IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-11504 Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LEONILA PALMA
Defendant - Appellant
-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 5:01-CR-47-21-C -------------------- September 13, 2002
Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Leonila Palma appeals her conviction and sentence for one
count of conspiracy, three counts of possession with the intent
to deliver cocaine, and one count of possession of a firearm in
furtherance of a drug offense. For the first time on appeal,
Palma contends that her attorney rendered ineffective assistance
by (1) failing to object and move for a mistrial when Palma’s
codefendant pleaded guilty immediately prior to the last day of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-11504 -2-
trial, (2) failing to move for judgment of acquittal, and
(3) failing to request a minor participant offense level
reduction pursuant to U.S.S.G. § 3B1.2.
Generally, claims of ineffective assistance of trial counsel
may not be litigated on direct appeal unless they were adequately
raised in the district court. United States v. Rivas, 157 F.3d
364, 369 (5th Cir. 1998). When such claims are raised for the
first time on direct appeal, this court will address the claims
only “‘in rare cases where the record [allows the court] to
evaluate fairly the merits of the claim.’” Id. (quoting United
States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987)). This
appeal represents one of those rare cases.
To prevail on a claim of ineffective assistance of counsel,
a defendant must show (1) that his counsel’s performance was
deficient in that it fell below an objective standard of
reasonableness and (2) that the deficient performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 689-94
(1984).
Palma first argues that trial counsel provided ineffective
assistance by failing to lodge an objection and move for a
mistrial when codefendant Mario Estrada Hernandez pleaded guilty
prior to the commencement of the last day of trial. She
maintains that the jury likely inferred that Hernandez pleaded
guilty since his disappearance occurred shortly after Gilbert
Ramirez, Jr. (“Beto”), the nephew of Jose Alfonso Ramirez No. 01-11504 -3-
(“Pepe”) (who headed the drug organization that Palma was alleged
to be involved with), offered testimony for the Government which
implicated both Hernandez and Palma in the drug conspiracy.
According to Palma, “Beto’s testimony was the only evidence
against [Hernandez] at that point in time.” Palma contends that
the timing of Hernandez’s plea had the effect of bolstering
Beto’s testimony, which, in turn, negatively impacted the outcome
of her case.
This court has instructed that “[a] statement advising the
jury that a codefendant has pleaded guilty coupled with an
instruction that such plea cannot be considered as evidence of
the guilt of the remaining defendant will prevent improper
inferences that the codefendants’ [sic] absence has something to
say for the remaining defendant’s guilt.” United States v.
Beasley, 519 F.2d 233, 239 (5th Cir. 1975), vacated on other
grounds, 425 U.S. 956 (1976). In cases where a codefendant’s
guilty plea is not disclosed, the jury should nevertheless
receive, at a minimum, a cautionary instruction. Id. at 239 n.2.
Here, the district court gave a cautionary instruction both
immediately following Hernandez’s guilty plea and in its charge
to the jury at the conclusion of the trial. Accordingly, the
district court satisfied the minimum requirement for curing any
prejudice that may have extended to Palma as the result of
Hernandez’s mid-trial decision to plead guilty. See Beasley, 519
F.2d at 239 n.2. Palma arguably benefitted from the No. 01-11504 -4-
nondisclosure of Hernandez’s guilty plea since that information
could have led the jury to an improper assumption of Palma’s
guilt, especially in light of Beto’s testimony implicating both
defendants in the drug conspiracy. Given these circumstances,
Palma has not demonstrated that her attorney’s performance was
deficient for purposes of satisfying the first prong of
Strickland analysis, and her ineffective claim on this point is
rejected.
Palma next argues that her attorney rendered ineffective
assistance by failing to move for judgment of acquittal since
there was insufficient evidence to support her convictions.
Palma asserts that, had such a motion been made, she “very likely
would have been acquitted.” Alternatively, she contends that the
district court’s denial of the motion would have provided error
for this court’s review.
