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

                             FOR THE TENTH CIRCUIT                             April 15, 2015
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                             No. 13-6253
                                                      (D.C. No. 5:12-CR-00297-R-16)
EDGARDO JOSUE AGUILAR,                                         (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

       Edgardo Josue Aguilar appeals his jury 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 two

counts of use of a communication facility in violation of 21 U.S.C. § 843(b). Aguilar

contends (1) the government presented insufficient evidence to support his convictions

for conspiracy and possession with intent to distribute; (2) the district court violated his

due process rights by admitting an agent’s testimony about an alleged co-conspirator’s

post-arrest request for counsel; and (3) the cumulative effect of these errors requires

*
       This order and judgment is not binding precedent, except under the doctrines of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.
                                              1
reversal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                      BACKGROUND

       This case arose from law enforcement’s investigation of Iran Zamarripa, the

regional supervisor of an international methamphetamine ring. Aguilar was one of

Zamarripa’s most trusted local distributors and one of the few individuals who contacted

Zamarripa directly to obtain methamphetamine, rather than ordering it through

Zamarripa’s employees. In fact, Zamarripa trusted Aguilar enough to permit him to

inspect the quality of the organization’s product.

       At trial, Zamarripa and his local manager, Alfredo Resendiz, testified against

Aguilar and his alleged co-conspirators. According to Zamarripa and Resendiz,

Zamarripa fronted Aguilar methamphetamine on two separate dates in May 2012:

Resendiz testified he transferred a half-pound of methamphetamine to Aguilar on

May 15, 2012, and Zamarripa testified that on May 21, 2012, he instructed Resendiz to

leave a pound of methamphetamine at Resendiz’s house for Aguilar to pick up. Within

days, Aguilar repaid Zamarripa through Resendiz for all 1.5 pounds of fronted

methamphetamine.

       The government corroborated this testimony with evidence of law enforcement’s

visual surveillance and recorded telephone calls between Aguilar and Zamarripa, Aguilar

and Resendiz, and Zamarripa and Resendiz. Although the recorded conversations

contained no explicit references to methamphetamine, Zamarripa and Resendiz

interpreted the calls for the jury, identifying code words the three men used to arrange the

two transactions.

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       The jury also heard from Special Agent Casey Cox who testified that Aguilar’s co-

defendant, Bani Moreno, initially responded to Cox’s post-arrest questions. But when

questioned about his involvement in drug trafficking, Moreno refused to speak without an

attorney present, and the interview ended. None of the co-defendants’ attorneys objected

to this testimony or requested a limiting instruction.

       The jury found Aguilar 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 two counts of use of a

communication facility in committing these crimes. The district court imposed a 188-

month prison sentence.

                                        DISCUSSION

I.     The government presented sufficient evidence to support Aguilar’s
       convictions.

       In this direct appeal, Aguilar first challenges the sufficiency of the evidence

supporting his conspiracy conviction and his two convictions for possession of

methamphetamine with intent to distribute.1

       Aguilar urges us to review his claim de novo, while the government argues for

plain-error review. But without sufficient evidence to support it, a conviction will almost


       1
          In part, Aguilar claims the jury “was required to make repeated and cumulative
speculative inferences” in order to find him guilty of possession with intent to distribute
and conspiracy to possess methamphetamine with intent to distribute. Because Aguilar
fails to identify any impermissible inferences upon which the jury allegedly relied, we
decline to reach this argument. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.
2007) (citing what is now Fed. R. App. P. 28(a)(8)(A)) (explaining court will not
consider issues inadequately presented in opening brief).
                                              3
always constitute plain error. Thus, reviewing for plain error in this context differs little

from our de novo review of a 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 our 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).

       A.      Possession of methamphetamine with intent to distribute

       To support Aguilar’s convictions under 21 U.S.C. § 841(a)(1), the government

was required to show Aguilar (1) possessed methamphetamine; (2) knew he possessed it;

and (3) intended to distribute it. See United States v. Mains, 33 F.3d 1222, 1228 (10th

Cir. 1994).

       Although Zamarripa and Resendiz testified Zamarripa fronted2 Aguilar a half-

pound of methamphetamine on May 15, 2012, and a pound of methamphetamine on

May 21, 2012, Aguilar contends this testimony was insufficient to prove possession with

intent to distribute.

       We disagree. First, the government did not rely solely on Aguilar’s co-

conspirators’ testimony; it presented recorded telephone calls and video surveillance

       2
          See United States v. Hardwell, 80 F.3d 1471, 1498, rev’d on reh’g in part, 88
F.3d 897 (10th Cir. 1996) (defining “fronting” as “supplying drugs on consignment or on
credit”).
                                               4
corroborating their testimony. Second, even without the corroborating evidence,

Zamarripa’s and Resendiz’s testimony—if believed by the jury—sufficiently established

that Aguilar twice possessed methamphetamine. See United States v. Delgado-Uribe, 363

F.3d 1077, 1081 (10th Cir. 2004) (explaining we do not determine credibility of

witnesses in evaluating sufficiency, but ask only whether evidence, if believed,

established each element of crime).

