United States v. Rojas

• Citation: 812 F.3d 382
• Decision Date: 28 January 2016
• Docket Number: No. 13–40998.,13–40998.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Roberth William Villegas ROJAS, also known as Roberto Villegas ; Jaime Gonzalo Castibl Cabalcante; Oscar Orlando Barrera Pineda, also known as Oscar, also known as Capi; Julio Hernando Moya Buitrago, also known as Primito, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

812 F.3d 382

UNITED STATES of America, Plaintiff–Appellee

v.Roberth William Villegas ROJAS, also known as Roberto Villegas ; Jaime Gonzalo Castibl Cabalcante; Oscar Orlando Barrera Pineda, also known as Oscar, also known as Capi; Julio Hernando Moya Buitrago, also known as Primito, Defendants–Appellants.

No. 13–40998.

United States Court of Appeals, Fifth Circuit.

Jan. 28, 2016.

Traci Lynne Kenner, Bradley Elliot Visosky (argued), Heather Harris Rattan, Esq., Asst. U.S. Atty., U.S. Attorney's Office, Tyler, TX, for Plaintiff–Appellee.

Todd Alan Durden (argued), Durden Law Firm, Keller, TX, Brian James Newman (argued), Fort Worth, TX, Carlo D'Angelo, Counsel (argued), Tyler, TX, Seth Kretzer (argued), Law Offices of Seth Kretzer, Houston, TX, Bryan Mac Morris, Law Office of Mac Morris, Plano, TX, Donald Lee Bailey (argued), Sherman, TX, for Defendants–Appellants.

Before BENAVIDES, CLEMENT and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

This appeal concerns a Colombian conspiracy to import thousands of kilograms of cocaine into the United States. After a three-week trial, a jury found four defendants, appellants here, guilty of conspiring to knowingly or intentionally import five or more kilograms of cocaine into the United States in violation of 21 U.S.C. §§ 959 and 960, and all in violation of 21 U.S.C. § 963. The jury also found three of the four defendants guilty of aiding and abetting each other while distributing five or more kilograms of cocaine, intending and knowing that it would be unlawfully imported into the United States, in violation of 21 U.S.C. § 959 and 18 U.S.C. § 2. The four defendants timely appealed, raising various challenges to their convictions and sentences. We affirm.

I.

In October 2009, a grand jury returned a two-count indictment charging twenty-seven defendants with participation in a vast Colombian conspiracy to import cocaine into the United States. Count One charged a conspiracy offense under 21 U.S.C. § 963, alleging: (1) the defendants conspired to knowingly and intentionally import five or more kilograms of cocaine into the United States, in violation of 21 U.S.C. §§ 952 and 960 ; and (2) the defendants conspired to knowingly and intentionally manufacture and distribute five or more kilograms of cocaine, intending and knowing that it would be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 959 and 960. Count Two alleged that the defendants aided and abetted each other while intentionally and knowingly manufacturing and distributing five or more kilograms of cocaine, intending and knowing that it would be unlawfully imported into the United States, in violation of 21 U.S.C. § 959 and 18 U.S.C. § 2.

Nineteen of the twenty-seven defendants pled guilty, two died before they could be extradited to the United States, and two fled and remain fugitives. The four remaining defendants—appellants here—went to trial: Jaime Gonzalo Castibl Cabalcante ("Cabalcante"), Oscar Orlando Barrera Piñeda ("Piñeda"), Julio Hernando Moya Buitrago ("Moya"), and Roberth William Villegas Rojas ("Rojas").

The trial focused primarily on two drug transactions. The first transaction was a thwarted attempt in December 2007 to move at least 1,000 kilograms of cocaine from Colombia to Guatemala and, from there, to the United States–Mexico border and then into the United States. This particular plan involved a plane with tail number HP1607, and thus was often referred to by the parties as the HP1607 flight or the HP1607 deal. Cabalcante brokered the HP1607 deal by introducing the Colombian suppliers to the Mexican buyers, members of the Los Zetas drug cartel. The Zetas paid about $7.9 million for this deal—an amount that would have purchased several thousand kilograms of cocaine in 2007.

In Colombia, Carlos Eduardo Gaitan–Uribe ("Gaitan"), who was indicted in this conspiracy but died before trial, coordinated logistics by recruiting pilots, maintaining airplanes, securing clandestine airstrips, and contacting corrupt air traffic controllers. Defendant Moya, an air traffic controller who worked as a supervisor at the El Dorado International Airport in Bogota, agreed to help Gaitan get HP1607 through Colombian airspace. Defendant Piñeda was the pilot who flew HP1607 from Bogota to Panama for staging. Piñeda also coordinated the pilots who then flew the plane from Panama back into Colombia to pick up the cocaine.

