Petition for Writ of Certiorari — Juan Flores, Petitioner v. United States

Supreme Court briefAug 28, 2018

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No: __________________

IN THE

SUPREME COURT OF THE UNITED STATES

________________________________________

JUAN FLORES, a/k/a ALEJANDRO BECERRA

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent.

_________________________________________

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

________________________________________

APPENDIX OF PETITIONER

MURRAY W. BELL, P.C.

2435 Kimberly Road Suit 235 South

Davenport, Iowa 52803

563-326-4095

mwbell@kirkwoodlaw.com

TABLE OF CONTENTS

Appendix A

Eighth Circuit Court of Appeals Opinion in

United States v. Perez-Trevino 891 F. 359 (8thCir, 2018)

(8th Cir 2018) dated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 001

Appendix B

Relevant part of Trail Transcript . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 027

Appendix page No. 001

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 17-1289

___________________________

United States of America

Plaintiff - Appellee

Marcos Perez-Trevino

Defendant - Appellant

___________________________

No. 17-1352

___________________________

United States of America

Plaintiff - Appellee

Juan Flores, also known as Alejandro Becerra

Defendant - Appellant

___________________________

No. 17-1718

___________________________

United States of America

Plaintiff - Appellee

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Appendix page No. 002

Daniela Castellanos

Defendant - Appellant

____________

Appeals from United States District Court

for the Northern District of Iowa - Waterloo

____________

Submitted: January 11, 2018

Filed: May 29, 2018 (Replacement Opinion)

____________

Before COLLOTON, BENTON, and ERICKSON, Circuit Judges.

____________

ERICKSON, Circuit Judge.

Defendants/Appellants Marcos Perez-Trevino (“Perez-Trevino”); Juan Flores,

a/k/a Alejandro Becerra (“Flores”); and Daniela Castellanos (“Castellanos”) were

tried together by a jury in the United States District Court for the Northern District

of Iowa for their roles in a conspiracy to distribute methamphetamine. All three were

found guilty and were sentenced by the court. After carefully considering the several

issues raised by the appellants, we affirm the judgments of the district court.1

The Honorable Linda R. Reade, then Chief Judge, United States District

Court for the Northern District of Iowa, adopting reports and recommendations from

the Honorable Jon Stuart Scoles, then United States Chief Magistrate Judge for the

Northern District of Iowa, with respect to the motions to suppress.

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BACKGROUND/PROCEDURE

In August 2015, eleven defendants, including the appellants, were charged in

a conspiracy to deliver methamphetamine in and around Marshalltown, Iowa. Several

of the defendants entered guilty pleas, but the appellants chose to proceed to a jury

trial. During the six-day trial, some of the defendants’ original co-conspirators

cooperated with the government and testified, hoping for more favorable sentencing

recommendations.

Prior to trial, Perez-Trevino moved to suppress evidence obtained during an

August 12, 2015, traffic stop in Oklahoma. Perez-Trevino argued that the vehicle

was improperly impounded and the inventory search was unlawful. The motion was

heard by the chief magistrate judge, and Chouteau (Oklahoma) Police Officer Thomas

Scott Fisher testified at the hearing. The chief magistrate judge issued a report and

recommendation that the motion be denied. The district court overruled PerezTrevino’s objections, adopted the report and recommendation, and denied the motion.

Castellanos brought a pretrial motion to suppress evidence obtained from the

interception of wire and electronic communications of a cell phone identified as

Target Telephone #16, arguing that the application for the wiretap: (1) lacked

sufficient specificity to establish probable cause, and (2) failed to sufficiently show

the wiretap was necessary as required by 18 U.S.C. § 2518(3)(c). After argument on

the motion without any additional evidence, the chief magistrate judge, finding the

affidavit sufficient, issued a report and recommendation that the motion be denied.

The district court overruled Castellanos’s objections, adopted the report and

recommendation, and denied the motion.

During the five-day trial, the government witnesses testified about information

gleaned during the investigation including evidence obtained from intercepts of

several telephones. The cooperating co-conspirators testified about their own

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Appendix page No. 004

participation in the conspiracy and their knowledge of the participation of the three

defendants. Following the procedures outlined in United States v. Bell, 573 F.2d

1040 (8th Cir. 1978), the trial court conditionally admitted hearsay evidence from

alleged co-conspirators. Much of the testimony referenced Mario Murillo-Mora, a

member of the conspiracy to distribute methamphetamine, who was connected by

evidence to each of the defendants, as well as to other members of the conspiracy.

The evidence revealed that the reason the government targeted various electronic

devices, including telephone #16, was their connection to communications to and

from Murillo-Mora related to the distribution of narcotics.

At the end of the government’s case, the court entertained objections to the coconspirator hearsay testimony. The court overruled the objections, finding that each

of the admitted statements was made by a co-conspirator in the course of and in

furtherance of the conspiracy. The court denied Perez-Trevino’s request for a jury

instruction on multiple conspiracies and an instruction regarding a mere buyer/seller

relationship.

The jury found Perez-Trevino guilty of conspiracy to distribute 500 grams or

more of a substance containing a detectable amount of methamphetamine, which

contained more than 50 grams of pure methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A), and 846. Flores and Castellanos were found guilty of

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

841(b)(1)(C), and 846. The district court sentenced Perez-Trevino to 292 months’

imprisonment and sentenced Flores and Castellanos to 240 months’ imprisonment.

II.

SUPPRESSION MOTIONS

“When reviewing the denial of a motion to suppress, we review a district

court’s factual findings for clear error and legal conclusions de novo.” United States

v. Evans, 781 F.3d 433, 436 (8th Cir. 2015) (citing United States v. Harris, 747 F.3d

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1013, 1016 (8th Cir. 2014)). We “will affirm the district court’s denial of a motion

to suppress evidence unless it is unsupported by substantial evidence, based on an

erroneous interpretation of applicable law, or, based on the entire record, it is clear

a mistake was made.” United States v. Collins, 883 F.3d 1029, 1031 (8th Cir. 2018)

(quoting United States v. Braden, 844 F.3d 794, 799 (8th Cir. 2016)). We may affirm

on any ground supported by the record. United States v. Murillo-Salgado, 854 F.3d

407, 414 (8th Cir. 2017). For example, in United States v. Wells, 347 F.3d 280, 287

(8th Cir. 2003), we affirmed the denial of a motion to suppress based on the

automobile exception to the warrant requirement rather than on the search-incidentto-arrest exception on which the district court relied.

A. Perez-Trevino - Search of Automobile and Contents

On August 12, 2015, Officer Fisher noticed a 2000 Oldsmobile Intrigue with

North Dakota license plates traveling north on Highway 69 in Oklahoma. He stopped

the vehicle for a taillight violation. As he approached the vehicle, Officer Fisher

observed two occupants in the car. Perez-Trevino presented an identification card to

Officer Fisher but claimed to be licensed in Texas. Officer Fisher had separate

conversations with Perez-Trevino and the passenger. The two gave conflicting

stories as to their destination: Perez-Trevino indicating Iowa City and the passenger

claiming Marshalltown. Officer Fisher ran Perez-Trevino’s identifying information

and determined that he did not have a valid license.2 A license check for the

passenger revealed that his license was suspended. Officer Fisher arrested PerezTrevino for driving without a license. Having been instructed by the chief of police

that stopped vehicles are not to be left abandoned on the roadside, Officer Fisher

arranged to have the vehicle towed. Before the vehicle was towed, Officer Fisher

At trial, Officer Fisher testified that Perez-Trevino’s driving license was

suspended in North Dakota, but at the suppression hearing he indicated that PerezTrevino was unlicensed.

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prepared to do an inventory search of the vehicle in order to log any valuables.

Officer Fisher testified:

Any time we have arrested someone out of a vehicle or we have made

contact with somebody where a vehicle – where we have become liable

for it because of an action from us, we must impound that vehicle with

the two wrecker services we have on rotation and then we have to

conduct a thorough vehicle inventory.

