                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-15-2006

USA v. Aldea
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2305




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. Aldea" (2006). 2006 Decisions. Paper 1429.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1429


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                        NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                         __________

              Nos. 04-2305, 04-2472, 04-3335, 04-3405

                            __________

                 UNITED STATES OF AMERICA

                                  v.

                          JORGE ALDEA,
                        a/k/a FAT GEORGE,

                                   Jorge Aldea,
                                       Appellant in No. 04-2305
                                       (D.C. Criminal No. 03-cr-00014-2)
                         _______________

                 UNITED STATES OF AMERICA

                                  v.

                         NAYDIA ROJAS,

                                        Appellant in No. 04-2472
                                       (D.C. Criminal No. 03-cr-00014-3)
                         _______________

                 UNITED STATES OF AMERICA

                                   v.

                       MARILYN I. ROJAS,

                                         Appellant in No. 04-3335
                                         (D.C. Criminal No. 03-cr-00014-4)
(continued)
                                   _______________

                           UNITED STATES OF AMERICA

                                             v.
                                  MAURICIO ROJAS
                                  a/k/a Maurice Rojas,

                                                     Appellant in No. 04-3405
                                                     (D.C. Criminal No. 03-cr-00014-1)

                                       __________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 03-cr-00014)
                      District Judge: Honorable Stewart Dalzell
                                     __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 26, 2006

                    Before: RENDELL and SMITH, Circuit Judges,
                             and IRENAS *, District Judge

                                 (Filed March 15, 2006)


                                       __________

                              OPINION OF THE COURT
                                    __________




____________________________

   * Honorable Joseph E. Irenas, Senior Judge of the United States District Court for
      the District of New Jersey, sitting by designation.


                                            2
RENDELL, Circuit Judge.

       Appellants Jorge Aldea, Mauricio Rojas, Naydia Rojas 1 and Marilyn Rojas 2 were

convicted, after a jury trial, on a one-count indictment for conspiracy to distribute in

excess of five kilograms of a mixture or substance containing a detectable amount of

cocaine, in violation of 21 U.S.C. § 846.

       On appeal, they challenge various aspects of the trial and their sentencing

proceedings, collectively raising ten issues. We address these issues in turn, and conclude

that none of them rises to the level of reversible error. We will accordingly affirm the

convictions. We will vacate Jorge Aldea’s sentence and remand for resentencing in light

of United States v. Booker, 543 U.S. 220 (2005).

       Because the parties are familiar with the facts of the case, we address them only as

they are relevant to the issues discussed.

                                  I. Evidentiary Rulings

       Mauricio and Naydia Rojas argue that the District Court improperly admitted

evidence that it should have excluded under Federal Rule of Evidence 403. Mauricio’s

claim relates to evidence of Mario Rojas’s arrest and escape from prison, while Naydia’s



  1
   The briefs refer to Naydia Rojas as “Nayda” Rojas. Because her Judgment and
Conviction in the District Court and her appeal list her as “Naydia,” we refer to her by
that name here.
  2
   The briefs refer to Marilyn Rojas as “Marylan” Rojas. Because her Judgment and
Conviction in the District Court and her appeal list her as “Marilyn,” we refer to her by
that name here.

                                              3
claim arises out of Henry Sanabria’s testimony that he shot another member of the drug

conspiracy. Ordinarily, we review a District Court’s Rule 403 analysis for abuse of

discretion, and accord great deference to the District Court’s ultimate decision. Brown v.

SEPTA (In re Paoli R.R. Yard PCB Litig.), 113 F.3d 444, 453 (3d Cir. 1997). To justify

reversal, the District Court’s Rule 403 decision must be “arbitrary or irrational.” Id.

Because Naydia made no motion in limine to exclude the testimony she challenges, and

failed to object at trial, we review her claim for plain error. Fed. R. Crim. P. 52(b).

