                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 FEB 26 1999
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 97-2351
                                                         (D.C. No. CR-95-104)
 EMILIANO BARRAJAS-DIAZ,                                (District of New Mexico)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before PORFILIO, Circuit Judge, HENRY, Circuit Judge, and McWILLIAMS, Senior
Circuit Judge.


       Emiliano Barrajas-Diaz (“Barrajas”) was indicted on January 24, 1996, and

charged in two counts with possessing methamphetamine with an intent to distribute and

with possessing marijuana with an intent to distribute, both in violation of 21 U.S.C. §

841(a)(1). A superseding indictment was filed on October 16, 1996, charging Barrajas

and ten other individuals with various drug offenses.

       In the superseding indictment, Barrajas was named as a defendant in three counts



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.
of a nine-count indictment. In Count One Barrajas and the other ten defendants were

jointly charged with conspiring from June 1994 to the date of the indictment to possess

methamphetamine, cocaine and marijuana with an intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. Sixty-six “overt acts” were spelled out in

Count One, which identified by name the persons involved.

       In Count Two of the superseding indictment Barrajas and three others were

charged with engaging in a continuing criminal enterprise (“CCE”) from June 1994 to the

date of the indictment, “including but not limited to the violations alleged in Counts

Three through Eight of this Indictment, which counts are realleged and incorporated

herein by reference as if fully set forth in this count, all of which violations were part of a

continuing series of violations of Title 21 of the United States Code, undertaken by the

[four] defendants in concert with at least five (5) other persons with respect to whom each

defendant occupied a position as organizer, supervisor and manager, and from which

continuing series of violations the defendants herein obtained substantial financial income

and resources,” all in violation of 21 U.S.C. § 848(a), (b) and (c) and 18 U.S.C. § 2.

       Counts Three through Eight charged other defendants, or combinations thereof,

but not Barrajas, with possessing drugs with an intent to distribute in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), and 18 U.S.C. § 2. The alleged

violations variously occurred between November 23, 1994 and November 30, 1995 in

New Mexico and Western Texas.


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       In Count Nine, all eleven defendants were charged with criminal forfeiture in

violation of 21 U.S.C. § 853(p). The forfeiture conviction is not at issue in this

proceeding.

       In a joint trial with the one defendant Ramon Montano, Barrajas was convicted on

Count Two and was sentenced to imprisonment for 360 months and five years of

supervised release.1 Barrajas appeals his conviction and sentence. We affirm.2

       On appeal, counsel argues that the district court should have dismissed Count Two

of the indictment which charged a CCE offense, “based on the government’s failure to

charge a series of felony violations of federal drug laws.” As far as we can tell from the

record before us, there was no pretrial motion challenging the legal sufficiency of Count

Two. However, at the close of the government’s case, trial counsel moved to dismiss

Count Two on the ground that there was insufficient evidence to show that Barrajas was

guilty of “three additional felonies” as required to establish a “continuing” criminal

enterprise.3 In response to that motion, the government argued that one “predicate

offense” was the conspiracy charged in Count One. Defense counsel concedes on appeal


       The district court instructed the jury not to consider the conspiracy charge if it
       1

found Barrajas guilty under Count Two.

       Montano separately appealed his conviction and sentence, which we have
       2

affirmed on this date.
       3
        Although it is not mentioned in 21 U.S.C. § 848, the “courts generally agree that a
‘series’ [of such violations] requires proof of three or more related violations.” United
States v. Apodaca, 843 F.2d 421, 427 (10th Cir.), cert. denied, 488 U.S. 932 (1998). And
the jury in the instant case was so instructed.

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that this is correct. In this same regard, the government further contended that Counts

Five and Six, which alleged the commission of two substantive offenses by some of

Barrajas’ co-conspirators, but did not name Barrajas as a defendant, could supply at least

two more additional predicate offenses. In addition, the government argued that Count

Four of the indictment constituted a fourth predicate offense, even though Barrajas was

not a named defendant in that count, based on “overt acts 27 and 28 [set forth in Count

One of the indictment], which alleged the circumstances of the Louisiana seizure where

Aurelio Ramirez and Martin Vargas were arrested.” In any event, the district court

denied the motion to dismiss Count Two, and, as stated, the jury convicted Barrajas on

Count Two.

