                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          August 20, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 19-1226
                                                  (D.C. No. 1:18-CR-00266-PAB-4)
OMAR HUMBERTO GONZALEZ-                                       (D. Colo.)
HERNANDEZ, a/k/a Omar Gonzalez,
a/k/a Omar Humberto-Gonzales,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, BALDOCK, and CARSON, Circuit Judges.
                   _________________________________



      Omar Humberto Gonzalez-Hernandez appeals his conviction for conspiring to

distribute methamphetamine. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                I. BACKGROUND

      The evidence presented to the jury showed that from October 2016 to May

2018, a group of individuals, including Gonzalez-Hernandez, conspired to distribute

methamphetamine from Colorado to Virginia. The government’s primary witness

was Christina Fitzgerald, a member of the conspiracy who pleaded guilty and agreed

to cooperate with the government. In 2012, Fitzgerald met Joanna Zarate-Suarez,

another member of the conspiracy, while they were incarcerated in Wisconsin.

Zarate-Suarez and Gonzalez-Hernandez are husband and wife.

      Fitzgerald met Christopher Karten in 2013, when they were residing at a

halfway house. In 2016, after their release from the halfway house, Karten contacted

Fitzgerald to see if she could obtain two pounds of methamphetamine. At the time,

both Fitzgerald and Karten were living in Virginia. To that end, Fitzgerald contacted

Zarate-Suarez, who was then living in Colorado, about buying the methamphetamine.

According to Fitzgerald, she and Karten planned to meet Jeremiah Serr, Zarate-

Suarez’s courier and coconspirator, in Kansas City to exchange the money for the

drugs; however, Serr never showed up. Later, Fitzgerald and Karten drove to

Colorado and bought the methamphetamine directly from Zarate-Suarez and another

coconspirator, Edwin Roman-Acevedo.

      Fitzgerald testified that Zarate-Suarez told her Serr missed the meeting

because he was stopped by police. The government presented testimony from the

law-enforcement officer who stopped Serr’s vehicle in Kansas and discovered a

                                          2
thermos containing a crystal substance he believed to be methamphetamine.

Subsequent testing revealed the thermos contained about a pound of

methamphetamine. Serr pleaded guilty to a state charge for possessing

methamphetamine with intent to distribute and spent several months incarcerated in

Kansas.

      The following month, Fitzgerald and Sarah MaGuire, Karten’s girlfriend, flew

from Virginia to Colorado with $16,000 to buy more methamphetamine from Zarate-

Suarez. But instead of selling more methamphetamine, Zarate-Suarez, Gonzalez-

Hernandez, and Fitzgerald came up with a plan to rob MaGuire. The trio then

enlisted Roman-Acevedo and two other men to assist with the robbery. Roman-

Acevedo and the two men picked up MaGuire at her hotel on the pretense of taking

her to buy cigarettes, then beat her up and dumped her on the side of the road. While

MaGuire was out, Fitzgerald entered MaGuire’s hotel room and took her belongings,

including the $16,000. Gonzalez-Hernandez and Zarate-Suarez, who were waiting

behind the hotel in a vehicle with its headlights turned off, picked up Fitzgerald and

they met up with Roman-Acevedo. Zarate-Suarez paid Fitzgerald $500 and Roman-

Acevedo and his cohorts smaller amounts and kept the rest of the money.

      A few days later, Zarate-Suarez arranged for Fitzgerald, Roman-Acevedo, and

another man, to drive to Virginia with half a pound of methamphetamine. Along the

way they were stopped for speeding and Fitzgerald dumped the drugs into a jug of

water to avoid arrest. When Fitzgerald got home to Virginia, she dried out the

methamphetamine, kept some for her personal use and sold the rest. Not long

                                           3
thereafter, Fitzgerald surrendered to the Bureau of Prisons to begin serving a 15-

month sentence for violating the conditions of her supervised release.

      After Fitzgerald completed her sentence in the spring of 2018, she resumed

communications with Karten, who asked if she could obtain six pounds of

methamphetamine. Unbeknownst to Fitzgerald, Karten was now working as an

informant for law enforcement. Fitzgerald contacted Zarate-Suarez, who agreed to

front her five pounds. Fitzgerald flew to Denver and was picked up at the airport by

Zarate-Suarez and Gonzalez-Hernandez, who took her to a hotel. Upon her arrival in

Denver, the Drug Enforcement Agency (DEA) began surveilling Fitzgerald,

including monitoring the location of her cell phone.

