United States v. Grimaldo

• Decision Date: 15 November 1999
• Docket Number: DEFENDANT,Nos. 99-1517,99-2177,ESCOBEDO-ROMER,s. 99-1517
• Citation: 214 F.3d 967
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. ARMANDO GRIMALDO, DEFENDANT - APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. JULIO- APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 967

214 F.3d 967 (8th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. ARMANDO GRIMALDO, DEFENDANT - APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. JULIO ESCOBEDO-ROMERO, DEFENDANT - APPELLANT.

Nos. 99-1517, 99-2177

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: November 15, 1999

Filed: June 2, 2000

Appeals from the United States District Court for the Southern No. 99-2177 District of Iowa. [Copyrighted Material Omitted] Before Richard S. Arnold, John R. Gibson, and Beam, Circuit Judges.

John R. Gibson, Circuit Judge.

Armando Grimaldo and Julio Escobedo-Romero appeal their convictions for conduct related to a drug distribution conspiracy headed by Jose Grimaldo-Zamorron, Grimaldo's brother. Grimaldo was convicted of conspiracy to distribute methamphetamine and two counts of distribution of methamphetamine and sentenced to 120 months in prison. Escobedo-Romero was convicted of conspiracy to distribute methamphetamine and possession of cocaine with intent to distribute and sentenced to 70 months in prison. Escobedo-Romero argues that there was insufficient evidence to convict him on both counts. Both he and Grimaldo argue that there was no probable cause to search Grimaldo's apartment. They also contend that the district court¹ erred in admitting certain evidence and in its findings of drug quantity attributable to them. Finally, Escobedo-Romero and Grimaldo argue that in light of the Supreme Court's decision in United States v. Jones, 526 U.S. 227 (1999), they were deprived of due process because drug quantity was not charged in the indictment, submitted to the jury, and found beyond a reasonable doubt. We affirm.

I.

In March 1998, a confidential informant met with Grimaldo-Zamorron and his girlfriend, Dina Rivas, in apartment 714 at the Tallcorn Towers in Marshalltown, Iowa to arrange a methamphetamine purchase. Pursuant to the arrangement, Jon Neuschwanger, an undercover agent who was a member of the Mid-Iowa Drug Task Force, purchased a quarter pound of amphetamine² from Rivas in a car next to the Tallcorn. Rivas regularly assisted Grimaldo-Zamorron in his illegal activities by delivering methamphetamine and setting up deals. She and Grimaldo-Zamorron lived with Escobedo-Romero in apartment 714 during the month of March, and Grimaldo-Zamorron stored methamphetamine there and sold it from the apartment. Grimaldo was out of the country at the time.

In June 1998, Segar Brown was arrested for possession of methamphetamine. Following his arrest, he agreed to cooperate in the investigation of Grimaldo-Zamorron's drug activities. Rivas and Grimaldo-Zamorron had moved into the Flamingo Motel, and Grimaldo had returned from Mexico and was staying with Escobedo-Romero in apartment 714 at the Tallcorn. On June 8, Brown went to the Flamingo and paid Grimaldo-Zamorron $300 for a previous purchase. Later that day, after finding no one at the Tallcorn, Brown returned to the Flamingo and Grimaldo-Zamorron told him to "go back to the Tallcorn and talk to Julio and Armando." Brown then acquired a half-ounce of methamphetamine from Grimaldo in apartment 714. Escobedo-Romero was present during the transaction.

Three days later, Brown went back to apartment 714, paid $400 to Grimaldo-Zamorron for the half-ounce, and asked for another ounce. Grimaldo and Escobedo-Romero were present. The next day, June 12, Brown and Darius Carr were sent to apartment 714 to get the ounce of methamphetamine.³ According to Brown, no one was there; Carr testified that Grimaldo was present. They then went to the Flamingo, where Grimaldo-Zamorron wrote a note in Spanish and told them to give it to Grimaldo. They returned to the Tallcorn, gave the note to Grimaldo, and received an ounce of methamphetamine.

On June 15, Brown and Neuschwanger negotiated with Grimaldo-Zamorron outside a restaurant for the purchase of a quarter-pound of methamphetamine. Grimaldo-Zamorron went to the Tallcorn, then to the Flamingo. Brown and Neuschwanger met him at the Flamingo and obtained the quarter-pound, giving Grimaldo-Zamorron a partial payment of $900. Two days later, Neuschwanger paid Grimaldo-Zamorron the $2100 that was still owed, and Grimaldo-Zamorron gave him an additional two ounces. On June 19, when Neuschwanger went to the Flamingo to pay for the two ounces, Grimaldo-Zamorron accepted the payment and fronted him a half-pound of methamphetamine.