For sufficiency-of-the-evidence arguments properly raised on
appeal, this court reviews the record to determine whether any
reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt. See United States
v. Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992). If a
defendant fails to move for acquittal in the district court,
however, appellate review is limited to the determination whether
there was a manifest miscarriage of justice. See United States
v. Laury, 49 F.3d 145, 151 (5th Cir. 1995). No. 01-11504 -5-
Palma’s sufficiency-of-the-evidence argument is not properly
before this court since it is raised solely in the context of an
ineffective assistance claim. Because Palma does not brief her
sufficiency argument as a separate, independent issue, she has
waived the claim, rendering moot her ineffective assistance
argument on this basis. It is noted, however, that Palma makes
reference in her brief to the manifest miscarriage standard of
review, stating immediately thereafter that “this Court should
review the sufficiency of evidence in this matter.” Although it
is doubtful whether this isolated reference and request preserves
her sufficiency argument as a separate issue for purposes of
appellate review, out of an abundance of caution, we address the
evidentiary deficiencies identified by Palma.
Palma generally argues that there was insufficient evidence
to support her convictions on all counts. With respect to her
drug convictions, Palma contends that there was insufficient
proof that she “committed the alleged offenses on the dates in
question” and that she knowingly and intentionally possessed
cocaine for distribution. She asserts that the lack of proof on
the drug counts necessarily invalidates her conviction for
possession of a firearm in furtherance of a drug trafficking
scheme.
To prove that Palma was guilty of possession with the intent
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-11504 Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LEONILA PALMA
Defendant - Appellant
-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 5:01-CR-47-21-C -------------------- September 13, 2002
Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Leonila Palma appeals her conviction and sentence for one
count of conspiracy, three counts of possession with the intent
to deliver cocaine, and one count of possession of a firearm in
furtherance of a drug offense. For the first time on appeal,
Palma contends that her attorney rendered ineffective assistance
by (1) failing to object and move for a mistrial when Palma’s
codefendant pleaded guilty immediately prior to the last day of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-11504 -2-
trial, (2) failing to move for judgment of acquittal, and
(3) failing to request a minor participant offense level
reduction pursuant to U.S.S.G. § 3B1.2.
Generally, claims of ineffective assistance of trial counsel
may not be litigated on direct appeal unless they were adequately
raised in the district court. United States v. Rivas, 157 F.3d
364, 369 (5th Cir. 1998). When such claims are raised for the
first time on direct appeal, this court will address the claims
only “‘in rare cases where the record [allows the court] to
evaluate fairly the merits of the claim.’” Id. (quoting United
States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987)). This
appeal represents one of those rare cases.
To prevail on a claim of ineffective assistance of counsel,
a defendant must show (1) that his counsel’s performance was
deficient in that it fell below an objective standard of
reasonableness and (2) that the deficient performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 689-94
(1984).
Palma first argues that trial counsel provided ineffective
assistance by failing to lodge an objection and move for a
mistrial when codefendant Mario Estrada Hernandez pleaded guilty
prior to the commencement of the last day of trial. She
maintains that the jury likely inferred that Hernandez pleaded
guilty since his disappearance occurred shortly after Gilbert
Ramirez, Jr. (“Beto”), the nephew of Jose Alfonso Ramirez No. 01-11504 -3-
(“Pepe”) (who headed the drug organization that Palma was alleged
to be involved with), offered testimony for the Government which
implicated both Hernandez and Palma in the drug conspiracy.
According to Palma, “Beto’s testimony was the only evidence
against [Hernandez] at that point in time.” Palma contends that
the timing of Hernandez’s plea had the effect of bolstering
Beto’s testimony, which, in turn, negatively impacted the outcome
of her case.
This court has instructed that “[a] statement advising the
jury that a codefendant has pleaded guilty coupled with an
instruction that such plea cannot be considered as evidence of
the guilt of the remaining defendant will prevent improper
inferences that the codefendants’ [sic] absence has something to
say for the remaining defendant’s guilt.” United States v.
