                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                         April 30, 2015

                                                                          Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                            Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 13-6236

SIMONA GALLEGOS,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                        for the Western District of Oklahoma
                             (D.C. No. 5:12-CR-00297-2)
                       _________________________________

James L. Hankins, Edmond, Oklahoma, for Defendant-Appellant.

David McCrary, Assistant United States Attorney (Sanford C. Coats, United States
Attorney, and Leslie M. Maye, Assistant United States Attorney, with him on the brief),
Oklahoma City, Oklahoma, for Plaintiff-Appellee.
                        _________________________________

Before BRISCOE, Chief Judge, TYMKOVICH and MORITZ, Circuit Judges.
                    _________________________________

MORITZ, Circuit Judge.
                    _________________________________

      Simona Gallegos appeals her convictions for one count of conspiracy to

distribute methamphetamine and to possess methamphetamine with intent to

distribute in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1); two counts of

possession of methamphetamine with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1); and one count of use of a communication facility to facilitate the

distribution of methamphetamine in violation of 21 U.S.C. § 843(b).

      Gallegos argues (1) the district court erred in admitting the hearsay statements

of her alleged co-conspirators; (2) the government presented insufficient evidence to

support her convictions; (3) a fatal variance occurred because the indictment charged

a single large conspiracy but the evidence at trial proved only multiple smaller

conspiracies; (4) the district court erred in admitting testimony regarding her co-

defendant’s post-arrest request for an attorney; and (5) the cumulative effect of these

errors requires reversal. Because sufficient evidence supports Gallegos’ convictions

and because her remaining claims do not warrant reversal under our plain-error test,

we affirm.

                                    BACKGROUND

      Simona Gallegos’ convictions arose from law enforcement’s investigation into

the activities of Iran Zamarripa, the regional supervisor of an international

methamphetamine ring. Based on her alleged involvement in Zamarripa’s

organization, Gallegos was tried alongside her common-law husband, Pedro Juarez,

and two of their alleged co-conspirators, Bani Moreno and Edgardo Josue Aguilar.

      At trial, Special Agent Casey Cox testified about Moreno’s post-arrest request

for an attorney. Although Moreno initially agreed to speak with Cox, after Cox began

to probe Moreno’s involvement in the drug trade, Moreno declined to answer further

questions without an attorney present. None of the defendants’ attorneys objected to



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Cox’s testimony, and Moreno declined the district court’s offer of a curative

instruction.

       Unlike Moreno and Aguilar, both of whom purchased methamphetamine from

Zamarripa by the pound, Gallegos assisted Juarez in obtaining considerably smaller

quantities of methamphetamine from Zamarripa and his local manager, Alfredo

Resendiz. For example, on one occasion, Zamarripa instructed Resendiz to deliver a

half-ounce of methamphetamine to Gallegos because Juarez was at work. Gallegos

partially paid for the fronted methamphetamine ten days later. On another occasion,

Gallegos met Resendiz to pick up more methamphetamine for Juarez and to pay for a

half-ounce of methamphetamine Zamarripa previously fronted Juarez. On still

another occasion, Gallegos called Resendiz and used a code word to order a half-

ounce of methamphetamine for Juarez. In that call, Gallegos stressed the need for

prompt delivery because Juarez “ha[d] people[] waiting.” Intercept Tr., Supp. R.,

at 8. When Resendiz arrived at the apartment Gallegos and Juarez shared, he

delivered the methamphetamine to Gallegos.

       Based on this evidence, the jury found Gallegos guilty of one count of

conspiracy to distribute methamphetamine and to possess methamphetamine with

intent to distribute; two counts of possession of methamphetamine with intent to

distribute; and one count of use of a communication facility to facilitate the

distribution of methamphetamine. The district court sentenced Gallegos to 144

months in prison, and Gallegos appealed.