       On appeal, counsel, as we get it, challenges the sufficiency of the indictment, but

does not challenge, as such, the sufficiency of the evidence. In any event, under

applicable Tenth Circuit precedent, we believe the indictment is sufficient, and we also

conclude that the evidence supports the jury’s verdict that Barrajas was guilty of a CCE

violation.

       It is quite true that the indictment does not name Barrajas as a defendant in Counts

Four through Six, nor in Counts Three through Eight, for that matter, though he was of

course named as a defendant in Counts One and Two. But the fact that Barrajas was not

named as a defendant in Counts Three through Eight does not mean that Count Two is

legally insufficient.


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       In United States v. Hall, 843 F.2d 408 (10th Cir. 1988), we held that although a

drug conspiracy was a lesser included offense of engaging in a CCE, the conspiracy could

still be a predicate offense for the CCE charge. We also held in that case that reference to

the “overt acts” listed in the conspiracy count was a permissible means of identifying

other predicate offenses to meet the “series of violations” requirement of the CCE count.

It would appear that in Hall, the CCE count did not set forth in any manner, i.e., in so

many words or by incorporation, the predicate offenses.

       In United States v. Levy, 905 F.2d 326 (10th Cir. 1990), cert. denied, 498 U.S. 1049

(1991), the defendant was charged in four counts, i.e., conspiracy, a CCE count, and two

counts of possession of cocaine with an intent to distribute. The CCE count incorporated

by reference the other three counts. We held in Levy that the CCE count was legally

sufficient. Counsel points out, correctly so, that Levy was a named defendant in all the

predicate offenses, and that Barrajas was not a named defendant in Counts Three through

Eight. Such, under the present circumstances, is not decisive of the present case.

       In United States v. Staggs, 881 F.2d 1527 (10th Cir. 1989), cert. denied, 493 U.S.

1020 (1990), this court, sitting en banc, held that the CCE count of an indictment did not

have to expressly reallege or incorporate by reference the underlying predicate offenses

on which the CCE count was based in order to give a defendant “fair notice” of the nature

of the CCE charge where such underlying offenses were alleged in another count or

counts of the same indictment. In Staggs we stated that the defendants were sufficiently


                                            -5-
dentified with at least three other drug violations in the “overt acts” section of Count One

of the indictment, i.e., the conspiracy count, to meet the “fair notice” requirement.

       In the instant case, Counts Three through Eight were specifically incorporated by

reference thereto in Count Two. True, Barrajas was not named as a defendant in any of

those counts. However, in the “overt acts” section of Count One, i.e., the conspiracy

count, it was alleged, inter alia, that Barrajas on January 29, 1995 recruited Hector

Sanchez-Sanchez (“Sanchez”) and Ernesto Cerda-Mincitar (“Cerda”) in Yakima,

Washington to transport controlled substances from El Paso, Texas to Chicago, Illinois,

and that on January 30, 1995, Barrajas purchased airline tickets for Sanchez, Cerda, and

two others, to travel from Seattle, Washington to El Paso, Texas, which they did. It was

further alleged that on February 2, 1995, some of Barrajas’ alleged co-conspirators

hooked up a gooseneck trailer loaded with methamphetamine and marijuana to a

Chevrolet pickup truck, which vehicle had been purchased by Barrajas on September 22,

1994, and directed Sanchez and Cerda to drive to Chicago, Illinois. It was then alleged,

under the “overt acts” section of the conspiracy count, that while en route to Chicago,

