   Case: 15-10579   Document: 00513626294    Page: 1   Date Filed: 08/05/2016




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

                                                                     FILED
                              No. 15-10579                      August 5, 2016
                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                            Clerk


                                       Plaintiff–Appellee,

versus

DAVID RODRIGUEZ, JOSE CAVAZOS, DANIEL LONGORIA,

                                       Defendants–Appellants.


                               * * * * *



                              No. 15-10590


UNITED STATES OF AMERICA,

                                       Plaintiff–Appellee,

versus

TRAVIS KYNDALL LONGORIA,

                                        Defendant–Appellant.


              Appeals from the United States District Court
                   for the Northern District of Texas
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                                    No. 15-10579
                                    No. 15-10590
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Defendants challenge, inter alia, the sufficiency of the evidence support-
ing their convictions of conspiracy to distribute or possess with intent to dis-
tribute marihuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. We find no
error and affirm.

                                           I.
      The defendants operated a marihuana importation and distribution
scheme in Abilene, Texas, from 2004 to 2014. The scheme followed a pattern,
beginning with Daniel Longoria—the owner of a mechanic’s shop called Abi-
lene Automotive & Performance (“AA&P”). Daniel acquired marihuana from
suppliers in Mexico in return for money orders or from Fabricio Perez in Del
Rio, Texas, in a series of “fronting” exchanges. 1 Instead of collecting the mari-
huana personally, Daniel would solicit someone to act as a drug mule and
travel to Mexico or Del Rio to collect the marihuana, and he would furnish the
mule with a vehicle to transport the load.

      The mule would not travel alone: Jose Cavazos (Daniel’s brother-in-law)
or Travis Longoria (Daniel’s son) would follow along to Mexico or Del Rio and
provide further instructions. Once the mule arrived at the pick-up location,
the suppliers would take the car and plant the marihuana in the vehicles pro-
vided by Daniel—for example, in the spare tire or gas tank. The mules would
attempt to return the load to AA&P, but law-enforcement agents often stopped
them in transit, seizing hundreds of pounds of marihuana. If the load reached



      1  Fronting refers to a process by which members of the illicit drug trade transfer
quantities essentially on credit.
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AA&P, Cavazos—who worked there as a mechanic—and Daniel would break
the vehicles down and remove marihuana from them. Daniel would then store
and distribute the marihuana throughout Abilene, including by transferring
some to Travis and David Rodriguez for resale.

      The Abilene Police Department, the Department of Homeland Security,
and the Taylor County Sheriff’s Department investigated the defendants
through undercover informants, 2 direct surveillance, and searches of their
trash and homes. The searches recovered marihuana-distribution parapher-
nalia such as bongs, pipes, cash, marihuana, scales, baggies, saran wrap,
gloves, burner phones, and firearms and ammunition. Forensic searches of the
phones revealed discussions about marihuana distribution.

      A federal grand jury indicted Daniel, Travis, Cavazos, and Rodriguez for
conspiracy to distribute or possess with intent to distribute more than 100
kilograms of marihuana. 3 Rodriguez unsuccessfully moved to sever his case
from his co-conspirators’, arguing that the overwhelming evidence against
them would spill over and infect the jury’s consideration of his individual guilt
or innocence. The case proceeded to a joint trial at which the government
offered testimony from twenty-six witnesses and physical evidence of the mar-
ihuana distribution. At the close of the government’s case, each defendant
moved unsuccessfully for a judgment of acquittal under Federal Rule of Crim-
inal Procedure 29. Only Daniel and David offered witnesses, but each failed to
renew his motion for judgment of acquittal.

      The court instructed the jury at the end of the trial—over Rodriguez’s



      2 For example, following Daniel’s arrest in 2008, officers used him as an undercover
informant against Fabricio Perez.
      3   Perez and another man, Brandon Johnson, were indicted, but both pleaded guilty.
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objection—that it could find the defendants guilty of lesser-included offenses
of conspiracy to distribute or possess with intent to distribute between fifty and
100 kilograms of marihuana or of less than fifty kilograms. The jury found
Daniel, Travis, and Cavazos guilty as charged but found Rodriguez guilty only
of the lesser-included charge of conspiring to distribute or possess with intent
to distribute less than fifty kilograms.

