United States v. Sotelo

Citation: Not availableDocket: 95-10755

Court: Court of Appeals for the Fifth Circuit; October 11, 1996; Federal Appellate Court

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Defendants-Appellants, including Edward Ruben Sotelo and others, were convicted for their involvement in a drug trafficking conspiracy involving marijuana and cocaine in Fort Worth, Texas, from 1990 to January 19, 1995. The jury found all six appellants guilty on the conspiracy count (Count 1). Sentences varied: Henry Arguijo received 160 months for conspiracy; Edward Sotelo was sentenced to life in prison and fined $50,000 for multiple charges, including continuing criminal enterprise and possession with intent to distribute; Joe Sotelo also received a life sentence for possession and conspiracy; Ernest Quintana was sentenced to 151 months for possession; Lawrence Flores received 235 months for distribution and conspiracy; and Gary Artiaga was sentenced to 270 months plus a $25,000 fine for using a communication facility to commit a felony and conspiracy. 

Evidence presented at trial included testimonies from narcotics offenders and law enforcement, detailing the operations of the Sotelo drug business. Notably, video surveillance captured movements at a warehouse leased by Artiaga, involving visits from Edward Sotelo, Artiaga, and Flores. Government witness Troy Williams testified about his cocaine purchases from the organization, while codefendant Eric Bryant described his role as a long-time customer. Key evidence included intercepted phone calls where Edward Sotelo arranged drug transactions, leading to police recovery of cocaine during a delivery orchestrated by Joe Sotelo. Kevin Blevins also testified about his drug purchases from Edward Sotelo and Quintana. The court affirmed the convictions and sentences, finding no reversible error.

In August 1994, Blevins was arrested while attempting to facilitate a drug buy with Edward Sotelo, who was paged multiple times during the arrest. An undercover officer accompanied Blevins, leading to a high-speed chase in which Sotelo and his accomplice Quintana discarded ten pounds of marijuana and a kilogram of cocaine. Earlier, on June 18, 1993, Juan Robles, a supplier for Sotelo, sold flour instead of five kilograms of cocaine to Joe Sotelo, prompting Joe and others to kidnap Robles’s fourteen-year-old brother, Gilberto, to recover their money. Although Gilberto was threatened and struck, he sustained only minor injuries. Police intervention was limited due to Gilberto's fear of the Sotelos. Another witness, Arthur Franklin, arrested for drug offenses, cooperated with the DEA and arranged a cocaine deal with Edward Sotelo, resulting in their arrest during the transaction.

Edward Sotelo contested the sufficiency of evidence supporting his convictions for Continuing Criminal Enterprise (CCE) and Distribution of Cocaine. For a CCE conviction under 21 U.S.C. § 848, the prosecution must demonstrate that the defendant managed five or more people in ongoing drug violations yielding substantial income. The relationships can be separate and do not require simultaneous action or uniformity among participants. Sotelo argued that the evidence indicated multiple conspiracies rather than a single conspiracy. The court evaluates the existence of a common goal, the nature of the scheme, and participant overlap. The evidence showed a unified goal of drug sales, consistent schemes involving large quantities for retail distribution, and interrelated co-defendants and witnesses, except for Franklin, who acted as an informant. Thus, the evidence was sufficient to affirm Sotelo's CCE conviction, rendering his claims without merit.

To establish that a defendant distributed a controlled substance, the Government must demonstrate that the defendant (1) knowingly (2) distributed (3) the controlled substance, as outlined in 21 U.S.C. 841 (a)(1). Edward Sotelo and Flores were charged in Count 12 with cocaine distribution related to a drug buy orchestrated by Franklin, leading to their arrest. Sotelo argues that his conviction is based solely on what he claims is perjured testimony from Franklin. However, the Court finds no evidence to support this claim, noting that Franklin's credibility, despite being compromised by his continued drug sales post-cooperation, is substantiated by a recorded phone conversation and police testimony. The evidence supports a reasonable finding of guilt beyond a reasonable doubt.

Gary Artiaga challenges the sufficiency of the evidence for his conspiracy conviction. He does not dispute the existence of a conspiracy but claims ignorance and non-participation. Evidence against him includes the lease for the drug storehouse in his name, surveillance footage showing his visits, and testimonies about drug transactions he was involved in, including advising clients and discussing drug negotiations with Sotelo. This evidence sufficiently supports his conspiracy conviction.

