United States v. Espinoza

• Decision Date: 13 March 2018
• Docket Number: No. 16-4485, No. 16-4486,16-4485
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Manuel ESPINOZA, Defendant–Appellant United States of America, Plaintiff–Appellee v. Jose Luis Tizoc, also known as John Doe, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

885 F.3d 516

UNITED STATES of America, Plaintiff–Appellee

v.Manuel ESPINOZA, Defendant–Appellant

United States of America, Plaintiff–Appellee

v.Jose Luis Tizoc, also known as John Doe, Defendant–Appellant

No. 16-4485

No. 16-4486

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2017

Filed: March 13, 2018

Jason T. Griess, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Des Moines, IA, Maureen McGuire, Assistant U.S. Attorney, for Plaintiff–Appellee.

Manuel Espinoza, Pro Se.

Chad Douglas Primmer, Council Bluffs, IA, for Defendant–Appellant Manuel Espinoza.

Before LOKEN, BEAM, and COLLOTON, Circuit Judges.

LOKEN, Circuit Judge.

After a six-day trial, a jury convicted Manuel Espinoza and Jose Luis Tizoc of conspiracy to distribute methamphetamine, see 21 U.S.C. §§ 841, 846, and Espinoza of being a prohibited person in possession of a firearm, see 18 U.S.C. §§ 922(g)(2)-(3), 924(a)(2). The district court¹ sentenced Espinoza to 240 months in prison and Tizoc to 300 months. Each timely appealed, challenging his conviction and sentence. We consolidated the appeals and now affirm.

I. Sufficiency of the Evidence (Espinoza)

Espinoza argues the district court erred in denying his motion for judgment of acquittal because the trial evidence was insufficient to convict him of conspiracy to distribute methamphetamine and being a prohibited person in possession of a firearm. Rule 29(a) of the Federal Rules of Criminal Procedure provides that the court "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." This standard applies whether a timely motion is made before or after the jury verdict. See Rule 29(c). In reviewing the denial of a Rule 29 motion, "[w]e apply the same standard of review to the district court's ruling ... as we do to a sufficiency of the evidence challenge." United States v. Cook, 603 F.3d 434, 437 (8th Cir. 2010). The verdict must be upheld "if there is any interpretation of the evidence that could lead a reasonable-minded jury to find the defendant guilty beyond a reasonable doubt." United States v. Taylor, 813 F.3d 1139, 1146 (8th Cir.) (quotation omitted), cert. denied, ––– U.S. ––––, 136 S.Ct. 2424, 195 L.Ed.2d 792 (2016).

A. The Conspiracy Charge. At trial, FBI Special Agent and case agent Michele Neily testified that, in 2014 and 2015, state and federal task forces investigating methamphetamine distribution in Omaha, Nebraska and Council Bluffs, Iowa identified Richard Hull, Jr. as a key distributor. Using wiretaps, physical surveillance, source information, and controlled purchases, investigators identified Espinoza and Tizoc as two of Hull's suppliers. On September 23, 2015, warrant searches at Tizoc's and Hull's residence and at a garage on Z Street in Omaha yielded distribution quantities of methamphetamine, firearms, ammunition, financial records, and other evidence of drug trafficking such as a digital scale, packaging materials, and razor blades.

Richard Hull pleaded guilty to drug conspiracy and firearm charges and testified for the government at trial. In 2014, Hull began buying methamphetamine from Espinoza and his girlfriend, Claudia; they delivered two-pound quantities to Hull's residence. After Claudia moved to Mexico in 2015, Hull purchased from Espinoza directly, acquiring a pound of methamphetamine that summer. Special Agent Neily testified that three wiretapped conversations between Hull and Espinoza concerned Hull's methamphetamine requirements and his ability to pay.

Jessica Moreno, Hull's live-in girlfriend, also pleaded guilty to a drug conspiracy charge and corroborated Hull's testimony. Moreno testified that, in a wiretapped call with a person she identified as Espinoza, she asked him to supply Hull a half-pound of methamphetamine. In another conversation, Espinoza instructed Moreno to have Hull meet him at a convenience store and pay what he owed Espinoza for methamphetamine. Moreno accompanied Hull to this meeting, and physical surveillance yielded a photo of Espinoza entering his car. Brandi Lopez, who pleaded guilty to drug conspiracy and firearm charges, testified that Espinoza supplied her a pound of methamphetamine every two to three days and once requested that she collect money Hull owed Espinoza for methamphetamine. Lopez sold to over 250 customers from the end of 2014 until her arrest in August 2015.