                                       II.
      We review “preserved challenges to the sufficiency of the evidence
de novo.” United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012). We “view
all evidence, whether circumstantial or direct, in the light most favorable to
the government, with all reasonable inferences and credibility choices to be
made in support of the jury’s verdict.” Id. (internal quotation omitted). We
determine only whether “a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt” and are mindful that “[t]he
jury retains the sole authority to weigh any conflicting evidence and to evalu-
ate the credibility of the witnesses.” Id. (quotations omitted).

      “The essential elements of a drug conspiracy are (1) an agreement by two
or more persons to violate the narcotics laws; (2) a defendant’s knowledge of
the agreement; and (3) his voluntary participation in the agreement.” United
States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc). “An
agreement may be inferred from concert of action, voluntary participation may
be inferred from a collection of circumstances, and knowledge may be inferred
from surrounding circumstances.” Grant, 683 F.3d at 643 (internal quotation
omitted).

      Each defendant urges that the evidence failed to establish an agreement
or that the conspiracy involved more than 100 kilograms of marihuana. The

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defendants—by pointing to the absence of proof that they expressly agreed or
to the fact that police did not seize more than 100 kilograms of marihuana from
any of them personally—ignore that the government may prove agreement,
knowledge, participation, and the quantities involved by circumstantial
evidence. 4

       Twenty-six government witnesses—unindicted co-conspirators, family
members, and law-enforcement officers—testified to the distribution activities.
Agent William Bloom testified about his undercover operations that implicated
Daniel: Bloom used Juan Collins as a mole while Juan Collins transported
marihuana between Daniel and Perez. Bloom himself went undercover and
arranged drug transactions with Daniel while at AA&P (even offering to trans-
port marihuana between Daniel and Perez).

       Johnnie Amanda Blake, Daniel’s ex-wife, and John Davis, an unindicted
co-conspirator, testified that Cavazos removed marihuana from vehicles at
AA&P and stored marihuana there. Fernando Landeros, one of Daniel’s mules,
testified that Cavazos also met him at 4:00 AM at a hotel in Del Rio to pick up
a load. 5 Agent Robert Melton testified that Daniel hired Nico Prado and pro-
vided him with a truck 6 to pick up marihuana from Del Rio, during which trip
Prado met with and was followed by Travis. 7 Prado testified that Travis helped


       4 Daniel and Rodriguez failed to preserve their sufficiency challenges because neither
renewed his motion for judgment of acquittal after offering evidence, so we review those
claims for plain error only. United States v. Elam, 678 F.2d 1234, 1248 (5th Cir. 1982) (“The
failure to reurge the motion for acquittal, after introduction of defense evidence, constitutes
a waiver of objection to the denial of the motions.”). The difference is immaterial, because
the claims fail even under de novo review.
       5   Davis testified that Cavazos asked him to deliver marihuana to other people as well.
       6Neal King, the man who sold Daniel the truck, testified that Daniel gave him Cava-
zos’s AA&P business card when Daniel purchased the truck under the pseudonym “Daryl.”
       7   Prado’s phone records also showed telephone contact between himself and Daniel
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him place a spare tire full of marihuana underneath his truck before Prado
drove through a border patrol checkpoint. Finally, Prado testified that Travis
picked up around five pounds of marihuana from Rodriguez on two or three
occasions. Joel Flores, who dealt marihuana with Travis, testified that he met
Rodriguez at AA&P and that he and Travis would purchase marihuana from
Rodriguez—marihuana that Rodriguez got from Daniel.

       There was not just testimony; the government offered excerpts from the
defendants’ phone records. Daniel’s phone records showed distribution-related
communications between himself and Perez—in addition to contact with his
mules (Collins and Prado) and a potential buyer in Alabama (Charles Anthony
Allison). A recorded telephone call from the county jail between Travis and
Daniel included discussion of the conspiracy. Travis’s phone records detailed
his marihuana-dealing activity over the course of three to four years.

       The government offered significant physical evidence of marihuana-
distribution paraphernalia. The government seized bongs, pipes, $20,000 cash,
scales, baggies, and marihuana wrappings from Rodriguez’s trash and house.
It offered firearms and ammunition, marihuana, wrappings, cash, and scales
seized from the Longorias’ house. Moreover, the government offered testimony
from the forensic experts who tested the substances seized from the defen-
dants, confirming that the substances were marihuana.

