United States v. Juan Manuel Garcia (93-1002) Arturo Garcia (93-1056) and Howard Eugene McCully Jr. (93-1054)

20 F.3d 670

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 29, 1994
• Docket: 93-1002, 1054 and 1056
• Status: Published

Opinions

SILER, Circuit Judge.

Defendants Juan Manuel Garcia, Arturo Garcia, and Howard Eugene McCully, Jr., challenge their convictions and sentences for conspiracy to possess with intent to distribute marijuana. We affirm for the reasons set out herein.

I.

The marijuana conspiracy in this case began in the spring of 1990, when Amador Briseno offered to pay Juan Manuel Garcia to deliver marijuana from Texas to Michigan. In August or September 1990, the marijuana deliveries began, and they ended in January 1991 with the arrest of Briseno and others in Michigan.

The conspirators transported marijuana in compartments in the front and rear bumpers of cars, with cash being returned to Texas in the same manner. Arturo Garcia, based in Texas, recruited couriers to drive the cars. When the cars arrived in Michigan, Briseno would remove the marijuana and sell it to Howard McCully, who would distribute it locally. Briseno would place money for the shipment back in the bumper compartments, and the courier would return to Texas, where Arturo Garcia would remove the cash and pay the courier. The conspirators transported at least nine loads of marijuana totaling over 600 pounds.

Briseno and Juan Garcia generally planned the scheme from Michigan, with Arturo Garcia handling the couriers and loading on the Texas end and McCully distributing the marijuana on the Michigan end. The scheme came to an end on January 26, 1991, when police officers in Michigan searched cars that were used by the defendants and found large amounts of cash stashed in compartments behind the front and rear bumpers. The defendants were subsequently found guilty of one count of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. Juan Garcia was sentenced to 116 months imprisonment; Arturo Garcia was sentenced to 108 months imprisonment; and McCully was sentenced to 262 months imprisonment. Each also received a sentence of five years of supervised release.

II.

THE TRIAL

A.

The defendants challenge the admission of a videotape and an audiotape. McCully argues that the trial court should not have allowed a videotape into evidence, and Juan Garcia argues that the trial court should not have admitted a Spanish audio tape with an English oral translation. For us to uphold either of these claims, the defendants would have to make a clear showing that the trial court abused its discretion in admitting the evidence. United States v. Moreno, 933 F.2d 362, 375 (6th Cir.), cert. denied, — U.S. -, 112 S.Ct. 265, 116 L.Ed.2d 218 (1991).

The trial court determined that the videotape was admissible under Fed.R.Evid. 403. This determination constitutes an abuse of discretion only if the probative value of the evidence is substantially outweighed by its prejudicial character, when looking at the evidence in the light most favorable to its proponent. United States v. Castro, 908 F.2d 85, 88 (6th Cir.1990).

The videotape was made when government agents searched two cars involved in the marijuana conspiracy. The tape shows the removal of the rear and front bumpers of the cars, revealing hidden compartments purportedly used to store marijuana. In the middle of the tape, the camera shows a bench with several packages on it and an agent counting money. Claiming that the money was never directly linked to him, and that it was so inflammatory that it rendered the jurors unable to render an objective verdict, McCully argues that this part of the tape is unfairly prejudicial.

The trial judge, however, considered the admissibility of the videotape at length and concluded it was not substantially more prejudicial than probative. The officer who filmed the search testified to its authenticity, and there was testimony that the money shown was linked to the marijuana delivery that McCully was making, serving as payment for a prior shipment. The view on the tape of the money was probative of the marijuana conspiracy on the government’s theory of what had occurred. On these facts, the district court did not abuse its discretion in finding the tape admissible.

The Spanish audio tape was a recording of a conversation between Arturo Garcia and a man named Ernesto Gonzalez. The government made an English translation of that recording long before trial. At the pretrial hearing, a professional translator testified to the accuracy of the translation, going over many details. Though the translation is not purely literal, the expert stated that it departs only so idioms and other forms of speech make sense in English. In asking us to find the admission of the translation an abuse of discretion, Juan Garcia does not point to any inaccuracies in it, nor has he ever offered an alternative translation. He simply argues it “should not have been allowed because of the unreliability in translating foreign languages.” In essence, the defendant is arguing that a translation of a foreign language conversation can never be admissible. This is surely not the case, and there was no abuse of discretion here. Cf. United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir.1985) (defendant cannot complain if he does not offer a substitute version of transcript).

B.

