U.S. v. Torres-Laranega

• Decision Date: 21 February 2007
• Docket Number: No. 05-2302.,05-2302.
• Citation: 476 F.3d 1148
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge TORRES-LARANEGA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

476 F.3d 1148

UNITED STATES of America, Plaintiff-Appellee, v. Jorge TORRES-LARANEGA, Defendant-Appellant.

No. 05-2302.

United States Court of Appeals, Tenth Circuit.

February 21, 2007.

Scott M. Davidson, Albuquerque, NM, for Defendant-Appellant.

Kenneth J. Gonzales, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before BRISCOE, McCONNELL, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Jorge Torres-Laranega was the leader of a rather brazen drug-trafficking ring that transported multi-ton quantities of marijuana in tractor trailers from the southwestern United States to the Chicago area. Despite four government seizures of Mr. Torres-Laranega's tractor trailers in a four month period (the result of a federal informant working within his operation), Mr. Torres-Laranega was actively planning yet another drug shipment when the government arrested him and his confederates. Following a jury trial, Mr. Torres-Laranega was convicted for engaging in a continuing criminal enterprise ("CCE") under the "drug kingpin" statute, as well as for possession with intent to distribute 1,000 kilograms or more of marijuana. See 21 U.S.C. §§ 848(a), 841(a)(1) and 841(b)(1)(A).

Mr. Torres-Laranega raises only two issues on appeal, both seeking reversal of his CCE conviction. First, he asserts that the district court's jury instructions improperly lowered the government's burden of proof on the "substantial income" element of the CCE charge. Second, he contends insufficient evidence exists to suggest that he personally obtained substantial income or resources from the enterprise. For reasons discussed below, we disagree and thus affirm the district court's judgment.

I

This case began on April 7, 2003, when law enforcement detained Yolanda Alarcon, a commercial truck driver, on her way from El Paso, Texas, to Las Cruces, New Mexico, suspecting that her truck had recently been involved in transporting a load of marijuana. Trial Tr. 373-75. In the course of that encounter, Ms. Alarcon admitted that she was involved in a significant drug-trafficking operation and she eventually offered to serve as a paid government informant. An eight-month investigation leading to the eventual arrest of 14 individuals followed.¹

The Enterprise

From 2001 until June 2002, Ms. Alarcon worked legitimately as a licensed truck driver. During June 2002, she first met Mr. Torres-Laranega, the enterprise's ringleader and a wealthy man who owned two significant homes, a plethora of luxury vehicles, and yet who, authorities later learned, filed no tax returns for 2001, 2002 or 2003. Trial Tr. 656, 1655-58. Aware of his line of work, Ms. Alarcon asked a friend to introduce her to Mr. Torres-Laranega in the hope of being offered a job transporting narcotics because she thought it would be "good, easy money." Id. at 661. Mr. Torres-Laranega proved receptive and stated that he would pay Ms. Alarcon $13,000-$20,000 for every successful tractor trailer load of narcotics delivered from the southwestern United States to the Chicago area. Id. at 662. That very day, Ms. Alarcon agreed to drive a tractor trailer for Mr. Torres-Laranega from El Paso to Las Cruces in return for $800. Id. at 663-67.

A few months later, in August or September of 2002, Mr. Torres-Laranega asked Ms. Alarcon to transport a tractor trailer that he owned from El Paso to a ranch house in Las Cruces (the "ranch house"). Id. at 670-72. At the ranch house, Mr. Torres-Laranega and his associates loaded the truck with drugs. Id. at 676-77. At Mr. Torres-Laranega's instruction, Ms. Alarcon then moved the truck from the ranch house to a truck stop also in Las Cruces. Id. at 677. A confederate told Ms. Alarcon that the loaded truck was thereafter driven from Las Cruces to Chicago, and there is no indication that this tractor trailer, and the load of drugs it held, failed to reach its intended destination. Id. at 680.

Around March of 2003, Ms. Alarcon was asked to assist Mr. Torres-Laranega's operation with another drug run, this time starting at a stash house on Parker Road in Las Cruces (the "Parker stash house"). The Parker stash house, for which Mr. Torres-Laranega paid the rent, served as a staging point for marijuana originating in Juarez, Mexico. Id. at 680-90. Cars from Juarez would deliver drugs to the Parker stash house; then, inside the house, conspirators would package the marijuana into bundles and load them into tractor trailers headed for Chicago. Id. at 687-88. In mid-March of 2003, Ms. Alarcon personally observed a trailer she had previously driven being loaded with bundles at the Parker stash house. Id. at 689. Within a couple of days, Ms. Alarcon's son Memo, an active participant in the enterprise, told her that he and Mr. Torres-Laranega took this very truck to Chicago. Id. at 695-96. Memo remained in Chicago with Mr. Torres-Laranega for a week. Id. Again, there is no indication that any of the drugs transported were seized by authorities.

