U.S. v. Reveles, 98-50631

• Decision Date: 28 September 1999
• Docket Number: No. 98-50631,98-50631
• Citation: 190 F.3d 678
• Parties: (5th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROSARIO REVELES, also known as Willie Reveles; LUIS REVELES, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 678

190 F.3d 678 (5th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROSARIO REVELES, also known as Willie Reveles; LUIS REVELES, Defendants-Appellants.

No. 98-50631

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

September 28, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeals from the United States District Court for the Western District of Texas

Before REAVLEY, JOLLY, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

A jury convicted Rosario "Willie" Reveles and Luis Reveles of conspiracy and possession with intent to distribute a controlled substance. On appeal, Willie does not challenge the jury's assessment of guilt, but makes several arguments challenging the constitutionality of his conviction and the calculation of his sentence. For the reasons stated below, we find no error with respect to Willie's convictions or sentencing. Unlike Willie, Luis does challenge the sufficiency of the evidence to support his convictions. Because we find insufficient evidence to support the knowledge elements of his conspiracy and possession with intent to distribute convictions, we reverse those convictions.

I

Willie Reveles was involved in a drug conspiracy. According to testimonial evidence offered at trial, Willie approached a man named Luis Gil and offered his services in the drug-related business. Willie informed Gil that he had contacts with shipping companies that could help Gil in shipping large quantities of drugs. Sometime later, Willie began using legitimate freight companies to ship boxes that contained marijuana, but from the outside the boxes looked like ordinary freight. ¹ Each of the delivered boxes rested on a pallet, was wrapped in industrial cellophane, and was marked "fragile." Willie told the shipping companies that the boxes contained ceramic goods.

Sometimes, Willie used a forwarding company (SGT) to arrange the details with shipping companies to transport the freight. When dealing with SGT, Willie said that he worked for CC Enterprises--a fictional entity. ² Typically, a person working for SGT would meet either Willie or his brother, Luis, at the shipping company with the paper work. Luis sometimes delivered the drug-filled boxes to the shipping company on his own. It is unknown how many times Luis did this, but the evidence supports as few as two times, but not much beyond three.

The illicit drug trafficking was uncovered in April 1996, when a fork lift operator at one of the shipping companies accidentally punctured one of Willie's boxes. Marijuana poured out of the box, and the worker called the police. The police arranged to have the box shipped under controlled supervision to its planned destination. Because the shipment was delayed, Willie called the company who had arranged the shipment (SGT), and asked about the freight's whereabouts. A SGT employee told the police of the inquiry. This, in turn, led the police to discover Willie's identity. Before arresting Willie, however, the police observed two other drug deliveries orchestrated by Willie. The three boxes discovered in these three deliveries contained a total of 1,448 pounds of marijuana.

The second delivery discovered by the police occurred on June 18, 1996. During this delivery, an employee at ABF Freight smelled marijuana in one of the boxes sent by Willie. The employee informed the police, and the police arrested the parties that were to pick up the shipment. In the third delivery discovered by the police, the police were alerted beforehand. They observed Luis drop off the freight at the shipping company. When Luis arrived at the shipping dock, no one was around to accept the freight. After waiting for a short time (approximately ten to twenty minutes), Luis left his (correct) name, address, and phone number in a note that said he would return later that day. The police then followed Luis to a McDonald's restaurant where he met three men. The three men left in the truck Luis had taken to drop off the box, and Luis left in another automobile.

After further investigation, the authorities discovered that Willie had a Mexican bank account containing $130,000. (Willie reported an income of less than $12,000 for each of the years 1994, 1995, and 1996). Willie, however, did not share his wealth. He only paid his brother Luis fifty dollars for each delivery drop-off.

During the sentencing phase, the court determined that the conspiracy ran from February 1995 through June 1996. The defendants do not dispute this finding. The court then assumed that all shipments made by Willie during this time contained marijuana. Because the shipping company records indicated the weight of each shipment, the court estimated the weight of marijuana in each shipment by multiplying the total shipment weight by sixty-two percent--the average weight percentage of marijuana found in the three discovered deliveries.