When Officer Fisher leaned inside the vehicle to begin the inventory, he

smelled raw marijuana “directly over the center console.” He checked the contents

of the center console because, according to his testimony, “[i]t’s a common place,

along with the glove box, for valuables or anything somebody is going to store in the

vehicle.” When he lifted the console, he discovered a plastic bag containing a green

leafy substance, which was later determined to be marijuana. The inventory search

further uncovered various food items and drinks. A one dollar bill containing a clear

substance, later determined to be methamphetamine, was found under the passenger

seat. Located in the back seat was a large cooler. Upon opening the cooler, Officer

Fisher found more food and drinks and a Ziploc bag “containing a large amount of

methamphetamine.” It was later determined that the bag contained 877 grams of

methamphetamine. A list of items found in the search was reported on a

“CHOUTEAU POLICE DEPT. STORED VEHICLE REPORT” which indicated the

vehicle was registered in North Dakota to Marcos and Maria Perez.

The Chouteau Police Department has a published policy for “Impoundment of

Vehicles” that provides guidance for impounding and inventorying vehicles. Among

the several stated reasons for impounding vehicles are safekeeping of evidence and

“public assistance towing.” The public assistance towing section specifically requires

towing “[w]hen, following arrest of the owner/operator or for other reasons, the

vehicle cannot be left at the scene without substantial risk of theft from or damage to

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Appendix page No. 007

the vehicle or personal property contained therein.” The policy’s inventory procedure

provides:

It is the duty of all officers, who impound motor vehicles, to

perform an inventory of those vehicles.

The purpose of this inventory will be to ensure a proper

accounting of all property in or attached to the vehicle in order to

protect the officer from liability of assumed damages and/or

missing property.

The officer performing the inventory will conduct a thorough and

uniform inventory of the vehicle and its compartments.

One of the regulations listed in the policy statement provides that “[o]fficers should

take all necessary precautions when towing a vehicle to properly search and inventory

a vehicle. An inventory search is intended to protect the citizen, the officer and the

wrecker company from claims of loss and theft.”

Citing Florida v. Wells, 495 U.S. 1 (1990), Perez-Trevino argues that the

inventory search of the car violated the Fourth Amendment because the Chouteau

Police Department policy did not provide sufficiently standardized criteria for

searching closed containers inside the vehicle. “It is ‘well-settled’ law that ‘a police

officer, after lawfully taking custody of an automobile, may conduct a warrantless

inventory search of the property to secure and protect vehicles and their contents

within police custody.’” United States v. Williams, 777 F.3d 1013, 1015 (8th Cir.

2015) (quoting United States v. Rehkop, 96 F.3d 301, 305 (8th Cir. 1996)). The

search “must comply with ‘standardized police procedures.’” Id. at 1016 (quoting

United States v. Mayfield, 161 F.3d 1143, 1145 (8th Cir. 1998)). “The police are not

precluded from conducting inventory searches when they lawfully impound the

vehicle of an individual that they also happen to suspect is involved in illegal

activity.” United States v. Pappas, 452 F.3d 767, 771 (8th Cir. 2006) (quoting United

States v. Marshall, 986 F.2d 1171, 1175-76 (8th Cir. 1993)). We conclude that the

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Chouteau Police Department towing policy contained sufficiently standardized police

procedures for Officer Fisher to inventory the contents of the vehicle and its

compartments.

We do not decide whether the Chouteau inventory policy provided Officer

Fisher with authority to open the cooler. Instead, we affirm the denial of the motion

to suppress because, at the time he opened the cooler, Officer Fisher had sufficient

probable cause to search the vehicle and its contents under the “automobile

exception” to the Fourth Amendment warrant requirement. Accord United States v.

Winters, 221 F.3d 1039, 1042 (8th Cir. 2000) (“Trooper Busch then smelled raw

marijuana. This created probable cause to search the car and its containers for

drugs.”). “Under the automobile exception, officers may search a vehicle without a

warrant if they have probable cause to believe the vehicle contains evidence of

criminal activity.” United States v. Davis, 569 F.3d 813, 817 (8th Cir. 2009) (quoting

United States v. Cortez-Palomino, 438 F.3d 910, 913 (8th Cir. 2006) (per curiam).

Prior to searching inside the cooler, Officer Fisher had obtained contradictory

statements from the car’s occupants as to their destination, discovered the plastic bag

containing the marijuana, and found the dollar bill containing apparent drug residue.

This was sufficient probable cause to search inside the cooler. Accord Davis, 569

F.3d at 817-18 (“If there had been any doubt about whether the smell of smoldering

cannabis constituted probable cause to search the vehicle, such doubt was obviated

by the discovery of a bag of marijuana in Davis’s pocket.”).

B. Castellanos - Wiretap of Target Telephone #16

Daniela Castellanos argues that the district court erred in denying her motion

to suppress evidence gained from the wiretap of Target Telephone #16. In 18 U.S.C.

§ 2518, Congress defined the procedure that must be followed for the “interception

of wire, oral, or electronic communications.” 18 U.S.C. § 2518(10)(a) provides:

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Any aggrieved person in any trial, hearing, or proceeding in or before

any court, department, officer, agency, regulatory body, or other

authority of the United States, a State, or a political subdivision thereof,

may move to suppress the contents of any wire or oral communication

intercepted pursuant to this chapter, or evidence derived therefrom, on

the grounds that –

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted

is insufficient on its face; or

(iii) the interception was not made in conformity with the order of

authorization or approval.

“The remedies and sanctions described in [chapter 18] with respect to the interception

of electronic communications are the only judicial remedies and sanctions for

nonconstitutional violations of this chapter involving such communications.” 18

U.S.C. § 2518(10)(c). An “aggrieved person” is defined at 18 U.S.C. § 2510(11) as

“a person who was a party to any intercepted wire, oral, or electronic communication

or a person against whom the interception was directed.” In paragraph No. 2 of her

motion to suppress the wiretap evidence, Castellanos alleges: “During the period of

time the wiretap authorization was in place, the government contends that Ms.

Castellanos was heard on or a party in some of the phone calls and text messages

involving target telephone 16.”

Castellanos contends that her motion should have been granted because the

affidavit attached to the warrant application did not contain sufficient facts to support

a finding of probable cause or of necessity as required by 18 U.S.C. § 2518(3)(a-c).

We address each asserted error separately, United States v. Thompson, 690 F.3d 977,

984-87 (8th Cir. 2012), and hold that the district court did not err in denying the

motion to suppress.

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1. Probable Cause

Section 2518 requires a two-step probable cause analysis. First, there must be

probable cause that an individual has committed, is committing, or is about to commit

a crime listed in 18 U.S.C. § 2516. 18 U.S.C. § 2518(3)(a). Second, the application

must show probable cause that “particular communications” relating to the specific

offense will be obtained from the interception of the communication. 18 U.S.C. §

2518(3)(b). “We have long held” that the probable cause standards in section 2518

“are co-extensive with the constitutional requirements” of the Fourth Amendment.

United States v. Gaines, 639 F.3d 423, 430 (8th Cir. 2011) (quoting United States v.

Leisure, 844 F.2d 1347, 1354 (8th Cir. 1988)). This guides us in our review of the

district court’s probable cause analysis. We also recognize, however, that the

particularity requirements of section 2518(3)(b) are defined by the statute. Id. at 43132 (citing United States v. Donovan, 429 U.S. 413, 416, 428 (1977)). The first step

is not disputed as § 2516(1)(e) lists any offense involving “the manufacture,

importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic

drugs, marihuana, or other dangerous drugs, punishable under any law of the United

States.”

Our analysis focuses on the second step. The application for the wiretap

warrant identified Target Telephone #16 as subscribed to Geoffrey Forney of Des

Moines, Iowa, and used by Mario Murillo-Mora. The application sought

authorization for intercepting “wire and electronic communications” of several named

individuals, including Murillo-Mora, and several unknown males and females who

had been communicating with Murillo-Mora and other co-conspirators on prior

authorized electronic communication interceptions. Castellanos was not one of the

individuals identified in the application. An application for authorizing a wiretap

must identify “the person, if known, committing the offense and whose

communications are to be intercepted.” 18 U.S.C. § 2518(1)(b)(iv). The Supreme

Court has interpreted the statute as not requiring the government “to identify an

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individual in the application unless it has probable cause to believe (i) that the

individual is engaged in the criminal activity under investigation and (ii) that the

individual’s conversations will be intercepted over the target telephone.” United

States v. Donovan, 429 U.S. 413, 423 (1977) (citing United States v. Kahn, 415 U.S.

