United States v. Jose Ruiz Solorio (01-5602) Ricky Martin Luna (01-5603) Delmas Dennis (01-5666) Marco Juarez (01-5667)
Docket: 01-5602
Court: Court of Appeals for the Sixth Circuit; July 22, 2003; Federal Appellate Court
Delmas Dennis, Marco Juarez, Jose Ruiz Solorio, and Ricky Martin Luna were convicted of conspiring to possess and distribute cocaine, violating 21 U.S.C. § 841, among other drug-related offenses. The defendants were part of a Nashville-based drug enterprise led by Terrell McMurry and Timothy Booker, who testified against them after entering plea agreements. The operation, active since 1994, sourced drugs primarily from Omar Rocha Rodriguez and Adriana Rocha Espinoza in San Diego, with additional supplies coming from a contact in Chicago. Drug shipments, consisting of 20 to 40 kilograms of cocaine, were delivered to Nashville via a green Tahoe truck, where they were unloaded by the defendants and stored at various locations, including Solorio's ranch. Juarez, directly employed by McMurry and Booker for a salary of $4,000 to $5,000 monthly, played a key role in transporting and unloading drugs and facilitating cash payments to suppliers. On appeal, the defendants raised nine claims of error, all of which were found unpersuasive, leading to the affirmation of the district court's judgment.
Significant evidence against Juarez includes his October 30, 1998, arrest in Chicago, where police found hidden drug compartments in his vehicle following his consent to a search. The FBI intercepted phone calls between Juarez and co-conspirators McMurry and Booker regarding drug shipments, including a discussion about a short shipment of marijuana. Juarez was seen with McMurry and Booker in San Diego and Chicago, reinforcing his involvement in drug trafficking.
Further evidence emerged from Juarez's March 18, 1999, arrest after he was caught unloading 40 pounds of marijuana at Hearn's residence. A subsequent search of his apartment revealed two 9-mm Glock handguns and various drug trafficking tools, including a money counter and drug ledgers. Notably, drug ledgers contained the name 'Cepillo,' linking Juarez to broader trafficking activities.
Luna's role in the conspiracy involved transporting drugs and managing financial transactions, primarily under Rocha's direction. Evidence against Luna included a January 29, 1999, traffic stop where hidden compartments were found in his vehicle, corroborated by intercepted communications between McMurry and Espinoza discussing the incident. Following Juarez's arrest, a search of Luna's Nashville apartment yielded transaction receipts and a drug ledger, alongside a yellow sheet of paper with 'Sepillo' written on it. Luna was arrested two days later with identification documents using the name Omar Saenz Neda.
Dennis, identified as McMurry's largest drug customer, received substantial shipments, including a $60,000 cocaine transaction. Government wiretaps revealed coded conversations between Dennis and McMurry regarding debts and drug transactions, further implicating Dennis in the conspiracy.
Jose Ruiz Solorio, known as 'Cepillo,' had a less direct involvement in drug transactions compared to co-defendants Booker and McMurry. While McMurry testified that drugs were often stored at Solorio's ranch, the key connections were between Solorio and Rocha, evidenced by FBI interceptions of coded conversations referencing cocaine as 'tires.' Solorio was also linked to Moises Picos-Picos, who worked for him and performed various drug-related tasks, including deliveries and record-keeping. Following the arrests of other co-defendants, Solorio was arrested on August 17, 1999, and acknowledged his identity when questioned. He later informed McMurry in jail about drugs buried at his ranch.
In the jury trial, all defendants were convicted of conspiracy related to cocaine distribution, with varying degrees of charges. While Juarez, Luna, and Dennis were convicted of conspiring to distribute 5 kilograms or more of cocaine, Solorio was convicted for 500 grams or more. Dennis received a 240-month sentence, Luna 235 months for multiple counts, and Solorio was sentenced to 210 months for several charges, including possession with intent to distribute cocaine and marijuana. Juarez faced multiple convictions with a maximum concurrent sentence of 292 months.
On appeal, the defendants raised nine issues, contesting the sufficiency of evidence, witness sequestration violations, juror dismissal, sentencing enhancements and reductions, and the need for a new trial. The court found no merit in these claims.