HP1607's return trip to Colombia on December 20, 2007, did not go as planned. The Colombian Air Force detected the plane heading back to Colombia and sent a plane to follow HP1607 until it landed at a clandestine air strip. Because the Air Force failed to make contact with HP1607 before it landed, the Air Force dispatched a combat aircraft to the landing strip. After firing warning shots with no response, the Air Force fired at HP1607 and destroyed it. In a wiretapped call after the thwarted HP1607 flight, Piñeda commented that they "were left without Christmas" and could instead "get together and cry together" about the failed flight. The Zetas held Cabalcante responsible for the failed transaction, holding him hostage for three months.

Although he was not involved in the HP1607 transaction, Defendant Rojas was involved in other cocaine transactions. Rojas was connected to the conspiracy through a drug trafficker named German Giraldo Garcia (alias "El Tio"), who was indicted in this case but remains a fugitive. El Tio worked with David Quinones ("Quinones"), Gaitan's logistics partner, to build an organization to import drugs into the United States. The main transaction concerning El Tio that the parties focused on at trial involved a deal he made in 2008 with a cocaine supplier named Jamed Colmenares (alias "El Turco"). Rojas was El Turco's right-hand man. The buyer for this $1.1 million deal was a Mexican man called "Chepa." This transaction also failed when, on October 22, 2008, the Colombian National Police intercepted a truck carrying about 1,000 kilograms of cocaine.

After Chepa held El Tio hostage for failing to deliver the cocaine, Chepa and El Tio agreed that El Tio would have to make up for the lost truck load. On November 26, 2008, El Tio had a meeting with Quinones, El Turco, and Rojas to plan their second attempt. Five days after the meeting, Rojas said over the phone that he had half the "luggage" at his house and was waiting for El Tio to tell him when to transport the load to an airplane so that it could be flown to Central America.

The Colombian National Police again thwarted this plan the very next day when the police seized 286 kilograms of cocaine found in a parked truck. Rojas paced the street in front of the parking lot while the police searched the truck. On a wiretapped call, Rojas told his boss, El Turco, that the cocaine had been seized again.

After a three-week trial, the jury found Cabalcante, Moya, and Rojas guilty of the § 963 conspiracy offense charged in Count One and all four defendants guilty of the § 959 distribution offense charged in Count Two. This appeal followed.

II.

The defendants raise twenty issues on appeal.

1. Validity and Extraterritoriality of 21 U.S.C. §§ 959 and 963

Cabalcante and Piñeda challenge the constitutionality of 21 U.S.C. §§ 959 and 963¹ and argue that these statutes do not substantively reach extraterritorial acts. In their briefs, Cabalcante and Piñeda characterize this argument as a challenge to the district court's subject-matter jurisdiction. They also contend that, because jurisdictional issues may be raised at any time, this court should review their "jurisdictional" issue de novo. See United States v. Kaluza, 780 F.3d 647, 653 (5th Cir.2015). But the question "whether a statute applies extraterritorially is a question on the merits rather than a question of a tribunal's power to hear the case."² Villanueva v. U.S. Dep't of Labor, 743 F.3d 103, 107 n. 4 (5th Cir.2014) (citing Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 254, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) ); accord United States v. Delgado–Garcia, 374 F.3d 1337, 1341–42 (D.C.Cir.2004) (explaining that the defendants' argument that the statute of conviction did not apply extraterritorially did not deprive the district court of subject-matter jurisdiction). So we do not automatically review de novo.

The defendants did not challenge the extraterritorial application or the constitutionality of these statutes in the district court.³ Thus, we review for plain error. See United States v. Snarr, 704 F.3d 368, 382 (5th Cir.2013). On plain-error review, we will reverse only if "(1) there is an error, (2) that is clear or obvious, and (3) that affects [the defendant's] substantial rights." United States v. Ferguson, 211 F.3d 878, 886 (5th Cir.2000). Even if these conditions are met, the decision whether to correct a forfeited error remains soundly within our discretion. See United States v. Olano, 507 U.S. 725, 735–36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We exercise that discretion only if an error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. at 736, 113 S.Ct. 1770 (alteration in original).

Constitutionality

Cabalcante and Piñeda challenge the constitutionality of 21 U.S.C. §§ 959 and 963, arguing that Congress lacked power to enact them under either the Offences Clause or the Commerce Clause. Congress enacted both provisions as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, using its Commerce Clause power, not its Offences Clause power.See 21 U.S.C. § 801(3). The Act has been upheld several times as a valid exercise of Congress's commerce power. See United States v. Perez–Herrera, 610 F.2d 289, 292 (5th Cir.1980) (holding in a case challenging § 963 that "[t]he legislative history of the Act indicates a real concern on the part of Congress that the illegal importation of narcotics has a 'substantial and direct' effect on interstate and foreign commerce"); United States v. Martinez, ...