     Case: 13-10089      Document: 00512715532         Page: 1    Date Filed: 07/29/2014




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


                                      No. 13-10089
                                                                                  FILED
                                                                              July 29, 2014
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

                                                 Plaintiff - Appellee
v.

DOROTHY FRAIZER WISEMAN, also known as Dot; JOHN PENA
MEDELLIN, also known as Papa John, also known as Uncle John,

                                                 Defendants - Appellants


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:11-CR-192-14


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       John Medellin headed a biker gang in Texas that distributed heroin.
Dorothy Wiseman was both his customer and one of the dealers working for
him. Both were convicted in separate trials of conspiracy to possess heroin
with intent to distribute. Both now bring sufficiency challenges, which we
reject because in addition to the testimony of an undercover agent, both
defendants confessed to the crimes for which they were charged. Additionally,




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                         No. 13-10089

Medellin also makes several evidentiary challenges, which are also without
merit.
                                                I.
      An undercover FBI agent who testified under the assumed name of “Rick
Krueger” bought heroin from Los Homeboys, a Banditos-affiliated gang. As
the head of Los Homeboys, Medellin personally delivered heroin to Krueger
three times.       Krueger wiretapped the meetings, and the recordings were
introduced at trial. The heroin Krueger purchased was a large amount that
was appropriate for redistribution.
      Medellin was eventually arrested. In the course of his capture, Medellin
ingested heroin and suffered a head injury. The officers interviewing Medellin
were aware of his heroin ingestion and injury.                    After being properly
Mirandized, Medellin waived his rights and confessed that he led Los
Homeboys.
      Wiseman, a dealer for Medellin, was also arrested and properly
Mirandized.       She waived her rights and confessed to purchasing a large
quantity of heroin from Medellin about fifty times in a two-year period, part of
which she would use and part of which she would sell.
      Two separate juries found both defendants guilty of conspiracy to possess
with intent to distribute a controlled substance. 1 Wiseman and Medellin now
challenge the sufficiency of the evidence supporting their convictions.
Additionally, Medellin challenges the chain of custody of a bag of heroin
introduced into evidence, argues that that heroin bag was unduly prejudicial,
and argues that his confession should have been excluded as not knowing and
voluntary.



      1   21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846.
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                                  No. 13-10089

                                       II.
      We begin by reviewing Wiseman’s sufficiency challenge. Although she
made a motion for acquittal after the Government rested, she failed to renew
her motion at the close of evidence. Consequently, she faces plain error review
and her sufficiency challenge will succeed only if “the record is devoid of
evidence pointing to guilt or if the evidence is so tenuous that a conviction is
shocking.” United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (en
banc) (internal quotation marks omitted).
      Wiseman contends that she was only in a buyer-seller relationship with
Medellin. “[W]hile it is true that a buyer-seller relationship, without more, will
not prove conspiracy, one becomes a member of a conspiracy if he knowingly
participates in a plan to distribute drugs, whether by buying, selling or
otherwise.” Id. at 333 (internal quotation marks omitted).
      The record is replete with evidence that Wiseman “knowingly
participate[d] in a plan to distribute drugs.” Id. DEA Agent Brian Finney
testified that Wiseman confessed to him that she was a dealer for Medellin.
Moreover, Wiseman reported buying large quantities of heroin over 50 times,
whereas the buyer-seller exception generally applies to “a single buy-sell
agreement.” See id. Medellin’s daughter independently confirmed that on
multiple times she personally delivered large, distributable quantities of
heroin to Wiseman. These large deliveries discredit Wiseman’s argument that
the heroin was for her family’s consumption only.
      Because “the record is [not] devoid of evidence pointing to guilt,” id. at
331, Wiseman’s sufficiency challenge fails.




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                                   No. 13-10089

                                        III.
                                        A.
        We next examine the evidentiary challenges made by Medellin,
Wiseman’s supplier.
        First, Medellin challenges the admission of the bag of heroin that he sold
to Krueger at their first meeting on the grounds that it is unduly prejudicial.
Medellin appears to challenge both the bag and the heroin as a single piece of
evidence. The district court’s decision to admit the bag of heroin is reviewed
for abuse of discretion. United States v. Patterson, 431 F.3d 832, 839 (5th Cir.
2005).
        “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.” FED. R. EVID.
403.     “Relevant evidence is inherently prejudicial; but it is only unfair
prejudice, substantially outweighing probative value, which permits exclusion
of the relevant matter under Rule 403.” Patterson, 431 F.3d at 839 (internal
quotation marks omitted). Here, an essential element of Medellin’s conviction
for conspiracy to possess and distribute was an agreement to distribute drugs.
United States v. Tenorio, 360 F.3d 491, 494–95 (5th Cir. 2004). The probative
value of the bag of heroin could hardly have been higher. It was certainly
prejudicial to Medellin’s case, but it was surely not unfairly prejudicial.
Additionally, the Fifth Circuit has allowed evidence that is more highly
prejudicial than the heroin bag when such evidence relates to an essential
element of an offense. See, e.g., United States v. McRae, 593 F.2d 700, 707 (5th
Cir. 1979) (allowing, in a murder trial, “gross, distasteful, and disturbing”
photographs showing a bullet’s exit wound from the victim’s skull).
        Medellin also argues that the district court should have conducted a
balancing test, on the record, involving the “ascertainment of probative value