To prove a conspiracy to distribute methamphetamine, the government must prove an agreement to distribute methamphetamine that the defendant knew of and intentionally joined. See Taylor, 813 F.3d at 1146–47. "Evidence of multiple sales of resale quantities of drugs is sufficient in and of itself to make a submissible case of a conspiracy to distribute." United States v. Morris, 791 F.3d 910, 913 (8th Cir. 2015) (quotation omitted). Espinoza argues Hull, Moreno, and Lopez's testimony was "tainted" by their desire to reduce their sentences and thus insufficient to support a conviction. But "[w]e have repeatedly upheld jury verdicts based solely on the testimony of co-conspirators and cooperating witnesses, noting that it is within the province of the jury to make credibility assessments and resolve conflicting testimony." United States v. Harris–Thompson, 751 F.3d 590, 600 (8th Cir.) (quotation omitted), cert. denied, ––– U.S. ––––, 135 S.Ct. 415, 190 L.Ed.2d 301 (2014). Espinoza argues the government's lack of direct evidence, such as controlled purchases from him or a wiretap on his phone, makes the evidence of his participation insufficient. But the government may prove a conspiracy to distribute a controlled substance through circumstantial evidence. See, e.g., United States v. Jackson, 204 F.3d 812, 814 (8th Cir. 2000). Here, a jury could reasonably infer from the cooperating conspirators' testimony, the wiretapped phone calls, and the physical surveillance that Espinoza was guilty of conspiring to distribute methamphetamine.

B. The Firearm Charge. On August 24, 2015, while on traffic patrol, Council Bluffs Police Officer Ty Boldra stopped a black Mercedes traveling without a front license plate. A search of the driver, Manuel Espinoza, uncovered a pipe and 0.8 grams of methamphetamine in Espinoza's pockets, and Officer Boldra arrested Espinoza for possession of drug paraphernalia. An inventory search of Espinoza's car then discovered a firearm between the driver's seat and center console. Count 10 of the indictment charged Espinoza with violating 18 U.S.C. §§ 922(g)(2) and (3), which provide: "It shall be unlawful for any person ... who is a fugitive from justice [or] ... who is an unlawful user of or addicted to any controlled substance ... to ... possess in or affecting commerce, any firearm or ammunition."

The jury found Espinoza guilty of that charge. Espinoza argues the district court erred in denying his motion for judgment of acquittal because the government's evidence was insufficient to show he was a fugitive from justice or an unlawful drug user when he possessed the firearm. If the evidence was sufficient to establish one of these alternative elements, we need not consider the other. "[W]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive ... the verdict stands if the evidence is sufficient with respect to any one of the acts charged." Griffin v. United States, 502 U.S. 46, 56–57, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), quoting Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).

We conclude the evidence was sufficient to establish that Espinoza was an unlawful drug user in possession of a firearm when Officer Boldra found a firearm, glass pipe, and approximately 0.8 grams of methamphetamine in Espinoza's possession during the August 24, 2015 traffic stop. The government need not prove "contemporaneous use of a controlled substance and possession of a firearm." United States v. Johnson, 572 F.3d 449, 453 (8th Cir.) (quotation omitted), cert. denied, 558 U.S. 1018, 130 S.Ct. 569, 175 L.Ed.2d 393 (2009). That Espinoza was found in possession of a firearm and a user quantity of methamphetamine permitted a rational jury to infer he was an unlawful methamphetamine user at that time. See United States v. Mack, 343 F.3d 929, 934–35 (8th Cir. 2003), cert. denied, 540 U.S. 1226, 124 S.Ct. 1524, 158 L.Ed.2d 167 (2004). Moreover, Brandi Lopez testified that she used methamphetamine with Espinoza in August 2015; Hull and Moreno testified they would occasionally smoke methamphetamine with Espinoza.

Alternatively, Espinoza argues the district court abused its discretion in denying his motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. He asserts that "[a] miscarriage of justice has occurred with the jury's verdict," presumably because the verdict was against the weight of the evidence. "Motions for new trials based on the weight of the evidence generally are disfavored, and the district court's authority to grant a new trial should be exercised sparingly and with caution." United States v. Vore, 743 F.3d 1175, 1181 (8th Cir. 2014) (quotation omitted). As our brief summary of the trial evidence reflects, the verdict was not against the weight of this evidence. Therefore, the district court did not abuse its discretion in denying Espinoza a new trial.

II. The Suppression Issue (Espinoza)

Espinoza moved to suppress evidence seized during the August 24, 2015 traffic stop, arguing (i) Officer Boldra lacked probable cause for the initial stop; (ii) asking Espinoza to exit the vehicle and conducting a pat-down search unconstitutionally extended the traffic stop; and (iii) Espinoza did not voluntarily consent to the pat-down search. After an evidentiary hearing at which Officer Boldra testified, but Espinoza did not, the district court denied the motion, finding (i) there was probable cause to make a traffic stop when Boldra followed Espinoza's car because it lacked a front license plate and then observed its...