Beasley, 519 F.2d 233, 239 (5th Cir. 1975), vacated on other
grounds, 425 U.S. 956 (1976). In cases where a codefendant’s
guilty plea is not disclosed, the jury should nevertheless
receive, at a minimum, a cautionary instruction. Id. at 239 n.2.
Here, the district court gave a cautionary instruction both
immediately following Hernandez’s guilty plea and in its charge
to the jury at the conclusion of the trial. Accordingly, the
district court satisfied the minimum requirement for curing any
prejudice that may have extended to Palma as the result of
Hernandez’s mid-trial decision to plead guilty. See Beasley, 519
F.2d at 239 n.2. Palma arguably benefitted from the No. 01-11504 -4-
nondisclosure of Hernandez’s guilty plea since that information
could have led the jury to an improper assumption of Palma’s
guilt, especially in light of Beto’s testimony implicating both
defendants in the drug conspiracy. Given these circumstances,
Palma has not demonstrated that her attorney’s performance was
deficient for purposes of satisfying the first prong of
Strickland analysis, and her ineffective claim on this point is
rejected.
Palma next argues that her attorney rendered ineffective
assistance by failing to move for judgment of acquittal since
there was insufficient evidence to support her convictions.
Palma asserts that, had such a motion been made, she “very likely
would have been acquitted.” Alternatively, she contends that the
district court’s denial of the motion would have provided error
for this court’s review.
For sufficiency-of-the-evidence arguments properly raised on
appeal, this court reviews the record to determine whether any
reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt. See United States
v. Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992). If a
defendant fails to move for acquittal in the district court,
however, appellate review is limited to the determination whether
there was a manifest miscarriage of justice. See United States
v. Laury, 49 F.3d 145, 151 (5th Cir. 1995). No. 01-11504 -5-
Palma’s sufficiency-of-the-evidence argument is not properly
before this court since it is raised solely in the context of an
ineffective assistance claim. Because Palma does not brief her
sufficiency argument as a separate, independent issue, she has
waived the claim, rendering moot her ineffective assistance
argument on this basis. It is noted, however, that Palma makes
reference in her brief to the manifest miscarriage standard of
review, stating immediately thereafter that “this Court should
review the sufficiency of evidence in this matter.” Although it
is doubtful whether this isolated reference and request preserves
her sufficiency argument as a separate issue for purposes of
appellate review, out of an abundance of caution, we address the
evidentiary deficiencies identified by Palma.
Palma generally argues that there was insufficient evidence
to support her convictions on all counts. With respect to her
drug convictions, Palma contends that there was insufficient
proof that she “committed the alleged offenses on the dates in
question” and that she knowingly and intentionally possessed
cocaine for distribution. She asserts that the lack of proof on
the drug counts necessarily invalidates her conviction for
possession of a firearm in furtherance of a drug trafficking
scheme.
To prove that Palma was guilty of possession with the intent
to distribute a controlled substance, the Government had to prove
beyond a reasonable doubt that she (1) knowingly (2) possessed No. 01-11504 -6-
the controlled substance (3) with the intent to distribute it.
United States v. Medina, 161 F.3d 867, 873 (5th Cir. 1998). To
obtain Palma’s conviction on the drug conspiracy count, the
Government had to prove beyond a reasonable doubt that (1) an
agreement existed between two or more persons to violate the drug
laws; (2) Palma had knowledge of the agreement; and (3) Palma
voluntarily participated in the conspiracy. United States v.
Casilla, 20 F.3d 600, 603 (5th Cir. 1994). In order to prove a
violation of § 924(c), the Government had to prove that Palma
used or carried a firearm during and in relation to a drug-
trafficking offense. 18 U.S.C. § 924(c) (2000).
The evidence presented at trial revealed that, beginning in
2000 and continuing through May 2001, Palma’s home was used as a
stash house by Pepe’s drug trafficking organization.