Luna and Solorio challenged the district court's denial of their motions for acquittal under Federal Rule of Criminal Procedure 29, arguing insufficient evidence against them. The court found the evidence adequate to sustain their convictions. Solorio specifically contended that the jury's determination of his possession with intent to distribute 500 grams of cocaine was inconsistent with the indictment, which charged him with 5 kilograms. The court dismissed this claim, finding no fatal incompatibility between the trial evidence and the indictment.
The court reviews denials of acquittal motions de novo, affirming if the evidence, viewed favorably for the government, supports a rational jury's guilty verdict. Luna's claim of insufficient evidence failed, as multiple witnesses testified against him, detailing his involvement in drug transportation and payments to suppliers. Evidence included drug ledgers, narcotics transportation equipment, and items linking him to drug activities, despite Luna not having drugs on him during arrest.
Similarly, Solorio's arguments regarding insufficient evidence for conspiracy and possession charges were rejected. Although the evidence against him was less overwhelming than Luna's, it demonstrated his connection to a drug operation, including direct ties to the suppliers and the storage of drugs at Solorio's ranch. Testimony confirmed Solorio's involvement in the conspiracy, leading to the conclusion that a reasonable jury could find him guilty.
Solorio challenges the sufficiency of evidence supporting his convictions for possession of 500 grams or more of cocaine and 100 kilograms or more of marijuana (Counts 10 and 11). The court finds sufficient evidence, citing Picos-Picos's testimony that Solorio arranged a delivery of one kilogram of cocaine and that Solorio's drug records indicated a transaction involving 500 pounds of marijuana and $210,500.
Additionally, Solorio argues that the evidence presented at trial was inconsistent with the indictment, which led to a purported need for reversal. The jury convicted him on Count 7 for conspiring to possess with intent to distribute 500 grams of cocaine, while the indictment alleged conspiracy to possess 5 kilograms. The court interprets this argument as suggesting either a variance or a constructive amendment to the indictment.
The distinction is critical: a variance occurs when the indictment's terms remain unchanged but the evidence presented differs materially from what was alleged, while a constructive amendment involves a change in the indictment's terms that could mislead the jury. The court reviews these claims de novo and concludes that Solorio cannot demonstrate either a prejudicial variance or a constructive amendment, as the trial evidence did not materially differ from the indictment. The court affirms that a defendant can be convicted of a lesser-included offense, which Solorio's situation reflects, thus aligning with Federal Rule of Criminal Procedure 31.
A case similar to the current one, *United States v. Vazquez*, involved an indictment for a cocaine conspiracy under 21 U.S.C. § 841(b)(1)(A) for at least twelve kilograms. The jury found Vazquez conspired to distribute over 500 grams but less than five kilograms, resulting in a conviction under § 841(b)(1)(B). The court dismissed Vazquez's claims of fatal variance, noting that the conviction for the lesser-included offense did not constitute a constructive amendment of the indictment.
In the present case, Solorio was indicted under § 841(b)(1)(A) for a conspiracy involving more than five kilograms. However, the jury determined he conspired with respect to 500 grams or more, leading to a conviction for the lesser offense under § 841(b)(1)(B). Consequently, his claims of prejudicial variance and constructive amendment were also deemed meritless.
Regarding the sequestration order, defendants argued that the district court erred by not striking the testimonies of witnesses McMurry and Booker, who conversed during a trial recess. Despite a potential violation of the sequestration rule, the court remedied the situation effectively, making complete exclusion of their testimonies unnecessary. McMurry and Booker testified about their brief conversation, which involved discussing the trial and did not affect their testimonies, with Booker denying any influence from McMurry's comments.
The district court determined a violation of Federal Rule of Evidence 615 regarding witness sequestration but found no evidence that the government was aware of or arranged this violation, nor that the defendants were prejudiced by it. To remedy the violation, the court restricted the government from questioning Booker about specific topics, permitted full exploration of the violation during cross-examination, and instructed the jury to consider the violation in their credibility assessments. On appeal, the defendants contended that the remedies were inadequate, arguing for Booker's disqualification as a witness and the exclusion of certain testimony from McMurry. The appellate review of the sequestration decision is conducted under an abuse of discretion standard. While Rule 615 mandates witness exclusion to prevent testimony influence, the court noted that a violation does not automatically disqualify a witness. In this case, the court deemed the remedies sufficient and emphasized that the defendants did not demonstrate the prosecution's knowledge of the violation, which is critical for justifying exclusion of a witness. The appellate court concluded that the measures taken by the district court effectively mitigated any potential prejudice to the defendants.
