United States v. Diaz

Opinion

F I L E D United States Court of Appeals Tenth Circuit

January 3, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee, No. 05-2348 v. (D.C. No. CR-03-2112 M V) (D . N.M .) JOSE FRAN CISCO D IAZ,

Defendant-Appellant.

OR DER AND JUDGM ENT *

Before BR ISC OE, M cCO NNELL, and GORSUCH, Circuit Judges.

A rather remarkable drug trafficking operation employed a series of

comm ercial tractor trailers to move multi-ton quantities of marijuana from

M exico and the southwestern United States to the Chicago area from June 2002

through November 2003. Though authorities seized one truck after another,

conspiracy members did not cotton on to the fact that the government had an

informer in their midst. Jose Francisco Diaz, owner of “Stallion Transportation,”

a shady truck leasing company, was associated with a number of the tractor

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007). trailers employed in (and seized full of drugs during) the course of the

conspiracy. At trial, a jury convicted M r. Diaz for his participation, and he

received a sentence of 168 months imprisonment. See 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), 846, 849(a), and 860(a). On appeal, M r. Diaz professes that he ran

a legitimate truck leasing business and had no idea his trucks were transporting

narcotics. He also contends that the district court erred in calculating his

sentence. W e disagree and so affirm.

t t t

This case began when law enforcement detained Yolanda Alarcon, a

comm ercial truck driver, on her way from El Paso, Texas, to Las Cruces, New

M exico, suspecting that her truck recently had been involved in transporting a

load of marijuana. Trial Tr. 706-11. In the course of that encounter, M s. Alarcon

admitted that she was involved in a significant drug trafficking operation and she

eventually offered to serve as a paid government informant. An eight-month

investigation leading to the arrest of 14 individuals followed.

The M ay Seizure

On M ay 18, 2003, M s. Alarcon informed Agent Andrew Armijo of the

Federal Bureau of Investigation (“FBI”) that a member of her drug trafficking

operation, Edgar Lopez-Hernandez, had asked her to move a purple tractor trailer

(the “purple trailer”) for him and Jorge Torres-Laranega to stash houses w ithin

Las Cruces, New M exico, in order to fill the truck with drugs for its eventual

-2- journey to Chicago. Trial Tr. 156, 723-28. After M s. Alarcon completed her

assigned task, another member of the conspiracy, M r. M artin M endivil, proceeded

to drive the purple trailer north. At a permanent United States Border Patrol

checkpoint on Interstate 25, approximately 20 miles outside of Las Cruces, New

M exico, the truck was searched and 1,417 kilograms of marijuana were seized.

Id. at 167, 239.

Agent Jacinto Flores, a special agent with the Drug Enforcement

Administration (“DEA”), subsequently inspected the tractor trailer and discovered

a black binder containing insurance cards, the vehicle registration, and a New

M exico Public Regulation Commission (the “Commission”) registration receipt.

Id. at 246-48, 252. The insurer of the purple trailer was also listed as Stallion

Transportation with a business address identified as a post office box in Sunland

Park, New M exico. Id. at 248-49. The Commission had on file two business

addresses for Stallion Transportation, both of which principally listed Jose F.

Diaz in the address. Id. at 253. In late M ay 2003, Agent Flores attempted to

contact M r. Diaz but discovered that the addresses provided to the Commission

were phony. Id. at 254.

Remarkably, M r. Diaz’s attorney contacted Agent Flores in an effort to

retrieve the purple trailer. Id. at 255. On or about June 6, 2003, M r. Diaz’s

attorney faxed to Agent Flores the vehicle registration and title indicating that the

truck was registered to Jose F. Diaz and owned by Stallion Transportation. Id. at