       The District Court did not abuse its discretion in admitting the evidence regarding

Mario Rojas’s arrest and subsequent escape from police custody. At trial, Anibal Cruz, a

cooperating government witness, testified that he, Mauricio, Naydia, Jorge Aldea and

another individual met after Mario’s arrest to plan what they would do next. Cruz also

testified that, after Mario escaped, Cruz transported him to Mexico where the two

subsequently met with Naydia Rojas and Mauricio Rojas to plan additional drug

transactions. Evidence of Mario’s arrest and escape in conjunction with the evidence

about the two meetings demonstrated the defendants’ continuing and active engagement

in the conspiracy. Thus, the District Court’s decision to admit it was neither arbitrary nor

improper. Cf. United States v. Rosenthal, 793 F.2d 1214, 1244 (11th Cir. 1986)

(affirming the district court’s decision to admit evidence of conspirator-defendant’s

attempted escape from prison where the evidence proved defendant’s continuing, active

involvement in a drug smuggling operation).



                                              4
       Nor did the District Court err in allowing Sanabria, a cooperating witness, to

testify about shooting Torres, the alleged conspiracy’s bookkeeper. Although we have

not addressed this specific issue, other courts of appeals have held that admission of

evidence of murder, or attempted murder, to prove the existence of drug conspiracies and

explain the relationships of the co-conspirators is not an abuse of discretion. See United

States v. Soto-Beniquez, 356 F.3d 1, 32 (1st Cir. 2004); United States v. Baptiste, 264

F.3d 578, 590 (5th Cir. 2001); United States v. Terzado-Madruga, 897 F.2d 1099, 1118-

19 (11th Cir. 1990). The evidence regarding Torres’s attempted murder was highly

relevant to authenticate the ledger that Torres used to keep track of the conspiracy’s

activities and to explain why, despite the ongoing conspiracy, there were no entries in the

drug ledger after November 14, 1997. Under these facts, we cannot say that the District

Court’s decision to admit the evidence regarding Torres’s attempted murder amounted to

plain error.

                                  II. Other Trial Issues

       Naydia Rojas and Jorge Aldea challenge various testimonial rulings that the

District Court made at trial. We review these rulings for abuse of discretion. United

States v. Chandler, 326 F.3d 210, 219 (3d Cir. 2003).

       Naydia Rojas argues that the District Court erred in restricting the cross-

examination of Wilberto Casillas regarding the underlying facts of an unrelated pending

murder charge. More specifically, she claims that the District Court should not have



                                             5
prohibited cross-examination regarding the facts supporting Casillas’s claim on direct

examination that he was innocent of the unrelated murder charge. Trial judges retain

wide latitude to impose reasonable limits on cross-examination based on concerns about,

among other things, harassment, prejudice, confusion of the issues, the witness’s safety or

interrogation that is repetitive or only marginally relevant. Id. The District Court’s

decision to limit cross-examination of a cooperating witness is not an abuse of discretion

as long as it does not significantly inhibit the defendant’s effective exercise of his or her

right to inquire into the witness’s motivation for testifying. Id.

       Here, the District Court allowed the defendants to cross-examine Casillas

extensively with respect to the open murder charge. Defendants asked Casillas about his

upcoming murder trial in state court, and he testified that the events surrounding the

murder transpired in 1994 and that the murder trial was a capital case with the possibility

of a death sentence or at least life in prison. Defendants also questioned Casillas about

his guilty plea to federal drug charges in May 2003, and he noted that he faced a

mandatory minimum sentence of 20 years imprisonment on that charge due to the fact

that he had a prior drug conviction. The District Court did not abuse its discretion

because it did not significantly inhibit Naydia’s right to inquire into the witness’s

motivation for testifying.

       Jorge Aldea argues that the District Court erred in allowing the prosecutor to

improperly and speculatively argue that the drug ledger admitted into evidence at trial



                                              6
corroborated Sanabria’s testimony. We reject this argument and find that the District

Court correctly overruled Aldea’s objections, as the prosecutor’s statements were based

on evidence admitted at trial. See United States v. LeFevre, 483 F.2d 477, 479 (3d Cir.