McMurry's statements to Booker potentially influenced his testimony, particularly regarding the police stop of Carlos Brittain and a mention of VIP tickets and six thousand dollars. The district court restricted inquiries about these topics to prevent contamination of Booker's testimony. Additionally, the court provided specific jury instructions regarding this issue and allowed defense counsel to address it during cross-examinations and closing arguments. These measures effectively safeguarded the defendants from prejudice and did not adversely affect the government's case, making it impossible for the defendants to prove that the district court's decisions were prejudicial.
Luna and Solorio challenged the district court's refusal to grant a new trial due to a juror's nondisclosure of a relationship with a government witness. Juror James Fox revealed he had worked with witness Donna Webber from 1982 to 1989 but claimed their relationship was strictly professional. The district court initially considered disqualifying Fox but ultimately allowed him to remain after determining he could be impartial. Counsel for the defendants objected, arguing they would have used their peremptory challenges differently had they known of the connection.
Legal standards dictate that a new trial based on juror nondisclosure requires proof of deliberate concealment or actual bias. A party must demonstrate that a juror failed to answer a material question honestly and that a truthful response would have warranted a challenge for cause. If the concealment was non-deliberate, bias cannot be inferred, and actual bias must be shown for a new trial to be granted.
Luna and Solorio have failed to demonstrate entitlement to relief on two grounds. First, there is no evidence of deliberate concealment regarding James Fox's recollection of Donna Webber, as he only remembered her during her testimony, a claim supported by his immediate approach to the judge afterward. Second, Fox's alleged bias is undermined by his consistent assertions that his past relationship with Webber, which ended over a decade prior, would not influence his views.
Regarding Apprendi violations, Juarez, Luna, and Solorio argue that their sentences were based on drug quantities not determined by the jury, violating Supreme Court precedent in Apprendi v. New Jersey. However, since their sentences are within the statutory maximums for the quantities found by the jury, their challenges are rejected. Specifically, Juarez and Luna were found guilty of conspiring to possess five kilograms or more of cocaine, resulting in sentences of 292 months and 235 months, respectively. Solorio was found guilty of possessing between 500 grams and five kilograms, leading to a 210-month sentence. The district judge's determination of higher drug quantities for sentencing under the Guidelines does not violate Apprendi, as it does not increase penalties beyond the statutory maximum set by the jury's findings. Apprendi's principles do not extend to the Sentencing Guidelines, as confirmed by previous rulings.
Juarez's and Luna's sentences were below the life-sentence limit set by 21 U.S.C. 841(b)(1)(A), and since the jury confirmed their conspiracy to possess and distribute over five kilograms, their Apprendi claims were rejected. Solorio's sentence fell within the five to forty-year range of 21 U.S.C. 841(b)(1)(B), and his conviction for conspiring to distribute 500 grams or more of cocaine also invalidated his Apprendi claim. Luna contended that even if his sentence did not violate Apprendi, the district court failed to make necessary drug quantity findings under former Federal Rule of Criminal Procedure 32(c)(1). However, the court maintained that the conspiracy involved between 200 and 400 kilograms, and once the quantity reached 150 kilograms, the offense level remained at 38, making further quantity determinations unnecessary. Therefore, the district court appropriately addressed all material factual disputes.
Additionally, Juarez challenged a two-level increase in his offense level due to firearm possession under U.S.S.G. 2D1.1(b)(1). The facts revealed that, after Juarez was arrested for possessing forty pounds of marijuana, police found two 9-mm Glock handguns in his apartment, along with drug trafficking tools. The condition of Juarez's apartment at the time of his arrest further underscored the circumstances of his drug trafficking activities.