-3- 256-58, 308. A couple weeks later, M r. Diaz and his attorney met with DEA

agents in a further effort to retrieve the vehicle. Id. at 258. M r. Diaz provided a

written lease to Agent Flores representing that M r. Diaz leased the purple trailer

in the first week of M ay 2003 to a Jorge Reyes. Id. at 259. The lease agreement,

however, contained several irregularities, viz., it did not meaningfully identify the

trailer to be leased (no vehicle identification number, license plate number, make,

or model was listed), and the lease term stated it was for three months even

though the contract start and end dates spanned four months. Ex. 152. The lease

was purportedly notarized by Lorena Garcia, a notary licensed in the State of

Texas. Id. However, M s. Garcia testified at trial that the signature on the

document was not hers, she had never seen the document previously, and she did

not know how her stamp became imprinted on the document. Trial Tr. 609-10.

M r. Diaz also provided the DEA with yet another business address for Stallion

Transportation which the DEA subsequently discovered was also a sham. Id. at

284-85.

The July Seizure

In early July, M s. Alarcon informed A gent Armijo that M r. Torres-

Laranega had asked her to drive another tractor trailer from Chicago to Laredo,

Texas, so that it could be packed with marijuana for a return trip to Chicago. Id.

at 753. The tractor trailer – this time white and blue (the “white trailer”) – was

also leased by M r. D iaz’s Stallion Trucking company. Id. at 801-03. W hen the

-4- truck stopped for gas in Indiana, a police officer with the Chicago Police

Department approached Jose Barraza, the driver, and requested, and received,

permission to search the white trailer. Id. at 1399-1400, 1403. During the search,

the officer uncovered about 681 kilograms of marijuana. Id. at 1407-08. Officers

also uncovered a black file folder in the cab of the white trailer which contained a

lease agreement, dated M ay 21, 2003, between Steven Broussard and Jose F. Diaz

d/b/a Stallion Transportation. Id. at 1461, 1464; Ex. 785. The lease agreement

stated that Jose F. Diaz was to provide the “commodities” being transported. Ex.

785.

Several days after the truck was impounded, M r. Barraza retrieved the truck

from the Gary Police Department in Gary, Indiana. Id. at 1550-54. He presented

an insurance identification card issued to Stallion Transportation, and a letter

from Broussard Carriers purportedly notarized by Scott Kinney which requested

release of the white trailer to M r. Barazza and gave M r. Barraza permission to

drive the white trailer. Id.; Ex. 806. M r. Kinney testified at trial that neither the

notary stamp nor the signature on the B roussard letter was his – both w ere

forgeries. Trial Tr. at 1716-18.

Undeterred by the government’s repeated seizures, M r. Torres-Laranega

instructed M s. Alarcon to register yet another tractor trailer under M s. Alarcon’s

name. Trial Tr. 812-13. If asked for a reference, M r. Torres-Laranega told M s.

Alarcon to use Joe Diaz at Stallion Transportation and, in fact, M r. Diaz

-5- subsequently had a conversation with the truck registration company regarding

M s. Alarcon. Id. at 829-30.

The August and September Seizures

In August 2003, M s. Alarcon met M r. Diaz, M r. Torres-Laranega, and

others in order to repair still another tractor-trailer (this time, a grey Freightliner)

purchased for still another drug run. Id. at 864-68. On August 6, 2003, a New

M exico Police Officer photographed M r. Diaz and M r. Torres-Laranega

attempting to jump start the engine of the grey Freightliner. Id. at 1989-92, 1995-

97. On that same day, two phone calls were intercepted between various

members of the cell discussing delivery and unloading operations at a stash house

in El Paso, Texas. Ex. 381; 388. In one of these conversations M r. Torres-

Laranega remarked, “Joe already went to pick up the big truck.” Ex. 381. On the

following day, August 7, 2003, 523 kilograms of marijuana were found in the

stash house after the police received an anonymous tip. Id. at 1912-13, 1926. One

of the individuals detained while fleeing the residence, Raul Espinoza,

participated in the phone call intercepted the day prior in which “Joe” was

mentioned. Id. at 1769-70; Ex. 381.