Juan Garcia argues that it was erroneous not to sever his trial from that of the two other co-defendants because, he claims, he was not involved in some of the transactions in which they were involved. However, he did not move to sever the trial in the district court. Fed.R.Crim.P. 14 allows for a severance of offenses or of defendants where joinder prejudices the defendant. However, Rule 12(b)(5) requires that a severance motion under Rule 14 be made prior to trial, and Rule 12(f) states that the failure to make the motion constitutes a waiver unless cause is shown to grant relief from it. Garcia did not even make the motion during the trial. Garcia has waived the severance issue on appeal, and we see no good cause to excuse his waiver. Cf. United States v. Patrick, 965 F.2d 1390, 1400 (6th Cir.1992)' (appeal of severance motion waived where motion not renewed at the close of evidence).

III.

■ THE SENTENCING

Due to the amount of marijuana involved, the court determined the base offense level for the offense to be 26 under U.S.S.G. § 2D1.1. The court enhanced Juan Garcia’s base offense by four levels because he was an organizer or leader of the conspiracy under U.S.S.G. § 3Bl.l(a) and refused to grant him a two-level reduction for acceptance of responsibility under § 3E1.1. Thus, his sentence was based upon a total offense level of 30. The court gave Arturo Garcia the same four-level enhancement, as well as an additional two levels for obstruction of justice. Because the court reduced Arturo Garcia’s sentence by two levels for acceptance of responsibility, he was also sentenced at a total offense level of 30. McCully’s sentence was greater than the other defendants, as he had committed prior offenses that made him a “career offender” under U.S.S.G. § 4B1.1, demanding a total offense level of 34 and automatically placing him in criminal history category VI. Neither Juan Garcia nor Arturo Garcia had any prior criminal convictions, so they were each sentenced under criminal history category I.

Each defendant challenges portions of his sentence on appeal. McCully makes two claims. First, he argues that his 262-month sentence, resulting largely from the “career offender” sentencing guideline, is so disproportionate to the gravity of his offense that it is unconstitutional under the proportionality requirement of the Eighth Amendment’s Cruel and Unusual Punishment Clause. Despite the harshness of the sentence, it is not unconstitutional. In Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), the Supreme Court upheld the constitutionality of a mandatory life sentence for simple possession of 672 grams of cocaine by a defendant who had no prior convictions. McCully’s 262-month sentence for conspiracy with intent to distribute several hundred pounds of marijuana cannot therefore be disproportionate. See United States v. Dunson, 940 F.2d 989, 995 (6th Cir.1991) (20-year sentence imposed for possession with intent to distribute seven kilograms of cocaine was not unconstitutionally disproportionate), cert. denied, — U.S. -, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992)

Second, McCully argues that the case should be remanded because he. asked for a departure downward from the sentencing guidelines but “from the Court’s response it is unclear that the Court believed it had the authority to do so.” However, the sentencing transcript shows that when McCully’s lawyer argued for a departure downward, the court rejected the argument and specifically stated that it saw nothing on which it could depart from the Guidelines. The judge instead sentenced McCully to the lowest amount of prison time within the applicable Guidelines range of 262 to 327 months. The court explained why it felt McCully fell within the various applicable provisions. There is no error here.

Juan Garcia challenges the denial of a two-level reduction for acceptance of responsibility, as he did state that he accepted responsibility in his objections to the presentence report. However, the district judge explained that he did not feel Garcia deserved the reduction since he had not demonstrated sufficient remorse. “Whether a defendant has accepted responsibility for the criminal conduct [under the Guidelines] is a question of fact, and the district court’s assessment of this is accorded great deference and is not to be disturbed unless clearly erroneous.” United States v. Williams, 940 F.2d 176, 181 (6th Cir.), cert. denied, — U.S. -, 112 S.Ct. 666, 116 L.Ed.2d 757 (1991); see also United States v. Chalkias, 971 F.2d 1206, 1216 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 351, 121 L.Ed.2d 265 (1992). The judge below stated that it is more difficult for a defendant to obtain the reduction if he puts the government through its burden of proof at trial, and this accords with U.S.S.G. § 3E1.1, comment. (n.2). See Williams, 940 F.2d at 182. We do not find that his determination here is clear error.

Both Juan and Arturo Garcia challenge the enhancement each received under § 3Bl.l(a). Arturo Garcia argues that he does not deserve the four-level enhancement for being an “organizer or leader,” but only a three-level enhancement for being a “manager or supervisor” under § 3Bl.l(b). While the distinction between the two enhancements is not self-evident, the evidence in this case showed that Garcia recruited accomplices to the crime (the drivers), which is a determining factor mentioned in § 3B1.1, comment, (n.3). He also paid the drivers for their work and appears to have been the person in control when the cars arrived at his garage in Texas. Juan Garcia’s argument is simply that Arturo Garcia was the leader. The evidence is that Juan Garcia negotiated the shipments with Briseno and charged him for the marijuana. Given the evidence, the district court did not commit clear error in giving both defendants the enhancements after finding “Juan Garcia as being the organizer-leader with regard to the Michigan connection, and Arturo Garcia being the organizer and the leader with regard to the drivers and the peons in Texas.”

