Transporting marijuana from Mexico to the U.S.

United States 10th Circuit Court of Appeals Reports

Unpublished

U.S. v. DIAZ, 05-2348 (10th Cir. 1-3-2007) UNITED STATES OF
AMERICA, Plaintiff-Appellee, v. JOSE FRANCISCO DIAZ,
Defendant-Appellant. No. 05-2348 (D.C. No. CR-03-2112 MV)
(D. N.M.) United States Court of Appeals, Tenth Circuit.
January 3, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] ORDER AND JUDGMENT[fn*]

[fn*] This order and judgment is not binding precedent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).

Before BRISCOE, McCONNELL, and GORSUCH, Circuit Judges.

Neil M. Gorsuch, Circuit Judge.

A rather remarkable drug trafficking operation employed a
series of commercial tractor trailers to move multi-ton
quantities of marijuana from Mexico 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 trailers employed in (and seized full of drugs
during) the course of the conspiracy. At trial, a jury
convicted Mr. 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, Mr. 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. We disagree and so
affirm.

* * *

This case began when law enforcement detained Yolanda
Alarcon, a commercial truck driver, on her way from El
Paso, Texas, to Las Cruces, New Mexico, suspecting that her
truck recently had been involved in transporting a load of
marijuana. Trial Tr. 706-11. In the course of that
encounter, Ms. 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 May Seizure

On May 18, 2003, Ms. 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 within Las Cruces, New
Mexico, in order to fill the truck with drugs for its
eventual journey to Chicago. Trial Tr. 156, 723-28. After
Ms. Alarcon completed her assigned task, another member of
the conspiracy, Mr. Martin Mendivil, 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 Mexico, 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 Mexico 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 Mexico. 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 May 2003, Agent
Flores attempted to contact Mr. Diaz but discovered that
the addresses provided to the Commission were phony. Id. at
254.

Remarkably, Mr. Diaz’s attorney contacted Agent Flores in
an effort to retrieve the purple trailer. Id. at 255. On or
about June 6, 2003, Mr. 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 256-58, 308. A couple weeks
later, Mr. Diaz and his attorney met with DEA agents in a
further effort to retrieve the vehicle. Id. at 258. Mr.
Diaz provided a written lease to Agent Flores representing
that Mr. Diaz leased the purple trailer in the first week
of May 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, Ms. 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. Mr. 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, Ms. Alarcon informed Agent Armijo that Mr.
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 Mr. Diaz’s
Stallion Trucking company. Id. at 801-03. When the 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 May 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, Mr. 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 Mr. Barazza and gave Mr. Barraza permission to drive the
white trailer. Id.; Ex. 806. Mr. Kinney testified at trial
that neither the notary stamp nor the signature on the
Broussard letter was his — both were forgeries.
Trial Tr. at 1716-18.

Undeterred by the government’s repeated seizures, Mr.
Torres-Laranega instructed Ms. Alarcon to register yet
another tractor trailer under M s. Alarcon’s name. Trial
Tr. 812-13. If asked for a reference, Mr. Torres-Laranega
told M s. Alarcon to use Joe Diaz at Stallion
Transportation and, in fact, Mr. Diaz subsequently had a
conversation with the truck registration company regarding
Ms. Alarcon. Id. at 829-30.