143 (1974)). A wiretap application must, however, “name an individual if the

Government has probable cause to believe that the individual is engaged in the

criminal activity under investigation and expects to intercept the individual’s

conversations over the target telephone.” Id. at 428. A district court’s grant of an

application for a wiretap is appropriate if it is the result of a “practical, common-sense

decision” that “considering the ‘totality-of-the-circumstances . . . there is a fair

probability that contraband or evidence of a crime will be found in a particular

place.’” Thompson, 690 F.3d at 984-85 (quoting Illinois v. Gates, 462 U.S. 213, 238

(1983)). “In determining probable cause we are bound to consider only the facts

contained within the four corners of the affidavit.” United States v. Milton, 153 F.3d

891, 894 (8th Cir. 1998) (citing United States v. Gladney, 48 F.3d 309, 312 (8th Cir.

1995)).

The application for the wiretap authorization order specifically names more

than twenty individuals, in addition to several yet unidentified target subjects

suspected in the conspiracy to distribute narcotics, based on investigations from prior

court-authorized wiretaps. The government sufficiently identified all of the

individuals it had probable cause to believe were involved in criminal activity.

The application informed the court of the type of evidence law enforcement

expected to recover from the targeted telephone. It states:

In particular, these wire and electronic communications are expected to

include conversations of an evidentiary nature revealing:

The details of carrying out the above-named offenses;

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The identity of individuals as yet unknown who are

involved in these offenses and the extent of their

involvement;

The times and places where illegal transactions will occur;

The amounts, prices, etc., of illegal narcotics/controlled

substances which have been and are being possessed and

distributed by these individuals;

The identity of the source of these illegal drugs and the

extent of the source’s involvement;

The manner in which money derived from the sale of

illegal narcotics/controlled substances is utilized,

concealed and dispensed;

The arrangement and verification of meetings between

individuals involved in the above-named offenses;

The nature and scope of the continuing conspiracy; and

The role of each person participating in the conspiracy.

Attached to the application is an affidavit of Bryan J. Furman, a Task Force

Officer with the Drug Enforcement Administration (“DEA”) in Cedar Rapids, Iowa.

At the time he prepared the affidavit, Officer Furman had over twenty years

experience in law enforcement and had been with the DEA for over five years. His

experience provided him with knowledge of the language and terminology used by

illegal narcotics dealers to disguise their illegal activity. The affidavit informs the

court of the facts which led the investigators to Target Telephone #16. For example,

Murillo-Mora was known to be operating mostly out of the Marshalltown, Iowa, area

and was using multiple telephones to communicate with co-conspirators to facilitate

the drug trafficking. Murillo-Mora was identified as using Target Telephone #16 to

conduct business with other known co-conspirators using targeted telephones already

subject to court-authorized wiretaps. Transcripts of specific conversations involving

the facilitation of narcotics deliveries are included in the affidavit.

The affidavit contains more than twenty-five pages, including nineteen separate

paragraphs, detailing information known to the Task Force that supported the

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application to intercept communications from Target Telephone #16. Castellanos

contends that because Furman repeatedly used the phrase “I believe” to introduce his

factual references, the statements are not facts that the magistrate can rely on but are

instead mere beliefs, hunches, and speculative opinions. Such hyper-technical parsing

of phrasing is inconsistent with the evidence and common sense. While it might

have been more appropriate for Officer Furman to have written “it is my opinion,

based on my experience in law enforcement and narcotics investigations,” rather than

“I believe,” his choice of words did not negate the factual information he related to

the court in the affidavit.

Based on all of the circumstances, we conclude that the district court’s grant

of authority to intercept communications to and from Target Telephone #16 was the

result of a “practical, common-sense decision” that there was a “fair probability that

contraband or evidence” of criminal activity would be found. E.g., Thompson, 690

F.3d at 984-85. The application and affidavit contained sufficient facts to establish

probable cause.

2. Necessity

In addition to finding probable cause, in order to issue a warrant for a wiretap,

the court must find that “normal investigative procedures have been tried and have

failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.”

18 U.S.C. § 2518(3)(c). “This necessity requirement prevents the government from

routinely using wiretaps ‘as the initial step in an investigation.’” United States v.

Colbert, 828 F.3d 718, 725 (8th Cir. 2016) (quoting United States v. Thompson, 210

F.3d 855, 858-59 (8th Cir. 2000)). “But as we have repeatedly held, the necessity

requirement does not mandate that the government ‘exhaust all possible techniques

before applying for a wiretap.’” Id. (quoting United States v. Macklin, 902 F.2d 1320,

1326-27 (8th Cir. 1990)). “The government is simply not required to use a wiretap

only as a last resort.” Macklin, 902 F.2d at 1327 (citing United States v. Matya, 541

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F.2d 741, 745 (8th Cir. 1976)). The issuing judge determines “in a commonsense

manner” whether the necessity requirement is met. Id. (citations omitted). We may

reverse this determination of fact only if it is clearly erroneous. Thompson, 690 F.3d

at 986 (quoting Macklin, 902 F.2d at 1327)).

This is not a case in which the government decided to use a wiretap at the

beginning of its investigation of criminal activity. Officer Furman’s affidavit

contains sixty-eight paragraphs providing details of various investigative techniques

used prior to requesting the wiretap of Target Telephone #16. Investigators utilized

prior wiretaps, confidential sources, controlled purchases, physical surveillance,

undercover agents, search warrants, interviews, and trash searches, among other

strategies. Investigators interviewed suspects and utilized grand jury subpoenas to

the extent possible. The affidavit adequately explains the limited success of specific

investigative techniques, the likely lack of success of certain strategies, and the

possible dangers related to particular investigative tactics. The affidavit indicates that

the application was based on the conclusion that “[t]he only reasonable method of

developing the necessary evidence of violations is to intercept telephonic and

electronic communications as requested.”

Officer Furman’s affidavit contains sufficient facts to support a finding that the

necessity requirement of § 2518(3)(c) was met. The district court determination on

this issue is not clearly erroneous.

III.

PEREZ-TREVINO’S MOTION FOR JUDGMENT OF ACQUITTAL

We review de novo a denial of a motion for judgment of acquittal, “evaluating

the evidence in the light most favorable to the verdict and drawing all reasonable

inferences in its favor.” United States v. Almeida-Olivas, 865 F.3d 1060, 1062 (8th

Cir. 2017) (quoting United States v. Wright, 739 F.3d 1160, 1167 (8th Cir. 2014)).

The conviction will not be disturbed unless “no reasonable jury could have found the

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defendant guilty beyond a reasonable doubt.” Id. (quoting United States v. SerranoLopez, 366 F.3d 628, 634 (8th Cir. 2004)). To prove a conspiracy, “the government

need not prove a formal agreement existed, but rather ‘a tacit understanding’ between

the parties.” United States v. Parker, 871 F.3d 590, 600-01 (8th Cir. 2017) (quoting

United States v. May, 476 F.3d 638, 641 (8th Cir. 2007)). “We will not reverse the

verdict if the evidence is sufficient for a jury to find beyond a reasonable doubt that

the defendant participated in the conspiracy.” Id.

“To convict [Perez-Trevino] for conspiracy to distribute more than 500 grams

of a mixture and substance containing methamphetamine, ‘the government must

prove: (1) that there was a conspiracy, i.e., an agreement to distribute the

[methamphetamine]; (2) that [Perez-Trevino] knew of the conspiracy; and (3) that

[he] intentionally joined the conspiracy.’” Almeida-Olivas, 865 F.3d at 1062 (quoting

United States v. Sanchez, 789 F.3d 827, 834 (8th Cir. 2015) (second alteration in

original)). Perez-Trevino argues that there was insufficient evidence for a jury to find

proof beyond a reasonable doubt that he knew of the conspiracy or intentionally

joined it. He cites United States v. Carper, 942 F.2d 1298 (8th Cir. 1991), and United

States v. Cox, 942 F.2d 1282 (8th Cir. 1991), to support his argument for acquittal.

