    Case: 15-41235   Document: 00514000056    Page: 1   Date Filed: 05/19/2017




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

                                                                       FILED
                                                                   May 19, 2017
                               No. 15-41235
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,
                                        Plaintiff–Appellee,

versus

SALVADOR OCAMPO-VERGARA,
 Also Known as Salvador Ocampo, Also Known as Chava;
GUSTAVO ORTIZ-SALAZAR,
 Also Known as Daniel, Also Known as Gus, Also Known as Gustabo,


                                        Defendants–Appellants,

                             * * * * * * * * *


Consolidated with 15-41286


UNITED STATES OF AMERICA,
                                        Plaintiff–Appellee,

versus


RICARDO ORTIZ-FERNANDEZ, Also Known as Alex,

                                        Defendant–Appellant.
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                    Appeals from the United States District Court
                          for the Eastern District of Texas




Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge.*
JERRY E. SMITH, Circuit Judge:

      A jury convicted Salvador Ocampo-Vergara, Gustavo Ortiz-Salazar, and
Ricardo Ortiz-Fernandez of conspiracy to possess with intent to distribute her-
oin. They raise various challenges to their convictions. We affirm.

                                               I.
      The government introduced testimony from several of the coconspira-
tors. Daniel Castrejon testified about the structure of the drug-trafficking
organization. He explained that the Beltran-Levya cartel controlled drug dis-
tribution in the Mexican states of Morelos, Guerrero, and Puebla. Castrejon
worked for the cell of a cartel in the Beltran-Levya alliance. He knew that a
man called “La Chula” also worked for the cartel and that La Chula’s job was
to send shipments of heroin to the United States. 1 Castrejon’s job was to find
drivers who were willing to transport drugs into the United States. He reached
an arrangement with Ocampo-Vergara whereby Castrejon would pay Ocampo-
Vergara 30,000 pesos for each courier he recruited. Couriers were paid $15,000




      *   District Judge of the Western District of Texas, sitting by designation.
      1 La Chula’s given name is Rene Romero-Aruajo, but most witnesses referred to him
as La Chula.
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plus $5,000 expense money for each trip. To reduce suspicion, they were re-
quired to register and insure the cars in their own names. The couriers were
generally not informed of the type or quantity of the drugs they were trans-
porting. The drugs were concealed in hidden compartments, and, depending
on the type of vehicle, each shipment of heroin was between six and fifteen
kilograms.

      Ortiz-Fernandez was in charge of receiving and unloading the cars and
then distributing the drugs. He operated out of Chicago and was responsible
for distributing drugs to Chicago, New York, and Texas. Shipments would
arrive in Chicago at least once a week; for each kilogram of heroin that arrived
in Chicago, Ortiz-Fernandez was paid $1,000. Proceeds from sale of the heroin
were then sent to Mexico in the same vehicles used to transport the drugs.
Castrejon estimated that he and Ortiz-Fernandez received 100 kilograms of
heroin and returned between three and five million dollars to Mexico.

      Multiple couriers for the organization corroborated Castrejon’s descrip-
tion of Ocampo-Vergara’s and Ortiz-Fernandez’s roles. Several of the couriers
also described how Ortiz-Salazar participated in driving shipments of drugs
and money. Alejandro Rodriguez, Araceli Gonzalez, and Daniel Vargas de-
scribed trips they made with Ortiz-Salazar on behalf of the organization.

      After an eight-day trial, a jury convicted Ocampo-Vergara, Ortiz-
Salazar, and Ortiz-Fernandez—who had been indicted along with four other
defendants not parties to this appeal 2―of conspiracy to possess with intent to
distribute one kilogram or more of heroin. They raise several issues regarding
the convictions.



