PATRICK E. HIGGINBOTHAM, Circuit Judge:
Rene Martinez and Israel Perez-Solis ("Perez") were charged with possession with intent to distribute fifty grams or more of methamphetamine and conspiracy to do the same.
This case arises out of a drug transaction conducted on May 23, 2011. On May 10, undercover agent Jose Lopez was introduced to Rene Martinez. Lopez told Martinez that he sought to purchase four pounds of methamphetamine. Around May 20, at The Golden Corral restaurant in Laredo, Texas, Martinez provided Lopez with several methamphetamine samples supplied by Martinez's "cousin." Martinez informed Lopez that the four pounds of methamphetamine were in Mexico, but that they would be smuggled into the United States and, on May 23, delivered to Lopez. The delivery was to take place in a parking lot near The Golden Corral, for a price of $13,000 per pound.
On May 23, Martinez arrived at the parking lot in a black truck. He informed Lopez that a friend had the methamphetamine in a white van and instructed that person to drive over to them. Lopez saw the van and directed it into a parking spot across from where Martinez was stopped. Martinez and Lopez walked over to the van. Lopez then met the driver — appellant Israel Perez-Solis — whom Lopez had not previously seen or suspected of involvement.
Lopez secretly recorded his conversation with Perez and Martinez. At trial, Lopez testified that the conversation went as follows: Lopez asked Perez whether he had "it," referring to the methamphetamine. Perez said "we need[] to go somewhere else to take it out" because it was in "a compartment." After Lopez asked where "it" was, Perez stepped out of the van and walked to its trunk. Perez opened the van's back doors to reveal a
An audio recording of the conversation was also admitted in evidence. The prosecution played the recording for the jury (in Spanish), accompanied by a written translation. According to the transcript, Perez told Lopez, "I have it hidden. Where can we take to open it?" And when Lopez later asked, "Will you take [it] out[?] ... [C]an I see all four (4)?," Perez told him, "[i]t's all here. There's one ... [a]nd the other one is over here." Lopez acknowledged on cross-examination that — as the transcript indicates — he "never told [Perez] you have the methamphetamine" and "never asked him do you have the drugs," instead using only the word "it." Lopez further acknowledged that Perez used the word "it" rather than "methamphetamine" or drugs; that Perez never said the phrase "in the lining;" and that although Perez said "it" was hidden, he did not say "hidden compartment" — Perez "could have [meant] that the cooler itself was hidden in the truck."
DEA agent Patrick Curran testified next. He explained that on May 23, Martinez's black truck drove in and out of a parking lot several times, as though the driver were attempting to determine whether he was being observed. At some point Perez's white van appeared to be "traveling in tandem with the [truck]. I mean, the van was very close to his rear bumper. They followed the same route through the parking lot before the truck had left." Curran does not appear to have testified, however, that the white van drove in and out of the lot several times. He also acknowledged on cross-examination that although he observed the transaction between Lopez and Martinez on May 20, he did not see Perez on that day.
DEA group supervisor Gilberto Hinojosa followed Curran on the stand. Hinojosa interviewed Perez on May 23. Perez claimed that a neighbor-acquaintance, whom he had known for many years but could not name, asked him to come from Mexico to Texas, pick up a cooler, and deliver that cooler to someone in exchange for $300.
Cross examination focused almost entirely on two facts. First, although Hinojosa supervised the investigation, he was unaware of Perez's involvement until the day of the bust. Second, Perez did not admit to knowledge of the drugs prior to
After Perez moved unsuccessfully for a directed verdict, he took the stand. Perez testified that he owned an electronics-related business in each of Nuevo Laredo, Mexico, and Laredo, Texas. The conversation turned to Hector Alaniz. Perez testified that he had known Alaniz for roughly seven months. Initially, Alaniz was simply a patron of Perez's business. At one point, he brought to Perez's store a "compadre" of his who lived near Perez's father's home. (Alaniz's "compadre" was Perez's father's "neighbor.")
Perez's relationship with Alaniz turned friendlier. They occasionally had lunch together, for which Alaniz would offer to pay. Once Alaniz realized that Perez was living in Laredo, Perez testified, "he started asking me a lot of favors." The favors were essentially errands: purchasing a computer from Best Buy (for which he was reimbursed and paid sixty or seventy dollars); a "Super Chip" from Pep Boys; a toolbox for Perez's truck, etc. Each purchase was made at a well-known establishment, always with Perez's credit card. Alaniz compensated Perez for his efforts, reimbursing him for expenses and adding "whatever [Alaniz] thought was fair."
