United States v. Kiekow

• Citation: 872 F.3d 236
• Decision Date: 18 September 2017
• Docket Number: No. 14-40700.,14-40700.
• Parties: UNITED STATES of America, Plaintiff-Appellee v. William Edmund KIEKOW, also known as William Edward Kiekow, also known as Bill Kiekow, also known as Crack Head Bill; Felipe U. Uriarte, also known as Phillip; Arthur James Pierre, also known as Boss, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

872 F.3d 236

UNITED STATES of America, Plaintiff-Appellee

v.William Edmund KIEKOW, also known as William Edward Kiekow, also known as Bill Kiekow, also known as Crack Head Bill; Felipe U. Uriarte, also known as Phillip; Arthur James Pierre, also known as Boss, Defendants-Appellants

No. 14-40700.

United States Court of Appeals, Fifth Circuit.

September 18, 2017

Terri Lynn Hagan, Assistant U.S. Attorney, Heather Harris Rattan, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Plano, TX, Traci Lynne Kenner, Assistant U.S. Attorney, U.S. Attorney's Office, Tyler, TX, for Plaintiff-Appellee.

David Keith Willeford, Linden & Willeford, Greenville, TX, Jason Andrew Duff, Law Office of Jason Duff, Greenville, TX, for Defendant-Appellant, William Edmund Kiekow.

James Patrick Whalen, Whalen Law Office, Frisco, TX, for Defendant-Appellant, Felipe U. Uriarte.

Seth Kretzer, Law Offices of Seth Kretzer, Houston, TX, for Defendant-Appellant, Arthur James Pierre.

Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.

CARL E. STEWART, Chief Judge:

After a 14-day jury trial, a jury in the Eastern District of Texas convicted Defendants-Appellants William Edmund Kiekow ("Kiekow"), Felipe U. Uriarte ("Uriarte"), and Arthur James Pierre ("Pierre") (collectively, "Appellants") of conspiracy to distribute or possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846.¹ On appeal, Appellants challenge venue and the sufficiency of the evidence supporting their convictions. Kiekow and Uriarte also challenge their sentences. Pierre moves for a new trial based on a Government witness's post-trial change in testimony and challenges the admission of a drug-sniffing dog alert. Pierre and Uriarte challenge statements made during the Government's closing argument rebuttal.

For the reasons explained herein, we AFFIRM Appellants' convictions and the district court's denial of Pierre's motion for a new trial. As to challenges to the district court's sentencing, we AFFIRM Uriarte's sentence, but will VACATE and REMAND Kiekow's sentence to the district court for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from a longtime federal investigation into drug trafficking from Mexico into the United States. Appellants were charged in a Third Superseding Indictment for their involvement with the importation and sale of marijuana and cocaine from Mexican cartels, most prominently the Zeta Cartel. A jury convicted Appellants of conspiring to distribute cocaine, but not marijuana. Over the 14-day trial, nearly fifty Government witnesses, consisting primarily of alleged co-conspirators-turned-Government cooperators, testified to a far-reaching drug trafficking scheme that began with an individual named Jose Arce working with Miguel Trevino, the then-second-in-command of the Zeta Cartel, and others to ship cocaine into the United States.

Appellants were involved at varying levels of the drug trafficking conspiracy. The alleged supplier in this case was Uriarte, who owned a tire and rim shop in Houston. Uriarte's tire shop was located adjacent to Federico Garcia's trucking company, F&J Transportation. Garcia was the alleged transporter. The alleged customer was Pierre who lived in Picayune, Mississippi. Kiekow, also in Picayune, lived in a trailer located on Pierre's property. Central to this scheme was the cooperation of police officers in Mexico.² Rafita Gonzalez ensured that drugs would get from Mier, Mexico into Roma, Mexico.

Once the cocaine arrived, and after Arce and others contacted Garcia, Garcia would send one of his drivers from Houston to Roma to help package the drugs utilizing a three-step process of wrapping the drugs, spraying the wrapped drugs with Lysol, and then taping the drugs. After completing that process, Garcia's drivers filled trucks, typically 18-wheelers, with cocaine and transported the drugs to Laredo, Texas.

Trial testimony elicited from alleged co-conspirators, namely Jorge Gayton, Garcia, Fabian Lara, and Patricio Pena-Martinez, spoke to the breadth of the drug trafficking scheme. Cocaine and marijuana would be delivered from Houston to New York, Tennessee, Illinois, Georgia, Oklahoma, and Picayune. Uriarte's delivery of cocaine to Pierre and Kiekow in Picayune commenced with unloading the drugs at either Garcia's car lot or Uriarte's rim shop. Recounting the process of getting the cocaine to Mississippi, Garcia testified to working alongside Uriarte to hide cocaine in 18-wheeler tires or in a spare tire to a pickup truck.