Juarez asserts he was not residing in the apartment at the time of his March arrest but acknowledges previous residency and leaseholder status. Legally, a district court's determination of a defendant's firearm possession during a drug crime is evaluated under the clearly erroneous standard. The government must first demonstrate by a preponderance of the evidence that the defendant had possession, either actual or constructive. Constructive possession requires showing the defendant's control over the firearm or the premises where it is located. If the government establishes this, the burden shifts to the defendant to prove it was clearly improbable that the firearm was associated with the offense.
In Juarez's case, the government successfully demonstrated constructive possession since he leased the apartment where the firearms were found, which he left there before his arrest. Juarez failed to demonstrate improbability regarding the weapon's connection to his drug activities. The firearms, linked to drug trafficking, were discovered alongside drug-related items, and he had recently smuggled marijuana from the apartment. The district court found substantial evidence of ongoing drug activity at the location.
Additionally, Solorio's claim regarding the erroneous increase of his offense level for a leadership role in a drug conspiracy was also deemed unfounded, with the district court's decision upheld. The applicable standard of review for such enhancements remains ambiguous.
Reviewing a district court's factual findings typically involves a standard of clear error, while legal conclusions are evaluated de novo. However, the Supreme Court's ruling in Buford v. United States implies that some deference may be warranted for district courts' application of the Guidelines, particularly regarding fact-intensive matters or issues where district courts possess greater expertise. In United States v. Dupree, the impact of the Buford decision on supervisory enhancements remained unresolved, with the court indicating uncertainty about the applicable standard of review for enhancements under Guideline 3B1.1.
Despite this ambiguity, the district court's application of the enhancement would be upheld under any standard. Guideline 3B1.1(b) allows for a three-level increase in a defendant's base offense level if they were a manager or supervisor in a criminal activity involving five or more participants. The government must demonstrate the applicability of this enhancement.
Factors for determining if someone is a manager or supervisor include decision-making authority, recruitment of accomplices, claims to larger shares of criminal profits, participation in planning, and control over others. In this context, Solorio is deemed a supervisor based on uncontroverted evidence of recruiting accomplice Moises Picos-Picos and exercising control over his actions, including coordinating drug deliveries and maintaining transaction records.
Solorio contends against the enhancement by arguing that his dealings with Picos-Picos were separate from a broader conspiracy involving Omar Rocha and others. He claims the jury's verdict, which only connected him to 500 grams of cocaine, indicates he was not part of a larger conspiracy, suggesting a subconspiracy with Picos-Picos.
Solorio argues that the conspiracy he was involved in is not "extensive" and does not include five individuals, which should prevent the enhancement at sentencing. However, the district court determined that Solorio was part of a larger conspiracy, and this finding was supported by the preponderance of evidence standard applicable at sentencing, regardless of the jury's determination. The court's decision aligns with the precedent set in United States v. Watts, allowing sentencing courts to consider conduct underlying acquitted charges as long as the conduct is proven by a preponderance.
Solorio also claims that he should have received a mitigating-role reduction under U.S.S.G. 3B1.2 due to his supposed minor involvement in the conspiracy. The court found this claim unpersuasive, emphasizing that Solorio did not demonstrate that he was less culpable than most participants. Evidence showed that Solorio was actively involved in the drug distribution, either directly or through directing an associate, Picos-Picos. His significant control over Picos-Picos indicated that he was not a minor participant, thus justifying the denial of the mitigating-role reduction.
Lastly, both Juarez and Solorio contend that the district court should have granted downward departures from their sentences. Juarez cites harsh confinement conditions, while Solorio refers to his deportable status. However, it is established that a district court's discretionary refusal to grant a downward departure is typically not subject to appeal, unless the court incorrectly believes it lacks the authority to do so.
In United States v. Pruitt, the court addressed the burden on the defendant to demonstrate that the district court believed it lacked authority to grant a downward departure. Citing United States v. Cook, the court noted that if a district judge does not explicitly mention the authority to depart downwards, it is generally assumed the judge found such a departure unwarranted. In the cases of Juarez and Solorio, the district judge indicated that she believed a departure was not authorized, and even if it were, she would choose not to exercise that discretion. The court acknowledged uncertainty in previous rulings regarding the reviewability of a district judge’s refusal to grant a departure under these circumstances. However, it ultimately held that the refusal to depart in this case is unreviewable, aligning with practices in other federal circuits. The court emphasized the strong presumption that such a denial is based on discretion, rendering any remand unnecessary. Consequently, the court affirmed the district court's decision in all respects, dismissing the allegations of error raised by Juarez and Solorio.