      2   Arturo Palacios, Rene Araujo (La Chula), Daniel Vargas, and Noemi Vargas.
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                                              II.
       Ocampo-Vergara contends that there was insufficient evidence for con-
viction. But he did not properly preserve that issue. Although he joined a
motion for judgment of acquittal at the close of the government’s case-in-chief,
he did not renew the challenge at the close of all evidence. 3 Where no such
challenge was made, a defendant, to establish insufficiency, must show that
the record is “devoid of evidence pointing to guilt” or is “so tenuous that a
conviction is shocking.” 4

       “To prove a drug conspiracy, the government must prove that (1) two or
more persons, directly or indirectly, reached an agreement to possess with the
intent to distribute a controlled substance; (2) the defendant knew of the agree-
ment; (3) the defendant voluntarily participated in the agreement; and (4) the
overall scope of the conspiracy involved the drug amount in the charged
crime.” 5 “A reasonable jury may infer the existence of a conspiracy from the
presence, association, and concerted action of the defendant with others.” 6
Moreover, we must view all evidence in the light most favorable to the



       3 See United States v. Jimenez, 509 F.3d 682, 690 (5th Cir. 2007) (“When appellants
have preserved their sufficiency argument by moving for judgment of acquittal at the close
of the government’s case in chief and at the close of all the evidence, we review their argu-
ments de novo.”) (emphasis added); United States v. Green, 293 F.3d 886, 895 (5th Cir. 2002)
(“Defendants’ sufficiency of the evidence claims are reviewed under a stricter than usual
standard, because none of the defendants renewed their motions for judgment of acquittal at
the close of all evidence.”); United States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988) (“Nestor
moved for a judgment of acquittal based on insufficiency of evidence only at the close of the
government’s evidence, failing to renew this motion at the conclusion of the presentation of
his defense. This failure waived any objection to the denial of his motion.”).
       4United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (en banc) (quotation
marks, citation, and emphasis omitted)
       United States v. Bowen, 818 F.3d 179, 186 (5th Cir. 2016) (per curiam) (quotation
       5

marks omitted and alterations adopted).
       6   Id. (quotation marks omitted).
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government, giving it the benefit of all reasonable inferences and credibility
choices. 7

       Far from being “devoid of evidence,” the record is replete with evidence
that points to Ocampo-Vergara’s guilt. Four conspiracy members testified that
Ocampo-Vergara recruited them to be couriers and explicitly informed them
that they would be transporting drugs. In addition, Castrejon said that he
entered an agreement with Ocampo-Vergara whereby Castrejon would pay
Ocampo-Vergara 30,000 pesos for each courier whom he recruited. So, al-
though evidence of an express agreement is not required to prove a conspiracy, 8
the record shows that Ocampo-Vergara entered express agreements to distrib-
ute heroin.

      Numerous couriers also testified that they delivered vehicles to Ocampo-
Vergara in Mexico. Ocampo-Vergara then directed the return of those vehicles
for trips into the United States; heroin was discovered in several of the vehi-
cles. A jury could reasonably infer that Ocampo-Vergara knew that heroin was
concealed inside the cars between the time he received them and the time the
couriers retrieved them. Indeed, when one of the couriers noticed a white res-
idue on her returned vehicle and asked Ocampo-Vergara about it, he instructed
her to wash it and spray it with perfume. His answer implies knowledge of the
drugs.

       In sum, Ocampo-Vergara has not overcome the high bar of showing that
the evidence was “obviously insufficient.” Delgado, 672 F.3d at 331 (emphasis



       7 Delgado, 672 F.3d at 332; see also United States v. Grant, 683 F.3d 639, 642 (5th
Cir. 2012) (“The jury retains the sole authority to weigh any conflicting evidence and to
evaluate the credibility of the witnesses.”) (quotation marks omitted).
       8   Bowen, 818 F.3d at 188.
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omitted). His sufficiency claim fails.

                                           III.
      Ortiz-Salazar asserts that the district court erred by permitting the gov-
ernment to introduce “guilt-by-association” evidence. He points to (1) testi-
mony about other conspiracy members’ arrests; (2) testimony that couriers
drove consistent types of vehicles and had similar concealment methods;
(3) testimony that Ortiz-Salazar was from the same area of Mexico as several
other coconspirators; and (4) questions from the government, in which it de-
scribed certain witnesses as “known” or “possible” couriers. But, as we explain,
such evidence is perfectly appropriate in a conspiracy case.

