               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0100n.06

                                       Case No. 15-5874

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                              Feb 08, 2017
UNITED STATES OF AMERICA,                          )                      DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE EASTERN DISTRICT OF
JOSE ALBERTO LARA,                                 )       KENTUCKY
                                                   )
       Defendant-Appellee.                         )


       BEFORE: ROGERS, SUTTON, and COOK, Circuit Judges.

       COOK, Circuit Judge. A jury convicted Jose Lara of various crimes arising from a drug-

trafficking operation that straddled the Kentucky-Ohio border. Lara appeals his conviction and

sentence. We AFFIRM in part and HOLD IN ABEYANCE in part.

                                        I. Background

       The drug-trafficking venture began in mid-2012 from a warehouse in Florence,

Kentucky, where 100 to 200 pounds of marijuana arrived weekly. Sometimes, Alberto Lara-

Chavez, the leader of the drug operation (and Lara’s father), drove to Oklahoma to haul the

marijuana to the warehouse. Other times, Lara-Chavez’s contacts in Texas mailed marijuana-

filled boxes to local Kentucky addresses where his associates would retrieve them. On several

occasions, Lara arranged for drivers to transport marijuana from California.
Case No. 15-5874, United States v. Lara


          Every time a shipment arrived, Lara-Chavez’s coconspirators divided, repackaged, and

then sold the marijuana.     Both Lara and Lara-Chavez participated in varying ways.         Lara

processed drugs, accompanied coconspirators on sales and deliveries, and recruited individuals

to transport marijuana.     Lara-Chavez recruited coconspirators, arranged major deals, and

organized others to perform essential tasks such as guarding the drugs at the warehouse.

          In February 2013, Lara-Chavez expanded into the heroin business, turning a house in

nearby Warsaw, Kentucky into the base for the expansion. The Warsaw house’s workflow

mimicked that of the Florence warehouse, with heroin from Mexico arriving in bulk a few times

per month, and Lara-Chavez’s heroin team—which included individuals from his marijuana

team—repackaging the heroin into tiny balloons for its customers. Several of the heroin team

members lived at the Warsaw house to protect the drugs, while others occupied a nearby

apartment—an annex where they also stored and sold drugs.

          In contrast to Lara-Chavez’s hands-on management of the heroin trafficking, Lara’s

limited involvement consisted of being present at one heroin deal and allowing a coconspirator to

transport heroin in a car registered to his name. Regardless, Lara continued to help import and

distribute marijuana even after he learned that the conspiracy had expanded into the heroin trade.

          In the third extension of his trafficking enterprise, Lara-Chavez rented a house in

Sardinia, Ohio, a rural town north of the Kentucky border. In addition to using the property for

the storage and sale of drugs, Lara-Chavez’s coconspirators cultivated a marijuana field.

Throughout this time, Lara-Chavez and his coconspirators continued processing and selling

heroin.




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        Within a year of renting the Sardinia house, federal agents conducted a sting operation

that nabbed sixteen conspiracy members. Three defendants chose not to plead guilty, including

Lara.

        Following an eight-day trial, the jury convicted Lara of conspiring to distribute marijuana

(21 U.S.C. § 846). The district court sentenced Lara to 60 months of imprisonment. It also held

him jointly-and-severally liable, along with his co-defendants, for all proceeds derived from the

drug-trafficking. Lara timely appealed his conviction and sentence.

                                    II. Prejudicial Variance

        Lara argues that the government created a prejudicial variance when it charged a single

drug conspiracy in the indictment, but presented evidence at trial that sufficed to prove two

separate conspiracies: one for marijuana and one for heroin. We disagree and affirm because the

government provided enough evidence for a rational jury to find an overarching drug-trafficking

conspiracy.

        We review a variance claim raised at trial de novo. United States v. Caver, 470 F.3d 220,

235 (6th Cir. 2006) (citing United States v. Solorio, 337 F.3d 580, 589 (6th Cir. 2003)).