The final favor that Perez did for Alaniz before the bust involved retrieving some documents from Roma, Texas. Perez retrieved the documents on May 9, but was not compensated at that time.
Later that day, while driving to Laredo, Perez called the "neighbor" to ask where he should go to be paid. The "neighbor" told Perez that he had given Perez's number to someone, who would call him. A person named Demetrio called and said that his "cousin" would pay Perez at a warehouse near Mines Road. That "cousin" — whom Perez later learned was Rene Martinez — gave Perez another phone number, which apparently belonged to a "Night Watch[man]." At some point Perez spoke with Alaniz to inquire about who would be paying him. Alaniz informed Perez that he should give the night watchman fifty dollars for an item to be delivered to Martinez. Perez paid the watchman fifty dollars for an "ice chest" and called Martinez, who instructed him to go to The Golden Corral.
Perez testified that he arrived at the Corral before Martinez and did not follow Martinez's vehicle. A man wearing a blue shirt signaled to Perez and indicated where Perez should park. When the man — evidently Lopez — asked Perez whether he had anything for Lopez, Perez informed him that the ice chest was in the back of Perez's van. Perez testified that he did not open the cooler and implied that he did not remove the methamphetamine from the cooler. He was surprised, he added, to see the hidden contents of the cooler.
Perez called two other witnesses, but at the close of trial, he did not renew his motion for a judgment of acquittal. On appeal, Perez challenges the sufficiency of the evidence supporting each count of conviction; disputes evidentiary rulings surrounding the prosecution's cross-examination of Perez; argues there was a material
Perez first argues that insufficient evidence supports each of his convictions. Because he did not renew his motion for a judgment of acquittal, he forfeited his challenge to these alleged errors.
Perez's conspiracy conviction required proof, beyond a reasonable doubt, of the existence of an agreement to possess fifty grams or more of methamphetamine with the intent to distribute it, as well as Perez's knowledge of and voluntary participation in that agreement.
Perez's argument focuses on whether evidence demonstrates that he had knowledge of Martinez's agreement with others.
The record provides a simple explanation for why the government was unaware of Perez's involvement: surveillance was limited. DEA group supervisor Hinojosa testified that surveillance prior to May 23 lasted only about four to eight hours, and that Perez could have communicated with Martinez without Hinojosa's knowledge. Moreover, agent Curran testified that Perez's white van appeared to be "traveling in tandem with [Martinez's black truck]." This suggests collaboration and cooperation. Moreover, Perez admitted that he spoke to Martinez on the phone on May 23, though he contended that their conversation
The second proposition also lacks force. Perez suggests that agent Lopez misunderstood the word "it," interpreting it to refer to methamphetamine rather than the cooler or the drinks contained therein. We are not convinced. First, the transcript makes clear that Perez said "and the other one is over here." If Perez was discussing beverages plainly visible inside the cooler, there would be no need to say "and the other one is over here." Instead, the phrase suggests that Perez was referring to methamphetamine hidden in another portion of the cooler's lining, even if he never said the word "liner." Second, Perez's question, transcribed as "[w]here can we take to open it[?]," suggests that he knew he was not talking merely about a cooler containing legal beverages. The idea that the cooler could not be opened in a parking lot suggests a fear that its illegal contents would be observed. Third and finally, even if the audio recording is ambiguous, translation of the audio recording has no bearing on Lopez's testimony about what he saw. Lopez testified that Perez did not look surprised when the lining of the cooler was removed, and testified that Perez showed him how to access the drugs. Even putting aside whether Perez's testimony is so implausible as to itself be incriminating, in the light most favorable to the verdict, this evidence establishes far more than Perez's mere "association with the conspirators, and his presence at the time of the transactions."
Perez's possession conviction required proof, beyond a reasonable doubt, that he knowingly possessed fifty grams or more of methamphetamine and intended to distribute it.
Perez next argues that the district court erred by permitting the prosecutor to cross-examine Perez "with financial data." We review preserved evidentiary objections for abuse of discretion, but will not reverse a conviction because of a harmless error.
On direct examination, Perez's counsel asked several questions pertinent here. Regarding Perez's business in the U.S., counsel inquired:
Direct examination also addressed paid favors that Perez did for Alaniz. And Perez's counsel stated, "You're being truthful today, Mr. Perez." To which Perez replied, "That's right."