The August and September Seizures

In August 2003, Ms. Alarcon met Mr. Diaz, Mr.
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 Mexico Police Officer photographed Mr.
Diaz and Mr. 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 Mr. 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, Mr. Torres-Laranega instructed Ms.
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, Ms. Alarcon did
just that. Id. at 883; see also id. at 2011. Upon arriving
at a Love’s Truck Stop in El Paso, Texas, Ms. Alarcon was
met by two of her colleagues in the trafficking ring. Id.
at 883-84. Following Mr. Torres-Laranega’s direction that
Mr. Diaz would coordinate travel arrangements for Ms.
Alarcon and her companions in and around El Paso, the three
of them left the truck stop together in Mr. 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 Mr. Diaz. The
first was between two members of the conspiracy who
referred to Mr. Diaz and described Cesar Miramontes,
another member of the conspiracy, as “the one who hangs
around with Joe.” Ex. 505 at 3. Another conversation
between Mr. Diaz and Mr. Miramontes shows Mr. Diaz speaking
in code and asking Mr. Miramontes about the grey
Freightliner, its location and security, and whether the
drugs had been loaded — to which Mr. Miramontes
responded, “UPS 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, Mr. Torres-Laranega was apparently not
aware of the government’s investigation and instructed Ms.
Alarcon to register and insure another tractor trailer in
her name to transport narcotics. Id. at 920-21. Mr.
Torres-Laranega then arranged a meeting between Mr. Diaz
and Ms. Alarcon where Mr. Diaz supplied Ms. Alarcon with
keys to a new truck. Id. at 921-22.

The Arrest

Authorities arrested Mr. Diaz and Mr. Miramontes in El
Paso, Texas, in November 2003. Trial Tr. 2211, 2213-14.
During a search of Mr. Miramontes’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
May 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 Mr. Torres-Laranega’s home the same day, the
FBI found still more documents relating to Mr. Diaz and
Stallion Transportation, including an insurance
certification card issued to Stallion Transportation; a
lease agreement, commencing May 21, 2003, between Jose Diaz
d/b/a Stallion Transportation and Steven Broussard d/b/a
Broussard Carriers; New Mexico 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

We 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
Mr. 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
the conspiracy, (3) knowingly and voluntarily became part
of the conspiracy, and (4) was 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).

Mr. 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 (Mr. Diaz’s counsel suggested at oral
argument that Mr. 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 Mr. Diaz’s Stallion Transportation was not
only a sham business involved in illegal activity but also
that M r. Diaz knew marijuana distribution was the plan.

After all, Mr. Diaz picked up the purple trailer from the
DEA in early June 2003 with full notice it had been used by
Mr. Torres-Laranega’s operation for transporting drugs, yet
he continued to do business with Mr. Torres-Laranega.
Indeed, none of the three subsequent seizures deterred him
from continuing to pursue this line of business. Mr. Diaz
was also the person designated to provide the “commodities”
to be transported in the white trailer. He helped to
coordinate the travel of each of the truckloads seized in
one fashion or another. And, a jury could easily have
concluded that Mr. Diaz’s coded conversation on September
10, 2003, suggested that he knew precisely the object of
the conspiracy. Even counsel for Mr. 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, Mario 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. Mr. Garcia
separately identified Mr. Diaz and Mr. Barraza based on
their different “vocal fingerprints,” id. at 437, 439, and
identified Mr. 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 Mr. 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 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 were 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).[fn1]

Sentencing Challenges

Mr. 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 Mr.
Diaz’s sentence only for plain error. United States v.
Johnson, 414 F.3d 1260, 1263 (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, Mr. 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
Mr. Diaz had no knowledge that any drugs were involved, and
it is no more persuasive.

Alternatively, Mr. Diaz argues that only the amounts seized
in the May 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 Mr. 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 within the scope of the
agreement and reasonably foreseeable to Mr. Diaz. See
Johnston, 146 F.3d at 795 (a defendant “participating in a
drug conspiracy is accountable for that drug quantity which
was within the scope of the agreement and reasonably
foreseeable to [him]” (internal quotation omitted)).[fn2]

* * *

Mr. Diaz’s conviction and sentence are AFFIRMED.

[fn1] Mr. 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 Mr. Torres-Laranega relied upon
Mr. Diaz to coordinate many of the transportation
arrangements for the marijuana deliveries and that M r.
Diaz, inter alia, supplied two trailers to the
organization, gave Ms. Alarcon keys to another trailer,
coordinated transportation with members of the conspiracy,
repaired a refrigerated trailer, and served as a job
reference for Ms. Alarcon.

[fn2] Although not raised by Mr. 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). Meanwhile, 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).