        To succeed on his claim, Lara must show that a variance occurred and that the variance

prejudiced his case. Caver, 470 F.3d at 235–37. In the conspiracy context, a variance occurs

when “an indictment alleges one conspiracy, but the evidence can reasonably be construed only

as supporting a finding of multiple conspiracies.” United States v. Warner, 690 F.2d 545, 548

(6th Cir. 1982) (emphasis added). We test for a variance by construing the evidence “in the light

most favorable to the government” and then assessing whether a rational trier of fact could find

that each defendant “had knowledge of and agreed to participate in a single, overarching

conspiracy.” United States v. Smith, 320 F.3d 647, 652 (6th Cir. 2003). This court considers



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three factors to determine whether a single conspiracy exists: (1) “the overlapping of the

participants in various dealings,” (2) “the nature of the scheme,” and (3) “the existence of a

common goal.” Id. Only if we find a variance do we then measure the degree of prejudice—that

is, the extent to which a jury improperly imputes the conspiratorial activities of a codefendant to

the defendant, or otherwise becomes confused about which defendant participated in which

conspiracy, United States v. Gallo, 763 F.2d 1504, 1526 (6th Cir. 1985)—by evaluating whether

“the error of trying multiple conspiracies under a single indictment substantially influenced the

outcome of the trial.” Caver, 470 F.3d at 237 (citing Kotteakos v. United States, 328 U.S. 750,

765 (1956)).

         On all three variance factors, the government provided ample evidence to support a

rational juror’s finding of a single, overarching conspiracy.     For the overlapping-personnel

factor, trial testimony showed at least five core personnel playing a substantial role in the

processing, sale, or transportation of both marijuana and heroin. In one example, a conspirator

who repackaged and peddled heroin from the drug house in Warsaw, Kentucky later tended the

marijuana field in Sardinia, Ohio. Another coconspirator who traveled to California to pick up

marijuana seeds also sold heroin. Several of the overlapping coconspirators also socialized and

lived in dwellings that stored both drugs. See Smith, 320 F.3d at 653 (citing evidence that

coconspirators spent recreational time together as proof of a single overarching conspiracy).

         As to the nature of the scheme, the record suggests that the coconspirators blended the

marijuana operation with the heroin operation. The all-cash rent payments for the Warsaw house

(where the bulk of the heroin processing took place) likely came from the proceeds of marijuana

sales.   The coconspirators stashed both drugs at multiple residences and, in one instance,

attempted to settle marijuana debts by exchanging heroin. The same personnel who sold or



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Case No. 15-5874, United States v. Lara


processed marijuana oftentimes sold or processed heroin. Several customers purchased both

drugs from Lara-Chavez’s sellers.

       Finally, the conspiracy’s collective actions reveal a common goal of profiting from the

underground drug market in northern Kentucky.         That the group began offering heroin to

accommodate their customers’ changing tastes does not undermine the existence of a single

conspiracy. See United States v. Olea-Coronado, 391 F. App’x 508, 509–10 (6th Cir. 2010); see

also United States v. Wilson, 168 F.3d 916, 924 (6th Cir. 1999).

       Lara characterizes his roles in the heroin conspiracy as de minimis. This argument fails,

too. “Once the existence of the conspiracy is proven, only slight evidence is necessary to

connect a defendant with the conspiracy.” United States v. Hitow, 889 F.2d 1573, 1577 (6th Cir.

1989). Moreover, a defendant need not participate in all parts or know all other conspirators to

be members of the conspiracy. United States v. Castaneda, 315 F. App’x 564, 567 (6th Cir.

2009) (citing Warner, 690 F.2d at 549); United States v. Shermetaro, 625 F.2d 104, 108–09 (6th

Cir. 1980). Here, Lara continued to send marijuana from California and recruit drivers to

transport the marijuana to Ohio after he learned about the heroin operation. His knowledge of

heroin sales, combined with his sustained involvement in the drug-trafficking scheme despite

that knowledge, provided a rational jury with sufficient evidence to infer that he participated in

the conspiracy with full knowledge of its scope.

       Finally, Lara attempts to minimize his overall role in the conspiracy by downplaying his

involvement in the marijuana operation. But Lara processed marijuana at the Warsaw warehouse

on multiple occasions, accompanied Lara-Chavez to marijuana transactions, delivered $24,000 in

drug money, and helped arrange the movement of marijuana from California. This evidence

refutes Lara’s argument.