On September 9, 2003, M r. Torres-Laranega instructed M s. Alarcon to

drive the grey Freightliner from Las Cruces to El Paso to pick up drugs for yet

another journey to Chicago. Id. at 878-81. The following day, M s. Alarcon did

just that. Id. at 883; see also id. at 2011. Upon arriving at a Love’s Truck Stop

-6- in El Paso, Texas, M s. Alarcon was met by two of her colleagues in the

trafficking ring. Id. at 883-84. Following M r. Torres-Laranega’s direction that

M r. Diaz would coordinate travel arrangements for M s. Alarcon and her

companions in and around El Paso, the three of them left the truck stop together

in M r. Diaz’s personal truck. Ex. 510. Subsequently, FBI agents observed

another member of the conspiracy drive the grey Freightliner to a warehouse in El

Paso and back it into a loading dock. Id. at 1970-71. The warehouse was located

near railroad tracks, a refinery, and Interstate 10. Id. at 1980-81.

The FBI recorded two calls that day involving M r. Diaz. The first was

between two members of the conspiracy who referred to M r. Diaz and described

Cesar M iramontes, another member of the conspiracy, as “the one who hangs

around with Joe.” Ex. 505 at 3. Another conversation between M r. Diaz and M r.

M iramontes shows M r. Diaz speaking in code and asking M r. M iramontes about

the grey Freightliner, its location and security, and whether the drugs had been

loaded – to which M r. M iramontes responded, “U PS has stopped . . . by there to

deliver and all that.” Ex. 507 at 3.

Two days later, the grey Freightliner was searched in El Paso and found

carrying a total of 2,340 kilograms of marijuana. See Id. at 2017, 2078-79.

Incredibly, even after this fourth seizure, M r. Torres-Laranega was apparently not

aware of the government’s investigation and instructed M s. Alarcon to register

and insure another tractor trailer in her name to transport narcotics. Id. at 920-21.

-7- M r. Torres-Laranega then arranged a meeting between M r. Diaz and M s. Alarcon

where M r. D iaz supplied M s. Alarcon with keys to a new truck. Id. at 921-22.

The Arrest

Authorities arrested M r. Diaz and M r. M iramontes in El Paso, Texas, in

November 2003. Trial Tr. 2211, 2213-14. During a search of M r. M iramontes’s

vehicle, the FBI uncovered a binder containing several documents bearing the

name “Jose F. Diaz” including an agreement specifying an interest rate for a 2000

Cadillac Escalade; a tractor trailer rental agreement, dated October 13, 2003,

between Joe Diaz and Jorge L. Reyes, purportedly notarized by Lorena Garcia; a

lease of motor vehicle equipment between Jose F. Diaz d/b/a Stallion

Transportation and Steven Broussard d/b/a Broussard Carriers for the period

beginning M ay 21, 2003, and ending November 21, 2003; a purchaser’s statement

and a retail installment contract for a Columbus Trucking tractor trailer under M r.

Diaz’s name; and a security agreement describing Jose F. Diaz as the purchaser of

a used Freightliner for $89,527.35. Id. at 2135-43.

At a search of M r. Torres-Laranega’s home the same day, the FBI found

still more documents relating to M r. Diaz and Stallion Transportation, including

an insurance certification card issued to Stallion Transportation; a lease

agreement, commencing M ay 21, 2003, between Jose Diaz d/b/a Stallion

Transportation and Steven Broussard d/b/a Broussard Carriers; New M exico

-8- taxation documents for Broussard Carriers; and a letter from the U.S. Department

of Transportation, dated July 19, 2002, addressed to Jose Diaz. Id. at 2237-43.

Perhaps unsurprisingly, the Internal Revenue Service has no record of any

tax filings for Jose F. Diaz, his social security number, or Stallion Transportation

for the years 2001, 2002, or 2003. Id. at 1656-57.