In Cox, we reiterated that “[a] conspiracy conviction requires a showing that the

alleged individuals joined together to further an agreed-to criminal purpose: here,

distribution of cocaine.” 942 F.2d at 1285 (citations omitted). Because the

government’s evidence failed to “explain why various unnamed individuals

accompanied Cox,” we reversed his conspiracy conviction. Id. at 1285-86. We

specifically explained: “Without some evidence that the accompanying individuals

agreed to take cocaine for distributive purposes, we do not see how a rational trier of

fact could find beyond a reasonable doubt that a conspiracy existed for that purpose.”

Id. at 1286. In Carper, we reversed Juliette Stark’s conviction because the evidence

never identified her unnamed source for methamphetamine. 942 F.2d at 1302. We

noted that, without speculating that Carper was her source, the evidence tended “to

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prove Juliette Stark is guilty of a crime, but not conspiracy with Carper to distribute

methamphetamine.” Id.

As the trial court summarized in its order denying the motion for acquittal,

substantial evidence supported the finding that a conspiracy to distribute

methamphetamine existed, Perez-Trevino knew of the conspiracy, and he

intentionally participated in the conspiracy. Witnesses, who included six coconspirators, confirmed the existence of a dynamic conspiracy, in which several

individuals participated. Perez-Trevino, along with Murillo-Mora and Flores,

participated as higher-level suppliers of methamphetamine, supplying some of the

same customers. Perez-Trevino was caught several times with substantial amounts

of methamphetamine in his possession. Perez-Trevino resided with other coconspirators, exchanged multiple telephone calls with co-conspirators, including

Murillo-Mora and Jessica Ceniceros, and purchased a vehicle from one of the coconspirators. Perez-Trevino used Ceniceros’s garage to store two pounds of

methamphetamine. In exchange, Ceniceros kept a quarter of a pound to sell for

herself. Vania Guadarrama, a member of the conspiracy who testified at trial,

purchased methamphetamine from a source known as El Bote, who also supplied

methamphetamine to Perez-Trevino. Guadarrama testified that she purchased

methamphetamine from Perez-Trevino. There was also evidence that Perez-Trevino

“fronted” methamphetamine to Guadarrama and later went to her residence to collect

an undischarged debt.

Substantial evidence supports the jury verdict. Cox and Carper are clearly

distinguishable. The record contains evidence that Perez-Trevino had direct and

substantial contact with several known, identified conspirators. Further, the evidence

shows that these contacts were for the purpose of facilitating the distribution of

methamphetamine in and around Marshalltown, Iowa. Accord United States v.

Garcia, 569 F.3d 885, 889 (8th Cir. 2009) (“A reasonable jury evaluating this

evidence could find that [defendant] was an actual participant in the

-16-

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Appendix page No. 017

methamphetamine-distribution conspiracy.”). The district court correctly denied the

motion for judgment of acquittal.

VI.

PEREZ-TREVINO’S

INSTRUCTION

PROPOSED

MULTIPLE

CONSPIRACY

“The ‘issue of whether the defense produced sufficient evidence to sustain a

particular instruction, such as a multiple conspiracy instruction, is generally a

question of law subject to de novo review.’” United State v. Maza, 93 F. 3d 1390,

1398 (8th Cir. 1996) (quoting United States v. Jackson, 67 F.3d 1359, 1367 (8th Cir.

1995)); see also United States v. Hull, 419 F.3d 762, 769 (8th Cir. 2005). When the

evidence supports the existence of a single conspiracy, a court does not err in denying

a request for a multiple conspiracy instruction. In United States v. Delgado, 653 F.3d

729, 735-36 (8th Cir. 2011) (citations omitted) (internal quotation marks omitted), we

summarized:

A single conspiracy is composed of individuals sharing common

purposes or objectives under one general agreement. In evaluating

whether a variance occurred, we look to the totality of the circumstances

and give the verdict the benefit of all reasonable inferences that can be

drawn from the evidence. A variance based on multiple conspiracies

justifies reversal only if a “spillover” of evidence from one conspiracy

to another prejudices the defendant’s substantial rights.

A single conspiracy is not converted to multiple conspiracies simply because different

defendants enter a conspiracy at different times or perform different functions. Maza,

93 F.3d at 1398 (citing United States v. Baker, 855 F.2d 1353, 1357 (8th Cir. 1988).

Nor does “the fact that different individual defendants contributed a portion of the

total drugs to suppliers or participated in numerous separate transactions . . . convert

a single conspiracy to multiple conspiracies.” Id. at 1398-99 (citing United States v.

Spector, 793 F.2d 932, 935 (8th Cir. 1986). A single conspiracy can be proven even

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Appendix page No. 018

though the participants and their activities change over time. United States v. Slagg,

651 F.3d 832, 840 (8th Cir. 2011). This is true even if some participants are unknown

to other conspirators or uninvolved in some transactions. United States v. Longs, 613

F.3d 1174, 1176 (8th Cir. 2010). Drug dealers who sometimes compete with one

another may in fact be members of the same conspiracy. Slagg, 651 F.3d at 842;

Delgado, 653 F.3d at 736 (citing United States v. Jeffers, 570 F.3d 557, 568 (4th Cir.

2009)).

As indicated above, the evidence at trial easily supports a finding that PerezTrevino knowingly participated in the single conspiracy alleged at trial. The trial

court did not err in denying the motion for a jury instruction on multiple

conspiracies.3

DEFENDANTS’ OBJECTIONS TO THE ADMISSION OF TESTIMONY

“We review the district court’s admission of evidence for an abuse of

discretion, affording ‘deference to the district judge who saw and heard the

evidence.’” United States v. Melton, 870 F.3d 830, 837 (8th Cir. 2017) (quoting

United States v. Two Elk, 536 F.3d 890, 900 (8th Cir. 2008)). “An evidentiary ruling

is harmless if the substantial rights of the defendant were unaffected, and the error

had no, or only a slight, influence on the verdict.” Id. (quoting United States v.

Worman, 622 F.3d 969, 976 (8th Cir. 2010)). We will affirm the district court’s

decision unless we find an abuse of discretion that is both clear and prejudicial. E.g.,

United States v. Womack, 191 F.3d 879, 883 (8th Cir. 1999).

There is no indication that Perez-Trevino was inhibited from arguing his lack

of knowledge of, or participation in, the conspiracy as it was alleged at trial. A trial

court does not err in denying a proposed instruction when the instructions as a whole

adequately advise the jury of the law and permit the parties to argue appropriately to

the jury. See United States v. Thunder, 745 F.3d 870, 874 (8th Cir. 2014) (citing

United States v. Christy, 647 F.3d 768, 770 (8th Cir. 2011)).

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Appendix page No. 019

A. Flores/Castellanos - Hearsay Co-conspirators

To admit “statements of co-conspirators against a defendant ‘the government

must prove by a preponderance of the evidence that (1) a conspiracy existed; (2) the

defendant and the declarant were members of the conspiracy; and (3) the declaration

was made during the course of and in furtherance of the conspiracy.’” Womack, 191

F.3d at 883 (quoting United States v. Guerra, 113 F.3d 809, 813 (8th Cir. 1997)); Fed.

R. Evid. 801(d)(2)(E). In Bell, we provided guidance to district courts for ruling on

objections to the admission of out-of-court statements of co-conspirators. We

outlined a procedure that included conditionally admitting the evidence and then

ruling on the objections at the close of the government’s case. 573 F.2d at 1044. The

procedural steps are made outside of the jury’s presence, and the court makes its

admissibility ruling on the record before submitting the case to the jury. Id.

