United States v. Morales

• Decision Date: 10 February 2016
• Docket Number: No. 15–1630.,15–1630.
• Citation: 813 F.3d 1058
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Lorena MORALES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

813 F.3d 1058

UNITED STATES of America, Plaintiff–Appellee

v.Lorena MORALES, Defendant–Appellant.

No. 15–1630.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 23, 2015.

Filed: Feb. 10, 2016.

Samuel R. Walker, argued Long Beach, CA, for Defendant–Appellant.

Richard E. Rothrock, argued Council Bluffs, IA, for Plaintiff–Appellee.

Before WOLLMAN, BYE, and GRUENDER, Circuit Judges.

BYE

, Circuit Judge.

Lorena Morales was convicted by a jury of one count of conspiracy to knowingly distribute a controlled substance and one count of possession with intent to distribute methamphetamine. The district court¹ sentenced Morales to 120 months of imprisonment, the mandatory minimum. Morales challenges the sufficiency of the evidence and alleges various government misconduct and district court errors. We affirm.

I

On March 26, 2014, a two-count indictment was filed charging Morales and two co-defendants with conspiracy to distribute methamphetamine (Count I) and possession with intent to distribute methamphetamine (Count II). Morales's two codefendants, Melissa Gallardo and Mario Borboa, each reached plea agreements with the government. Gallardo entered into a plea agreement on July 11, 2014, wherein she pleaded guilty to Count I of the indictment, the government agreed to dismiss Count II, Gallardo was required to cooperate with the government, and the government acknowledged it might file a substantial assistance motion. Borboa did the same on August 14, 2014. On September 25, 2014, a superseding indictment applicable only to Morales was filed charging Morales, Gallardo, and Borboa with one count of conspiracy to distribute methamphetamine (Count I) in violation of 21 U.S.C. §§ 846

, 841(a)(1), and (b)(1)(A), and charging Morales with one count of possession with intent to distribute methamphetamine (Count II) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Morales proceeded to a jury trial in October 2014. The evidence at trial included the following.

At the time of the offense, Lorena Morales was a 21–year–old woman living in Los Angeles, California. Although Morales had previously been employed, by early 2014 Morales was no longer working and began traveling with individuals who were distributing methamphetamine from southern California to other parts of the country. Two of those individuals are her co-defendants in the present matter.

Gallardo testified she made several trips to deliver methamphetamine for Borboa. In early 2014, Gallardo traveled from California to Texas to deliver methamphetamine to a customer named "Boots." Borboa orchestrated the trip on behalf of someone higher up. Gallardo delivered methamphetamine to Boots, collected money from Boots and from other drug customers, and was paid $5,000 by Borboa for her services. A couple of weeks after this first trip, Gallardo made a second trip for Borboa, this time from Los Angeles to San Diego, California, and was paid $250.

Borboa testified about Morales's first drug delivery. In February 2014, Borboa and Morales traveled to Killeen, Texas, for the purpose of delivering methamphetamine. Borboa testified that after arriving in Texas, he and Morales visited Boots, who, in front of Morales, unpacked methamphetamine from Borboa's car and counted out money for Borboa, which was partial payment for the methamphetamine. Borboa paid for Morales's expenses during the trip and also gave her a couple hundred dollars in cash. After Morales returned to California, she texted Borboa asking when payment would be forthcoming. Borboa then deposited $1,000 into Morales's bank account. Morales testified she was unaware Borboa engaged in drug trafficking and went to Texas with Borboa because she wanted to visit a friend in El Paso.

Morales participated in a second delivery a few weeks later, which forms the basis of the charged conduct in this case. Borboa testified that he arranged, via text message, for Morales and Gallardo to bring methamphetamine from California to Iowa, but ultimately Borboa decided to go on the trip as well. Borboa testified that on February 26, 2014, Morales, driving her own car, picked up Borboa in California. Before the trip, Borboa had packaged the methamphetamine in heat-sealed packages and added ground pepper to avoid detection by dogs. Borboa admitted he filled the duffle bag with the methamphetamine and placed the duffle bag in Morales's trunk. Borboa and Morales then picked up Gallardo, and the three took turns driving the vehicle to Iowa. Gallardo testified that during the drive to Iowa, Borboa, Morales, and Gallardo discussed the location of the delivery, and planned for Borboa and Morales to return immediately to California with half the drug proceeds while Gallardo would stay behind to collect the other half. Morales testified she agreed to go on the trip because she would see a new part of the country and looked forward to attending a car show in Iowa. Morales also testified she still had no knowledge that Borboa and Gallardo engaged in drug trafficking.