Sanchez and Cerda were apprehended in Las Cruces, New Mexico on February 3, 1995,

and that a search of the trailer discovered approximately 675 pounds of methamphetamine

and 241 pounds of marijuana. All of which ties in to Counts Five and Six of the

indictment, which charged Sanchez and Cerda, and others, but not Barrajas, with

possession with an intent to distribute methamphetamine (Count Five) and marijuana


                                            -6-
(Count Six) on February 3, 1995. Under the cases above cited, such is sufficient to

identify two underlying predicate offenses (in addition to the conspiracy alleged in Count

One) upon which the charge in Count Two that Barrajas was “engaged” in a CCE

violation of 21 U.S.C. § 848 was based.4 In this regard we note that Count Two was also

based on 18 U.S.C. § 2.5 In short, the superseding indictment did charge a CCE violation

and we reject counsel’s argument that it did not.

       One statutory requirement of 21 U.S.C. § 848 is that the participant in a CCE

obtain “substantial income or resources” from the “enterprise.” Counsel argues on appeal

that the evidence is legally insufficient to show that Barrajas derived substantial income

       4
        In this same vein, we also note that Count Three of the indictment charged
Aurelio Ramirez-Garcia, and others, but not Barrajas, with unlawfully possessing on
November 23, 1994, in the District of New Mexico and in the Western District of Texas,
a mixture of cocaine with an intent to distribute in violation of 18 U.S.C. § 841(a)(1) and
841(b)(1)(A), and 18 U.S.C. § 2. Count Four charged Ramirez-Garcia, and others, but
not Barrajas, with unlawfully possessing on January 2, 1995, in the District of New
Mexico and the Western District of Texas, a mixture of cocaine with an intent to
distribute. In the “overt acts” section of Count One, i.e., the conspiracy count, Barrajas
was alleged to have recruited Ramirez-Garcia, and others, in November, 1994, to
transport cocaine from El Paso, Texas, to Chicago, Illinois. It was further alleged under
the “overt acts” section of Count One that on November 23, 1994, Ramirez-Garcia
transported 400 pounds of cocaine from El Paso, Texas to Chicago, Illinois, in exchange
for a promise of payment of $10,000 in U.S. currency. And it was also alleged in the
“overt acts” section of the conspiracy count that on January 2, 1995, Ramirez-Garcia and
another were instructed to transport 470 pounds of cocaine from El Paso, Texas, to
Atlanta, Georgia, but that Ramirez-Garcia and his associate were arrested on January 4,
1995, in Shreveport, Louisiana while in possession of the 470 pounds of cocaine. These
“overt acts” would seem to also tie Barrajas into Counts Three and Four.
       5
        In United States v. Jelinek, 57 F.3d 655, 659 (8th Cir.), cert. denied, 516 U.S. 890
(1995), the Eighth Circuit held that “an aiding and abetting offense may be used as a
predicate offense.”

                                            -7-
from the enterprise. We disagree. For example, it would appear that Barrajas on one

occasion purchased a new car and a stereo system for $18,700.00, paid for the same in

cash, and then later insured the vehicle. See United States v. Losada, 674 F.2d 167, 173

(2nd Cir. 1982) (stating that the statute does not prescribe a minimum amount of money

required to constitute “substantial” income, but the language clearly was intended to

exclude trivial amounts derived from occasional drug sales.) The evidence is sufficient in

this regard.

       Finally, counsel argues that the district court erred in refusing to grant a three-level

sentence reduction under U.S.S.G. § 3El.l for Barrajas’ “acceptance of responsibility.”

We find no error. Barrajas testified in his own defense and while he, in effect, admitted

entering into a conspiracy, he, and his counsel, emphatically denied guilt of the CCE

count. And for the entire nine-day trial Barrajas continued to deny his guilt of the CCE

charge. Such conduct hardly mandates a reduction for acceptance of responsibility. See

United States v. Gallegos, 129 F.3d 1140, 1146-47 (10th Cir. 1997).

       Judgment affirmed.



                                                   ENTERED FOR THE COURT,

                                                   Robert H. McWilliams
                                                   Senior Circuit Judge




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