On cross-examination, the prosecutor drew attention to several pieces of financial information. For example:
The prosecutor also inquired about certain checks that Perez had written. For example:
The prosecutor also elicited testimony that Perez worked seven days a week and had about twenty to thirty clients daily.
The district court admitted in evidence checks, bank deposit slips, and tax returns. Perez does not object to the admission of these documents. He instead contends that the cross-examination set out above was improper because it exceeded the scope of direct examination; it addressed irrelevant issues; its substantial risk of prejudice outweighed its probative value; and it impermissibly focused on specific instances of character. Perez preserved his relevance and scope objections, prompting review for abuse of discretion. The latter two arguments appear subject to plain error review, but fail regardless.
Rule 611(b) provides that "[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise
Perez contends that he did not testify about his finances on direct examination. This, he suggests, means that cross-examination exceeded the scope of direct examination. We disagree. On direct examination, Perez testified that he had a legitimate business for which he filed income taxes. He further testified that he had previously run errands for Mr. Alaniz, and that he inadvertently transported methamphetamine in an attempt to collect an estimated $250 owed to him for a previous errand. The tax returns to which the government referred are pertinent to Perez's supposed business; he portrayed himself as a legitimate business person on direct, and the returns cast doubt on that testimony. Likewise, evidence that Perez had access to and transferred large amounts of cash casts doubt on the purported rationale for his circuitous trip — an attempt to recover $250. This objection lacks force.
Rule 401 deems relevant all evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Perez contends that the financial documents at issue were irrelevant because he was not charged with financial misfeasance. The argument fails for essentially the reasons that cross-examination did not exceed the scope of direct examination. These documents were relevant to impeach Perez's testimony and to cast doubt on his claims of running an honest business.
Rule 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice."
Perez argues that the prosecution only needed the financial documents so it could "present an alternative theory of financially-oriented narcotics activity." That is not so. The government needed the documents to impeach Perez's testimony, and Perez suggests no other way in which the government could have done so as effectively.
Perez finally relies on Rule 608(b), which provides, in pertinent part:
Perez argues that cross-examination about "ordinary tax returns, deposit slips, and bank statements" was an improper attack on his character. We disagree. The financial documents were not aimed at establishing that Perez is the type of person who lies. Instead, they go to whether the testimony that Perez provided was itself untruthful. There is no error here.
We review a forfeited claim of material variance for plain error.
Perez's indictment contained two counts. The first charged that Martinez and Perez "did knowingly and intentionally conspire and agree with each other and with other persons known and unknown to the Grand Jurors to possess with intent to distribute... [fifty] grams or more of methamphetamine."
Perez points out that the indictment does not "mention ... any form of financial misfeasance" and complains that the government "present[ed] an alternative theory of conviction whereby the jury could convict him if it believed he was involved in the North Mexico/South Texas drug trade generally." To support this claim, he cites this excerpt of the prosecutor's closing:
This is not a plain variance. Perez testified that he was a legitimate businessperson duped by Alaniz and his associates. The prosecutor's argument that the testimony was not credible — that he was not duped — is not an argument that general involvement in the drug trade is sufficient to convict.
Perez's reliance on United States v. Adams
By contrast, here, the government did not argue to the jury a separate crime not charged in the indictment, and the court's instructions did not suggest that the jury could convict on such a ground. In any event, unlike the Adams constructive amendment (then subject to automatic reversal), even a preserved objection to an alleged variance is immaterial without prejudice. On plain-error review, the burden of demonstrating prejudice falls to the defendant, who has not satisfied it here.
Perez contends that four portions of the government's closing argument constitute
Perez's first two arguments stem from a four-paragraph excerpt of the prosecutor's closing argument. The prosecutor stated:
Perez contends that the prosecutor treated the financial documents as substantive evidence of guilt, rather than impeachment evidence, and "made himself an unsworn witness about `incredible coincidences.'" We disagree.
The first argument lacks force. Perez's testimony suggested his innocence. The documents suggested that the testimony was untruthful. Thus, the documents provided some evidence of Perez's guilt. Even if the prosecutor committed plain misconduct, we perceive no effect on Perez's substantial rights. The prosecutor could have said "these documents suggest that Perez's exculpatory testimony was false." Perez has not demonstrated that instead using the phrase "circumstantial evidence" was prejudicial.