                                           3
                                      DISCUSSION

I.    Gallegos forfeited her hearsay argument.

      Gallegos first argues the district court erred in admitting hearsay statements of

her alleged co-conspirators absent independent evidence she conspired with them to

distribute methamphetamine. But because Gallegos fails to identify any specific

statements on appeal, we decline to reach this issue. See United States v. Thornburgh,

645 F.3d 1197, 1210 (10th Cir. 2011) (refusing to address appellant’s challenge to

admission of co-conspirator statements when appellant neglected to identify any

specific statements on appeal; failure to identify specific statements prevented court

from determining whether statements were offered for truth of matters asserted); see

also United States v. Lewis, 594 F.3d 1270, 1284-85 (10th Cir. 2010) (declining to

examine each record page cited in appellant’s brief to determine whether any co-

conspirator statements contained therein were hearsay and, if so, whether their

admission prejudiced appellant).

II.   The government presented sufficient evidence to support Gallegos’
      convictions, and any prejudice arising from the alleged variance does not
      warrant reversal under our plain-error test.

      A.     Sufficiency of the Evidence

      Next, Gallegos challenges the sufficiency of the evidence supporting all four

of her convictions. Although the parties disagree as to whether we should review

Gallegos’ sufficiency claims de novo or for plain error, a conviction in the absence of

sufficient evidence will almost always satisfy all four plain-error requirements. Thus,

our review for plain error in this context differs little from our de novo review of a

                                            4
properly preserved sufficiency claim. See United States v. Rufai, 732 F.3d 1175, 1189

(10th Cir. 2013) (quoting United States v. Duran, 133 F.3d 1324, 1335 n.9 (10th Cir.

1998)) (concluding plain-error review and review for sufficient evidence “‘usually

amount to largely the same exercise’”). Under the sufficiency-of-the-evidence test,

we view the evidence in the light most favorable to the government and ask whether

the evidence—and any reasonable inferences to be drawn from it—would allow a

reasonable jury to find the defendant guilty beyond a reasonable doubt. United States

v. Green, 435 F.3d 1265, 1272 (10th Cir. 2006).

      Likening the facts of this case to those in United States v. Evans, 970 F.2d 663

(10th Cir. 1992), Gallegos insists we must reverse her conspiracy conviction under

the “buyer-seller rule” because the government established only that she obtained

methamphetamine for personal use. See United States v. Patterson, 713 F.3d 1237,

1245-46 (10th Cir. 2013) (pointing out that an individual who merely purchases

drugs from a member of a conspiracy is not automatically part of the conspiracy);

United States v. Watson, 594 F.2d 1330, 1337 (10th Cir. 1979) (recognizing “that

proof of the existence of a buyer-seller relationship, without more, is inadequate to

tie the buyer to a larger conspiracy”).

      But unlike in Evans, where the evidence demonstrated the defendant obtained

crack-cocaine from a member of the conspiracy on a single occasion and solely for

her personal use, the evidence here established Gallegos repeatedly procured

methamphetamine from Resendiz on Juarez’s behalf, knowing full well Juarez

planned to distribute it. 970 F.2d at 673. Under those circumstances, the buyer-seller

                                           5
rule does not apply. See United States v. Ivy, 83 F.3d 1266, 1285-86 (10th Cir. 1996)

(explaining that purpose of buyer-seller rule is to separate consumers who do not

intend to redistribute drugs for profit from distributors who intend to further

objective of conspiracy by distributing drugs to others).

       Gallegos disagrees, arguing the buyer-seller rule precludes her conviction even

if she purchased methamphetamine with the intent to distribute. Citing United States

v. Johnson, 592 F.3d 749 (7th Cir. 2010), she maintains that “a drug purchaser does

not enter into a conspiracy with his supplier simply by reselling the drugs to his own

customers.” Id. at 752. But Johnson’s interpretation of the buyer-seller rule is

contrary to this court’s precedent. See Ivy, 83 F.3d at 1285-86 (explaining buyer-

seller rule applies only to end users).

