United States v. Frank Javier Tamez

Citations: 941 F.2d 770; 91 Daily Journal DAR 9229; 91 Cal. Daily Op. Serv. 6129; 1991 U.S. App. LEXIS 16617; 1991 WL 138121Docket: 89-30320

Court: Court of Appeals for the Ninth Circuit; July 30, 1991; Federal Appellate Court

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Frank Javier Tamez appeals his conviction and 37-month sentence under 21 U.S.C. § 856(a)(2) for making a building available for narcotics trafficking. The Ninth Circuit Court of Appeals has jurisdiction under 28 U.S.C. § 1291 and affirms in part while reversing and remanding in part. 

The investigation began in October 1987 when the DEA received information that Tamez's used car dealership in Yakima, Washington, was distributing cocaine. An undercover officer bought cocaine from Tamez's employee, Sigifredo Escamilla, who claimed Tamez was the source of the drugs. Testimony from government witnesses indicated Tamez's involvement in a significant cocaine distribution operation, with one stating that Sigifredo referred to it as "Frank's operation," allegedly selling fifty kilograms monthly.

Additional testimony revealed that Tamez instructed employees to conduct suspicious vehicle swaps, which were not connected to legitimate car transactions. Tamez was reported to have financed his business with drug proceeds and engaged in drug use with associates on dealership premises. Evidence from a search of Tamez's residence in November 1988 uncovered $50,000 and a firearm.

Although indicted for conspiracy to distribute cocaine, Tamez was acquitted of that charge but convicted for the building-related offense. He received a sentence of 37 months in prison, five years of supervised release, and a $50,000 fine.

Tamez contends that the jury's verdict is flawed because 21 U.S.C. § 856(a)(2) was not designed for cases like his, arguing that the statute is intended solely for "crack houses" or manufacturing sites. He asserts that the statute requires the defendant to intend for the property to be used for unlawful activities. Tamez emphasizes that the buildings in question were solely used for a legitimate used car dealership, and he cites precedent where § 856 has been applied to large-scale drug operations. He argues that, since there was no evidence of drug storage or manufacturing, the statute does not apply, and he points to the statute's short title and Congressional Record synopsis, which describe it as targeting "crack houses."

However, the court notes that Tamez's interpretation overlooks the statute's broad language, which prohibits allowing a building for "manufacturing, storing, distributing, or using a controlled substance." The court finds that the dealership was used as a distribution center, sufficient for a violation under § 856(a)(2). Additionally, Tamez's claim that the statute necessitates an intention to use the building for illegal purposes contradicts the relationship between § 856(a)(1) and § 856(a)(2). The former addresses intentionality, while the latter can apply to circumstances without the need for the defendant to have intended the building's use for illegal activities, thereby maintaining distinct applications for both provisions.

In United States v. Chen, 913 F.2d 183 (5th Cir. 1990), the Fifth Circuit clarified the standards for convictions under 21 U.S.C. § 856(a)(1) and (2). The court reversed a conviction under § 856(a)(1), emphasizing that it requires proof of purpose or intention to manufacture, distribute, or use a controlled substance. In contrast, § 856(a)(2) pertains to individuals who permit others to engage in drug-related activities in a property they control, without needing to have an explicit intent for such activities. The court rejected Tamez’s arguments, noting that although his business was not established for drug activities, his awareness and allowance of such activities met the criteria for liability under § 856(a)(2).

Additionally, Tamez contested the admission of co-conspirator statements as hearsay, arguing he was not part of a conspiracy, a claim supported by his acquittal on conspiracy charges. The court referenced Bourjaily v. United States, which mandates that an accused's involvement in a conspiracy must be established before introducing co-conspirator statements. It acknowledged that while such hearsay can help prove preliminary facts, additional evidence is necessary to substantiate the conspiracy and the defendant’s involvement. Despite the uncertainty regarding the standard of review for the admission of these statements, the court concluded that the statements were appropriately admitted under either standard.

The district court did not explicitly find that the government had proven the existence of a conspiracy or Tamez' involvement in it. In response to a defense objection regarding the admissibility of a statement under 801(d)(2)(E), the court referenced the legal standard from *Bourjaily*, indicating that the preliminary facts needed for the statement's admission could be established by a preponderance of the evidence. The court determined that sufficient evidence supported the existence of a conspiracy, despite the jury's later conclusion that the government failed to prove Tamez' involvement beyond a reasonable doubt. Evidence included Tamez' ownership of a dealership involved in drug transactions, payments made to move vehicles, drug use in the dealership, and police recovery of cash and a weapon from his residence. Co-conspirator statements also corroborated Tamez' role. Tamez contended the court improperly delegated the admissibility decision to the jury, but the court had conducted an adequate *Bourjaily* analysis itself.

Tamez further challenged the admissibility of Elizabeth Evans' testimony, arguing it should have been excluded due to her prior perjury in a related case. The court overruled this objection, and evidentiary rulings are reviewed for abuse of discretion. Tamez claimed that Evans' perjury rendered her testimony inherently unreliable; however, the court found no abuse of discretion, noting that Tamez had the opportunity to cross-examine Evans about her credibility. The court concluded it was appropriate for the jury to assess the weight of Evans' prior dishonesty.

Tamez attempted to introduce testimony from the attorney of Leo Escamilla, a convicted co-conspirator, to support Escamilla's claim that he rejected a plea deal due to his belief in Tamez's innocence. The trial court excluded this testimony, citing concerns about the potential negative impact on plea negotiations and asserting its discretion in such matters. The court's decision was upheld, as there was no abuse of discretion.

In terms of sentencing, Tamez was sentenced to 37 months under the Sentencing Guidelines for a violation of 21 U.S.C. 856, with a base level of 16 increased to 18 due to his role as an organizer in criminal activity. Tamez contested the denial of a downward adjustment under Guideline 3B1.2, arguing that his minimal involvement warranted such a reduction. However, the court clarified that reductions for minimal participation only apply to the count of conviction, not to uncharged or dismissed counts. Tamez's role in the conviction under 856(a)(2) was deemed significant, and thus the court's decision not to grant the reduction was not considered clear error. Additionally, Tamez challenged the application of the "organizer" adjustment under 3B1.1(c), which is also subject to clear error review.

The district court granted a two-point increase for organizer status under section 3B1.1(c) based on Tamez's conviction related to maintaining a property where drug trafficking occurred. The court reasoned that Tamez's ownership and control over the property implied a leadership role, as he had the authority to hire, fire, and expel individuals from the premises. However, precedent cases indicate that a mere ownership does not automatically qualify a defendant for an enhancement under 3B1.1(c). Specifically, in previous rulings, enhancements were upheld only when defendants demonstrated significant involvement in organizing or managing drug distribution activities. In contrast, Tamez was acquitted of conspiracy charges, and the nature of his conviction under 856(a)(2) suggested he was not significantly involved in the drug activities, merely having knowledge of them. Consequently, the court determined that the enhancement was improperly applied and remanded the case for resentencing, affirming parts of the judgment while reversing others.