      “[A] defendant’s guilt may not be proven by showing he associates with
unsavory characters.” United States v. Singleterry, 646 F.2d 1014, 1018 (5th
Cir. Unit A June 1981). For example, we found that a prosecutor had elicited
impermissible guilt-by-association evidence by asking the defendant if he asso-
ciated with felons. Id. And a district court erred by admitting evidence that a
defendant’s brother had been involved in marihuana smuggling, given that the
evidence was “not connected to [the defendant] in any way except for the fact
that the seller was his brother.” 9 There are two problems with such guilt-by-
association evidence. First, “it is not relevant as that term is defined in [Fed-
eral Rule of Evidence] 401 and hence is inadmissible under [Federal Rule of
Evidence] 402.” United States v. Polasek, 162 F.3d 878, 884 n.2 (5th Cir. 1998).
Second, “even if it is relevant, it is unduly prejudicial and excludible under
[Federal Rule of Evidence] 403.” Id.


      9 United States v. Parada-Talamantes, 32 F.3d 168, 169–70 (5th Cir. 1994); see also
United States v. McCall, 553 F.3d 821, 825–27 (5th Cir. 2008) (finding that the prosecution
had introduced impermissible guilt-by-association evidence by asking the defendant whether
he knew a crack-cocaine dealer and if he knew that the dealer was present at the trial).
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       But, in a conspiracy case, evidence that the defendant was involved with
coconspirators is highly relevant. Indeed, “[t]he agreement, a defendant’s
guilty knowledge and a defendant’s participation in the conspiracy all may be
inferred from the development and collocation of circumstances.” 10 Accord-
ingly, “[p]resence and association with other members of a conspiracy, along
with other evidence, may be relied upon to find a conspiracy.” United States v.
Casilla, 20 F.3d 600, 603 (5th Cir. 1994). And though such evidence is certainly
prejudicial in the sense that it harms the defendant’s case, it is not “unfair[ly]”
prejudicial in the sense of Rule 403. 11

       Polasek is instructive of the interaction between conspiracy cases and
the prohibition on guilt-by-association evidence. There, the defendant was
charged with various offenses, including conspiracy, related to odometer tam-
pering. The government elicited testimony that the defendant had done title
work for persons later convicted of odometer fraud. Polasek, 162 F.3d at 881–
83. We held that the testimony was impermissible guilt-by-association evi-
dence because it “showed only that [the defendant] associated with criminals.”
Id. at 885. But, critically, we observed that “the government failed to dem-
onstrate that [the defendant] in fact falsified titles or committed any other
crimes in connection with the convicted associates.” Id. (emphasis added). In
explaining why the challenged testimony was irrelevant, we noted that “[t]he
government never demonstrated that [the defendant] participated in or even


       10United States v. Romans, 823 F.3d 299, 311 (5th Cir. 2016) (quotation marks omit-
ted). See also United States v. Gallardo-Trapero, 185 F.3d 307, 317 (5th Cir. 1999) (“[I]n
meeting its burden, the government may rely on circumstantial evidence tying the defen-
dants together in order to prove conspiracy.”).
       11  See Old Chief v. United States, 519 U.S. 172, 180 (1997) (“The term ‘unfair prejudice’
. . . speaks to the capacity of some concededly relevant evidence to lure the factfinder into
declaring guilt on a ground different from proof specific to the offense charged.”) (emphasis
added).
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knew of the schemes for which the associates were convicted.” Id. at 884 n.2.
Thus, Polasek shows that guilt-by-association problems arise where evidence
indicates only that a defendant associates with unsavory characters.                       In
contrast, where the defendant’s offense is connected to others’ conduct, no such
problems arise.

       All of the evidence Ortiz-Salazar challenges was relevant to showing that
he was a member of the conspiracy, and none of it was unfairly prejudicial.
Thus, the district court did not err in permitting it.