Specifically, the organization stored large quantities of cocaine
in Palma’s guest bedroom closet. The organization repackaged the
cocaine for street-level distribution on the guest bedroom
dresser. Pepe had a key to Palma’s house, which he and other
members of the organization used to gain access to the drugs,
even when Palma was home. Pepe would contact Palma prior to
these visits to ensure that she was alone.
In addition to providing her home to facilitate Pepe’s drug-
trafficking activities, Palma funneled cash to Pepe through his
nephew, Beto, and, on one occasion, accepted receipt of a cocaine
delivery intended for her daughter. Over the course of the drug No. 01-11504 -7-
conspiracy investigation, agents documented approximately 100
telephone calls between Pepe and Palma, indicating that they
remained in close contact.
On May 8, 2001, officers executed a search warrant on
Palma’s home. When asked if there were weapons in the house,
Palma directed the officers to a fully-loaded Colt Cobra .30
caliber pistol that she kept under the mattress in her bedroom.
Palma told the officers that she did not have a key to the guest
bedroom closet, which was locked with an exterior-type door lock.
Upon prying the closet door open, the officers recovered, among
other things, approximately one-half kilogram of cocaine. An
examination of used packaging material also found in the closet
revealed that it had once contained an amount of cocaine equaling
at least four and one-half kilograms.
Based on the foregoing, a reasonable jury could have found
that the evidence established Palma’s guilt beyond a reasonable
doubt on all counts. See Martinez, 975 F.2d at 160-61. Palma
played a pivotal role in the drug conspiracy and was aware of the
large quantities of drugs being stored in her home. Given the
fact that Palma was frequently left alone with drug quantities
carrying considerable street value, the jury could have
reasonably concluded that she possessed a firearm in furtherance
of the drug trafficking scheme. Palma’s assertion of
insufficient proof that she “committed the alleged [drug]
offenses on the dates in question” lacks merit since the evidence No. 01-11504 -8-
of her conduct fell within reasonable limits of the “on or about”
ranges of dates listed in her indictment. See United States v.
Hernandez, 962 F.2d 1152, 1157 (5th Cir. 1992); Russell v. United
States, 429 F.2d 237, 238 (5th Cir. 1970)(within reasonable
limits, proof of any date prior to indictment’s return and within
statute of limitations is sufficient). Because the evidence
reveals no sufficiency error under the more deferential standard
of review, Palma can neither demonstrate that she was prejudiced
by her attorney’s failure to move for acquittal, nor that a
manifest miscarriage of justice occurred.
Finally, Palma asserts that her attorney provided
ineffective assistance by failing to move for a minor participant
offense level reduction pursuant to U.S.S.G. § 3B1.2. A minor
role adjustment is appropriate if the defendant was substantially
less culpable than the average participant in the offense.
United States v. Virgen-Moreno, 265 F.3d 276, 296 (5th Cir.
2001), cert. denied, 122 S. Ct. 843 (2002).
This court has held that a defendant who allows his property
to be used as a stash house, and who is held accountable only for
the drugs stored on the property rather than for the conduct of
the entire drug enterprise, is not entitled to a minor role
adjustment because his conduct was “coextensive with the conduct
for which he was held accountable.” United States v. Garcia, 242
F.3d 593, 598-99 (5th Cir. 2001). Palma objected to the PSR’s
original drug quantity calculation of 86.5 kilograms, asserting No. 01-11504 -9-
that the “amount stored at her house never totaled more that 50
kilograms of cocaine.” The parties agreed that the “proper
attributable amount . . . should be at least 15 kilos but less
than 50 kilos,” Palma’s guideline sentencing range was modified
accordingly, and she was sentenced at the low-end of the revised
range.
Because Palma’s sentence was based on conduct in which she
was directly involved, her role was not minor, but actually
coextensive with the conduct for which she was held accountable.
See Garcia, 242 F.3d at 598-99. Accordingly, her attorney did
not render ineffective assistance by failing to move for a minor
participant reduction.
Palma’s conviction and sentence are AFFIRMED.