Arturo Garcia brings one final challenge to his sentencing that deserves more extensive discussion. The district court decided that Garcia intentionally misled the probation officer by not revealing a prior conviction for assault and by falsely denying his use of cocaine while on pretrial bond; consequently, the court enhanced his sentence-by two levels, for obstruction of justice under U.S.S.G. § 3C1.1.

Section 3C1.1 of the Guidelines provides for a two-level enhancement when a defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense.” As “sentencing” was added as a potential object of an obstruction only in guideline amendments effective November 1, 1990, most § 3C1.1 ease precedent involves the application of the enhancement to the obstruction of an investigation or prosecution. As this offense occurred mostly in 1991 and the sentences were rendered in November, 1992, the 1990 guideline amendments apply. See United States v. Kussmaul, 987 F.2d 345, 351-52 (6th Cir.1993).

In United States v. Sanchez, 928 F.2d 1450, 1458 (6th Cir.1991), we held that whether the conduct of the defendant constituted an obstruction of justice “‘turns primarily on the legal interpretation of a guideline term’ and is thus reviewed de novo” (quoting United States v. Stroud, 893 F.2d 504, 507 (2d Cir.1990)). However, the question of whether conduct is material and willful under U.S.S.G. § 3C1.1 is arguably factual and may be subject to a clearly erroneous review. See, e.g., United States v. Perry, 991 F.2d 304, 311 (6th Cir.1993) (“We review an enhancement under the Guidelines for clear error.”); United States v. Williams, 952 F.2d 1504, 1516 (6th Cir.1991) (“district court clearly erred in applying section 3C1.1”); United States v. Belletiere, 971 F.2d 961, 964 (3d Cir.1992) (willfulness), United States v. Jordan, 890 F.2d 968, 973 (7th Cir.1989) (materiality), overruled on other grounds, United States v. Thompson, 944 F.2d 1331, 1347-48 (7th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1177, 117 L.Ed.2d 422 (1992). Nevertheless, in this case, no matter whether the district court’s decision is reviewed under a de novo or clearly erroneous standard, we find that the district court did not err when it found that Arturo Garcia willfully and materially obstructed justice under § 3C1.1 for failing to admit his use of cocaine while on pretrial release.

When Garcia was interviewed by the probation officer about his use of cocaine, his lawyer was present. Although counsel stated that Garcia did not deny his use of drugs while on bond, we do not disturb the district court’s finding to the contrary. Instead, we decide whether Garcia’s denial amounts to a willful and material violation of § 3C1.1. There is authority in support of defendant’s position that his failure to admit cocaine use pending trial is not an obstruction of justice under § 3C1.1. For instance, in Belletiere, 971 F.2d at 965-68, the Third Circuit held that a defendant’s failure to admit that he used cocaine, when he tested positive for cocaine use while on bond awaiting sentence, did not justify an enhancement under § 3C1.1, inasmuch as the defendant had already been sanctioned by his bail revocation and the misrepresentation was not an attempt to obstruct the “instant offense.” Id. at 967 (citing § 3C1.1). Additionally, in Thompson, 944 F.2d at 1347-48 (citing § 3C1.1, comment, (n.l)), the Seventh Circuit held that the denial of drug use while on bail is not an obstruction of justice. The commentary relied on by Thompson provides in part:

This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant’s denial of guilt (other than a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide information to a probation officer, or refusal to enter a plea of guilty is not a basis for application of this provision.

We think that the interpretations of § 3C1.1 in Belletiere and Thompson are too narrow. The “defendant’s denial of guilt” in U.S.S.G. § 3G1.1, comment, (n.l) refers to a denial of guilt in the crimes charged or as to other pending offenses. In this case, the defendant was not charged with the use of cocaine while on bail. When Garcia was interviewed concerning his use of cocaine while on bail, his bond had already been revoked because he had tested positive for cocaine in three urine tests. Moreover, he had the opportunity to refuse to answer the question or to have his attorney raise an objection during the sentencing interview. Instead, he denied the use of cocaine, and that constitutes an obstruction of justice during sentencing. See United States v. Smaw, 993 F.2d 902, 904 (D.C.Cir.1993) (criticizing Belletiere in finding § 3C1.1 applicable where the defendant failed to disclose a financial interest, which related to her ability to pay a fine or restitution). As Smaw stated, a material omission is one which is “relevant — not outcome determinative.” Id. Here, likewise, Garcia’s failure to admit his cocaine use was not outcome determinative, but was relevant to the choice of sentence within the guideline range. See United States v. Dedeker, 961 F.2d 164, 167 (11th Cir.1992).

In light of the foregoing analysis, we need not decide whether Garcia’s failure to mention to the probation officer a prior assault conviction was a willful and material obstruction of justice.

AFFIRMED.