Lawrence Flores contests the sufficiency of the evidence for his conspiracy and distribution convictions. He argues that testimonies implicating him lack credibility. Evidence indicates that he participated in drug transactions, handled drugs, and was present at the drug warehouse. Additionally, testimony showed that he actively retrieved drugs during the buy. This evidence supports his convictions.

Ernesto Quintana argues that the Government failed to prove the 'knowledge' element necessary for his conspiracy conviction and asserts he was merely present during transactions. However, the evidence presented includes his involvement in numerous drug deliveries, participation in financial transactions, and presence during significant drug operations. This collective evidence adequately supports the jury's verdict against Quintana.

Appellants argued they were denied a petit jury representative of the community due to systematic exclusion of minority members. The trial court found no clear error in its determination that there was no such exclusion, particularly when denying Edward Sotelo's motion to quash the jury panel, which had only one Hispanic member out of fifty. To prove a violation of the fair cross section requirement, defendants must demonstrate: (1) the excluded group is distinctive; (2) their representation in venires is unfair compared to their community presence; and (3) this under-representation results from systematic exclusion. Sotelo's request to assume the latter two factors was insufficient to establish a prima facie violation.

Additionally, Edward and Joe Sotelo challenged the district court's decision to disqualify Denver McCarty from representing four co-defendants due to a potential conflict of interest. The court's ruling, subject to abuse of discretion review, followed a hearing revealing concerns about conflicts arising during pretrial plea negotiations. Although the defendants were willing to waive conflicts, the court prioritized the need for effective representation over their preference for a single attorney. The court's decision was supported by the Supreme Court’s ruling in Wheat, which emphasizes the trial court's discretion in assessing conflicts and ensuring compliance with the Sixth Amendment. The trial court determined that separate counsel would better protect the defendants’ rights, particularly during plea discussions.

The district court's decision to disqualify attorney McCarty from representing Joe and Edward Sotelo was upheld, with no abuse of discretion found regarding potential conflicts of interest. The Appellants claimed a violation of Brady v. Maryland due to the Government's delayed disclosure of impeachment evidence concerning witness Arthur Franklin, which they argued warranted a new trial. The Constitution prohibits the withholding of favorable evidence for the accused and requires reversal if such suppression creates a reasonable probability of a different trial outcome. The Government revealed four days post-verdict that Franklin was still involved in drug trafficking at the time of his testimony. Although this information was known to a Government agent before the close of evidence, it was not communicated to the trial prosecutor until after the verdict. Only Edward Sotelo and Flores were directly implicated in the drug transaction Franklin testified about, while the claims of other appellants were deemed frivolous. The court concluded that the potential impeachment evidence likely would not have altered the verdicts for Sotelo or Flores, given corroborative DEA testimony and related evidence presented at trial.

Additionally, Edward Sotelo and Artiaga argued that the district court erred by not providing a written copy of the jury instructions during deliberations. The decision to give written instructions is at the trial judge's discretion. Although the jury requested clarification on certain instructions, the court had read the relevant portions twice. The Appellants contended that the lack of a complete written charge may have led to confusion. However, precedent disapproves of providing jury instructions in written form, supporting the district court's ruling.

The Government argues that the jury's request to have a specific portion of the charge re-read indicates they would have sought clarification on other parts had there been confusion. The court's decision to deny the request for a written charge was found to be within its discretion. Regarding the prosecutor's closing argument, Flores claims error when the court overruled his objection to the prosecutor referring to him as "the chubby man," arguing it improperly vouched for a witness's credibility. The reviewing court employs a plain error standard since Flores's trial objection was based on a different premise. The prosecutor's comment was initially sustained but later overruled as a logical inference from the evidence. Although the comment may have marginally bolstered the witness's credibility, its prejudicial impact was assessed as minimal, and no cautionary instruction was given. Nevertheless, the strength of the evidence against Flores was considerable, and he failed to demonstrate reversible error. 

Additionally, Sotelo, Artiaga, and Quintana contend that the district court erred by denying their request for more time to make their closing arguments. The allocation of time for closing arguments is at the trial court's discretion. The court allowed the Government 30 minutes and the appellants collectively 45 minutes, which was later adjusted to 30 minutes for the Government and 10 minutes per appellant. The appellants argue that 10 minutes each was insufficient for their individual defenses.