Sufficiency of the Evidence Challenge

W e review challenges to the sufficiency of the evidence de novo, asking

whether a reasonable jury could have found the defendant guilty beyond a

reasonable doubt based on the evidence presented. United States v. Rockey, 449

F.3d 1099, 1102 (10th Cir. 2006). Out of respect for the jury’s verdict, we are

obliged to review the evidence, together with all reasonable inferences that might

be drawn therefrom, in the light most favorable to the government. United States

v. Chavis, 461 F.3d 1201, 1207 (10th Cir. 2006). The evidence “need not

conclusively exclude every other reasonable hypothesis and need not negate all

possibilities except guilt. Instead, the evidence only has to reasonably support the

jury’s finding of guilt beyond a reasonable doubt.” United States v. Wilson, 182

F.3d 737, 742 (10th Cir. 1999) (internal citations and quotations omitted).

To prove its charge, the government had to establish that M r. Diaz (1)

agreed with two or more persons to import and possess with intent to distribute

1,000 kilograms or more of marijuana, (2) knew at least the essential objectives of

-9- the conspiracy, (3) knowingly and voluntarily became part of the conspiracy, and

(4) w as interdependent on other co-conspirators. See United States v. Arras, 373

F.3d 1071, 1074 (10th Cir. 2004); 21 U.S.C. § 846. In a conspiracy case,

moreover, “the government must prove guilty knowledge: an implicit or explicit

agreement to enter into a known conspiracy with a known objective.” United

States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995). That said, a jury is free to

infer an agreement to pursue an unlawful objective from the acts of the parties

and other circumstantial evidence; it may presume that a defendant is a knowing

participant in the conspiracy when he or she acts in furtherance of the objective of

the conspiracy. United States v. Johnston, 146 F.3d 785, 789 (10th Cir. 1998).

M r. Diaz concedes that his business practices – including the accuracy and

legality of his business documents – were less than commendable. But, he

argues, there is no evidence indicating that he knew, much less agreed, that the

object of the conspiracy was to transport marijuana (M r. Diaz’s counsel suggested

at oral argument that M r. Diaz could have believed, for example, that the illicit

activity was trafficking illegal aliens). W e find this suggestion unpersuasive.

From the facts recited above, a reasonable jury easily could have concluded that

M r. Diaz’s Stallion Transportation was not only a sham business involved in

illegal activity but also that M r. D iaz knew marijuana distribution was the plan.

After all, M r. Diaz picked up the purple trailer from the DEA in early June

2003 with full notice it had been used by M r. Torres-Laranega’s operation for

- 10 - transporting drugs, yet he continued to do business with M r. Torres-Laranega.

Indeed, none of the three subsequent seizures deterred him from continuing to

pursue this line of business. M r. Diaz was also the person designated to provide

the “commodities” to be transported in the white trailer. H e helped to coordinate

the travel of each of the truckloads seized in one fashion or another. And, a jury

could easily have concluded that M r. Diaz’s coded conversation on September 10,

2003, suggested that he knew precisely the object of the conspiracy. Even

counsel for M r. Diaz conceded at oral argument that it would be reasonable for a

jury to conclude that the participants on the September 10 call using coded terms

knew the object of the conspiracy, suggesting only that the “Joe” on the call was

more likely Jose Barraza than Jose Diaz. However, M ario Garcia, a language

specialist with the FBI, testified that based on his training, experience and

methodology, he is able to identify speakers based on speech patterns particular to

individuals, and a host of other factors. Trial Tr. 434-36. M r. Garcia separately

identified M r. D iaz and M r. Barraza based on their different “vocal fingerprints,”

id. at 437, 439, and identified M r. Diaz as the “Joe” participating in the

September 10 call. Id. at 428, 461-62. Taken in the light most favorable to the

government, this evidence is sufficient to establish that M r. Diaz was the speaker

and knew the object of the conspiracy. See, e.g., United States v. Earls, 42 F.3d