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                                  No. 13-10089

and unfair prejudice” of the heroin bag. United States v. Beechum, 582 F.2d
898, 914 (5th Cir. 1978) (en banc). But an on the record balancing test is
typically performed for Rule 404(b) objections. See, e.g., id. at 914; United
States v. Fox, 69 F.3d 15, 20 (5th Cir. 1995). Medellin cites no cases where we
have required an on the record balancing test for a Rule 403 objection.
Moreover, because Medellin did not “request specifically an on-the-record
articulation” of the test, the district court was not required to perform an on
the record test before admitting the heroin bag. Fox, 69 F.3d at 20.
                                        B.
      In addition to arguing that the bag of heroin was unduly prejudicial,
Medellin also argues that the Government failed to establish the bag of
heroin’s chain of custody. Review here is for plain error because Medellin failed
to make the chain of custody argument before the district court, even though
he objected to admitting the heroin bag on other grounds. See United States v.
Krout, 66 F.3d 1420, 1433–34 (5th Cir. 1995). To avoid plain error review, “[a]
party must raise a claim of error . . . in such a manner so that the district court
may correct itself.” Id. at 1434 (internal quotation marks omitted).
      The applicable rule is that
      When a defendant questions the authenticity of evidence, the
      district court must determine whether the government has made
      a prima facie showing of authenticity. This prima facie showing is
      that there be substantial evidence from which the jury could infer
      that the evidence is authentic. Once this showing is made, the
      evidence should be admitted, and the jury has the ultimate
      responsibility for deciding the authenticity issue. Any break in the
      chain of custody goes to the weight of the evidence, not its
      admissibility.
United States v. Smith, 481 F.3d 259, 265 (5th Cir. 2007) (internal quotation
marks and citations omitted).


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      The heroin bag was properly admitted, as the Government made a prima
facie showing that the evidence was authentic.         Medellin sold the heroin
wrapped in a brown bandana.         That bandana was in the bag of heroin
introduced into evidence, which demonstrated its authenticity. Additionally,
Krueger stated that he had given the bag of heroin to his partner, who stored
it in the police’s evidence locker and signed the bag. This procedure mirrored
the procedure the police followed in Smith, where a prima facie case of
authenticity was established when the officer (1) put seized drugs in a paper
bag at the police station and then sealed and initialed the bag; and (2) testified
at trial that the bag in evidence was the one he had put in the police’s evidence
locker. Id. at 265.
                                       C.
      Medellin also argues that his confession was involuntary because he had
previously ingested heroin and also was suffering from a head wound. He
argues that when he confessed, he did not understand that he could terminate
his interview with law enforcement.         The district court denied Medellin’s
motion to suppress. Review of the legal conclusion that the confession was
voluntary and knowing is de novo. See United States v. Santiago, 410 F.3d
193, 197 (5th Cir. 2005).
      A defendant may waive his right to remain silent if “the waiver is made
voluntarily, knowingly and intelligently.” Miranda v. Arizona, 384 U.S. 436,
444 (1966). “The mere fact that the defendant had taken drugs prior to giving
the statement does not render it inadmissible. The evidence must show the
defendant was so affected as to make his statement, after appropriate
warnings, unreliable or involuntary.” United States v. Taylor, 508 F.2d 761,
763 (5th Cir. 1975).


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                                 No. 13-10089

      Viewing the evidence and the record relating to the confession, we
conclude that Medellin’s confession was indeed made “voluntarily, knowingly,
and intelligently.” Miranda, 384 U.S. at 444. Medellin told one of the police
officers interviewing him that he understood his rights and wished to continue
to talk. Moreover, the officers took safety measures that verified that Medellin
was lucid and alert when he confessed.        For example, Medellin correctly
answered questions about his date of birth, his wife’s and children’s names,
and his home address. Medellin’s detailed confession also indicated that he
was coherent. He confessed to how much drugs each of his gang members was
distributing, and how much he charged each member. Medellin’s identification
of the members of his gang corroborated what one of the officers interviewing
him independently knew to be true.
      As the record is clear that Medellin was not so intoxicated that his
confession became “unreliable or involuntary,” we hold that his confession was
properly admitted. Taylor, 508 F.2d at 763.
                                      D.
      Medellin finally argues that there was insufficient evidence to prove he
“knowingly” possessed any controlled substance. Because Medellin, too, failed
to renew his motion for acquittal at the close of evidence, he will prevail on
appeal only if “the record is devoid of evidence pointing to guilt or if the
evidence is so tenuous that a conviction is shocking.” Delgado, 672 F.3d at 331.
Here, the record is far from “devoid of evidence” supporting Medellin’s
conviction, given: (1) Medellin’s confession; (2) Agent Krueger’s testimony that
he bought heroin from Medellin personally three times; and (2) audio
recordings of these deals.




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                              No. 13-10089

                                   IV.
     For the reasons above, the district court’s judgments regarding both
defendants are
                                                                AFFIRMED.




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