The second argument complains that since no witness testified that round numbers on tax returns suggest criminality, the prosecutor needed to testify to make his argument — and effectively did so by saying "I." The challenged excerpt does not say "I think that" or "I believe." It says "I submit to you" — which a prosecutor making an argument from evidence
Perez's third argument focuses on a portion of the following statement by the prosecutor:
Perez contends that the prosecutor "clearly intended to burden shift by stating that... Perez[] `has no MRI' rather than stating that the Government failed to produce such evidence." We view the prosecutor's comment differently. First, the comment amounts to a statement that there is no MRI: the prosecutor did not simply say "he has no MRI," he also stated that "the government doesn't have a brain scan of the defendant." The clear import of his statements is that the jury would need to make its determination based on "all the other facts and circumstances and use [its] commonsense." Second, the prosecutor did not fault the defendant for failing to produce an MRI; in the quoted excerpt, the prosecutor acknowledges that a brain scan "wouldn't tell us anything" — suggesting that any MRI would be unimportant.
Finally, proof of an effect on Perez's substantial rights is again absent. This is especially so because not only did the district court repeatedly instruct the jury that the government must prove its case beyond a reasonable doubt, it also pointed out that "the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence."
Finally, Perez complains that the prosecutor asked the jury to send a larger social message. The object of his ire is this statement:
This argument is without merit. The clear import of the prosecutor's argument is that Perez knew of drug trafficking in Laredo, but purported to have no suspicion of drug activity when led by a series of mysterious callers to the side of a road to pay a watchman fifty dollars for a cooler. There is no misconduct here.
Perez raises two challenges to his sentence. First, he argues that the district court erred by applying the U.S.S.G. § 3C1.1 obstruction-of-justice enhancement. Second, he argues that the court erred by rejecting his request for a § 3B1.2 minor-participant reduction. We review de novo an application of the Sentencing Guidelines, but review factual findings for clear error.
Section 3C1.1 provides for an increase of two offense levels "[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the ... prosecution ... of the instant offense of conviction, and (2) the obstructive conduct related to ... the defendant's offense of conviction and any relevant conduct."
Because the fact of a conviction does not imply that a testifying defendant committed perjury, "if a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do the same, under the perjury definition" set out above.
Perez objected to the obstruction enhancement. At sentencing, the district court explained his rationale for overruling the objection:
Although the sentencing judge did not preside over Perez's trial, he reviewed and expressly relied on the PSR's summary of Perez's testimony. The court specifically drew attention to the fact that "the defendant claimed he never knew there was methamphetamine," among other obviously material statements. Because materiality is obvious, the question is whether the district court's findings encompassed the finding that Perez willfully made a false statement.
We hold that they did. The district court adopted the PSR, which explained that "Perez advised [Lopez] that the narcotics were hidden in the back of the van" and claimed that "Perez ... removed one of the bundles [of methamphetamine] and gave it to [Lopez]." These findings squarely conflict with the testimony described at sentencing; e.g., "the defendant denied ever taking ... the package from the ice chest" and "[i]t was only when the defendant was at the back of the van and the package was removed that[, according to him,] he realized that the transaction involved methamphetamine." Moreover, the district court acknowledged that falsity stemming from faulty memory, confusion,
Section 3B1.2 provides that a defendant's offense level should be reduced by two to four levels if he was a minimal participant (four levels), a minor participant (two levels), or something in between (three levels).
"Section 3B1.2 does not contemplate that the participation level is to be evaluated in reference to the entire criminal enterprise of which Defendant is a part."
Perez argues that his "fleeting conduct in picking up a cooler and driving it to the location directed was so attenuated compared to the weeks-long surveillance [of] Martinez" that a reduction was required. That Perez was not observed by DEA agents has little bearing on his role in the conspiracy. Martinez may have been more involved than Perez, but that does not establish that Perez was "peripheral to the advancement of the criminal activity" or less culpable than, e.g., Demetrio or the night watchman.
Moreover, the addendum to the PSR, which the district court adopted, found that "[a]lthough it is unclear the exact role the defendant played in this offense, it is clear that he picked up the methamphetamine and transported it in a concealed fashion within an ice cooler. This defendant then aided the undercover agent in dismantling the cooler and exposing the narcotic."
Perez transported four pounds of methamphetamine that was secreted within a cooler. A jury reasonably found that he conspired to distribute the drugs, and the government permissibly used financial documents to undermine his alibi. Because he was not a minor participant in the conspiracy and obstructed justice when he testified, we AFFIRM.