of information about the conspiracy. On August 8, 1991, a grand jury indictment was returned against appellants Araceli Castro, Perla De Los Santos, Abigail Puig, Jose Puig, and Juan Castro charging twenty-four violations of Title 21 Controlled Substances Act and Title 18 Racketeering Act. ² The indictment alleged that the appellants were participants in a conspiracy lasting from 1987 to 1991. Specifically, all of the appellants were charged with conspiracy to import in excess of 1,000 kilograms of marihuana, in violation of 21 U.S.C. Secs. 963, 952(a) and 960(a)(1), and with conspiracy to possess with intent to distribute in excess of 1,000 pounds of marihuana, in violation of 21 U.S.C. Secs. 846 and 841(a)(1). They were also charged with aiding and abetting the importation of marihuana, in violation of 21 U.S.C. Secs. 952(a) and 960(a)(1); aiding and abetting the possession of marihuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1); and, aiding

Page 935

and abetting money laundering, in violation of 18 U.S.C. Secs. 2, 1956(a)(1)(A)(i). Araceli Castro, Perla De Los Santos, and Abigail Puig were also charged with engaging in a Continuing Criminal Enterprise, in violation of 21 U.S.C. Sec. 848. Finally, Juan Castro and Araceli Castro were charged with knowingly employing a minor to assist them in avoiding detection and apprehension for the conspiracy to possess with the intent to distribute and the underlying possession offenses, in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 861(a)(1).

The case was tried before a jury in the United States District Court for the Southern District of Texas, and on April 2, 1992, the jury returned a guilty verdict on all counts against all appellants except Perla De Los Santos. Perla De Los Santos was acquitted on the Continuing Criminal Enterprise charge, one count of importation, and one count of possession with intent to distribute, but was convicted of all remaining charges.

The district court, with one exception noted below, adopted the findings and recommendations of the presentence investigation reports (PSRs) for all of the appellants, and sentenced them accordingly. The court sentenced Perla De Los Santos to concurrent sentences totalling 240 months, followed by 8 years' supervised release. Araceli Castro was sentenced to concurrent sentences totalling 292 months, followed by 5 years' supervised release. Juan Castro was sentenced to concurrent sentences totalling 285 months, followed by 10 years' supervised release. ³ Abigail Puig was sentenced to concurrent sentences totalling 292 months, followed by 10 years' supervised release. Finally, after modifying the PSR's finding regarding the amount of marihuana attributable to Jose Puig under the Sentencing Guidelines, the court sentenced Jose Puig to concurrent sentences totalling 292 months, followed by 10 years' supervised release. Following sentencing, the appellants each timely filed a notice of appeal to this court.

Discussion

On appeal, appellants assert numerous claims of error, including the following contentions: (1) the existence of a material variance between the indictment and the proof adduced at trial; (2) the government's failure to adequately prove certain of the money laundering charges; (3) the failure of the court to make proper findings under the Sentencing Guidelines; (4) the improper enhancement of sentences for prior convictions; (5) the insufficiency of evidence to support the conviction for employment of a minor to assist in drug trafficking; (6) the insufficiency of the evidence to support conviction for importation of marihuana; (7) the inclusion of prejudicial, explanatory parentheticals in transcripts of tape recorded conversations; and (8) improper judicial comments at trial. We consider these issues in this order.

I. Material Variance

Araceli Castro,...