Edwin Contreras, one of Garcia's trucking employees, testified to making an initial drive to Picayune in 2007 to deliver cocaine to Pierre. After retrieving the cocaine in Houston, he packed the approximately eight to ten kilograms of cocaine into a hidden compartment of a 2003 Chevrolet Malibu, drove down I-10 through Baytown, Beaumont, Louisiana and then entered Picayune to deliver the drugs to Pierre's home. A trailer occupied by Kiekow sat between the driveway and Pierre's home. It was sometimes behind this trailer that the drugs were unloaded into duffel bags and handed to Kiekow. Contreras made the same trip and delivery four other times, delivering approximately eight to ten kilograms of cocaine each time.

Garcia delivered cocaine to Pierre in Mississippi once or twice a month from 2003 through 2008. Each time Garcia sent between six and fifty kilograms of cocaine, charging $19,000 to $20,000 per kilogram which Pierre paid in cash. When Pierre was not available, Kiekow managed the transaction by collecting the cocaine and tendering payment.

At the close of the Government's evidence, Pierre and Uriarte moved for a judgment of acquittal under Rule 29. See Fed. R. Crim. P. 29(a). For reasons stated on the record, the district court denied the motions. They renewed the motions after closing arguments and the district court again denied the motions. Kiekow filed a post-verdict motion for judgment of acquittal and the district court denied the motion.

The jury convicted Appellants of conspiring to distribute cocaine, but acquitted them of conspiring to distribute marijuana. Additionally, the jury answered a special interrogatory concerning the "quantity [of cocaine] involved in the conspiracy." In doing so, the jury attributed "5 kilograms or more" of cocaine to Uriarte and "500 grams or more but less than 5 kilograms" of cocaine to Kiekow.

At Kiekow's sentencing in 2014, the district court determined that his total offense level was 32 after applying an enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. See U.S.S.G. § 2D1.1(b)(12). Accordingly, his Sentencing Guidelines range was 121-151 months. The district court sentenced him to 121 months' imprisonment. At Uriarte's sentencing in 2016, the district court acknowledged that although Kiekow received an enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance, the court would not apply the enhancement to Uriarte's sentence given the parties' agreement that imposition of the enhancement potentially implicated a violation of the Ex Post Facto clause. The district court determined that Uriarte's total offense level was 41 after applying a three-level enhancement for being a manager or supervisor in criminal activity that involved five or more participants or was otherwise extensive. See U.S.S.G. § 3B1.1(b). The district court sentenced Uriarte to 300 months' imprisonment.

II. DISCUSSION

Appellants raise a number of issues on appeal. Before turning to the evidentiary issues, sentencing challenges, and Pierre's motion for a new trial, we will address challenges common to all Appellants: venue and sufficiency of the evidence.

A. Venue

Appellants contend that the Government failed to present sufficient evidence to establish that venue was proper in the Eastern District of Texas. The gravamen of their argument is that venue was improper because the entire testimony centered on drug activity in Mississippi, Louisiana, and Houston—none of which are located in the Eastern District of Texas. Kiekow, relying primarily on this court's decision in United States v. Strain 396 F.3d 689 (5th Cir. 2005), argues that without proof that he committed at least some part of the offense in the Eastern District of Texas, venue is not proper. Because Kiekow and Pierre preserved the issue below, we review the district court's ruling de novo.³

"A defendant's right to be tried in the district in which the crime [allegedly] took place finds its roots in both the Constitution and federal statutory law." United States v. Carreon–Palacio , 267 F.3d 381, 390 (5th Cir. 2001). This court "will affirm a verdict if, viewing all the evidence in the light most favorable to the government, a rational jury could conclude, from the evidence presented at trial, that the government established venue by a preponderance of the evidence." United States v. Garcia Mendoza , 587 F.3d 682, 686 (5th Cir. 2009). Clarifying the contours of venue in multi-district crimes, 18 U.S.C. § 3237(a) provides that "any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). "In conspiracy cases, venue is proper in any district where the agreement was formed or an overt act occurred." United States v. Romans , 823 F.3d 299, 309–10 (5th Cir. 2016) (internal quotations and citation omitted). An overt act is an act performed to effect the object of a conspiracy. Id. at 310. The transportation of drugs and drug proceeds is an overt act. See id.

The Government presented ample evidence to establish venue. Contrary to Appellants' contentions, evidence demonstrated that travel through the Eastern District of Texas was essential—not incidental—to the alleged drug trafficking scheme.⁴ For...