       Moreover, in Johnson the Seventh Circuit specifically recognized that

evidence of fronting coupled with evidence of repeat drug purchases is sufficient “to

distinguish a conspiracy from a nonconspiratorial buyer-seller relationship.” 592 F.3d

at 755 n.5. Here, Gallegos was involved in multiple drug transactions with Resendiz,

and she both received and paid for fronted drugs. Thus, even under Johnson’s

broader interpretation of the buyer-seller rule, a reasonable jury could have found

Gallegos acted as more than a mere buyer.

       To support Gallegos’ conspiracy conviction, the government was required to

prove she (1) agreed with at least one other person to violate the law, (2) knew of the

conspiracy’s objectives, and (3) knowingly and voluntarily involved herself in the

conspiracy. The government also was required to demonstrate (4) interdependence

                                           6
among the co-conspirators. See United States v. Foy, 641 F.3d 455, 465 (10th Cir.

2011).

         Here, the jury heard a recorded telephone call during which Gallegos asked

Resendiz to deliver a half-ounce of methamphetamine to the apartment she shared

with Juarez because Juarez “ha[d] people[] waiting.” Intercept Tr., Supp. R., at 8.

When Resendiz arrived, he delivered the requested methamphetamine to Gallegos.

From this evidence alone, the jury could have inferred an agreement to distribute

methamphetamine.1 See United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir.

1994) (explaining jury may infer agreement between two or more parties based on

circumstantial evidence indicating concerted action directed toward common goal).

         Evidence showing Gallegos received methamphetamine from Resendiz on

credit and paid Resendiz for methamphetamine he fronted Juarez provided further

evidence of an agreement to distribute. See United States v. Small, 423 F.3d 1164,

1184 (10th Cir. 2005) (explaining that fronting arrangement strongly suggests

expectation individual who receives drugs on credit will redistribute them for profit);

United States v. Nichols, 374 F.3d 959, 961, 969 (10th Cir. 2004), cert. granted,

         1
        Gallegos complains the government did not prove she agreed to distribute 85
pounds of methamphetamine as alleged in the indictment. But it didn’t have to. See
United States v. Anaya, 727 F.3d 1043, 1050-51 & n.4 (10th Cir. 2013), cert. denied,
135 S. Ct. 419 (2014) (explaining government need not prove defendant “knew of
every type or amount of drug trafficked” to support conspiracy conviction).
Moreover, the government presented sufficient evidence to prove Gallegos personally
took part in drug deals involving more than two ounces of methamphetamine, which
is more than the 50 grams for which the jury found the conspiracy responsible for
sentencing purposes. See 21 U.S.C. 841(b)(1)(A) (authorizing prison sentence of ten
years to life when amount of methamphetamine possessed with intent to distribute
exceeds 50 grams).
                                            7
judgment vacated, 543 U.S. 1113, opinion reinstated, 410 F.3d 1186 (10th Cir. 2005)

(hypothesizing that evidence of fronting arrangement would have allowed reasonable

jury to find existence of agreement to distribute between defendant and supplier).

      The same evidence also was sufficient to prove Gallegos knew of the

conspiracy’s objectives and knowingly and voluntary involved herself in the

conspiracy. Based on Gallegos’ phone call to Resendiz—during which she used code

to request delivery of a half-ounce of methamphetamine to the apartment she shared

with Juarez because Juarez had people “waiting”—a reasonable jury could conclude

Gallegos was privy to the conspiracy’s goal of distributing methamphetamine. And

from Gallegos’ repeated actions in furtherance of this goal, e.g., calling Resendiz to

order methamphetamine, accepting delivery of methamphetamine when Juarez was

unavailable, and making payments for methamphetamine on Juarez’s behalf, a

reasonable jury could also infer her knowing and voluntary involvement. See United

States v. Bell, 154 F.3d 1205, 1208 (10th Cir. 1998) (explaining jury may presume

defendant who acts in furtherance of conspiracy’s goals is knowing participant).