1973) (adopting Standard 5.9 of the ABA Prosecution Standards, which states that it is

unprofessional conduct for the prosecutor to intentionally refer to or argue on the basis of

facts outside the record). In his closing argument, the prosecutor referred only to portions

of the ledger that were properly in evidence. Sanabria, a government witness, testified

that he was with Javier Torres when he bought the ledger, at which time Torres stated that

it would be used to record drug transactions. Sanabria also identified Torres’s

handwriting and testified that he observed Torres write in the ledger. Furthermore, the

police found the ledger in a briefcase with a money counter and more than $69,000 in

cash while performing a legal search at Mario Rojas’s home. This evidence is sufficient

to directly and circumstantially authenticate the drug ledger, see United States v.

Echeverri, 982 F.2d 675, 679-80 (1st Cir. 1993), and allow its admission at trial as a

business record; the Court did not abuse its discretion in allowing the prosecutor to

comment on it.

       We would reach the same result even if we were to conclude that the prosecutor’s

statements were improper. The District Court ultimately decided not to send the ledger to

the jury room because part of the ledger was in Spanish and had not been translated into




                                              7
English at trial. It then instructed the jury, in writing,3 to disregard any references to the

ledger that the prosecutor had made during his closing argument. Because “a jury is

presumed to have followed the instructions the court gave it,” United States v. Givan, 320

F.3d 452, 462 (3d Cir. 2003), any prejudice that might have resulted from improper

references to the ledger was cured.

                                   III. Jury Instructions

       Mauricio and Naydia Rojas raise several objections to the jury instructions given at

trial. We consider whether, in light of the evidence, the jury charge as a whole fairly and

adequately submitted the issues in the case to the jury. United States v. Zehrbach, 47 F.3d

1252, 1264 (3d Cir. 1995). Where the defendant objects to the District Court’s choice of

language, we review the instruction for abuse of discretion. Id. Because Naydia did not

raise her objections at trial, we review them for plain error. Fed R. Crim. P. 52(b); Gov’t

of the Virgin Islands v. Mujahid, 990 F.2d 111, 116 (3d Cir. 1993).

       Mauricio Rojas argues that the District Court erred because it declined to use the

precise language he requested when it instructed the jury as to how to evaluate the

credibility of the government witnesses that testified pursuant to a plea agreement. We

have held that a general instruction directing the jury to consider the motives of the


  3
    Aldea also argues that the District Court erred in giving the jury a written, rather than
oral, curative instruction regarding the drug ledger. However, none of the appellants
requested the District Court to read the curative instruction aloud in open court. We do
not think that the District Court’s decision to give the jury a written curative instruction
amounts to plain error.

                                               8
speaker in light of the circumstances of the case adequately puts the jury on notice that it

must carefully weigh such testimony. United States v. Isaac, 134 F.3d 199, 204-05 (3d

Cir. 1998). Although the District Court refused to instruct the jury in detail on the

specific benefits that the cooperating witnesses would receive under the Sentencing

Guidelines, it did instruct the jury to consider the credibility of their testimony:

       In considering these witness’ testimony, you should bear in mind that a witness
       who has entered into a plea agreement has an interest in this case different
       from an ordinary witness’s. A witness who realizes he may be able to obtain
       his own freedom, or receive a lighter sentence by giving testimony favorable
       to the prosecution, has motive to testify falsely. Therefore, you must examine
       his testimony with caution and weigh it with great care.

The above charge fairly and adequately instructed the jury as to how to evaluate the

credibility of the government’s two cooperating witnesses. Furthermore, the plea

agreements of both cooperating witnesses were in evidence and defense counsel had the

opportunity to argue the terms of the agreements and any inferences to be drawn

therefrom. Thus, the District Court’s jury instruction regarding cooperating witness

credibility was not an abuse of discretion.

       Naydia Rojas argues that the District Court failed to protect her against a

determination of guilt by association because it failed to deliver a cautionary instruction

sua sponte when government witnesses made references to the “Rojas organization” or

“the Rojas family” and because it allowed the prosecutor to speak about “family trust”

during his closing argument.