The investigation culminated on June 25. Neuschwanger met Grimaldo-Zamorron at the Flamingo. They agreed that Neuschwanger could return in an hour to pick up a pound of methamphetamine. Both men left the hotel, and Grimaldo-Zamorron went to the Tallcorn. After Neuschwanger and Grimaldo-Zamorron returned separately to the Flamingo, Neuschwanger rode in Grimaldo-Zamorron's car to the Tallcorn. While Neuschwanger waited in the car, Grimaldo-Zamorron went in and came out with a package in the front of his pants. Grimaldo-Zamorron gave the package, which contained a pound of methamphetamine, to Neuschwanger in the parking lot at the Tallcorn. Neuschwanger suggested they drive to a cemetery so that he could count the money he was to pay Grimaldo-Zamorron. When they arrived at the cemetery, Neuschwanger signaled other officers to arrest Grimaldo-Zamorron.

The task force obtained search warrants for the room at the Flamingo and for apartment 714 at the Tallcorn. The search revealed no controlled substances at the Flamingo. At the Tallcorn, Escobedo-Romero was found in apartment 714 along with Barb Thompson and her daughter. The officers found 86.5 grams of cocaine in a jacket in the closet and $564 in cash. The owner and manager of the Tallcorn informed an agent that she had seen Grimaldo-Zamorron going into apartment 728 earlier that day. The agent checked the registration and found that apartment 728 was rented to Grimaldo. The police then obtained an additional warrant to search Grimaldo's apartment, where they found him along with 52.2 grams of methamphetamine, 25.2 grams of cocaine, and $1190 in cash.

Grimaldo and Escobedo-Romero were tried together. The jury acquitted them of the June 8 sale, but convicted both for conspiracy to distribute methamphetamine. Grimaldo was also convicted of two counts of distribution of methamphetamine, one on June 12 and one on June 25. Escobedo-Romero was acquitted of the June 12 sale, but convicted of possession of cocaine with intent to distribute.⁴ The district court found that the conspiracy was responsible for sixty pounds of methamphetamine. It attributed three pounds of that to Grimaldo and sentenced him to the mandatory minimum of 120 months. The court attributed two pounds of the methamphetamine and the cocaine found in the jacket to Escobedo-Romero and sentenced him to seventy months. Grimaldo and Escobedo-Romero appeal.

II.

Perhaps the most important legal issue raised in this appeal is whether the Supreme Court's decision in Jones v. United States, 526 U.S. 227 (1999), has wrought a change in the law that requires drug quantities to be charged in the indictment and proven to a jury beyond a reasonable doubt in order to pass muster under the Constitution. The defendants did not raise this argument below because the Jones case had not been decided. We therefore review for plain error. See Johnson v. United States, 520 U.S. 461, 466 (1997). Plain error requires (1) error (2) that is plain and (3) that affects substantial rights. See id. at 467. If these three criteria are met, a reviewing court must determine whether the error affected the fairness, integrity, or public reputation of the judicial proceedings. See id.

A.

Grimaldo and Escobedo-Romero argue that, in light of Jones, the district court erred by determining drug quantity as a sentencing factor. In Johnson, the Court reiterated that new rules for the conduct of criminal prosecutions apply retroactively to all cases pending on direct review.⁵ See id. We look first, therefore, at whether the intervening Jones decision established a new rule for the conduct of criminal prosecutions. The Jones Court interpreted the federal carjacking statute, which then read:

Whoever, possessing a firearm . . . , takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both. 18 U.S.C. 2119 (Supp. V 1993).

The district court found by a preponderance of the evidence that one of the victims of the carjacking in which Jones was involved suffered serious bodily injury and sentenced Jones to twenty-five years in prison. See Jones, 526 U.S. at 231. The indictment had not charged serious bodily injury and the jury instructions that listed the elements of the offense omitted any reference to serious bodily injury. See id. On appeal, the defendant argued that serious bodily injury was an element of the offense that should have been charged in the indictment and proven to the jury beyond a reasonable doubt. The Supreme Court agreed.

The Court determined that the statute was unclear and construed it to contain three separate offenses rather than one offense with three sentencing options. See id. at 234, 251-52. Serious bodily injury was thus held to be an element of the offense, rather than a mere sentencing enhancement. This interpretation was made "in light of the rule that any interpretive uncertainty should be resolved to avoid serious questions about the statute's constitutionality." Id. at 229.

Any argument that Jones requires us to interpret drug quantity as an element of a 21 U.S.C. 841 offense is foreclosed by the language of the statute and by circuit...