      Finally, evidence of Gallegos’ participation in the fronting arrangement also

demonstrated interdependence. See United States v. Acosta-Gallardo, 656 F.3d 1109,

1124 (10th Cir. 2011); Small, 423 F.3d at 1185 (citing United States v. Roberts, 14

F.3d 502, 511 (10th Cir. 1993)) (reasoning fronting arrangement creates situation of

mutual dependence because seller’s ability to front drugs depends on receipt of

money due). Further, Gallegos benefitted from her role in the arrangement even if she

did not profit from it financially because her participation aided the endeavors of her

                                           8
common-law husband. Aplt. Br. at 29. See United States v. Hamilton, 587 F.3d 1199,

1209-10 & n.6 (10th Cir. 2009) (finding sufficient evidence of interdependence when

defendant’s loyalty to half-brother, rather than desire to profit financially, motivated

him to assist in illegal drug business).

      We conclude the government presented sufficient evidence to prove Gallegos

purchased methamphetamine, not merely for her personal use, but as part of a

conspiracy to distribute it. And because Gallegos’ challenges to the sufficiency of the

evidence supporting her convictions for possession with intent to distribute and use

of a communication facility rely entirely on the alleged lack of evidence supporting

her conspiracy conviction, we reject those challenges as well.

      B.     Variance

      In a related argument, Gallegos contends the government’s evidence failed to

prove the conspiracy charged in the indictment, i.e., the evidence varied from the

indictment. See United States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir. 2008)

(explaining variance arises when indictment charges single large conspiracy but

government proves only existence of multiple smaller conspiracies at trial). In the

context of a conspiracy conviction, we treat a variance claim as a challenge to the

sufficiency of the evidence establishing that each defendant was a member of the

same conspiracy. Id.

      Because Gallegos did not raise her variance claim below, we review only for

plain error. See United States v. Bailey, 327 F.3d 1131, 1142 (10th Cir. 2003). To

show plain error, Gallegos must demonstrate (1) an error, (2) that is clear or obvious

                                            9
under current law, and (3) that affected her substantial rights. If Gallegos makes such

a showing, we may reverse only if (4) the error seriously affected the fairness,

integrity, or public reputation of the proceedings. United States v. Cooper, 654 F.3d

1104, 1117 (10th Cir. 2011).

          Gallegos contends the government proved—if anything—that she conspired

with Juarez alone, rather than with the members of the larger conspiracy. Gallegos

argues this alleged variance created “a substantial ‘spillover’ effect” by permitting

the jury “to associate [her] with crimes for which there was no evidence of her

involvement (i.e., dealing with a Mexican drug cartel to acquire huge quantities of

meth, shipping into the United States, operating a distribution network with interstate

and even international scope, and distributing 85 pounds of meth).” Aplt. Br. at 30.

          But even assuming the existence of a variance that constitutes clear and

obvious error, we find little risk of any “spillover” here, let alone one so prejudicial

as to satisfy the third prong of the plain-error test. See United States v. Rosales-

Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (explaining error affects defendant’s

substantial rights for purposes of plain-error test if defendant demonstrates

reasonable probability result of proceeding would have been different but for alleged

error).

          To determine whether a variance prejudiced the defendant in the context of an

alleged conspiracy, we focus on the possibility of jury confusion and the strength of

the evidence proving the defendant’s involvement in the smaller conspiracy. See

Carnagie, 533 F.3d at 1241, 1244. In assessing the possibility of jury confusion, we

                                             10
consider, among other things, the number of defendants tried together and the number

of separate conspiracies proved. We also look to the complexity of the evidence and

the jury’s ability to distinguish the evidence against one defendant from the evidence

against his or her co-defendants. See id. at 1242.

       Here, Gallegos was tried with only three other defendants and the government

proved a maximum of three individual conspiracies. Moreover, the jury could have

easily distinguished the evidence against Gallegos, who assisted in procuring

methamphetamine in smaller quantities for her common-law husband, from the

evidence against her co-defendants Moreno and Aguilar, who purchased

methamphetamine from Zamarripa by the pound. And overwhelming evidence

established Gallegos’ involvement in a smaller conspiracy with Juarez and Resendiz

to distribute at least fifty grams of methamphetamine. Under these circumstances,

Gallegos cannot show a reasonable probability the result of her trial would have been

different but for the alleged variance. Thus, she fails to satisfy the third prong of our

plain-error test.