         From the same evidence, the jury could also infer Aguilar’s intent to distribute.

See United States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th Cir. 2004) (stating jury

may infer intent to distribute from possession of large quantities of drugs); United States

v. Small, 423 F.3d 1164, 1184 (10th Cir. 2005) (explaining that fronting arrangement

whereby individual receives drugs on credit suggests expectation that individual will

redistribute drugs for profit). Thus, we conclude the government presented sufficient

evidence to allow a reasonable jury to convict Aguilar of two counts of possession of

methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

         B.     Conspiracy to possess methamphetamine with intent to distribute

         Aguilar also challenges the sufficiency of the evidence supporting his conspiracy

conviction. To prove the conspiracy charge, the government was required to show

Aguilar (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 himself in the

conspiracy. Further, the government was required to demonstrate (4) interdependence

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

2011).

                                               5
       Evidence that Zamarripa twice fronted Aguilar large quantities of

methamphetamine was sufficient to allow the jury to infer an agreement between the two

men to distribute methamphetamine. 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). It

was also sufficient to prove the second and third conspiracy elements, i.e., that Aguilar

knew of the conspiracy’s objectives and knowingly and voluntarily involved himself in

the conspiracy. See Small, 423 F.3d at 1183 (noting evidence of multiple drug purchases

for resale permits inference buyer was aware of and “shared common goals with”

conspiracy); United States v. Bell, 154 F.3d 1205, 1208 (10th Cir. 1998) (stating jury may

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

Finally, evidence of the fronting arrangement also was sufficient to establish

interdependence. See United States v. Acosta-Gallardo, 656 F.3d 1109, 1124 (10th Cir.

2011) (finding fronting arrangement indicative of interdependence).

       The government presented evidence Aguilar ordered and obtained considerable

quantities of methamphetamine from Zamarripa on credit and then promptly made good

on his debts. Viewing this evidence in the light most favorable to the government, we

conclude a reasonable jury could convict Aguilar of possession with intent to distribute

and conspiracy. Thus, we find no error, plain or otherwise.

II.    Aguilar fails to establish the admission of Cox’s testimony regarding
       Moreno’s post-arrest request for counsel constituted plain error.

       Next, Aguilar argues the admission of Cox’s testimony regarding his co-defendant


                                             6
Moreno’s post-arrest request for counsel violated Aguilar’s due process rights under

Doyle v. Ohio, 426 U.S. 610, 619 (1976) (concluding use of petitioners’ post-arrest

silence for impeachment purposes violated petitioner’s due process rights). Further,

Aguilar contends this error was so prejudicial as to require reversal of Aguilar’s

convictions.

       Because Aguilar failed to object to Cox’s testimony, we review for plain error. See

United States v. Kamahele, 748 F.3d 984, 1018 (10th Cir. 2014). To establish plain error,

Aguilar must demonstrate (1) an error, (2) that is clear or obvious under current law, and

(3) that affected his substantial rights. If Aguilar can make 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).

       Here, we need consider only the third prong of the plain-error test. Even if we

assume the admission of Cox’s testimony about Moreno’s post-arrest request for counsel

constituted plain and obvious error, Aguilar must demonstrate the error affected his

substantial rights, i.e., it was so prejudicial as to affect the trial’s outcome. See United

States v. Olano, 507 U.S. 725, 734 (1993) (discussing prejudice prong of plain-error test).

       But Aguilar makes no effort to explain precisely how the admission of Cox’s

testimony prejudiced his substantial rights. Instead, Aguilar generally suggests, “In a

conspiracy case such as this one, all co-defendants are prejudiced when the prosecution

blatantly violates the due process rights of one co-defendant.” Aplt. Br. at 20.

       Given the substantial evidence of Aguilar’s guilt and his failure to explain how

Cox’s comment regarding Moreno’s post-arrest request for counsel prejudiced Aguilar,

                                               7
we conclude Aguilar has failed to meet his burden to show the alleged error affected his

substantial rights. Thus, we reject Aguilar’s claim of error without addressing whether he

can satisfy the other three prongs of the plain-error test. See United States v. Pablo, 696

F.3d 1280, 1301 (2012) (declining to address remaining three plain-error requirements

based on defendant’s failure to meet third requirement). And because Aguilar has, at best,

demonstrated a single error, we also reject his cumulative-error claim. See United States

v. Franklin-El, 555 F.3d 1115, 1128 (10th Cir. 2009) (explaining cumulative-error

analysis applies only when defendant establishes at least two actual errors).

                                       CONCLUSION

       Because we conclude sufficient evidence supports Aguilar’s convictions for

conspiracy and possession with intent to distribute, and the district court’s admission of

evidence of his co-defendant’s post-arrest request for an attorney did not affect Aguilar’s

substantial rights, we affirm.




                                              Entered for the Court


                                              Nancy L. Moritz
                                              Circuit Judge




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