       Finally, much of the above evidence sufficed to establish the quantities
of marihuana distributed. John Davis testified that he held 30 to 40 pounds of
marihuana once or twice per month for a year for Daniel and Cavazos, which
alone amounts to 360 pounds (or, roughly 163 kilograms). 8 Johnnie Amanda


during this trip.
       8   There are a little more than 2.2 pounds in one kilogram, so those 360 pounds amount
                                               6
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                                       No. 15-10579
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Blake and her son, Chase Blake, said that they saw Daniel and Cavazos hand-
ling a couple of hundred pounds of marihuana at AA&P on multiple occasions.
When Cavazos met Landeros at a hotel in Del Rio, he picked up a load of 300
pounds. Travis assisted Prado in attempting to transport more than 44 pounds
(roughly 20 kilograms) of marihuana. Travis’s own phone records showed he
dealt marihuana in quantities ranging from a quarter pound to ten pounds
over the course of three to four years. Finally, Flores testified that he and
Travis picked up between ten and fifteen pounds of marihuana from Rodriguez.
Also, Prado linked Rodriguez to AA&P, where Daniel and Cavazos dealt with
hundreds of pounds.

       Though the defendants allege they were not privy to every detail of the
other co-conspirators’ activity or the quantities involved, the “government need
not prove knowledge of all the details of the conspiracy by any [defendant], but
only that they had knowledge of the essential object of the conspiracy.” United
States v. Acosta, 763 F.2d 671, 691 (5th Cir. 1985).                  The preceding, non-
exhaustive discussion of the evidence was sufficient for a reasonable jury to
find the essential elements of a conspiracy (agreement, knowledge, and partici-
pation) and the quantities involved beyond a reasonable doubt for each
defendant. 9


to slightly more than 163 kilograms.
       9   The same evidence dooms the defendants’ unpreserved material variance
arguments—that the indictment charged one conspiracy but the evidence proved a different
conspiracy—which we review only for plain error. See United States v. Perez-Solis, 709 F.3d
453, 465 (5th Cir. 2013). To prevail on plain-error review, a defendant must show (1) an error
(2) that is clear or obvious and (3) that affects his substantial rights, and, assuming he shows
the first three prongs, (4) that the court should exercise its discretion to correct the error
because it “seriously affects the fairness, integrity or public reputation of judicial proceed-
ings.” See United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc).
Assuming arguendo that a variance occurred, it did not affect any defendant’s substantial
rights because “the government establishe[d each] defendant’s involvement in at least one of
the proved conspiracies.” United States v. Mitchell, 484 F.3d 762, 770 (5th Cir. 2007).
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                                              III.
       Rodriguez challenges the denial of his motion to sever, which we review
for abuse of discretion. United States v. Snarr, 704 F.3d 368, 396 (5th Cir.
2013). To show an abuse of discretion, Rodriguez must prove “that: (1) the joint
trial prejudiced him to such an extent that the district court could not provide
adequate protection; and (2) the prejudice outweighed the government’s inter-
est in economy of judicial administration.” Id. (internal quotation omitted).
Generalized allegations of prejudice are insufficient, and Rodriguez “must iso-
late events occurring in the course of the trial and then . . . demonstrate that
such events caused substantial prejudice.” Id. (citations and quotations omit-
ted). Moreover, he “must show that the instructions to the jury did not ade-
quately protect him . . . from any prejudice resulting from the joint trial.” Id.
(internal quotation omitted).

       Rodriguez claims only that the overwhelming evidence against his co-
defendants caused a spillover effect and prevented the jury from treating his
case individually. That is a generalized allegation—because he fails to isolate
any events at trial that prejudiced the determination of his innocence or guilt—



        The evidence also dispenses with the defendants’ challenges to their sentences. An
individual defendant’s sentence for violating Sections 841 and 846 depends on the quantity
of marihuana attributable to the entire conspiracy and reasonably foreseeable to him. See
United States v. Castillo, 77 F.3d 1480, 1494–95 (5th Cir. 1996); U.S. SENTENCING GUIDE-
LINES MANUAL (“U.S.S.G.”) § 2D1.1(c) (2014). We review the judge’s fact-findings on both
quantities for clear error only, Castillo, 77 F.3d at 1495, and conclude there was none. The
defendants largely contest the quantities attributed to them by reference to the much lower
amounts actually seized, but they ignore that even in the absence of seizure “the court shall
approximate the quantity of the controlled substance,” U.S.S.G. § 2D1.1 cmt. n.5, and may
rely on “any information that has sufficient indicia of reliability to support its probable accur-
acy,” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (internal quotation
omitted). At sentencing, the court explained the quantity attributed to each defendant by
reference to the evidence presented at trial, which had sufficient indicia of reliability for the
court to approximate the quantities reasonably foreseeable to each defendant. The court did
not commit clear error, so we reject the defendants’ challenges to their sentences.
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that does not merit relief. Moreover, Rodriguez does not even allege that the
specific instructions that the jury consider each defendant individually did not
adequately protect him from prejudice. 10 The court did not abuse its discretion.