The trial court properly followed the Bell procedure, conditionally admitting

the statements and then taking up the objections at the close of evidence. The

evidence objected to on hearsay grounds included the following:

A statement by witness Rachel Berrones in which she testified that

Murillo-Mora said he was upset with Castellanos because he had given

Castellanos money to wire to Mexico and she told him the money was

stolen. He expressed to Berrones his view that Castellanos lied and

spent the money.

A statement by witness Rogelio Avalos-Sanchez concerning what

Murillo-Mora said regarding Flores’s involvement in the organization.

The testimony indicated Flores was Murillo-Mora’s driver until they

ended their friendship because they were not agreeing on business and

Murillo-Mora wanted to go his separate way.

Testimony by Avalos-Sanchez as to what Murillo-Mora told him about

using Castellanos to transfer money.

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Appendix page No. 020

The trial court overruled all of the objections, concluding that a preponderance of the

evidence supported a finding that a conspiracy existed, the statements were made by

conspirators, and the statements provided information furthering the conspiracy. We

hold that the district court did not abuse its discretion by admitting the evidence under

rule 801(d)(2)(E) because the statements furthered the conspiracy by identifying coconspirators and their roles. Accord United States v. Camacho, 555 F.3d 695, 703

(8th Cir. 2009) (recognizing that the “district court made the appropriate Bell inquiry

and we cannot say that its findings are erroneous” and holding that the district court’s

ruling was not an abuse of discretion).

B. Flores - Letters

Flores challenges the admission of testimony by co-conspirator Frances Gasca.

During cross-examination of Gasca, Flores’s attorney asked about two letters Gasca

sent to Flores while she was in pretrial detention. The government was unaware of

the correspondence between Gasca and Flores before the questioning began. While

answering the questions regarding her letters to Flores, Gasca attempted to explain

that she was responding to communications she had received from Flores. Her

explanation was truncated by defense counsel. On redirect, the government’s counsel

asked Gasca to explain what she wanted to explain during cross-examination. Gasca

began, “I wrote that because he wrote a letter to Daniela Castellanos saying for me

to tell everybody that . . .,” at which time Flores’s counsel interrupted with an

objection for lack of foundation. The court, apparently sensing a failure in the

foundation, directed the government to “break that down a little bit so that we don’t

have an objection.” The following redirect ensued:

You were housed with Ms. Castellanos at some point in time?

Yes.

And during that time did she show you letters from Juan Flores?

Yes.

And did you read those letters?

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Appendix page No. 021

Yes.

And what did he write to Ms. Castellanos in those letters?

To say that –

MR. BELL: Objection, foundation as to who wrote the letter.

THE COURT: Objection overruled. You may answer.

To say that – to tell them that I was – he was only taking me to D

to have sex with and that he was just my ride and that there was

no involvement of meth.

So Mr. Flores wrote Ms. Castellanos a letter trying to tell you

what to say in court today?

That was a while ago, but, yes.

Gasca then testified that she saw that letter with her own eyes. During recrossexamination, Flores’s attorney elicited the following testimony:

Now, as I understand your response to Ms. Williams’s questions

about writing this letter to Juan, you indicated that you did not

receive any letter from Juan; it was somebody else who allegedly

received it?

Yes.

And when you – has Juan ever written to you other than – has

Juan ever written a letter to you?

He sent me a card.

When?

I don’t remember, but it was maybe February.

And what did he – did he handwrite anything on it or did he just

sign it?

He wrote – I can’t recall exactly what he wrote, but he signed it

as well.

Okay. And how many times did you see this letter that is alleged

to have been sent by Juan to Ms. Castellanos?

Like once or twice.

And when you saw this letter in the jail, that was in the Linn

County Jail?

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Appendix page No. 022

Yes.

When you saw it, was the envelope already open?

Yes.

Okay. Were you present when the envelope was opened?

Was I? No.

Since you had never seen anything that Juan had written before,

I’m assuming you couldn’t identify whether that was his writing

or not in that letter, correct.

Correct.

And you have no idea if that was what was in the letter – in the

envelope when it came or whether somebody replaced it with

something else?

Well, I saw letters prior to that that he wrote that had the same

writing.

From who?

Daniela, from Juan.

But you never independently obtained his writing to verify?

No.

And you’re certainly not a handwriting expert?

What?

You’re certainly not a handwriting expert?

No.

By the time Flores was done with his recross-examination of Gasca, he had elicited

the necessary foundation. The testimony informed the jury that Gasca was not a

handwriting expert and provided a basis for Gasca’s lay belief that the letters were

from Flores. The jury then had the information it needed to appropriately weigh the

testimony. Even if the admission of the testimony were the result of an abuse of

discretion, the error would be harmless considering the mass of evidence supporting

Flores’s conviction and the lack of any indication that Flores’s substantial rights were

prejudiced. E.g., Melton, 870 F.3d at 837.

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Appendix page No. 023

VI.

SENTENCING

In reviewing a district court’s sentence we “first ensure that the district court

committed no significant procedural error.” United States v. Salazar-Aleman, 741

F.3d 878, 880 (8th Cir. 2013) (quoting United States v. Feemster, 572 F.3d 455, 461

(8th Cir. 2009) (en banc)). “We then consider whether the sentence is substantively

reasonable.” Id. “Regardless of whether the final sentence is inside or outside the

Guidelines range, we review a defendant’s sentence under a deferential abuse-ofdiscretion standard.” United States v. Boykin, 850 F.3d 985, 988 (8th Cir. 2017)

(citing United States v. Goodale, 738 F.3d 917, 924 (8th Cir. 2013)).

A. Flores

Flores argues that his sentence is substantively unreasonable because the court

attributed improper amounts of methamphetamine to him, denied his motion for

downward departure, and failed to properly consider his history and character. At

sentencing, the court informed the parties that it considered every factor under 18

U.S.C. § 3553(a). Based on the evidence at trial, the court calculated that Flores

“should be held accountable for 2,265.9 grams of ice methamphetamine, resulting in

a score of 36.” The court then found obstruction of justice because Flores tried to

influence the testimony of a witness and he used a false name and birth certificate in

an attempt to confuse law enforcement. This resulted in a two-level upward

adjustment to 38. Flores had a criminal history of I. The Guideline range for the

offense was 235 to 293 months. The court sentenced Flores to the statutory

maximum of 240 months, a sentence near the low end of the Guideline range. In

explaining the sentence the court noted Flores’s substantial criminal behavior even

while under court supervision and his high risk to recidivate.

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Appendix page No. 024

The sentence is within the correctly-calculated Guideline range. Nothing in the

record supports a finding that the sentence is substantively unreasonable. The court

did not abuse its discretion in sentencing Flores to 240 months’ incarceration.

B. Castellanos

Castellanos challenges her 240-month sentence on three grounds. She first

asserts that the court attributed too much methamphetamine to her. She also contends

that the court miscalculated her criminal history score. Finally, she argues that the

court erred by failing to apply a two-level decrease to her offense, pursuant to

U.S.S.G. § 3B1.2, as a minor participant.

At sentencing the district court heard arguments regarding the evidence relating

to the amount of methamphetamine attributable to Castellanos, including evidence

that Castellanos had delivered five pounds of methamphetamine on one occasion.

The record supports the court’s conclusion that Castellanos be held accountable for

over 4.5 kilograms of methamphetamine (“ice”), specifically 4,819.5 grams, putting

the base offense level at 38. The record supports the court’s decision that Castellanos

did not meet her burden of proof for the two-level reduction for minor role in a

conspiracy. The court further noted that the calculation of 240 months would be the

same even with the reduction. The court also did not err in calculating Castellanos’s

criminal history score by including two prior felony convictions for driving while

barred. See United States v. Philips, 633 F.3d 1147, 1148 (8th Cir. 2011) (per

curiam). The statutory maximum of 240 months is well below the Guideline range of

292 to 365 months. Nothing in the record supports a conclusion that the sentence is

substantively unreasonable. The court did not abuse its discretion in sentencing

Castellanos to 240 months’ incarceration.

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Appendix page No. 025

VII. CONCLUSION

We affirm the judgments of the district court.