      The next day, Gonzalez-Hernandez and Zarate-Suarez took Fitzgerald to a

restaurant where they discussed the terms of a drug deal with Karten. During the

meeting, Gonzalez-Hernandez expressed opinions on drug pricing, whether to front

the drugs to Karten, and where the sale would take place. They agreed that on May

9, Gonzalez-Hernandez would pick up the drugs from his source as soon as he got off

work and the they would meet Karten in Burlington, Colorado, specifically at the

Burlington Motor Inn, to consummate the sale. On the agreed-upon date, they went

to Burlington to meet Karten, but he failed to show and they returned to Denver.

      The following day, Karten sent Fitzgerald a message saying that his phone had

been disconnected and he had stayed at a hotel down the street from the Burlington

Motor Inn. The parties agreed to meet again, this time in Bennett, Colorado. Later

that day, Fitzgerald, Zarate-Suarez, and Roman-Acevedo drove to Bennett with the

                                           4
methamphetamine; Gonzalez-Hernandez, however, did not make the trip because he

had to work.

      On the drive to Bennett, the three were stopped by an Arapahoe County deputy

sheriff who was accompanied by a K-9. The deputy walked the K-9 around the

vehicle and got a positive alert. Zarate-Suarez told Roman-Acevedo to call

Gonzalez-Hernandez and ask him what she should do. Zarate-Suarez then drove off,

and a high-speed chase ensued. While Zarate-Suarez drove, her passengers dumped

water into four gallon-sized zip-lock bags containing the methamphetamine and

threw them out of the vehicle. The deputy eventually forced the vehicle off the road.

DEA agents recovered four pounds of methamphetamine from the roadside, and

Zarate-Suarez, Fitzgerald, and Roman-Acevedo were arrested.

      Serr was arrested the next day on an outstanding warrant. Gonzalez-

Hernandez was arrested two months later and charged with one count; specifically,

conspiracy to distribute and possess with intent to distribute, more than 500 grams of

a mixture and substance containing a detectable amount of methamphetamine and

more than 50 grams of methamphetamine. Zarate-Suarez, Fitzgerald, and Roman-

Acevedo entered guilty pleas. Gonzalez-Hernandez and Serr were tried together.1

The jury convicted Gonzalez-Hernandez and the district court sentenced him to the

statutory minimum ten years in prison, see 21 U.S.C. § 841(b)(1)(A)(viii).

      1
         Serr was convicted on two counts: (1) conspiracy and (2) possession of
methamphetamine with intent to distribute. We affirmed his convictions in United
States v. Serr, --- F. App’x ---, 2020 WL 3095902, at *6 (10th Cir. June 11, 2020)
(unpublished).

                                          5
                                   II. DISCUSSION

      Gonzalez-Hernandez argues for reversal of his conspiracy conviction on the

same grounds he advanced in his motion for acquittal; namely, there was insufficient

evidence to support the existence of a single, large conspiracy. Relatedly, Gonzalez-

Hernandez also maintains there was a fatal variance between the indictment, which

charged a single conspiracy, and the proof at trial, which established three separate

conspiracies.

A. Standard of Review

      We review a challenge to the sufficiency of the evidence de novo, including a

challenge that arises from the denial of a motion for acquittal under Fed. R. Crim. P.

29, “viewing the evidence and the reasonable inferences to be drawn therefrom in the

light most favorable to the government.” United States v. Dewberry, 790 F.3d 1022,

1028 (10th Cir. 2015) (internal quotation marks omitted). “We will reverse only if

no rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (internal quotation marks omitted). “In conducting this

review we may neither weigh conflicting evidence nor consider the credibility of

witnesses. It is for the jury, as the fact finder, to resolve conflicting testimony, weigh

the evidence, and draw inferences from the facts presented.” Id. (internal quotation

marks omitted).

      We likewise “review de novo the question whether a fatal variance occurred,

viewing the evidence and drawing all reasonable inferences in the light most

favorable to the government.” United States v. Acosta-Gallardo, 656 F.3d 1109, 1116

                                            6
(10th Cir. 2011). That is because “[w]e treat a conspiracy variance claim as an attack

on the sufficiency of the evidence supporting the jury’s finding that each defendant

was a member of the same conspiracy,” United States v. Hill, 786 F.3d 1254, 1266

(10th Cir. 2015) (internal quotation marks omitted).

B. Analysis

      1. Conspiracy

      “To prove a conspiracy, the government must demonstrate: (1) . . . two or

more persons agreed to violate the law, (2) . . . the defendant knew at least the

essential objectives of the conspiracy, (3) . . . the defendant knowingly and

voluntarily became a part of it, and (4) . . . the alleged coconspirators were

interdependent.” United States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009)

(internal quotation marks omitted).

