     Case: 11-50188     Document: 00511910757         Page: 1     Date Filed: 07/05/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                            July 5, 2012

                                       No. 11-50188                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JEREMIAS SANTIAGO HERNANDEZ, also known as Jeremias Hernandez;
ROBBIE PADILLA,

                                                  Defendants-Appellants



                  Appeals from the United States District Court
                        for the Western District of Texas
                                  (09-CR-216)


Before REAVLEY, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
        Jeremias Hernandez and Robbie Padilla appeal their convictions for
conspiracy to distribute at least 500 grams of methamphetamine and five
kilograms of cocaine and conspiracy to commit money laundering. For the
following reasons, we AFFIRM.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-50188

                    FACTS AND PROCEDURAL HISTORY
      Law enforcement began investigating the subject drug and money
laundering conspiracies in March of 2006.           During the course of the
investigation,   authorities   discovered    that   Albert   Ruiz   was   selling
methamphetamine and cocaine. Ruiz received his drugs from various people,
including Jose Molina, Rolondo [or Roland] Robles, and Luis Santana. Ruiz
employed Juan Gabriel Zavala to assist with the distribution of the drugs. Ruiz,
Zavala, Robles, and Molina supplied Jeremias Santiago Hernandez and Robbie
Padilla with drugs. Hernandez and Padilla then sold the drugs to various
individuals, including Joe Nabejar. The coconspirators used the proceeds from
the drug sales to operate businesses selling homes, cars and ice cream.
      As a result of the investigation, Hernandez and Padilla were charged by
superseding indictment on June 8, 2010, with Count One of conspiracy to
distribute at least 500 grams of methamphetamine and conspiracy to distribute
at least 5 kilograms of cocaine and Count Two of conspiracy to commit money
laundering. The case proceeded to trial and a jury found Hernandez and Padilla
guilty of both charges on November 12, 2010. Each defendant was sentenced on
Count One to imprisonment for life with five years of supervised release. On
Count Two, each defendant was sentenced to 240 months imprisonment to run
concurrently, and three years of supervised release.
                          STANDARD OF REVIEW
      The denial of a motion for judgment of acquittal is reviewed de novo.
United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003). This Court will uphold
a jury verdict if a rational trier of fact could conclude that the elements of the
offense were established beyond a reasonable doubt. United States v. Sacerio,
952 F.2d 860, 863 (5th Cir. 1992). The Government must prove the defendant
guilty beyond a reasonable doubt, not merely that he could have been guilty. Id.
Although some of the circumstances may be suspicious, mere suspicion cannot

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support a verdict of guilty. Id. This Court does "not weigh evidence or assess
the credibility of witnesses, and the jury is free to choose among reasonable
constructions of the evidence." United States v. Ramos-Cardenas, 524 F.3d 600,
605 (5th Cir. 2008).
      However, when a defendant fails to renew his motion for acquittal at the
close of all evidence, plain error is the standard of review for a sufficiency
challenge. In the instant case, Hernandez and Padilla both moved for judgment
of acquittal at the close of the Government’s case. Hernandez did not put on any
evidence after the Government rested.          Padilla called one witness, Julie
Patterson, who was cross examined by counsel for Hernandez and counsel for the
Government. Hernandez and Padilla then both rested without renewing their
motions for acquittal. The government asserts that plain error is, therefore, the
applicable standard of review. Hernandez asserts that because he asserted his
motion for acquittal at the close of the Government’s case and did not put on any
evidence after that, then the standard of review is de novo. Padilla merely
asserts a de novo standard of review.
      While a de novo review for Hernandez and a plain error review for Padilla
may seem appropriate, it is not necessary to decide this issue because the
evidence was sufficient under either standard.
                                 DISCUSSION
I. Whether the evidence was sufficient to support appellants’
convictions for conspiracy to distribute 5 kilograms of cocaine and
whether the resulting verdicts were ambiguous.
      Hernandez and Padilla admit to involvement in a cocaine conspiracy, but
assert that the evidence at trial only proved a cocaine conspiracy in a lesser
amount than 5 kilograms and that the lesser amount brought it within 21 U.S.C.
section 841(b)(1)(C), which provides a maximum punishment of twenty years in
prison. Further, they assert that, as a result of the insufficiency of the evidence,


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                                  No. 11-50188

the jury verdict is ambiguous and they should be resentenced within the twenty-
year maximum.
      Hernandez and Padilla admit that a “single drug conspiracy conviction
with multiple objectives (the distribution of more than one drug) will be upheld
on appeal so long as the evidence permitted the jury to find that the defendant
conspired to commit at least one of the objectives.” (both citing United States v.
Dale, 178 F.3d 429, 431-32 (6th Cir. 1999)). Hernandez and Padilla further
admit that the count one “drug conspiracy jury verdict was not ambiguous on its
face,” but has been “rendered ambiguous” by the insufficiency of the evidence.
      The Government asserts that the evidence was sufficient to sustain the
convictions of Hernandez and Padilla for conspiracy to distribute at least five
kilograms of cocaine because two coconspirators admitted to distributing
kilogram quantities of cocaine and one testified about smuggling at least
thirteen kilograms.
            In order to prove conspiracy to distribute cocaine, the
      Government must prove: (1) the existence of an agreement between
      two or more persons; (2) the defendant's knowledge of the
      agreement; and (3) the defendant's voluntary participation in the
      conspiracy. It is not enough that the defendant merely associated
      with those participating in a conspiracy, nor is it enough that the
      evidence places the defendant in a climate of activity that reeks of
      something foul.