                                               IV.
       Ortiz-Salazar contends that the district court erred by permitting certain
testimony from DEA Agent Richard Clough. Testifying as an expert, Clough
explained how complex drug-trafficking organizations typically move drugs
from Mexico to the United States. He also described specific events from the
instant conspiracy, such as the arrests of the testifying couriers. He further
explained how the DEA, based on its investigation into Ortiz-Salazar’s activi-
ties and travel patterns, had come to believe that he too was a drug courier.
Ortiz-Salazar maintains that Clough’s testimony violated Federal Rule of Evi-
dence 704(b) 12 and our precedents prohibiting evidence of drug-courier
profiles. 13

       But Ortiz-Salazar concedes that he did not raise those challenges at trial
and that we are thus limited to reviewing for plain error. See Puckett v. United
States, 556 U.S. 129, 135 (2009). And even assuming that the district court



       12Rule 704(b) prohibits an expert witness from “stat[ing] an opinion about whether
the defendant did or did not have a mental state or condition that constitutes an element of
the crime charged or of a defense.”
       13   E.g., United States v. Morin, 627 F.3d 985, 995 (5th Cir. 2010).
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erred in permitting the challenged portions of Clough’s testimony—and
assuming that the error was clear—Ortiz-Salazar still has the burden to show
that his substantial rights were affected. To meet that burden, he “must show
‘a reasonable probability that his trial would have come out differently but for
the illegitimate aspects of [Agent Clough’s] testimony.’” 14

          Ortiz-Salazar has made no such showing. Even setting aside Clough’s
challenged testimony, the jury was presented with substantial other evidence
that Ortiz-Salazar was a knowing and voluntary participant in the conspir-
acy. 15 Four coconspirators—each of whom admitted to being a drug courier—
testified regarding Ortiz-Salazar’s involvement:

    • Alejandro Rodriguez said that Ortiz-Salazar asked for a ride to Chi-
      cago from Mexico. Rodriguez then explained that the purpose of the
      trip was to smuggle drugs. Ortiz-Salazar replied that it “[didn’t]
      matter” and requested an introduction to Rodriguez’s employer.
      Ortiz-Salazar then assisted Rodriguez in driving the vehicle to Chi-
      cago and received $2,000 for his help.
    • Araceli Gonzalez also testified about a trip she made with Ortiz-
      Salazar. They drove a Chevrolet Malibu—in which Gonzalez was
      later discovered with heroin—and Ortiz-Salazar told her that he had
      previously driven the car when transporting “loads.” He explained
      that the Malibu was good for transporting drugs because it did not
      attract attention.
    • Daniel Vargas described how he and Ortiz-Salazar had driven a car


          14   Id. at 998 (quoting United States v. Gonzalez-Rodriguez, 621 F.3d 354, 367 (5th Cir.
2010)).
          See id. at 999–1000 (holding that a defendant had not shown that drug-courier-
          15

profile evidence affected his substantial rights because “[t]he government produced a sub-
stantial volume of additional evidence demonstrating [the defendant’s] guilty knowledge”);
Gonzalez-Rodriguez, 621 F.3d at 367–68 (holding the same because “even excluding [the
agent’s] impermissible testimony, there is still extensive evidence that [the defendant] knew
about the drugs . . . .”).
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       from Chicago to Los Angeles at Ortiz-Fernandez’s instruction. When
       they arrived in Los Angeles, Ortiz-Salazar called a number, and the
       two were told to meet an unknown man at a hotel. The man took
       the car, returned it the next day, and gave them $2,000–$3,000.
    • Angelica Campos testified that a coconspirator told her that Ortiz-
      Salazar was a drug courier and that he worked for Castrejon.

      Considering the couriers’ testimony, along with the record as a whole,
there is no reasonable probability that Ortiz-Salazar’s conviction hinged on
Clough’s challenged testimony. So Ortiz-Salazar has not shown that his sub-
stantial rights were affected. He thus has not established plain error.