Police discovered evidence linking Solorio to drug-related activities, including papers with the names "Cepillo" and "Jose Ruiz," drug ledgers, and a planner containing names and a phone number associated with Solorio. Both Officer Taylor and Agent Williams confirmed that "Cepillo" is an alias for Solorio, a fact supported by testimony from Agent Gomez, who analyzed wiretapped conversations. Solorio acknowledged being known as "Cepillo." The name "Cepillo" appeared in documents from Rocha's residence and in drug ledgers at Juarez’s apartment, indicating involvement in drug transactions. A receipt with Solorio's real name was found at Luna's apartment, which contained references to "Cepillo Tires," a code for cocaine units.
Solorio contended that the district court erred in denying his motion for a new trial under Federal Rule of Criminal Procedure 33, arguing that the verdict was against the weight of the evidence. The court reviews such decisions for abuse of discretion, considering witness credibility and evidence weight. The appellate court does not act as a "thirteenth juror" but assesses whether the evidence weight contradicts the verdict. The government noted that Solorio did not explicitly argue an improper variance in his motion for acquittal, but his statements were deemed adequate to raise the issue, albeit unclearly.
Additionally, intercepted conversations revealed discussions between Dennis and McMurry regarding a $6,000 debt, which McMurry identified as drug money. Dennis attempted to counter this claim, suggesting the money was for concert tickets.
Dennis alleges McMurry attempted to influence Booker to testify that the $6,000 was for drugs rather than VIP tickets, aiming to support McMurry’s narrative and weaken Dennis's defense. Although Rule 615 typically governs in-court witness communications, trial courts can manage out-of-court interactions to ensure trial integrity. In this case, no specific sequestration order was issued, thus focusing the discussion on Rule 615 protections. Juarez contends that McMurry’s and Booker’s discussions about dates prejudiced his defense, claiming McMurry lied about cocaine deals occurring after May 1998. However, there is no evidence supporting Juarez’s assertion, as McMurry simply informed Booker that the defense might challenge him on dates, and Booker indicated he could not recall specific dates. The argument that the date discussions were prejudicial is unconvincing.
Some circuits require proof of deliberate concealment for relief under McDonough, but this was rejected in Zerka, which allowed for new trials based on honest mistakes by jurors. The defendants’ claim regarding juror Fox’s undisclosed connection to Webber is insufficient, as they must demonstrate deliberate concealment or actual bias to justify challenges. The court emphasizes the importance of trial finality and discourages reopening the peremptory challenge process based on information that should have been discovered during voir dire.
Solorio's conviction involved a jury finding of conspiracy to possess with intent to distribute 500 grams or more of cocaine, but not 5 kilograms or more. Despite this, the district judge sentenced Solorio based on 43 kilograms, which Solorio contended contradicted the jury's finding. This discrepancy does not affect the Apprendi analysis since the sentence remained within the statutory range of 21 U.S.C. § 841(b)(1)(B). The differing standards of proof—beyond a reasonable doubt for the jury and preponderance of the evidence for the judge—allow for such variations. The ruling in United States v. Watts supports that a sentencing court can consider conduct underlying acquitted charges if proven by a preponderance of evidence.
The Advisory Committee's note on Fed. R. Crim. P. 32(c)(1) indicated a need to clarify whether all objections to the presentence report must be ruled upon or only those affecting the sentence. The rule was revised to limit findings to "controverted matters" to ease the burden on courts. Previous case law established that a failure to address a controverted matter does not warrant reversal unless it impacts sentencing, and defendants must expressly raise these matters in the district court.
Luna's claim was dismissed as improperly raised since he did not alert the district judge to any controverted issues during the sentencing hearing. Additionally, an analysis of Dupree indicated that it did not definitively resolve the Buford issue regarding the standard of review for 3B1.1 enhancements, and the Dupree court did not clarify its position on this matter.