       She also fails to satisfy the fourth prong. Given the overwhelming evidence

establishing Gallegos’ involvement in the smaller conspiracy, we conclude the

alleged variance did not seriously affect the fairness, integrity, or public reputation of

the proceedings. See United States v. Gonzalez Edeza, 359 F.3d 1246, 1251 (10th Cir.

2004) (interpreting fourth prong of plain-error test to prohibit reversal when evidence

of defendant’s guilt on charged crime or closely related crime is “‘overwhelming’



                                           11
and ‘essentially uncontroverted’” (quoting Johnson v. United States, 520 U.S. 461,

470 (1997))).

       Gallegos’ failure to meet the third and fourth prongs of our plain-error test is

fatal to her claim. See United States v. Algarate-Valencia, 550 F.3d 1238, 1243 & n.3

(10th Cir. 2008) (declining to address first prong of plain-error test when defendant’s

failure to satisfy third prong was determinative of claim). Even if a variance

occurred, it does not warrant reversal of Gallegos’ conspiracy conviction.

III.   Gallegos fails to show the admission of Cox’s testimony warrants reversal.

       Next, Gallegos argues the district court erred in admitting Cox’s testimony

regarding Moreno’s post-arrest request for an attorney. Gallegos’ failure to object to

Cox’s testimony again triggers plain-error review. See United States v. Rice, 52 F.3d

843, 845 (10th Cir. 1995) (applying plain-error review to unpreserved Doyle2 claim).

       Gallegos maintains the jury viewed evidence of Moreno’s post-arrest request

for an attorney as indicative of his guilt, and then imputed evidence of Moreno’s guilt

to her. But even if the jury viewed Cox’s testimony as evidence of Moreno’s guilt,

Gallegos fails to demonstrate that admission of his testimony prejudiced her

substantial rights. As discussed, the government presented distinct evidence against

Moreno and Gallegos, giving the jury little reason to paint the two with the same

broad brush. Moreover, in light of the overwhelming evidence of Gallegos’

       2
         In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the United States Supreme Court
concluded the use of the petitioners’ post-arrest silence for impeachment purposes
violated their due process rights. See also Wainwright v. Greenfield, 474 U.S. 284,
286-87, 295 (1986) (applying Doyle to prosecutor’s comment on respondent’s post-
arrest request for attorney).
                                           12
involvement in at least the smaller conspiracy, Gallegos cannot show the admission

of Cox’s testimony about her co-defendant affected the outcome of her own trial even

if the jury somehow considered it as evidence of her guilt. Thus, Gallegos fails to

satisfy our plain-error test. See Rosales-Miranda, 755 F.3d at 1258; Algarate-

Valencia, 550 F.3d at 1243 & n.3.

IV.   We reject Gallegos’ claim of cumulative error.

      Finally, for the reasons discussed above, we find Gallegos’ cumulative-error

claim unpersuasive. Even if we assume the alleged variance and the Doyle violation

constituted clear and obvious errors under current law, Gallegos fails to show that the

effect of those errors—whether considered individually or cumulatively—warrants

reversal of her convictions under plain-error review. See United States v. Caraway,

534 F.3d 1290, 1302 (10th Cir. 2008) (noting defendant asserting cumulative

unpreserved error must “overcome the hurdles necessary to establish plain error”).

                                    CONCLUSION
      We conclude that when viewed in the light most favorable to the government,

the evidence was more than sufficient to support Gallegos’ convictions. And given

the strength of this evidence, Gallegos’ claims regarding the alleged variance and the

admission of Cox’s testimony fail under the third and fourth prongs of plain-error

review. Gallegos’ convictions are affirmed.




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