The government prosecuted Willie and Luis Reveles in a joint trial. The jury found them both guilty of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) ³ and 846. ⁴ The jury also found the brothers guilty of possession with intent to distribute the marijuana. The court sentenced Willie to 262 months of imprisonment and Luis to 121 months.

II

A

Willie first challenges his conviction based on Bruton v. United States , 391 U.S. 123 (1968) (holding that a defendant's Sixth Amendment Confrontation Clause rights are violated when a court admits into evidence an incriminating statement given by a non-testifying co-defendant). Before the trial began, the prosecution announced its intent to introduce a written statement given by Luis Reveles. The statement incriminated Willie insofar as Luis stated, "I think Willie knew that there was drugs in the boxes that I shipped for him." The government offered to introduce a redacted version of the statement, but Willie's lawyer said that the redaction was unnecessary and that he would not make any Bruton objection. After Willie's attorney said that he did not foresee a Bruton problem, the prosecuting attorney stated, "I want to make it clear in case he [Luis] changes his mind and doesn't testify --." Willie's attorney then interjected, "It's not that damaging." The judge then said that he would allow the statement to be admitted.

Now, however, Willie claims that admission of the statement constitutes plain error. If Willie had forfeited his right to make an objection based on his Sixth Amendment confrontation right, ⁵ the plain error standard of review would set the context for our analysis. But Willie did not forfeit his constitutional right. As the record reveals, and as Willie's attorney conceded to us at oral argument, he waived it. "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known right.'" United States v. Olano , 507 U.S. 725, 733 (1993) (citation omitted) . When a defendant has waived a right, the district court cannot be said to have erred by failing to override the intentions of the defendant's counsel by asserting the right sua sponte . Id. ⁶ Because Willie explicitly waived his Sixth Amendment confrontation right at trial, he cannot successfully now claim that the district court erred by failing to protect that right.

B

Willie next argues that the government committed reversible error when at trial it questioned him about his silence during the investigation. At trial, Willie testified on his own behalf. In his testimony, he tried to convey to the jury that he had been willing to cooperate with the authorities during their investigation. Furthermore, on direct examination, Willie denied that he knew that the packages he shipped contained drugs and he testified that if he had known, he would have reported it to the authorities. Willie's attorney also questioned Willie about his response to the government's request for his cooperation. Willie stated that he had attempted to meet with a government agent but that the agent "got upset and left" when Willie and his attorney were late for the meeting.

During cross-examination, the government made two comments, which Willie argues violated his Fifth Amendment right against self-incrimination. First, the prosecutor asked Willie if he had gone to the police after Luis was arrested, but before his own arrest. Second, the government brought out that Willie did not make any effort to cooperate with the authorities in the months after his arrest. The district court sustained objections to both lines of questioning and the court gave a curative instruction to the jury. ⁷ After discussing the curative instruction that would be given, the district court specifically asked Willie's counsel if he would like to request any other relief. Willie's counsel declined the invitation. Because it is not altogether clear whether we can stop our analysis here and decide whether the harmless error or plain error standard of review applies, ⁸ we will proceed to address the direct question of whether any Doyle violation occurred.

"In Doyle v. Ohio , 426 U.S. 610, 619 (1976), the Supreme Court held that the Due Process Clause . . . prohibits impeachment of a defendant's exculpatory story, told for the first time at trial, by using the defendant's post-arrest silence." United States v. Rodriguez , 43 F.3d 117, 121 (5th Cir. 1995). The Doyle rule "rests on 'the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.'" Brecht , 507 U.S. at 628 (citations omitted). ⁹ Thus, the prosecutor does not commit a constitutional error when he refers to the defendant's silence before the police have read the defendant his Miranda warnings. Id. ; see also Jenkins v. Anderson , 447 U.S. 231 (1980)....