Appellants argue that their case was complex, spanning six years, involving 40 witnesses and 133 exhibits, with a twelve-count indictment and a 22-page jury charge. The Government counters that the appellants provide only unsupported claims and have not demonstrated what arguments they could not present during the trial. After reviewing the record, it was found that there was no abuse of discretion; the appellants' closing arguments effectively covered the evidence and arguments, and there was no indication of what additional points would have been raised with more time.

Regarding jury misconduct, defendants Edward Sotelo, Joe Sotelo, Quintana, and Artiaga claim the district court improperly denied their mistrial motions and failed to investigate allegations of jury misconduct. Artiaga specifically contests the denial of his post-trial motion to contact jurors. The court's handling of outside influence allegations is reviewed for abuse of discretion, requiring a balance between potential harm from misconduct and the disruption of inquiries into it. Due to the trial court's superior position to assess jury dynamics, it is afforded broad discretion.

During deliberations, juror Gloria Ayala reported racial remarks made by other jurors to a court security officer. The court decided to bring the jury back in for questioning, which the defendants argued was intimidating. The court instructed Ayala not to reveal details about jury deliberations while attempting to ascertain her concerns. Ayala expressed that she felt racial tension but struggled to articulate specifics without causing offense.

Juror Ayala expressed feelings of racial tension during the trial, indicating that jurors were viewing the defendants, who are Mexican, through a racial lens rather than as individuals. Ayala felt singled out during discussions where jurors turned their attention specifically to her when questions were posed, which contributed to her discomfort. Despite being urged by the court to provide specific examples of offensive remarks or behavior, Ayala could only describe a general sense of being targeted rather than citing specific incidents of racial bias. The court ultimately concluded that there was no evidence of racial bias or prejudice among the jurors, despite counsel's observations of some jurors nodding in agreement with Ayala. The court noted that it could not interpret the significance of these gestures and recognized Ayala's concerns but found no actionable bias present.

The district court directed the jury to deliberate without considering the race or national origin of any party or witness and encouraged them to report any disparaging comments. Appellants filed motions for mistrial and new trial, claiming Ayala’s statements indicated jury misconduct, which were denied. They also sought to interview Ayala post-trial. All motions were rejected. The appellants asserted a violation of their Sixth Amendment right to an impartial jury, while the Government acknowledged the inappropriateness of racial bias in deliberations, arguing that the trial court's response was adequate given its discretion in addressing jury misconduct. The court noted no Fifth Circuit precedent exists for procedures investigating jury racial bias during trial, distinguishing between extrinsic influences (e.g., trial publicity) and intrinsic influences (e.g., juror bias). The Fifth Circuit grants trial courts broader discretion in cases of intrinsic influences, declining to presume prejudice that would limit judicial discretion. Appellants’ attempts to classify the racial bias incident as extrinsic were dismissed, reinforcing the classification as intrinsic. Regardless of classification, the critical inquiry remains whether any intrusion impacted jury deliberations and the verdict. The appellants referenced an Eleventh Circuit case emphasizing that juror prejudice undermines impartial decision-making, but the court maintained that the district court's discretion was appropriate in this instance.

In Heller, the trial judge conducted individual voir dire for jurors to address potential bias, uncovering anti-Semitic slurs and premature judgments of guilt among jurors. The Eleventh Circuit found that the trial court abused its discretion by not declaring a mistrial due to this misconduct. Although Heller is not controlling precedent, it provides useful insights into handling racial prejudice by jurors. However, the racial tensions in the current case differ significantly in nature and severity. Juror Ayala reported perceived racial bias against Hispanics but did not provide any explicit racial comments or actions. The trial court's investigative methods, while imperfect, did not unduly influence the truth-seeking process, nor did they infringe upon the Appellants' Sixth Amendment rights to an impartial jury. Although Ayala's hesitation and some jurors' nonverbal cues were concerning, they did not demonstrate that the court abused its discretion in addressing allegations of racial prejudice. The reference to Rule 606(b), which governs juror testimony regarding verdict validity, is misplaced, as the issues were raised before the verdict was reached. The court's reliance on Tanner v. United States, concerning post-trial inquiries, did not resolve the pre-verdict issues effectively. The trial court's denial of post-trial juror interviews is therefore moot.

