                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 28 2000
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,


 v.                                                       No. 99-5120
 JORGE RODRIGUEZ-MORENO,                             (D.C. No. 97-CR-65)
                                                         (N.D. Okla.)
          Defendant-Appellant.




                                ORDER AND JUDGMENT       *




Before BRORBY , McKAY , and BRISCOE , Circuit Judges.


      Defendant Jorge Rodriguez-Moreno appeals his conviction in Oklahoma

federal district court for conspiracy to possess with intent to distribute in excess

of 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 846. Rodriguez-

Moreno argues that his conviction was barred by the double jeopardy clause of

the Fifth Amendment and that the doctrine of collateral estoppel barred the

government from presenting evidence of his prior acts. We exercise jurisdiction



      *
        This order and judgment is not binding precedent, except under the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. 36.3.
pursuant to 28 U.S.C. § 1291 and affirm.

                                         I.

The Texas indictment and trial

      On June 2, 1997, Rodriguez-Moreno was charged in Texas federal district

court with conspiracy to knowingly and intentionally possess with intent to

distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C.

§ 846, and with knowingly and intentionally possessing with intent to distribute

more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 841, for the

period of April 15, 1997, to May 13, 1997. Mario Garcia-Saldivar, Nasario

Castillo-Salazar, Jose Peralez-Munoz, Juan Castaneda-Mendoza, Arturo Vega

Trejo, and Carlos Alfonso Cabrera were also charged. The complaint was based

on the storage of marijuana at H&S Ropa Usada, a secondhand clothing store in

McAllen, Texas. In July 1997, a jury acquitted Rodriguez-Moreno of all charges.

      The trial testimony established that in April 1997, Anthony Dominguez, a

special agent with the United States Drug Enforcement Administration (DEA) in

McAllen, received information from a confidential informant that marijuana was

being stored at Ropa Usada. On the evening of April 30, 1997, Dominguez and

other agents went to the store and Hector Salinas, Sr., the owner, consented to a

search of the store. The agents found 263 pounds of marijuana in a living area in

the back of the building and arrested Salinas and his son, Hector Salinas, Jr.


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Both Salinas Sr. and Salinas Jr. agreed to cooperate with the agents and they

were released the next morning.

      On May 1, 1997, Salinas Sr. asked the agents to return to the store because

there were some boxes that he suspected contained marijuana. The agents found

the boxes contained 1581.5 pounds of marijuana. A few days later, Salinas Sr.

made a DEA-monitored telephone call to Garcia-Saldivar to discuss delivery of

the marijuana. On May 13, 1997, Salinas Sr. told Garcia-Saldivar that he did not

have a way to transport the marijuana. Salinas Sr. went to a convenience store to

meet Garcia-Saldivar and left the store with Garcia-Saldivar’s brother. They

went to a ranch owned by Garcia-Saldivar, and Salinas Sr. was provided a vehicle

to transport the marijuana. Salinas Sr. drove the truck to the McAllen DEA

office, where agents loaded it with 400 pounds of marijuana. After the truck was

loaded, Salinas Sr. drove it to the Wonder Burger to meet Rodriguez-Moreno.

The truck then was driven by Cabrera from the Wonder Burger to the Central de

Abastos, a produce terminal, where Cabrera was arrested, along with Trejo,

Castillo-Salazar, and Peralez-Munoz. Rodriguez-Moreno was arrested at the

Wonder Burger.

      DEA agents went to Ropa Usada later that evening after receiving

information that another load of marijuana was to be delivered and found 1,127

pounds of marijuana in a pickup parked outside the store. Keys to the truck were


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found in the possession of Castaneda-Mendoza.



The Oklahoma indictment and trial

      On February 5, 1999, Rodriguez-Moreno, Garcia-Saldivar, Cruz Herrera,

Ruben Torres, and Arturo Chapa, were charged in Oklahoma federal court in a

fourth superseding indictment with conspiracy to possess with intent to distribute

in excess of 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 846. The

indictment charged that from May 1996 to April 29, 1997, Garcia-Saldivar

operated an international marijuana smuggling operation based in McAllen,

Texas, and communicated with co-conspirators to transport the marijuana out of

state to Atlanta, Georgia; Chicago, Illinois; and Tulsa, Oklahoma. Rodriguez-

Moreno moved to dismiss the indictment on double jeopardy grounds, which was

denied. On February 18, 1999, a jury convicted Rodriguez-Moreno of

conspiracy, and Rodriguez-Moreno was sentenced to 240 months of

imprisonment and ten years of supervised release.