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       Because we find no variance—and thus no possibility that the guilt of his coconspirators

or activities of a separate conspiracy improperly influenced the conviction of Lara—we do not

address the question of whether a variance prejudiced the trial outcome.

                               III. Money-Forfeiture Challenge

       Lara argues that the district court had discretion to hold him accountable solely for the

forfeiture proceeds from his personal participation in the drug-trafficking rather than all the ill-

gotten gains of his coconspirators. Because our decision turns on precedent for which the

Supreme Court has recently granted certiorari, we hold Lara’s challenge in abeyance pending

resolution of the issue.

       “We review the interpretation of federal forfeiture laws de novo.” United States v.

Hampton, 732 F.3d 687, 690 (6th Cir. 2013) (citing United States v. Warshak, 631 F.3d 266, 331

(6th Cir. 2010)). Under the applicable forfeiture statute, 21 U.S.C. § 853, a defendant convicted

of a drug offense “shall forfeit to the United States,” among other things, “any property

constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the

result of such violation.” Id. § 853(a). Where the government cannot trace the illegal proceeds

to specific assets, id., or identify substitute property purchased with the illegal proceeds, id. §

853(p), it may seek a personal money judgment against defendants in the amount the defendants

received from their illegal activities.     Hampton, 732 F.3d at 691–92; United States v.

Abdelsalam, 311 F. App’x 832, 847 (6th Cir. 2009). The government may obtain a forfeiture

order even if the defendant does not possess the assets at the time of sentencing. Hampton,

732 F.3d at 692 (citing United States v. Hall, 434 F.3d 42, 59 (6th Cir. 2005)).

       At Lara’s sentencing, the district court ordered a forfeiture judgment against Lara in the

form of a $162,211 money judgment. This amount represented the money deposited in Lara-



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Chavez’s bank accounts over the course of the drug conspiracy less cash discovered during a raid

of Lara-Chavez’s residence. Although the district court expressed concern about holding Lara

jointly-and-severally liable for the entire conspiracy’s ill-gotten gains, the district court

acknowledged that the statutory language and our precedent afforded it no discretion to reduce

Lara’s liability.

        Lara argues that because § 853 expressly mandates only two forms of forfeiture—direct

proceeds or substitute property—the “shall” language of the statute applies only to those two

forms of forfeiture and not to case-law-created money-judgment forfeitures. As a result, Lara

maintains that the district court had discretion to reduce or not order the money judgment.

        Lara’s attempt to decouple the “shall” language of § 853 from money judgment forfeiture

runs headlong into our precedent. This court held in United States v. Honeycutt, 816 F.3d 362

(6th Cir. 2016), that “§ 853 mandates joint and several liability among coconspirators for the

proceeds of a drug conspiracy.” Id. at 379 (citations omitted); see also Abdelsalam, 311 F.

App’x at 847 (holding that a court’s power to assess forfeiture-money judgments for a drug

offense derives directly from § 853(p)); Hampton, 732 F.3d at 691 (collecting cases that hold

similarly).

        Our decision in Honeycutt, however, may not be the last word. In December of 2016, the

Supreme Court granted certiorari on the very question of whether “§ 853(a)(1) mandate[s] join-

and-several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds

of a drug conspiracy[.]” United States v. Honeycutt, 816 F.3d 362 (6th Cir. 2016), petition for

cert. filed, 2016 WL 4088374 (July 29, 2016) (No. 16-142); United States v. Honeycutt, 816 F.3d

362 (6th Cir. 2016), cert. granted, 2016 WL 4078900 (Dec. 9, 2016) (No. 16-142). Should the

Court reverse our holding in Honeycutt, Lara may receive a reduced money-forfeiture judgment.



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We therefore hold in abeyance his challenge to the forfeiture order pending issuance of the

Supreme Court’s decision.

                                       IV. Conclusion

       For these reasons, we uphold the district court’s judgment, including Lara’s sentence of

60 months’ incarceration, but withhold any opinion as to the forfeiture order pending a decision

by the Supreme Court in Honeycutt. No mandate will issue at this time, and Lara’s appeal will

be HELD IN ABEYANCE until after the Supreme Court’s ruling in Honeycutt.




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