                                           V.
      Ortiz-Fernandez asserts that the district court erred by permitting the
government to introduce certain summary charts. The charts represented
phone “connections” between and among various coconspirators, including
Ortiz-Fernandez.      The connections were drawn between names; no phone
numbers appeared on the charts. Ortiz-Fernandez contends that the summary
charts did not accurately reflect the underlying phone records because those
records did not contain phone-subscriber names. He claims that the records
provided no basis for the government to tie phone numbers to any particular
conspirator.

      But even assuming that the court erred in admitting the challenged sum-
mary charts, that error was harmless. “A nonconstitutional trial error is harm-
less unless it ‘had substantial and injurious effect or influence in determining
the jury’s verdict.’” 16 The admission of improper summary charts is harmless



      16 United States v. Lowery, 135 F.3d 957, 959 (5th Cir. 1998) (per curiam) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
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if other evidence sufficiently proved the elements of the crime and if the jury
was not misled by the charts. 17

       There was overwhelming evidence of Ortiz-Fernandez’s guilt. Castrejon
testified that Ortiz-Fernandez was in charge of receiving cars, unloading them,
and distributing the drugs. He said that Ortiz-Fernandez distributed drugs to
Chicago, New York, and Texas and that for each kilogram of heroin that
arrived in Chicago, Ortiz-Fernandez was paid $1,000. Castrejon estimated
that he and Ortiz-Fernandez received 100 kilograms of heroin and returned
between three and five million dollars to Mexico. In addition, many of the
couriers identified Ortiz-Fernandez in court and described how he provided
them with vehicles and expense money. The couriers also testified to deliver-
ing vehicles containing drugs to Ortiz-Fernandez and to receiving payments
from Ortiz-Fernandez for those deliveries.

       Ortiz-Fernandez points us to several cases in which we held that admis-
sion of an improper summary chart was not harmless. 18 But there the gov-
ernment had attempted to use a summary chart to prove an element that it
otherwise had not established. 19 Here, in contrast, the government presented


       17See United States v. Winn, 948 F.2d 145, 159 (5th Cir. 1991) (holding that improper
use of a summary chart was harmless because the evidence was “merely cumulative” and
there was “overwhelming evidence” of the charged crime); United States v. Covarrubia,
52 F.3d 1068 (5th Cir. 1995) (per curiam) (table) (holding that admission of a summary chart
was harmless because “it [was] clear that the summary did not mislead the jury” and “[t]he
evidence introduced at trial was more than sufficient to prove the[] elements as to each
defendant”). Because Covarrubia was issued before January 1, 1996, it is precedential. See
5TH CIR. R. 47.5.3.
       18See United States v. Hart, 295 F.3d 451, 458–59 (5th Cir. 2002); United States v.
Taylor, 210 F.3d 311, 315–16 (5th Cir. 2000).
       19See Hart, 295 F.3d at 458–59 (finding non-harmless error in the admission of a chart
that stated that certain debts belonged on a form, when the government had presented no
evidence to establish that fact); Taylor, 210 F.3d at 316 (finding non-harmless error in the
admission of a chart that showed that the defendant had supplied crack cocaine to persons
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ample evidence to satisfy each of the elements of Ortiz-Fernandez’s conspiracy
charge. The challenged summary charts served, at most, as cumulative evi-
dence of an agreement or of Ortiz-Fernandez’s voluntary participation in it.
Indeed, it is unlikely that the jury relied on phone calls to conclude that an
agreement existed, given that there was direct testimony from multiple co-
conspirators that Ortiz-Fernandez was part of the trafficking organization.
Moreover, even if the calls were important to the jury’s verdict, numerous wit-
nesses testified to having called Ortiz-Fernandez. In sum, we cannot say that
the admission of the summary charts “had substantial and injurious effect or
influence in determining the jury’s verdict.” Lowery, 135 F.3d at 959. So any
error was harmless.

       The judgments of conviction are AFFIRMED.




who had testified to the contrary).
                                          12