      The evidence presented at trial established that Rogelio Escalona, who

worked at Garcia’s Upholstery in McAllen, was involved in the transportation of

marijuana. Terrall Raper owned Fletcher Trucking Company in Tulsa,

Oklahoma, and provided Escalona with the trucks to transport the marijuana. In

the spring or summer of 1996, Rodriguez-Moreno went to Escalona’s home in


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McAllen to arrange to move marijuana upstate for Garcia-Saldivar. Escalona met

with Rodriguez-Moreno and Garcia-Saldivar three weeks to a month later to

discuss transportation. In January or February 1997, Rodriguez-Moreno and

Escalona arranged transportation of 1,000 pounds of marijuana to Atlanta,

Georgia. Escalona did not know the origination of the marijuana, but knew that

Rodriguez-Moreno and another individual delivered it to Roy Garza’s home in a

McAllen suburb. Escalona, Herrera, and Garza loaded the marijuana onto a truck

at Garza’s house and the truck was driven to Straightways Trucking Company.

The marijuana was then loaded onto Mike Canfield’s truck from Fletcher

Trucking and was delivered to Atlanta.

      In March or April 1997, Rodriguez-Moreno and Escalona arranged the

transportation of 2,200 pounds of marijuana to Chicago, Illinois. Escalona did

not know the origination of the marijuana, but it was loaded onto Canfield’s

Fletcher truck at Ropa Usada, and was transported by George Pettigrew to

Chicago. Escalona, Garcia-Saldivar, Pettigrew, Herrera, Salinas Sr., Salinas Jr.,

and others were present during the loading.

      In April 1997, Chapa drove a Fletcher truck to an empty lot in McAllen

where the truck was loaded with 2,500 pounds of marijuana destined for Tulsa,

Oklahoma. Pettigrew was again the driver of the truck. Canfield took possession

of the truck from Pettigrew between Oklahoma City and Tulsa, and was arrested


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while driving the truck to Tulsa.



                                            II.

Double jeopardy

      Rodriguez-Moreno argues the Oklahoma prosecution against him was

barred by the double jeopardy clause of the Fifth Amendment. “We review the

factual findings underlying the defendant’s double jeopardy claim for clear

error.” United States v. Rodriguez-Aguirre        , 73 F.3d 1023, 1024-25 (10th Cir.

1996). “The district court’s ultimate determination regarding double jeopardy is,

however, a question of law we review de novo.”         Id. at 1025.

      The double jeopardy clause protects against “‘successive punishments and

[] successive prosecutions for the same criminal offense.’”       United States v.

Mintz , 16 F.3d 1101, 1104 (10th Cir. 1994) (quoting       United States v. Dixon , 509

U.S. 688, 696 (1993)). “[I]f two charges of conspiracy are in fact based on a

defendant’s participation in a single conspiracy, the former jeopardy clause bars

the second prosecution.”    United States v. Daniels , 857 F.2d 1392, 1393 (10th

Cir. 1988). Rodriguez-Moreno has the burden of proving double jeopardy

applies and “must prove ‘in fact and in law’ that only one conspiracy existed in

order to prevail on [his] double jeopardy claim.”       Mintz , 16 F.3d at 1104

(quoting Daniels , 857 F.2d at 1394).


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       Rodriguez-Moreno asks this court to apply a totality of the circumstances

test to his claim of double jeopardy. However, this circuit continues to follow

the “same evidence” test set forth in    Blockburger v. United States , 284 U.S. 299

(1932), to determine whether two conspiracy prosecutions violate the double

jeopardy clause.   Mintz , 16 F.3d at 1104. “We are bound by the precedents of

prior panels [of this court] absent en banc reconsideration or a superseding

contrary decision by the Supreme Court.”          United States v. Jones , 194 F.3d 1178,

1186 (10th Cir. 1999).

       The Blockburger “same evidence” test “provides that offenses charged are

identical in law and fact only if the facts alleged in one would sustain a

conviction if offered in support of the other.”       Mintz , 16 F.3d at 1104 (internal

quotation omitted). The district court applied the “same evidence” test in

concluding that the Oklahoma prosecution was not barred by double jeopardy:

       Although two of the witnesses in the McAllen, Texas trial would
       most likely be called by the prosecution in the Oklahoma case, this is
       where the commonality among the evidence ends. The Oklahoma
       indictment alleges overt acts which were not alleged in the Texas
       indictment, and it does not appear to this Court that evidence
       introduced to support the allegations in Texas would suffice to
       support the Oklahoma charges. Thus, without deciding whether
       there existed one or two conspiracies, it is clear that the same
       evidence would not be sufficient to support both inquiries.

Appellant’s App. I at 93.

       “In a double jeopardy analysis involving conspiracies, the court must


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determine whether the two transactions were interdependent and whether the

Defendants were united in a common unlawful goal or purpose.”         Mintz , 16 F.3d

at 1104 (internal quotation omitted   ). “[I]nterdependence involves a

determination of whether the activities of [the] alleged co-conspirators in one

aspect of the charged scheme were necessary or advantageous to the success of

the activities of co-conspirators in another aspect of the charged scheme, or the

success of the venture as a whole.”    United States v. Sasser , 974 F.2d 1544, 1550

(10th Cir. 1992) (internal quotation omitted       ). Rodriguez-Moreno has not shown

that the Texas conspiracy and the Oklahoma conspiracy were interdependent.