______________________________

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Appendix page No. 026

United States Court of Appeals

For The Eighth Circuit

Thomas F. Eagleton U.S. Courthouse

111 South 10th Street, Room 24.329

St. Louis, Missouri 63102

VOICE (314) 244-2400

FAX (314) 244-2780

www.ca8.uscourts.gov

Michael E. Gans

Clerk of Court

MEMORANDUM

TO:

All Counsel of Record

FROM:

Amanda M. Trautt

DATE:

May 29, 2018

Re:

17-1289 United States v. Marcos Perez-Trevino

17-1352 United States v. Juan Flores

17-1718 United States v. Daniela Castellanos

On May 29, 2018 the Court issued an opinion in the referenced appeals. Please replace

your opinion with the attached replacement opinion. The incorrect version of the opinion was

inadvertently filed.

cc:

All Circuit Judges

St. Paul Clerk's Office

West Publishing

Missouri Lawyers Weekly

District Court/Agency Case Number(s): 6:15-cr-02037-LRR-9

Appellate Case: 17-1289

Page: 1

Date Filed: 05/29/2018 Entry ID: 4666432

Appendix page No. 027

225

IN THE UNITED STATES DI STR ICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

UNITED STATES OF AMERICA ,

Plaintif f ,

vs .

CR 15 - 2037

VOLUME II

DANIELA CASTEL LAN OS ,

MARCOS PEREZ - TREV I NO ,

ALEJANDRO BECERRA,

AND

Defendants.

APPEARANCES:

ATTORNEY LISA C. WILLIAMS , Assistant U . S . Attorney , 111

Seventh Avenue S.E., Box 1 , Cedar Rapids , Iowa 52401 ,

appeared on behalf of the Un ite d States .

ATTORNEY WALLACE L. TAYLOR , Suite 326, 118 Third Avenue

S .E., Cedar Rapids , Iowa 52401 - 1408, a ppeared on behalf

of Daniela Castellanos .

ATTORN EY ROCKNE COLE , of the firm of Cole & Vondra , 209

East Washington Street , Suite 305 , Iowa City , Iowa 52240 ,

appeared on behalf of Marcos Perez - Trevino .

ATTORN EY MURRAY W. BELL , 2435 Kimberly Road , Suite 235

South , Bettendo r f , Iowa 52722 , appeared on behalf of

Al ejandro Be cerra .

JURY TRIAL PROCEEDINGS,

HELD BEF ORE THE HON . LINDA R . READE,

on the lOth day of August, 2016, at 111 Seventh Avenue

S . E . , Cedar Rapids , Iowa , commencing at 8 : 29a . m., and

reported by Patrice A . Murray , Certified Shorthand

Reporter, using machine shorthand .

Patrice A . Murray , CSR, RPR, RMR , FCRR

United States District Court

111 Seventh Avenue S . E ., Box 4

Cedar Rapids, Iowa 52401 - 210 1

(319) 286 - 2338

Contact Patr ice M u rray at 319· 286· 2338 o r patrice_rnurra.y@iand.uscourts.gov

Case 6:15-cr-02037- L~u@al£~matlc~l£ftt!Eill>jl~/a_pi~ t~-er1]il1 261

Appendix page No. 028

226

INDEX

WITNESS

Bryan Furman ------ Cont. Direct by Ms . Wil l i ams

Cross by Mr. Taylor

Cross by Mr . Cole

Cross by Mr . Bell

Redirect by Ms . Williams

Recross by Mr . Taylor

Recross by Mr . Cole

242

289

291

327

338

340

341

Orville Berbano --- Direct by Ms . Williams

Cross by Mr . Cole

345

359

Rachel Berrones -- - Direct by Ms. Williams

Cross by Mr. Taylor

Cross by Mr . Cole

Cross by Mr . Bell

Redirect by Ms. Williams

Recross by Mr . Taylor

Recross by Mr. Cole

Re cross by Mr . Bell

364

372

376

380

384

389

390

392

Ragan Victor ------ Direct by Ms . Williams

Cross by Mr . Taylor

Cross by Mr. Cole

Cross by Mr. Bell

397

417

422

430

Rogelio Avalos - Sanchez -- Direct by Ms. Wil l iams

Cross by Mr. Taylor

442

453

EXAMINATION

PAGE

EXHIBITS

EXHIBIT

Exhibi t 4 --DCI report re meth seized 4/14/14

Exhibi t 7 -- DCI report re meth seized 2/7/15

Exh i bi t 16 -- DCI report re me t h seized 5/7/15

Exhibi t 19 - - DC I report re meth seized 6/19/15

Exhibit 25 -- DCI report re meth seized 8/12/15

Exhibit 34 -- Communications from Murillo - Mora

to Castellano

Exhibit 34 - 1 -- English Translation of

Sp a nish - language communication

Exhibit 38 -- 0rville Berbano CV

Exhibit 46 -- Communications from Murillo - Mora

to Castellanos

Exhibit 52 -- Stipulation re Ale j andro Becerra

357

359

356

354

352

281

357

359

356

354

353

281

283

284

347

254

347

254

288

Con tact Patric e M ZLrray at 319-286-2338 o r patrice_mZLrray@iand.ZLscoZLr ts.g ov

Case 6:15-cr-02037- L~di)ali:liJmat1c5~J leti!Eifhja~/apib0 ~,itplf. 261

Appendix page No. 029

445

custody?

Yes.

Where did you grow up?

Mexico .

When did you move to Marshalltown?

When I

Have you lived there ever since?

Yes .

And you mentioned that Mr.

of yours.

A lot of them.

Did there come a time when you approached

Mr . Murillo - Mora about helping him se ll methamphetamine?

to him asking him for some help and he offered me some

help .

that was?

End of 2014 .

And did he agree -- did he give you some wor k to do?

Just drive around for him .

What types of -- or what places were you d ri ving for

him?

And that ' s -- then you landed yourself back in

Yes,

was four years old ,

probably .

Murillo - Mora is a cousin

Did he go by any nicknames?

when I

Gus ,

Amigo,

or Mario or Gustavo .

was needing some financial help ,

Do you remember what timeframe,

came

month and year maybe

Wa t erloo and around Marshalltown ,

and all over the

Contac t Patrice NlrLrray at 319-286-2338 or patrice_murr·ay@iand.uscourts.gov

Case 6:15-cr-02037-LRf.O ~ee&~ni ~pliil@ctap~~e B~tliitptOf 261

Appendix page No. 030

446

place .

What did you get in exchange?

Cash .

And through your work with Mr . Muri llo - Mora,

become familiar with an individual nam ed Juan Flor es?

At one point in time.

Is that a yes?

Yes .

Do you see Mr.

Yes .

Can you describe where he ' s

clothing that he ' s wearing?

Flores in the courtroom to day?

He ' s on my le ft ,

Your Honor ,

reflect that the witness ha s

THE COURT :

s itting and an item of

with a gray shirt .

MS . WILLIAMS :

did you

may the record

identified the defendant?

Yes .

learn fro m Mr . Murillo - Mora what Mr .

was in the Murillo organization?

Some.

Some parts?

Yeah.

Tell the jury what Mr . Murillo - Mora t old you .

Through speaking with Mario Murillo - Mora,

did you

Flores's involvement

Some parts.

MR .

BELL:

THE COURT :

Objection ,

hearsay.

Do you agree i t 's hea rsay?

And if

Contact Patrice Murray at 319-286-2338 or patrice_murray@ iand.uscour ts.gov

Case 6:15-cr-0 2037- L R~ pi).eeb~r1t 5&itpliil0ch1p~Jt~e B~a!aptOf 261

Appendix page No. 031

it is hearsay,

MS.

447

does an exception apply?

WILLIAMS:

Your Honor,

the government

believes i t is not hearsay and would ask that the Bell

procedures be employed ,

THE COURT:

used .

The Court admits this evidence

conditionally and the Bell procedures apply.

Mr.

And at one point in time ,

or he cut him off or something li ke that .

when -- later on,

they weren ' t ,

agreeing to nothing,

or anything .

go his own way .

type of business?