      Gonzalez-Hernandez embarks on a three-prong attack regarding the

sufficiency of the evidence to establish his participation in a single, large conspiracy.

First, he maintains there was no evidence he was part of the earliest transaction when

Serr was dispatched by Zarate-Suarez to Kansas City to deliver methamphetamine to

Karten. But it is irrelevant whether Gonzalez-Hernandez participated in each

transaction. “A single conspiracy does not splinter into multiple conspiracies

because members come and go.” United States v. Fishman, 645 F.3d 1175, 1190

(10th Cir. 2011).

      Next, Gonzalez-Hernandez argues the government “did not prove beyond a

reasonable doubt that the May 2018 conspiracy was a continuation of the October

                                            7
2016 and November 2016 conspiracies.” Aplt. Opening Br at 15. He relies on our

decision in Caldwell, which explains that “[a]lthough a lapse in time does not

necessarily convert a single conspiracy into multiple conspiracies, time in

combination with other factors can sever the single continuous conspiracy alleged in

the indictment into two separate conspiracies.” 589 F.3d at 1330-31 (internal

quotation marks omitted). He asserts “there was an 18-month lapse in time between

the November 2016 transaction and the May 2018 transaction, which in combination

with other factors, established at least two separate conspiracies.” Aplt. Opening Br.

at 16.

         In particular, Gonzalez-Hernandez maintains the alleged single conspiracy

came to an end in late 2016, when Fitzgerald went to prison. In this regard, he points

to Fitzgerald’s testimony that “when she was incarcerated in December 2016, she

was not aware of any contact between Karten and the Denver group, and she had lost

contact with Zarate-Suarez.” Id. at 17. A single conspiracy, however, does not

become multiple conspiracies merely because there is a lapse in time between

transactions. See United States v. Williamson, 53 F.3d 1500, 1514 (10th Cir. 1995)

(holding that a seven-month hiatus did not sever a single conspiracy into two separate

conspiracies, where “operations resumed with the same participants, the same

conspiratorial objective and the same course of conduct”). Here, the evidence

established that shortly after Fitzgerald was released from prison in 2018, the same

participants resumed the same plan—the sale of methamphetamine to Karten.



                                            8
      Finally, Gonzalez-Hernandez relies on Fitzgerald’s testimony that there were

three separate agreements, and therefore, three separate conspiracies. But the

existence and scope of a conspiracy is a question to be answered by the jury—not a

fact witness. See Caldwell, 589 F.3d at 1329 (noting that because “[d]istinguishing

between a single, large conspiracy and several smaller conspiracies is often

difficult[,] we will generally defer to the jury’s determination of the matter”).

      Thus, contrary to Gonzalez-Hernandez’s arguments, a reasonable jury could

have concluded that he was a member of a single, larger conspiracy to distribute

methamphetamine from Colorado to Virginia that stretched from October 2016 to

May 2018 and involved Zarate-Suarez, Fitzgerald, Serr, and Roman-Acevedo.

      2. Variance

      “A variance arises when an indictment charges a single conspiracy but the

evidence presented at trial proves only the existence of multiple conspiracies.”

United States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir. 2008). But “[e]ven if we

determine that a variance occurred, we need not reverse . . . unless we determine that

the defendant was substantially prejudiced by the variance.” Hill, 786 F.3d at 1266.

One way a variance can be prejudicial is “by causing the jury to determine the

defendant’s guilt by relying on evidence presented against other defendants who were

involved in separate conspiracies (the so-called spillover effect).” Id. (internal

quotation marks omitted).

      According to Gonzalez-Hernandez, there was a variance between the

indictment, which charged a single conspiracy, and the evidence at trial, which

                                            9
established three separate conspiracies. He further maintains he was prejudiced by

the spillover effect of evidence regarding: (1) Serr’s arrest while on his way to

Kansas City; (2) the robbery and beating of MaGuire; and (3) Fitzgerald and Roman-

Acevedo dumping methamphetamine into a jug of water to avoid arrest when they

were stopped by law enforcement on their way to deliver drugs to Karten.

      As explained infra, the evidence at trial was sufficient for a reasonable jury to

find the existence of the conspiracy as charged. And because there was no variance,

we need not reach the question of prejudice. See United States v. Marquez, 898 F.3d

1036, 1043 (10th Cir. 2018) (explaining that where the record supports the jury’s

determination there was only a single conspiracy, and therefore no variance, we do

not reach the question of prejudice).

                                 III. CONCLUSION

      We affirm Gonzalez-Hernandez’s conviction.




                                           Entered for the Court


                                           Gregory A. Phillips
                                           Circuit Judge




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