Sacerio, 952 F.2d at 863 (internal citations and marks omitted). Under Apprendi
v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the
Government must also prove a fourth factor, that the overall scope of the
conspiracy involved at least five kilograms of cocaine. See United States v.
Turner, 319 F.3d 716, 721-22 (5th Cir. 2003). See also United States v. Jimenez,
509 F.3d 682, 689 (5th Cir. 2007). The Government must prove each element,
including drug quantity, beyond a reasonable doubt, but does not have to prove



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                                   No. 11-50188

that the quantity was attributable to the appellants individually. Turner, 319
F.3d at 722.
      Zavala testified that he was in the drug business with Hernandez and
Padilla, and that he was involved in trafficking both methamphetamine and
cocaine. Zavala also testified that he got caught transporting ten bricks of
methamphetamine and thirty bricks of cocaine from Mexico for Luis Santana,
a co-defendant of Hernandez and Padilla.1 Zavala could not remember whether
these particular bricks were each one pound or one kilogram. Either way, the
minimum        quantity   would   be   more   than    13   kilograms    of   cocaine.
Notwithstanding that Zavala’s testimony alone is sufficient to establish evidence
of more than five kilograms, Nabejar also testified that he purchased cocaine
from Padilla on one occasion. Further, Ruiz testified that he purchased and
distributed both methamphetamine and cocaine.
      The evidence was sufficient to support Hernandez’s and Padilla’s
convictions for conspiracy to distribute more than five kilograms of cocaine.
Further, the jury verdict was not ambiguous.
II. Whether the evidence was sufficient to support Hernandez’s
conviction for conspiracy to commit money laundering.

      Hernandez argues that none of the seven events introduced by the
Government as evidence of a money laundering conspiracy passes legal scrutiny
and that the Government failed to prove this count.
      The Government asserts that the evidence was constitutionally sufficient
to sustain Hernandez’s conviction of conspiracy to commit money laundering and
that Hernandez’s conviction does not constitute a manifest miscarriage of justice.




      1
        Hernandez and Padilla attempt to place Zavala’s arrest outside the time of the
conspiracy. However, the record supports the proposition that this occurred while the
conspiracy was still ongoing.

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                                  No. 11-50188

      To establish conspiracy to commit money laundering, the
      government must prove (1) that there was an agreement between
      two or more persons to commit money laundering and (2) that the
      defendant joined the agreement knowing its purpose and with the
      intent to further the illegal purpose. Direct evidence of a conspiracy
      is unnecessary; each element may be inferred from circumstantial
      evidence. An agreement may be inferred from a ‘concert of action.’
      The government need not prove an overt act in furtherance of the
      conspiracy.

United States v. Fuchs, 467 F.3d 889, 906 (5th cir. 2006) (internal marks and
citations omitted).
      In the instant case, the conspiracy involved the offenses of promotional
money laundering under 18 U.S.C. section 1956(a)(1)(A)(i) and concealment
money laundering under 18 U.S.C. section 1956(a)(1)(B)(i)
      Hernandez basically argues that he did not individually purchase any
homes or cars or in any other way engage in money laundering.              As the
Government pointed out during trial, this is a conspiracy charge and Hernandez
only had to be part of the conspiracy.
      The record establishes evidence of cash payments being made to
coconspirators. Hernandez assisted Padilla in giving money to Ruiz for drugs.
Members of the conspiracy testified and admitted laundering money by
purchasing cars, real estate, and operating an ice cream business.
      There was evidence that Hernandez posted $100,000 bond using drug
proceeds to get Padilla released from jail. Other Circuits have found the posting
of bond to be a sufficient financial transaction for money laundering purposes.
See United States v. France, 164 F.3d 203, 208 (4th Cir. 1998); United States v.
Laurenzana, 113 F.3d 689, 792 (7th Cir. 1997).
      There was evidence that Hernandez and Padilla opened a safe deposit box
together at the Dallas Telco Federal Credit Union. A bank officer saw Padilla
with a bag containing bundles of cash and both men were seen accessing the box


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                                  No. 11-50188

at different times. The use of a safe deposit box qualifies as a transaction under
the money laundering statute. 18 U.S.C. § 1956(c)(3). Further, other Circuits
have found this evidence sufficient. See United States v. Bowman, 235 F.3d
1113, 1116 (8th Cir. 2000); and United States v. Stephenson, 183 F.3d 110, 120
(2nd Cir. 1999).
      Hernandez’s argument that the Government did not prove that the money
laundering had an effect on interstate commerce is likewise without merit. The
record contains evidence that the drugs came from Mexico and were distributed
into other states. Further, the other actions alleged have been found to affect
interstate commerce. See United States v. Westbrook, 119 F.3d 1176, 1191-92
(5th Cir. 1997).
      Accordingly, Hernandez has failed to establish plain error and the
evidence was sufficient to support his conviction for conspiracy to commit money
laundering.
III.  Whether the district court committed reversible error by
instructing the jury that conspiracy to commit money laundering
required proof of an overt act.