Ms. Alarcon was hardly the only driver employed by Mr. Torres-Laranega. Juan Antonio Barraza explained to Ms. Alarcon in July 2003 that he and his brother had recently driven a load of marijuana from El Paso to Chicago, and that Mr. Torres-Laranega paid Mr. Barraza and his brother $7,000 for the trip. Id. at 765-77; 772-73. Evidence obtained by law enforcement corroborates this trip and suggests it occurred in early July of 2003. See id. at 2283-87; Ex. 187 (fictitious bill of lading used that trip); Ex. 741 at 11-20 (conversations with Mr. Torres-Laranega and others discussing a traffic citation received by Mr. Barraza during the trip); Ex. 952 (traffic citation for Mr. Barraza dated July 3, 2003).

In early April 2003, Mr. Torres-Laranega asked Ms. Alarcon to move yet another truck from El Paso to the ranch house in Las Cruces. Trial Tr. 698-701. Mr. Torres-Laranega paid Ms. Alarcon $1000 for this drive. Id. at 701. The route, however, required Ms. Alarcon to pass through a Department of Transportation ("DOT") inspection station just outside of Las Cruces. Id. at 703. During a routine stop, the DOT officer noticed that the bill of lading Ms. Alarcon presented suggested she was carrying 18 washers when he observed only 16 washer-sized boxes in the trailer. Id. at 707. His suspicions were confirmed when he accidentally fell on top of a box and discovered it was empty — there was no washer within. Id. While there were no narcotics in the trailer at that time, a law enforcement narcotics detection dog alerted officers that there had recently been narcotics in the trailer. Id. at 353-54, 710. The DOT officer then brought Ms. Alarcon in for questioning and detained her for several hours. Id. at 710.

Ms. Alarcon eventually told the officers about Mr. Torres-Laranega's operation and her involvement in the transportation of narcotics because she "wasn't going to lose [her] six-year-old son, for — that." Id. at 710-11. Subsequently, Ms. Alarcon agreed to serve as a paid confidential informant. Id. at 711, 2375-76. Unbeknownst to Mr. Torres-Laranega, from that point on, all of Ms. Alarcon's dealings with him were under the watch of the Federal Bureau of Investigation ("FBI"). Id. at 2361-62.

The Seizures and Arrest

On May 18, 2003, Ms. Alarcon informed Agent Andrew Armijo of the FBI that one of Mr. Torres-Laranega's henchmen, Edgar Lopez-Hernandez, asked her to move a partially "loaded" purple tractor trailer for himself and Mr. Torres-Laranega. Id. at 156, 722-28. Specifically, Ms. Alarcon was to move the truck around Las Cruces (from a truck stop to an auto repair shop and then back to the truck stop) in order to complete the truck's load of marijuana before its shipment North. Id. at 724-28. At the repair shop, agents observed the rear cargo doors of the trailer open and individuals working around the vehicle. Id. at 2363, 2372. Shortly thereafter, another participant in the enterprise, Martin Mendivil, proceeded to take the tractor trailer northbound toward Chicago. At a permanent U.S. Border Patrol checkpoint on Interstate 25, approximately 20 miles north of Las Cruces, the trailer was searched and 1,417 kilograms of marijuana were seized. Id. at 167, 239. Mr. Torres-Laranega subsequently paid for an attorney to represent Mr. Mendivil in connection with charges arising from the seizure. Ex. 296 at 3-4.

In early July of 2003, Ms. Alarcon informed Agent Armijo that Mr. Torres-Laranega asked her to drive another tractor trailer from Chicago to Laredo, Texas, so that it could be packed with marijuana for a return trip to Chicago. Trial Tr. 753. Mr. Torres-Laranega told Ms. Alarcon that he "give[s] all the people around 20," Ex. 166f, and would pay her $15,000 to $20,000 to drive the load depending upon whether it was a "good load." Id. at 755; Ex. 166f at 2. Mr. Torres-Laranega subsequently gave Ms. Alarcon $700 to fly from El Paso to Chicago on July 10, 2003, Trial Tr. 741-42, and another $100 to treat herself and two confederates to dinner in Chicago, id. at 769-70. Prior to beginning the drive to Texas, Mr. Torres-Laranega gave Ms. Alarcon an additional $600 to cover incidental travel expenses. Id. at 777-78.

After Ms. Alarcon completed her portion of the drive, Jose Barraza manned the truck for the return trip from Texas to Chicago. When the truck stopped for gas in Indiana, a police officer with the Chicago Police Department approached Mr. Barraza and requested, and received, permission to search the trailer. Id. at 1397-99. During the search, the officer uncovered and seized 681 kilograms of marijuana. Id. at 1407-08. On Mr. Torres-Laranega's bidding and at his expense, Mr. Barraza flew from El Paso to Chicago in an attempt to retrieve the truck for Mr. Torres-Laranega. See Ex. 243. In a recorded conversation between Mr. Barraza and Mr. Torres-Laranega, Mr. Barraza makes reference to the fact that Mr. Torres-Laranega "bought the [seiz...