United States v. Jose Demetrio Arteaga-Limones and Mike Lozano Cantu

529 F.2d 1183
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 9, 1976
Docket75--1648
StatusPublished
Cited by88 cases

This text of 529 F.2d 1183 (United States v. Jose Demetrio Arteaga-Limones and Mike Lozano Cantu) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jose Demetrio Arteaga-Limones and Mike Lozano Cantu, 529 F.2d 1183 (5th Cir. 1976).

Opinions

INGRAHAM, Circuit Judge:

Jose Demetrio Arteaga-Limones (Ar-teaga) and Mike Lozano Cantu (Cantu) appeal from their convictions of drug-related offenses. Arteaga was convicted under 21 U.S.C. § 963, conspiracy to import marijuana; 21 U.S.C. §§ 952(a), 960(a)(1), illegal importation of marijuana; 21 U.S.C. § 846, conspiracy to possess marijuana with intent to distribute; and 21 U.S.C. § 841(a)(1), possession of marijuana with intent to distribute. He received a sentence of five years imprisonment and five years special parole on each count, to be served consecutively. Cantu was convicted of the two latter offenses and received a sentence of five years imprisonment and five years special parole on each count, to be served concurrently. Both defendants assert numerous claims of error. Arteaga’s appeal was argued orally to the court; that of Cantu was submitted on briefs only.

FACTS

In May 1974, during the trial of Julio Castillo-de la Garza (Castillo) on charges involving the illegal importation of a 300-pound shipment of hashish, evidence was developed that implicated Arteaga-Limones, Cantu and one Alvaro Moreno in the importation and distribution of 350 pounds of marijuana between January 1, 1973 and October 9, 1973. Castillo was convicted on the hashish charges and became the chief witness in the instant trial of Arteaga-Limones and Cantu. The following account of the events preceding and following the importation of the marijuana is primarily drawn from his testimony.

On or about January 30, 1973, Castillo and Arteaga travelled across the border to Ciudad Acuna, Mexico (the residence of Castillo), and carried back two sacks of marijuana. They stored the sacks at Arteaga’s home in Del Rio, Texas, and later transported them to the San Antonio area and sold them to an unidentified purchaser. No money changed hands at the time of delivery, but Castillo later received several payments totaling approximately $60,000, which he [1187]*1187turned over to Arteaga. Castillo then met Moreno, a narcotics dealer, and discussed transporting marijuana for him. Around May 5, 1973, Arteaga and Castillo met at Arteaga’s home and traveled to a small ranch near the Mexican border, where they observed two of Artea-ga’s employees arrive from the direction of Mexico with sacks of marijuana. Ar-teaga and Castillo stored the sacks at Arteaga’s house. Later, when Moreno asked to buy some marijuana from Castillo, Castillo told him of the recent importation. Moreno requested a credit transaction. Castillo agreed, subject to Arteaga’s approval. Arteaga agreed and implied that Cantu would make the delivery. The next morning, when Castillo met Cantu in a motel restaurant in San Marcos, Cantu told Castillo that part of the marijuana was in his car. Moreno came to the restaurant and left in Cantu’s car. Arteaga arrived and reported that the rest of the marijuana was in another car parked nearby. Moreno returned to the restaurant and left in this car also. After two months passed without word or payment from Moreno, Castillo traveled to New York to see Moreno. Castillo received $800 and returned to Ciudad Acuna. About a month later Castillo and Arteaga received $11,500 from Moreno. None of the marijuana was recovered, since it had already entered the distribution network by the time Castillo’s account came to light.

CANTU

Cantu asserts claims of error relating to the sufficiency of evidence, the sufficiency of Count Four of the indictment and the admission of an extraneous offense.

1. Sufficiency of the evidence. Cantu challenges the sufficiency of the evidence to support his conviction on Counts Three and Four, asserting that there was no evidence “other than hearsay” to establish the existence of a conspiracy or Cantu’s connection with it, and no evidence of Cantu’s possession of the marijuana with intent to distribute it. We begin by noting that Cantu received concurrent sentences for the violations; accordingly, if the proof be adequate as to either count, no reversible error is present. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1956); United States v. Ransom, 515 F.2d 885, 891 (5th Cir. 1975).

We approach the evidence with the responsibility to view it on appeal in the light most favorable to the government, as required by Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941). Accordingly, we have no difficulty finding sufficient evidence to support both the conspiracy and substantive charges. Castillo’s account firmly establishes a basis for the existence of a conspiracy between himself, Arteaga and Moreno. Only slight evidence is required to link a defendant to a conspiracy once the fact of conspiracy has been established. United States v. Lawson, 523 F.2d 804, 807 (5th Cir. 1975); United States v. McGann, 431 F.2d 1104, 1107 (5th Cir. 1970), cert. denied, 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 821 (1971). We believe that a jury could reasonably find, from the testimony as to Cantu’s involvement with Castillo, his provision of a hiding place for the marijuana and his service as a delivery courier, that he participated in the conspiracy as charged in Count Three. See United States v. Sanchez, 508 F.2d 388, 392-93 (5th Cir.), cert. denied, 423 U.S. 827, 96 S.Ct. 45, 46 L.Ed.2d 44 (1975). The latter activity allegedly involving a transfer of marijuana at San Marcos, Texas, also provides a valid basis for a finding that Cantu possessed marijuana with intent to distribute it as charged in Count Four.

2. Sufficiency of Count Four of the indictment. Both Arteaga and Cantu urge that Count Four of the indictment, charging actual violation of 21 U.S.C. § 841(a)(1), was fatally defective in that it failed to allege any location for [1188]*1188the commission of the offense.1 They support their position with language from United States v. Miranda, 494 F.2d 783, 788 (5th Cir.), cert. denied, 419 U.S. 966, 95 S.Ct. 228, 42 L.Ed.2d 181 (1974), stating that “[f]ailure to specify the precise location of the offense is not fatal if the district is alleged.” From this statement they infer an alternative rule that where the district is not alleged, the failure to specify the location of the offense is fatal to the indictment. We refuse to make this inferential interpretation. In Miranda, this court specifically noted that the validity of an indictment under Rule 7(c) is determined by practical, not technical, considerations. 494 F.2d at 788, citing United States v. Miller, 491 F.2d 638, 649 (5th Cir.), cert. denied, 419 U.S. 970, 95 S.Ct. 236, 42 L.Ed.2d 186 (1974). Miranda further held that the sufficiency of the indictment must be tested under the standard enunciated in Hagner v. United States,

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529 F.2d 1183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jose-demetrio-arteaga-limones-and-mike-lozano-cantu-ca5-1976.