      In concluding that the Texas and Oklahoma conspiracies were not

interdependent and therefore did not violate double jeopardy, the district court

stated:

              The evidence introduced in this case indicates that the actors
      working to perpetuate the conspiracies had no information as to what
      was transpiring beyond their own criminal objective. Even law
      enforcement officials in both Texas and Oklahoma claimed to have
      little or no knowledge of related criminal activity occurring outside
      their respective jurisdictions. No evidence was presented in the
      Texas trial to indicate that the defendants were running a drug
      conspiracy which was intended to culminate with a mass distribution
      scheme which would stretch across the United States into Oklahoma,
      Illinois, and Georgia. The very DEA agent working on bringing
      down the Texas conspiracy testified in the hearing on this issue that
      he had no knowledge of facts surrounding the Oklahoma distribution
      conspiracy, or of the role of the Fletcher Trucking Company in
      carrying out the distribution. The DEA agent testified that the Texas
      investigation focused solely on events occurring in McAllen, Texas.
      Though he believed the marijuana stored at the HS Ropa Usada was

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      being prepared for distribution because of the massive quantities
      involved, at the time of the Texas indictment he had received no
      information regarding a nationwide distribution scheme.
             While it may be true that the overlap in the two indictments
      indicates that the Oklahoma case encompasses elements of the Texas
      case, the conspiracies were not interdependent. Although both
      conspiracies to some extent functioned within the city of McAllen,
      Texas, the conspiracy alleged in the Oklahoma indictment is of
      massive proportions, detailing a distribution ring reaching across the
      United States and involving larger quantities of marijuana than were
      at issue in the Texas case. The actors in the two conspiracies did not
      know of one another’s existence or identity, and there were only two
      defendants in common between the two cases, one of whom was
      alleged to be the mastermind of both conspiracies. This Court finds
      that the two conspiracies, though related, were separate and distinct,
      and the prosecution of the Defendant in the Northern District of
      Oklahoma does not violate his 5th Amendment right against double
      jeopardy.

Appellant’s App. I. at 98-99.

      Rodriguez-Moreno asserts that “[i]n the [Oklahoma] indictment and

prosecution, the government alleged and showed no conduct by [Rodriguez-

Moreno] that ‘had not been completed at the time he was indicted in’ Texas.”

Appellant’s Br. at 40. However, the evidence does not show that the conspiracies

were interrelated. The alleged Texas conspiracy involved the storage and

planned transportation of marijuana from Ropa Usada, with no evidence of

planned nationwide transport. The Oklahoma conspiracy involved a different set

of participants and the transportation of marijuana out of state. The fact that

Ropa Usada was used in both conspiracies does not establish an interdependence

between the conspiracies. Based on the record before us, we agree with the

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district court’s analysis and conclude that the Oklahoma prosecution was not

barred by double jeopardy.



Collateral Estoppel

       Rodriguez-Moreno argues that the doctrine of collateral estoppel barred the

government from presenting evidence of the Texas conspiracy at his Oklahoma

trial. The district court allowed Dominguez and Cabrera to testify about

Rodriguez-Moreno’s acts in Texas to show his state of mind, pursuant to Federal

Rule of Evidence 404(b). The record does not indicate that Rodriguez-Moreno

objected to the testimony at trial. A party must object timely and properly to

preserve an alleged error for appeal.      United States v. Herndon , 982 F.2d 1411,

1414 (10th Cir. 1992). Failure to so object “constitutes waiver of the issue

unless there is plain error resulting in manifest injustice.”    Id. at 1414-15. We

conclude that the district court’s admission of the evidence was not plain error.

       “The federal doctrine of collateral estoppel stands for the principle that

‘when an issue of ultimate fact has once been determined by a valid and final

judgment, that issue cannot again be litigated between the same parties in any

future lawsuit.’”   United States v. Gallardo-Mendez       , 150 F.3d 1240, 1242 (10th

Cir. 1998) (quoting Ashe v. Swenson , 397 U.S. 436, 443 (1970)). A prior

acquittal does not bar the government from presenting evidence of that conduct at


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a later trial under Rule 404(b). Rule 404(b) provides that similar act evidence is

relevant if the jury can reasonably conclude that the act occurred and that the

defendant was the actor.     Dowling v. United States , 493 U.S. 342, 348 (1990).

As the Supreme Court has noted, a second jury might            reasonably conclude that

the evidence is true, even if the first jury did not believe     beyond a reasonable

doubt that the defendant committed the crimes charged.           See id. at 348-49. Even

if the Texas jury did not find the evidence proved beyond a reasonable doubt that

Rodriguez-Moreno was involved in the alleged conspiracy, that finding does not

prevent a second jury from reasonably concluding that the evidence showed

Rodriguez-Moreno was involved. The doctrine of collateral estoppel did not bar

the government from presenting evidence of the Texas acts in the Oklahoma trial

to show Rodriguez-Moreno’s state of mind under Rule 404(b).

       Rodriguez-Moreno’s conviction is AFFIRMED.

                                            Entered for the Court

                                            Mary Beck Briscoe
                                            Circuit Judge




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