So what did Mr.

Murillo - Mora tell you about

Flores's involvement?

Just tha t

he was driving him around p ra ctically .

like,

Honor .

agree ing to things or stuff,

you know what I mean ,

weren ' t

like business

He wanted to go his way and Mario wanted to

was a business disagreement,

what

my cousin told me -MR.

And that 's

he told me that he cut him off because

When you say i t

Well ,

they stopped like being friends

BELL :

I ' m going to object again,

Your

A business disagreement doesn't further anything .

He cut him off because - THE COURT:

Just a minute .

Well,

I ' ve conditionally admitted this .

Just a minu t e .

the Court overrules your objection at this time.

The Be ll procedures

Contact Patrice Mnrray at 319-286-2338 or patrice_rn.ur ray@iand .uscourts.gov

Case 6:15-cr-02037-LR£0 ~eeli~ni: &Uitpli:H~d:ap~.~Ae B~al-Jprof 261

Appendix page No. 032

448

The Court will examine the testimony at a

apply .

date under the Bell procedures.

And you may -- why don ' t

later

you just ask him another

question .

what Mr . Murillo told you.

telling you -- talking about a business agreement ,

your understanding as to what that business is?

Distribute.

Distributing what?

Meth.

Did you ever know Mr . Murillo - Mora to have any

business other than distributing meth?

No .

Was there ever a time when you saw Mr.

and Mr.

When I

Tell the jury about that.

When I

about it,

his driver or driving him around .

And so why were you at the trailer park?

Because I

him there .

And the question was not necessarily calling for

But when Mr . Murillo was

what's

Murillo - Mora

Flores together?

f ir st met him.

first met him in the trailer park ,

they were togethe r;

was told -- I

And by " him ,"

t hat ' s

but that 's because he was

was told by him to go meet

you mean?

Contact Patrice Murray at 319-286-2338 or patrice_murray@ iand.uscourts.gov

Case 6:15-cr-02037-LR~ pileehmimt 64litplii~cb1p~~e ~alafotOf 261

Appendix page No. 033

458

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

UNITED STATES OF AMERICA,

Plaintiff,

vs .

VOLUME III

DANIELA CASTELLANOS,

MARCOS PEREZ - TREVINO, AND

AL EJANDRO BECERRA ,

Defendants .

CR 15 - 2037

APPEARANC ES :

ATTORNEY LISA C. WILLIAMS , Assistant U . S. Attorney , 1 1 1

Seventh Avenue S . E ., Box 1, Cedar Rapids , Iowa 52401,

appeared on behalf of the Un ite d States .

ATT ORN EY WALLACE L. TAY LOR , Suite 326 , 11 8 Third Avenue

S . E ., Cedar Rapids , Iowa 52401 - 1408, appeared on behalf

of Daniela Castel la nos .

ATTORNEY ROCKNE COLE , o f the firm of Cole & Vondra, 209

East Washington St ree t , Suite 305, Iowa City, Iowa 52240 ,

appear ed on behalf of Marcos Perez - Trevino .

ATTORNEY MURRAY W. BELL, 2435 Kimberly Road , Su it e 235

South , Bettendorf , Iowa 52722 , appeared on behalf of

Alejand r o Becerra .

JURY TR IAL PROCEEDI NGS ,

HELD BEFORE THE HON . LIN DA R . READE,

on the 11th day of August, 2016, at 111 Sevent h Aven u e

S.E. , Cedar Rapids , Iowa, commenci n g at 8 : 32a . m . , and

r e ported by Patrice A . Murray , Cert i f i ed Short h an d

Reporter, using machine shorthand .

Patrice A. Murray , CSR, RPR , RMR , FCRR

United States District Court

111 Seventh Avenue S.E. , Box 4

Cedar Rapids , Iowa 52401 - 2101

(319) 286 - 2338

Contact Patrice Murray at 319-286-2338 or patrice_murray@ iand.uscourts.gov

Case 6: 15-cr-0203 7- LIMyn1VBlitimant:55iplJtijEifbpy!apib.i t~rlplf 260

Appendix page No. 034

459

INDEX

EXAMINATION

PAGE

WITN ESS

Rogelio Ava l os - Sanc h ez --- Cross by Mr . Cole

Cross by Mr . Bell

Redirect by Ms . Wi l l i ams

Recross by Mr. Bell

470

478

490

491

Vania Guada r rama --------- Direct by Ms. Williams

Cross by Mr . Tay l or

Cross by Mr . Co l e

Cross by Mr . Bell

Redi r ect by Ms . Williams

Re cross by Mr. Taylor

Recross by Mr . Cole

Re cross by Mr . Bell

493

505

510

520

521

523

524

526

Frances Gasca -- - --------- Direct by Ms . Wi lliams

Cross by Mr . Ta ylor

Cross by Mr . Cole

Cross by Mr . Bell

Redirect by Ms. Wi l liams

Recross by Mr . Taylor

Recross by Mr . Bell

528

547

555

558

569

573

575

Jessica Acosta Ceniceros - Direc t by Ms . Williams

Cross by Mr . Taylor

Cross by Mr . Cole

Cross by Mr . Bell

Red i rect by Ms. Williams

Recross by Mr . Bell

58 1

605

610

627

640

642

Derrick Plunkett --- - ----- Direct by Ms. Williams

Cross by Mr . Taylor

643

684

EXHIBITS

EXHIBIT

Exhibit No . 33 -- Texts (Becerra/Plunkett)

Exhibit No . 35 -- Phone call between

Castellanos and Plunkett

Exh i b i t No . 36 -- Texts (Becerra/Plunkett)

Exhibit No. 37 -- Phone ca l ls between Becerra ' s

phone and Plunkett

Exhibit No . 39 - - Acosta Ceniceros Facebook page

Exhibit No . 45 - -Texts (Plunket t /Castellanos)

654

673

666

674

671

587

67 6

587

676

Contac t P a trice M urray at 319- 286- 2338 or pat rice_murray@iand.u scow·ts.g ov

Case 6 : 15-cr-0203 7- L raPpu!Voo~mw1cOO"ipldtt!ad>foj2/aj)il& t~r:tpli 260

Appendix page No. 035

482

him and sometimes collecting money for him ,

occasions you were just driving him around?

Right.

So that was -- those were the th ree things you did

for him ,

Right.

And for those things you got either cash or

methamphetamine or both?

Right.

Did he ever accuse you of shorting him?

No .

But you did have a

Yeah,

And as

asked,

he was dealing with?

Right.

But he

relationship?

Right .

At least to t hat business relationship,

Right .

Now ,

driving for Mr .

Okay .

And so while you were also running drugs

for

on other

basically?

falling out with him?

we did .

understood i t from your questions Mr .

you didn ' t

Cole

like dealing with certa i n persons that

so that brought an end to your

during that period of time t ha t

Murillo - Mora

well ,

right?

you were

at what point in

Contact Patrice Murray at 319· 286· 2338 or patrice_rnurray@iand.usc ourts.gov

Case 6: 1 5-cr-02037- LRepU>oounteHtdiEJi>plei~daW/Jg/~ tP~a:2[jJnf 260

Appendix page No. 036

483

time did Mr. Murillo - Mora tell you information that you

had testified about yesterday about Juan Becerra?

mostly parts o f what he was doing and everything .

Okay .

He would tell me --

He was telling you that after you were driving for

him,

right?

Yeah .

And J uan was no longe r driving for him?

No.

And he didn ' t ask you to do anything about the fa ct

that th is -- what he claimed about J uan?

We would talk almost every day ,

But

MS . WILLIAMS :

THE COURT :

Objection , hearsay .

Do you agree it 's hearsay?

And if

it is hearsay , does an exception apply?

MR . BELL :

so he would tell me

I don ' t be l ieve it ' s hearsay .

think it ' s a verbal act when you ask a question .

THE COURT :

Objection ' s overruled .

may answer .

the fact that -- what he claimed about Juan?

No .

He was just giving you informa t ion?

Yeah .