Aaron Taylor, a trooper with the Iowa State Patrol, testified about the traffic stop which occurred on February 27, 2014. As the three co-defendants were driving through Cass County, Iowa, Trooper Taylor stopped their car for speeding. Morales was driving the vehicle and was traveling five miles over the speed limit. Gallardo testified that when Trooper Taylor pulled the vehicle over, Borboa instructed Morales and Gallardo to tell the false story that the group was traveling to an antique car show. During the stop, Morales advised Trooper Taylor they were going to a car show in Iowa, but could not recall Gallardo's surname or the name of the city they were traveling to. Morales told Trooper Taylor Borboa was her co-worker at a print shop, and while Morales admitted recently traveling to Texas, she denied going to Texas with Borboa. Trooper Taylor thought Morales appeared more nervous than a normal person subject to a traffic stop and noted Morales continued to get more nervous as the stop continued.

Trooper Taylor and other officers ultimately searched Morales's car, and Trooper Taylor smelled a strong odor of pepper, along with perfumes, air fresheners, and Febreze. A K–9 was deployed on the vehicle and indicated to the presence of drugs. A search of the vehicle revealed a duffle bag in the trunk, which contained six kilograms of ice methamphetamine with an approximate street value of at least $368,000. After the officers found the duffle bag, they arrested all three co-defendants.

After hearing this and other testimony, the jury convicted Morales of both counts.

A presentence report ("PSR") was prepared, which calculated a total offense level of 34, based in part on a two-level reduction for being only a minor participant, and a two-level increase for obstruction of justice. The PSR calculated a criminal history category of I, yielding a guideline range of 151 to 188 months of imprisonment. At sentencing, Morales asked for a minimal participant adjustment, pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 3B1.2(a)

(2014), which the district court declined to provide. Morales also sought a downward variance pursuant to 18 U.S.C. § 3553(a), and both Morales and the government asked for the mandatory minimum sentence of 120 months. The district court discussed the § 3553(a) factors, varied downward, and sentenced Morales to 120 months of imprisonment.

After sentencing, Morales retained new counsel who filed and briefed the present appeal.

II

Morales appeals her conviction and sentence alleging various errors. Morales argues: (1) the government failed to meet its burden of proof; (2) the government caused unfair prejudice by filing the superseding indictment; (3) the government made inappropriate remarks during closing arguments; (4) the district court caused the jury to be composed of biased members; and (5) the district court erred in imposition of Morales's sentence.

A

Morales challenges the sufficiency of the evidence to support her convictions. In criminal appeals, we review challenges to the sufficiency of the evidence de novo. United States v. Sullivan, 714 F.3d 1104, 1107 (8th Cir.2013)

. "We view the evidence in the light most favorable to the guilty verdict, granting all reasonable inferences that are supported by that evidence." Id. "We will reverse a conviction only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." Id. (quoting United States v. Wells, 706 F.3d 908, 914 (8th Cir.2013) ).

To convict an individual of conspiracy to distribute a controlled substance under 21 U.S.C. § 846

, "the Government must prove that (1) a conspiracy to distribute methamphetamine existed; (2) the defendant knew about the conspiracy; and (3) the defendant knowingly became a part of the conspiracy." United States v. Garcia, 646 F.3d 1061, 1066 (8th Cir.2011). Morales argues she could not be found guilty because her co-defendants were more culpable than she was. However, even individuals with limited roles in a conspiracy are considered principals under federal law, 18 U.S.C. § 2, and the government does not need to show a conspirator knew everything about a planned crime, United States v. Garcia, 785 F.2d 214, 225 (8th Cir.1986) ( "The government need not prove that the defendant ... was aware of all the details [of a conspiracy]."). Accordingly, the government submitted sufficient evidence to support a conviction for conspiracy to distribute methamphetamine.

To convict an individual of possession with intent to distribute a controlled substance under 21 U.S.C. § 841(a)(1)

, "the government has the burden of proving beyond a reasonable doubt that [Morales] both knowingly possessed and intended to distribute the drugs." United States v. Parker, 587 F.3d 871, 881 (8th Cir.2009). Morales challenges the finding she had knowledge of the drugs and intended to distribute the drugs, arguing the testimony of her co-defendants was not credible. "Th[is] argument is...