Regarding the erroneous admission of evidence, Flores argued that the district court erred by not granting a mistrial after hearsay linked him to a drug buy. Federal Rule of Evidence 103(a) states that a reversal is not warranted unless a substantial right is affected. If substantial rights remain unaffected, the error is deemed harmless. Since the jury was instructed to disregard the stricken evidence, the likelihood of it influencing their decision is reduced. A police officer testified about observing two Hispanic males related to the drug buy, later identifying one as Edward Sotelo and the other as Lawrence Flores.

The district court upheld Flores' objection to hearsay, instructing the jury to disregard the police officer's testimony about the identity of a second Hispanic male. On appeal, Flores did not demonstrate how this hearsay affected his substantial rights, as his identity in the drug buy was corroborated by two other witnesses whose non-hearsay testimony went unchallenged. The hearsay was deemed cumulative and its admission harmless, referencing United States v. Cavin.

Joe Sotelo claimed the district court abused its discretion by denying his mistrial motion after a Government witness inadvertently mentioned his arrest for murder. Although his objection was sustained and the jury was instructed to disregard the comment, Sotelo argued that the statement was too prejudicial to be overlooked. The court denied the mistrial but allowed Sotelo to propose additional jury instructions. The Government contended that Sotelo failed to prove the comment's prejudicial impact and noted overwhelming evidence of his guilt, which the court agreed rendered any error harmless, citing United States v. Limones.

Sotelo further argued that the district court improperly restricted his cross-examination of witness Juan Robles regarding pending felony charges, which could reveal bias or motive impacting credibility. The court has discretion to limit cross-examination, but this discretion must comply with the Confrontation Clause. The trial court's decision was supported by Rule 608(b), allowing for impeachment based on non-conviction acts if relevant to credibility; however, previous rulings indicated the trial court did not abuse its discretion in limiting such inquiries when no evidence suggested government influence over state proceedings.

A pending state court indictment unrelated to a witness's testimony did not provide substantial motivation for the witness to cooperate with federal prosecution, as indicated by the witness's own denial of such motivation during cross-examination. The court found no merit in Artiaga's claim that cumulative trial errors violated his Fifth Amendment right to due process, having identified no errors by the trial court. Regarding sentencing, the appellate court will uphold the trial court’s findings unless they are clearly erroneous and will defer to the district court's application of the Sentencing Guidelines. A preponderance of evidence standard is sufficient for fact-finding in sentencing, and credibility determinations are primarily within the trier-of-fact's domain.

In the case of Quintana, the Sentencing Guidelines state that a defendant is accountable for all relevant conduct, including foreseeable actions of co-conspirators. The district court found Quintana responsible for 9,638 kilograms of marijuana, based on testimony that he participated in drug transactions. Quintana disputed this, arguing he could only foresee a small quantity from a specific incident. However, the court upheld the finding based on the testimonies presented. Additionally, while Quintana was granted a 2-level reduction for minor participation in the offense, he contested the denial of a 4-level reduction for minimal participation, which is reserved for those least culpable in group conduct.

A defendant's lack of knowledge regarding the enterprise's overall structure and activities can indicate minimal participation, such as merely off-loading a small portion of a large drug shipment. However, evidence of significant involvement, such as participation in over twenty deliveries, can lead to a rejection of a minimal participation claim. In the case of Artiaga, his Pre-sentence Report indicated accountability for 186 kilograms of cocaine, with testimony suggesting he distributed 130-140 kilograms. The attribution of an additional 46-56 kilograms was not deemed clear error due to his extensive drug-related relationship with Edward Sotelo. 

Flores argued that the district court improperly increased his offense level for the drug-related kidnapping of Gilberto Robles, asserting that the act was not foreseeable or jointly undertaken by him. While he acknowledged his presence during the kidnapping, he claimed to be unarmed and threatened while attempting to assist Robles. The Government contended that Flores’ actual involvement in the kidnapping rendered foreseeability irrelevant. The district court's finding was upheld as plausible given his undisputed participation in both the drug deal and the kidnapping. Ultimately, the court sentenced Flores at the lower end of the guideline range, considering his assistance to Robles. The convictions and sentences for all appellants were affirmed.