                                              IV.
       Rodriguez takes issue with the court’s decision to instruct the jury on
lesser-included charges over his objection. We review jury instructions for an
abuse of discretion. United States v. Monroe, 178 F.3d 304, 307 (5th Cir. 1999).
Rodriguez contends that the district court abused its discretion by giving a
lesser-included instruction at the behest of the government because, Rodriguez
avers, only a criminal defendant may make the strategic choice whether to
request such an instruction. That claim does not merit relief.

       “Any party may request in writing that the court instruct the jury on the
law as specified in the request.” FED. R. CRIM. P. 30(a). Under the plain lan-
guage of the rule, the government, as a “party,” may request a lesser-included
instruction. 11 To the extent that our precedent is silent or uncertain, we now


       10Rodriguez does not address the reality that the jury did consider his guilt or inno-
cence individually, as evidenced by its verdict that he was guilty of a lesser-included offense
of conspiring to distribute less than fifty kilograms of marihuana but each of his co-defen-
dants was guilty of the same offense as to more than 100 kilograms.
       11  See United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 933 (2009) (“A
‘party’ to litigation is ‘[o]ne by or against whom a lawsuit is brought.’” (quoting BLACK’S LAW
DICTIONARY 1154 (8th ed. 2004)); United States v. Procter & Gamble Co., 356 U.S. 677, 681
(1958) (“The Government as a litigant is, of course, subject to the rules of discovery.”); United
States v. Dingle, 114 F.3d 307, 312–13 (D.C. Cir. 1997) (“It has long been the rule in this
circuit that in general, the trial judge should withhold charging on a lesser included offense
unless one of the parties requests it . . . .” (emphasis added) (quotations and alterations omit-
ted)); United States v. Neiss, 684 F.2d 570, 571 (8th Cir. 1982) (holding that defendant is
entitled to a lesser-included instruction only if “a charge may be demanded by either the
prosecution or defense”); Schmuck v. United States, 489 U.S. 705, 717 (1989) (“[T]he language
of the Rule suggests that a lesser included offense instruction is available in equal measure
to the defense and to the prosecution.”); see also United States v. Abeyta, 27 F.3d 470, 473 n.5
(10th Cir. 1994) (“The government is just as free as defendant to seek a lesser included offense
instruction . . . .”).
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clarify that both the government and a criminal defendant may demand an
instruction on lesser-included offenses.

       Rodriguez contends also that the court erred because the government
requested the instruction orally rather than in writing. Rule 30 specifies that
requests should be written, and that is of course the “better and safer practice,”
but “oral requests are sufficient if the court is clearly informed of the point
involved.” Hull v. United States, 324 F.2d 817, 824 (5th Cir. 1963). Rodriguez
and the government expressed fully their concerns about the instruction in a
lengthy colloquy with the judge before submitting the case to the jury. The
discussion between the court and counsel took up around ten pages of trial
transcript and covered (1) whether to give the lesser-included instruction at all
and (2) what form it should take. That was sufficient to inform the court of the
point involved. 12

       AFFIRMED.




       12 Because the government sufficiently requested the instruction, we need not address
Rodriguez’s related claim that the court erred by giving it sua sponte. Assuming arguendo
that the government’s request were insufficient, nothing in Rule 30 prohibits the court from
issuing the instruction sua sponte, and Rule 31 seems to support its doing so. See FED. R.
CRIM. P. 31(c) (“A defendant may be found guilty of any of the following: (1) an offense neces-
sarily included in the offense charged . . . .”). Also, precedent at least suggests that a district
court has the power to do so. See, e.g., United States v. Mays, 466 F.3d 335, 342 (5th Cir.
2006) (holding that the court did not commit plain error by failing to give lesser-included
instruction where counsel made strategic choice to argue for outright acquittal); United
States v. Estrada-Fernandez, 150 F.3d 491, 495–96 (5th Cir. 1998) (same where counsel ar-
gued for outright acquittal and failed to object when court denied other defendant’s request
for lesser-included charges). If the court lacked the power to give the instruction sua sponte,
then Mays and Estrada-Fernandez would have so stated rather than reviewing for plain
error.
                                               10