       Neither the District Court’s failure to issue a cautionary instruction sua sponte

                                               9
after the few, isolated instances that a government witness referenced the “Rojas family”

or the “Rojas organization,” nor the prosecutor’s mention of “family trust” in his closing

argument was plain error. The jury is entitled to consider all of the evidence, including

family association, to determine whether the government proved its case. Although a jury

may not find a party guilty based on family association alone, it may consider and draw

reasonable inferences from such facts. United States v. Brodie, 403 F.3d 123, 151 (3d

Cir. 2005). The few statements that Naydia cites to support her claim do not amount to an

improper attempt to convict her of guilt by association alone. Government witnesses

made several isolated, generic references to the “Rojas organization” or the “Rojas

family” without identifying a specific individual. However, the prosecutor quickly

followed up by requesting the witnesses to identify the specific individual about whom

they were testifying. In the closing argument, the prosecutor mentioned “family trust,”

but explained the basis for each defendant’s liability separately.

       Moreover, the District Court cured any error that may have resulted from these

statements through its instructions. At the trial’s outset, the District Court instructed the

jury to consider the evidence against each defendant individually, stating that proof as to

one defendant may or may not be proof as to another defendant. At the conclusion of the

trial, the District Court again instructed the jury that the evidence against each defendant

must be considered individually and that the family relationship alone was not sufficient

evidence of guilt. The District Court did not commit plain error, as the statements



                                              10
admitted into evidence did not prejudice Naydia, and the Court adequately instructed the

jury on this issue.

       Naydia Rojas also argues that the District Court’s instruction to consider evidence

against each defendant separately to determine whether he or she participated in the

conspiracy was undermined by its later instruction that each member of a conspiracy is

liable for all acts by a co-conspirator in furtherance of the conspiracy. The instructions

accurately reflected the law, which requires the jury to consider the evidence against each

defendant independently to determine whether he or she participated in the conspiracy,

but also holds each participant liable for the actions of co-conspirators when such actions

are undertaken in furtherance of the goals of the conspiracy. See Pinkerton v. United

States, 328 U.S. 640, 645-48 (1946). The disputed instructions were not given one after

another, but rather placed in their proper contexts–the instruction regarding the

compartmentalization of evidence was given as part of the instructions on the elements of

the offense, while the co-conspirator liability instruction was given as part of the

instructions on conspiracy law generally. When viewed as a whole, the jury instructions

stated the law correctly and were capable of being understood by the jury. Thus, the jury

instructions were not plainly erroneous.

                             IV. Sufficiency of the Evidence

       Appellant Marilyn Rojas argues that there was insufficient evidence for the jury to

find that she was knowingly involved in a drug conspiracy. When deciding whether a



                                             11
jury verdict rests on legally sufficient evidence, we review the evidence in the light most

favorable to the government, and sustain the verdict if any “rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” United States

v. Dent, 149 F.3d 180, 187 (3d Cir. 1998).

       A rational trier of fact could find, beyond a reasonable doubt, that Marilyn Rojas

knew that drug distribution was the object of the conspiracy. Marilyn cites several cases

in which we held that the evidence was insufficient to support a finding that the defendant

participated in a drug conspiracy. In each of those cases, however, the defendant

participated in a single isolated incident related to the conspiracy, and had no prior

relationship to the other co-conspirators. See, e.g., United States v. Cartwright, 359 F.3d

281, 286 (3d Cir. 2004) (defendant acted as the lookout during an undercover purchase of

cocaine from alleged co-conspirator); United States v. Idowu, 157 F.3d 265, 268-69 (3d

Cir. 1998) (defendant carried bag with money during undercover sale of drugs to co-

defendant); United States v. Thomas, 114 F.3d 403, 405-06 (3d Cir. 1997) (defendant

went to hotel to pick up a bag that contained cocaine; there was no evidence that

defendant had any prior relationship with alleged co-conspirators). In this case, by

contrast, the evidence established multiple instances of Marilyn Rojas’s participation in

activities that furthered the conspiracy’s drug distribution purposes. For example, on