( By Mr . Bell)

The witness

Did he ask you to do anything about

Contact Patrice Mnrray at 319-286-2338 or patrice_mu.rray@iand.usc ou,rts.gov

Case 6:15-cr-02037 -LF1Jx piUrulUt"l;lefltdi5iVpllrt~6o}.:WJg/~ tP~&::2f_pnf 260

Appendix page No. 037

Didn ' t

484

ask you to follow through or do something

about it?

No.

You can ' t

four - month pe ri od that you worked for Mr . Murillo - Mora

that those conv e rsat i ons took pl a c e ?

you ' re saying it was a piece here,

that?

Right.

It would be something you would just ta l k about when

you wer e together and there was no t hing else to talk

about?

Right.

And it was probably a

driving him maybe to Omaha or wherever?

Right.

Okay .

We ' ve heard some talk about that,

Ri ght .

You have a plea agreement with the government,

you believe that,

based on that plea agreement -- l et me

say i t this way.

You hope,

that Ms .

sentence reduced

tel l

Now ,

me at what time period in tha t

As I

understand it,

a piece there,

time consumer while you were

additionally ,

you have a plea agreemen t .

right?

and

based on that plea agreement,

Williams will file a mo t ion to ha v e your

Right .

C ontac t Patrice Murray a t 319 -286- 2338 or patrice_murray@iand.usc Oltrts.gov

Case 6:15-cr-02037-LFte p.UQd~..m"\e atdWVp lfrtleao}:WJgl~ tPagit:2~nf 260

Appendix page No. 038

695

IN THE UNITED STATES DISTRICT COURT

FOR TH E NORTHERN DISTRICT OF IOWA

UNITED STATES OF AMERICA ,

Plaintiff ,

vs .

VOLUME IV

DANIELA CASTELLANOS ,

MARCOS PEREZ - TREVINO,

ALEJANDRO BECERRA ,

AND

Defendants.

CR 15 - 2037

APPEARANCES:

ATTORNEY LISA C . WI LLIAMS, Assistant U .S . Attorney , 111

Seventh Avenue S .E., Box 1 , Cedar Rap i ds , Iowa 52401,

appeared on beha l f of the United States .

ATTORNEY WALLACE L . TAY LOR , Suite 326 , 118 Third Avenue

S . E., Cedar Rapids, Iowa 52401 - 1408, appeared on behalf

of Daniela Castellanos.

ATTORNEY ROCKNE COLE, of the fir m of Cole & Vondra, 209

East Washington St r eet , Su ite 305, Iowa City, Iowa 52240 ,

appeared on beha lf of Mar cos Perez - Trevino .

ATTORNEY MURRAY W.

South , Bettendorf ,

Alejandro Becerra.

BELL, 2435 Kimberly Road, Suite 235

Iowa 52722 , appeared on behalf of

JURY TRIAL PROCEEDINGS ,

HELD BEFORE TH E HON.

LINDA R . READE,

on the 12th day of August , 2016, at 111 Seventh Av enue

S . E ., Cedar Rapids, Iowa , commencing at 8 : 28a.m . , and

reported by Patrice A . Murray , Cert i fied Shorthand

Reporter , using machine shorthand .

Patrice A . Murray, CSR , RPR, RMR, FCRR

United States District Court

111 Seventh Avenue S . E., Box 4

Ceda r Rapids, Iowa 52401-2101

(319) 286 - 2338

Contact Patrice Murray at 319·286-2338 or patrice_rnurra.y@ iand.uscourts.gov

Case 6:15-cr-02037-L~uvooljmoot:oli}.:>lJt~~foj/aj)il& t~r1plf 193

Appendix page No. 039

696

I NDEX

WITNESS

Derrick P l unkett -- Cont i nued Cross by Mr. Taylor

Cross by Mr. Cole

Cross by Mr . Bell

Redirect by Ms. Wi lliams

Recross by Mr . Taylor

Recross by Mr . Bell

720

726

727

743

747

749

Ke ll y Meggers -- - - - Direct by Ms . Williams

Cross by Mr . Taylor

Cross by Mr . Cole

Cross by Mr. Bell

Red i rect by Ms. Williams

Recross by Mr . Taylor

Recross by Mr. Bell

Recross by Mr. Cole

754

771

783

797

80 1

804

805

806

EXAMINAT I ON

PAGE

EXHIBITS

EXHIBIT

756

7 69

789

793

756

769

790

794

Exhibit

No. 30 - - Meggers CV

No . 49 -- Frequency report re 0315

A---- -- - Frequency report re 7900

B- ----- - Frequency report re 0418

C o n t act P a trice Murray a t 319-286- 2338 or patrice_m u rray@ia.n d .uscourts .gov

Case 6:15-c r-0 203 7 - LiiffipuiVoo~ma:nclimpldtt!Etilifo~/aj).thi tJftB.ge,aprt 193

Appendix page No. 040

deve l opment in the conspiracy ,

stat eme nt is in furtheranc e.

T HE COURT :

obj ecti on .

and that ' s how that

All ri gh t.

Mr . Bell ,

this i s your

I' ll be happy to hear fr om you .

MR . BELL:

825

Yes .

I d isagree wit h the

government .

by the testimony of the witness th a t

asked hi m t o do a nything about i t

hi m,

wi tnes s test i f i ed it was ju s t

were d rivi n g around ;

Th ere was nev e r

would c a use action on the part of the wi tness .

First and fo rem o s t ,

as the governm e nt here i s

And I guess I

or not to deal with

Mr.

-- t he

a ti me k iller when they

s ome t h i ng to chat ab ou t.

Th e re was nothing that

guess you can always look for

some reason .

conspiracy ,

So ou r

nothing in t h e l ang u age itse l f that the witness testi f i e d

that su g gested i t

Mr . Murillo - Mora

suggest i ng.

was j u s t

instructio n s .

t here was no indication

might -- i t

but I don ' t

see how that ' s true in this case .

position is it wasn ' t

Now ,

might further the

in furtherance .

There ' s

was in fur th erance of the consp ir acy .

we ' re not arguing about whether it happened

during t he course ,

the context of -- content of the discussion that it was

in furtherance .

to kil l

but there ' s certainly no evidence from

It was just something they tal k ed about

t i me .

THE COURT :

Response from t he government .

Contact Patrice Nlurray at 319-286- 2338 or patrice_murray@iand.uscourts.gov

Case 6:15-cr-02037-LRfQ pueelml@n:t .55ilipll:it@d::c:1p~ ~e ~dt3ptOf 193

Appendix page No. 041

MS.

WILLIAMS:

826

It doesn't matter if they were

driving around when these conversations took place ,

specifically asked Mr. Avalos - Sanchez,

reader?

Do you know why Murillo was telling you? "

he said,

" No ,

Again,

and I

" Are you a mind

And

have no idea why he was telling me . "

i t ' s an objective standard of what the

information is that's being relayed,

identifying other co - conspirators or former

co - con spirators and apprising of developments in the

conspiracy are statements made in furtherance of .

THE COURT :

Al l

right .

and in this case

The Court

unconditionally admits this evidence after analyzing i t,

under 801 (d) (2) (E)

finding that all prongs have been me t .

There was another bit of testimony by Rogelio

Avalos - Sanchez.

question is,

Ms.

of the Federal Rules of Evidence,

Here was the question:

" And my next

what did Mr . Murillo - Mora tell you about

Castellanos? "

And Mr.

Taylor and Mr .

didn ' t

it was hearsay .

Mr . T aylor ,

Bell objected .

Mr .

specify what his objection was based on .

Bell

assume

I ' l l be happy to hear from -- o h ,

wait a

Mr .

Taylor did .

minute .

And this was the answer .

point in time.

relationship and everything . "

" Yes,

He told me like t hat ,

he did at one

abo ut her

Contact Patrice Nlu.rray at 319- 286-2338 or patrice_ rnnrray@iand.u.scou.rts. gov

Case 6:15-cr-02037-LR£t, piloe&lil@ru 00ihp~lred;ap#38fltfte B~dcaptOf 193

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