      Hernandez raises this for the first time on appeal. Therefore, this court
reviews it for plain error. United States v. Crow, 164 F.3d 229, 235 (5th Cir.
1999). For an error to be plain, it must be obvious under current law, affect a
substantial right and result in prejudice to the defendant. Id.
      A conviction for conspiracy to commit money laundering under 18 U.S.C.
§ 1956(h) does not require proof of an overt act in furtherance of the conspiracy.
However, the district court instructed the jury, in relevant part:
      That one of the conspirators during the existence of the conspiracy
      knowingly committed at least one of the overt acts described in
      Count Two of the indictment in order to accomplish some object or
      purpose of the conspiracy. While you need only find that one of the
      overt acts was committed, in order to have a unanimous verdict you


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                                  No. 11-50188

      must all agree as to which, whether one or more, of the overt acts
      was committed.

      Hernandez asserts that the district court plainly erred by misstating the
law by instructing the jury that conspiracy to commit money laundering required
proof of an overt act. The Government asserts that the district court did not
plainly err because it explicitly instructed the jury that it must find each
element beyond a reasonable doubt. (R. 221). Further, the Government asserts
that the “overt act” element was merely surplusage, actually increased the
Government’s burden, and is harmless. See United States v. Alerre, 430 F.3d
681, 694-95 (4th Cir. 2005); United States v. LaBudda, 882 F.2d 244, 249 (7th
Cir. 1989); and United States v. Wilson, 657 F.2d 755, 763 (5th Cir. 1981).
      Because the effect of the error, if any, was to increase the Government’s
burden, any such error did not affect Hernandez’s substantial rights.
Accordingly, Hernandez fails to establish plain error.
IV. Whether Padilla’s Sixth Amendment right to confront witnesses was
violated by allowing Monica Lopez to testify.

      Confrontation Clause violations are reviewed de novo, but are subject to
harmless error analysis. United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004).
      Padilla asserts that the testimony of Monica Lopez, drug laboratory
supervisor of Southwestern Institute of Forensic Sciences, that Government
Exhibit 15 contained 1.7 grams of methamphetamine and Exhibit 16 contained
46.9 grams of methamphetamine, violated his right of confrontation because
Lopez did not perform the analysis.         Lopez based her testimony on data
generated at the time of the analysis as well as the notes and calculations of the
two absent analysts. Padilla objected on the basis of hearsay and lack of
confrontation.




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                                      No. 11-50188

       The Government correctly asserts that because Padilla’s objection was
untimely, as Lopez had already testified that the two substances at issue
contained methamphetamine, the review is for plain error only. United States
v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007). However, the Government asserts
that the testimony of Lopez did not violate Padilla’s Sixth Amendment right of
confrontation under either plain error or de novo review. Alternatively, the
Government asserts that the admission of the testimony was harmless.
       Specifically, the Government asserts that:
       Lopez’s testimony concerned a report not admitted into evidence;
       she was a supervisor; she relied on the underlying report in forming
       an expert opinion; and the underlying report included machine-
       generated data from a gas chromatographer. As such Lopez
       testified from her own personal knowledge and was available for
       cross-examination. For these reasons, the introduction of Lopez’s
       testimony did not violate the Confrontation Clause.2

       We agree that the testimony of Lopez did not violate Padilla’s Sixth
Amendment right of confrontation.
       Further, as alternatively asserted by the Government, the admission was
harmless. Lopez’s testimony concerned less than 50 grams of methamphetamine,
while the jury convicted Padilla of conspiracy to distribute more than 500 grams
of methamphetamine and five kilograms of cocaine. Padilla does not challenge
the sufficiency of the evidence supporting the methamphetamine conviction and
merely challenges the amount of cocaine while admitting he joined a drug
conspiracy.
       Padilla has failed to establish plain error. Further, even under a de novo
review, if the admission was error, it would be harmless in light of the evidence
presented at trial. Bell, 367 F.3d at 468.


       2
         Citing Bullcoming v. New Mexico, 131 S.Ct. 2705, 2710, 2719-2722 (2011) (Sotomayor,
J., concurring in part).

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                              No. 11-50188

                             CONCLUSION
   For the reasons set out herein, we affirm the district court.
                                                               AFFIRMED.




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