February 3, 1999, Marilyn Rojas, Naydia Rojas, Wilberto Casillas, and Wayne Langjahr

traveled to New York, at Mario Rojas’s direction, to receive a delivery of 20 kilograms of



                                             12
cocaine. Casillas testified that Marilyn was in the apartment when he arranged by

telephone to pick up the shipment of cocaine. Marilyn Rojas also falsely posed as

Sanabria’s girlfriend to rent a house that other members of the conspiracy used to store

and distribute cocaine. In addition, Marilyn Rojas went with her siblings Naydia and

Mario to purchase women’s workout clothes which her mother, while in Marilyn’s home,

modified to conceal money. This evidence, in conjunction with her ongoing relationships

with at least four members of the conspiracy, permitted the jury to draw a reasonable

inference that Marilyn Rojas knew that the purpose of the conspiracy was to distribute

drugs. We will accordingly reject Marilyn’s sufficiency of the evidence claim.

                                V. Statute of Limitations

       Jorge Aldea argues that the prosecution instituted against him on May 28, 2003

violated the five-year statute of limitations because his involvement in the conspiracy

ended by May 28, 1998. Because this is an argument of law which, if successful, would

require a judgment of acquittal, see United States v. Antar, 53 F.3d 568, 579 (3d Cir.

1995), overruled on other grounds by Smith v. Berg, 247 F.3d 532, 534 (3d Cir. 2001),

we review the District Court’s ruling de novo.

       The five-year statute of limitations in a drug conspiracy case does not begin to run

until the conspirator withdraws from the conspiracy. Id. at 582. Mere cessation of

activity in a conspiracy is not sufficient to establish withdrawal. To prove withdrawal,

the defendant must present evidence of some affirmative act of withdrawal, typically



                                            13
either a full confession to authorities or a communication to co-conspirators that he has

abandoned the criminal enterprise and its goals. United States v. Steele, 685 F.2d 793,

803-04 (3d Cir. 1982).

       Aldea has presented no evidence that he withdrew from the conspiracy before May

28, 1998. To the contrary, a government witness testified that Aldea and other co-

conspirators met in September of 1998 to discuss the inability of the organization to

continue drug distributions without Mario Rojas. Thereafter, they made plans to assist

Mario’s escape from prison. Aldea’s claim that the charges against him were time-barred

thus lacks merit.

                                     VI. Sentencing

       Jorge Aldea argues that his sentence of 280 months imprisonment exceeded the

maximum possible sentence supported by the jury verdict and, thus, violates Blakely v.

Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005). He

also argues that, because he committed his offense before the Supreme Court decided

Booker, the Ex Post Facto clause prevents imposition of a sentence that includes any

enhancement. Having determined that Booker issues are best resolved by the District

Court in the first instance, we will vacate his sentence and remand for resentencing in

accordance with that opinion. Cf. United States v. Naovasaisri, 150 F. App’x 170, 176

(3d Cir. 2005); United States v. Davis, 407 F.3d 162, 165 (3d Cir. 2005) (en banc).

       Marilyn Rojas also argues that her sentence of 120 months, the statutory minimum



                                            14
under 21 U.S.C. § 846, was improper in light of Booker. Because she was sentenced to

the statutory minimum, however, it is clear as a matter of law that there is no basis upon

which the District Court could grant her a lower sentence after Booker. See United States

v. Bullard, No. 04-1632, 2005 WL 3409603, at * 5 (3d Cir. Dec. 13, 2005). We will

therefore deny Marilyn’s challenge to her sentence.

                                     VII. Conclusion

       Because we conclude that none of the issues on appeal rises to the level of

reversible error, we will affirm the appellants’ convictions. We will vacate Jorge Aldea’s

sentence and remand for consideration of the appropriate sentence by the District Court.

______________________




                                            15