1321, 1324 (10th Cir. 1994) (holding that recorded conversations in which

defendant spoke in code in conjunction with expert testimony explaining the code

- 11 - terms sufficient to find the defendant a co-conspirator in a methamphetamine

distribution conspiracy); compare Jones, 44 F.3d at 865-66 (finding evidence

insufficient to support defendant conspired to distribute cocaine where defendant

was merely a passenger in a vehicle transporting cocaine, no cocaine was found in

her personal effects, and all other conspirators w ere linked through pen registers

demonstrating frequent communication with a known drug dealer); United States

v. Austin, 786 F.2d 986, 988-89 (10th Cir. 1986) (the defendant’s sale of his ranch

to strangers who subsequently used the ranch to transport marijuana, and the

defendant’s later suspicions that the ranch may have been used for illegal activity,

were insufficient for a rational fact finder to infer that defendant knew the object

of the conspiracy was the distribution of marijuana). 1

Sentencing Challenges

M r. Diaz cites two supposed errors in his sentencing, but raises each for the

first time on appeal. Given the absence of a contemporaneous objection bringing

these issues to the trial court’s attention, we are constrained to review M r. Diaz’s

sentence only for plain error. United States v. Johnson, 414 F.3d 1260, 1263

1 M r. Diaz’s additional sufficiency of the evidence argument, that he was not interdependent on other co-conspirators, is also unavailing. A reasonable jury could well have found that M r. Torres-Laranega relied upon M r. Diaz to coordinate many of the transportation arrangements for the marijuana deliveries and that M r. D iaz, inter alia, supplied two trailers to the organization, gave M s. Alarcon keys to another trailer, coordinated transportation with members of the conspiracy, repaired a refrigerated trailer, and served as a job reference for M s. Alarcon.

- 12 - (10th Cir. 2005) (defendant “must show that the district court (1) committed

error, (2) that the error was plain, and (3) that the plain error affected his

substantial rights”). Neither of his claimed errors comes close to satisfying this

standard.

First, M r. Diaz contends that the district court erred in calculating his

sentence because “there was insufficient evidence to establish that Diaz could

foresee that any amount of marijuana would be transported by others in his trucks.

Accordingly, no amount of marijuana may be attributed to Diaz.” Appellant’s Br.

at 12. This, however, is less a challenge to his sentence than a retread of his

sufficiency of the evidence argument, suggesting again that M r. Diaz had no

knowledge that any drugs were involved, and it is no more persuasive.

Alternatively, M r. Diaz argues that only the amounts seized in the M ay

2003 and July 2003 seizures in which his trucks were used to transport marijuana

are reasonably attributable to him. Appellant’s Br. at 13. There was, however,

ample evidence connecting M r. Diaz to each and every one of the four seizures,

see supra at 2-9, and we are thus constrained to conclude that the entire amount

seized by the government was w ithin the scope of the agreement and reasonably

foreseeable to M r. D iaz. See Johnston, 146 F.3d at 795 (a defendant

“participating in a drug conspiracy is accountable for that drug quantity which

- 13 - was w ithin the scope of the agreement and reasonably foreseeable to [him]”

(internal quotation omitted)). 2

M r. D iaz’s conviction and sentence are AFFIRMED.

ENTERED FOR THE COURT

Neil M . Gorsuch Circuit Judge

2 Although not raised by M r. Diaz on appeal, nor addressed by the government, we note an apparent discrepancy regarding the total amount of marijuana seized. The government’s brief suggests that the amount was 4,961 kilograms. See Appellee’s Br. at 39 (stating “5,316 kilograms” but providing quantities that add up to 4,961 kilograms). M eanwhile, the presentence report (“PSR”) listed the sum as 5,316.6 kilograms. PSR at 12. Even if there were some computational error, however, any such error would not have affected M r. Diaz’s substantial rights and, thus, does not rise to the level of plain error. So long as the amount seized is between 3,000 and 10,000 kilograms, the base offense level under the statutory guidelines is the same. See U.S.S.G. § 2D1.1(c)(2) (Nov. 2004).

- 14 -