Petition for Writ of Certiorari — Edilberto Maso Diaz, Petitioner v. United States

No.

In the

Supreme Court of the United States of America

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

EDILBERTO MASO DIAZ,

Defendant-Appellant.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

SHANNON WILLIS LOCKE

The Locke Law Group

1008 S. Alamo

San Antonio, Texas 78210

Tel.: (210) 229-8300

Fax: (210) 229-8301

Attorney for Defendant-Appellant

QUESTIONS PRESENTED FOR REVIEW

1) Did the Fifth Circuit err by affirming the district court admission of

hearsay statements made by an unindicted co-conspirator over the objection of Appellant’s trial counsel?

2) Did the Fifth Circuit err by affirming the district court’s failure to include Andres Torres in the jury instructions admonishing jurors regarding the reliability of the statements of co-conspirators?

3) Do the above described errors rise to the level of cumulative error?

4) Did the government present sufficient evidence at trial so that any

reasonable trier of fact could find Appellant guilty when it relied

wholly on the contradictory statements of co-conspirators to connect

Appellant to the alleged conspiracy?

LIST OF PARTIES

The undersigned counsel of record certifies that the following listed per-

sons have an interest in the outcome of this case. These representations are

made in order that the judges of this Court may evaluate possible disqualifi-

cation or recusal.

I.

2.

Shannon W. Locke, (Appellate Attorney for Defendant-Appellant)

Carmen Castillo Mitchell, (Assistant United States Attorney for

Appellee)

Eileen K. Wilson, (Assistant United States Attorney for Appellee)

. Kenneth Magidson, (United States Attorney);

Edilberto Maso Diaz, (Defendant-Appellant);

Chad Cowan, (Assistant United States Attorney);

Amanda Gould, (Assistant United States Attorney);

Randall Barrera, (Defense Trial Attorney).

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .........ccsssceccseseeeneee i

LIST OF PARTIES 1.0.0.0... cece cece ceeceee cee ecueeeeeceeeaeeeneceeaeeeeeeaes il

TABLE OF CONTENTS ..0....cccecessssssesssesescseersssesesseceeseseeececesecseaesesesesnessees iii

INDEX TO APPENDICES ....00.cccseececssssssseseseseessessesssceeeeenencneeeeeeeensesneessneetes ili

TABLE OF AUTHORITIES 0.0.0.0... ceessssseseseescenesesecseesescneeeeseeseseaeseeseeseaeeees iv

OPINIONS BELOW ......cesseessessssscsnesnsesacsnenssesecsncnesssneaessesesnsscseeeeaseuseesnenens Vv

JURISIDICTION.....cccsscssssssssscssssssessessesesessesesesssassussecussesacneasensseaeneaesneseeeeesees 1

CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED............. 2

STATEMENT OF THE CASE Wu... csecessscsessacseesesessseucaeceescnesnesenesseseeneaneneeses 3

REASONS FOR GRANTING THE PETITION .......ececsssssesessstersereseneneaes 12

CONCLUSION ....cee ce cecccccseseesssesessessssssucsenssescseeseteneeeeesncaascaeaestsnsesseasanseses 13

PROOF OF SERVICE... sccscssssssssssecssecssseseseeseseeseescaeseseeesssaseensnenseneaeneneess 14

INDEX TO APPENDICES

APPENDIXA Opinion of the United States Court of Appeals for

the Fifth Circuit.............ccccecsececsseecsseseeeeseces 15

APPENDIX B- Judgment of the United States District Court...27

iil

TABLE OF AUTHORITIES CITED

Cases

United States v. Graham,

711 F.3d 445, 453 (4™ Cir, 2013) iccccccccsscsscsssccsssectessecsssssesceesesteseseeecsees

United States v. Robinson,

367 F.3d 278, 291-92 (5! Cir, 2004) vicesecccscsssscsscssesescecessecsesecsesesnsacseeaseeese

United States v. Solis,

299 F.3d 420, 443 (5 Cir. 2002)....cccccsccseccescsesssseseesersssrcsestcsesvesseseseesess

United States v. Stroupe,

538 F.2d 1063, 1065 (4° Cir, 1976)...c.cescsssecssessesssssesssssesssesssesesssesessessessen

STATUTES AND RULES

18 U.S.C. § 1254 (L)sessssssssssssssssscssssscsessssssesssssssssssssssssesecescescustsssssuecsusruseeeenens

18 U.S.C. § 1257(a) cesseosesssssssssssssssscsssssssssssssssssssssssscsesecsssseceesessssuecseceeseeseeeevee

Federal Rule of Evidence 801 (d)(2)(E).......cccccccsessssesesscsevscscsessscscssstsvacsenenees

iv

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

The opinion of the United States court of appeals appears at

Appendix A to the petition and is unpublished.

The judgment of the United States district court appears at

Appendix B to the petition and is unpublished.

JURISDICTION

1 Jurisdiction in the Court of Appeals. This is a direct appeal from

an affirmation of a final decision of the United States District Court for the

Southern District of Texas, which entered judgment of criminal conviction

and sentence under the Sentencing Reform Act of 1984. The date on which

the United States of Appeal decided my case was November 21, 2018. The

United States Supreme Court has jurisdiction over this matter pursuant to 28

ULS.C. §1254 (1).

2 Subject Matter Jurisdiction in the District Court. This case arose

from the prosecution of an alleged offense against the laws of the United

States. The date on which the highest state court decided my case was December 20, 2016. A copy of that decision appears at Appendix B. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED

Federal Rule of Evidence 801 (d)(2)(E)

Under Federal Rule of Evidnce801(d)(2)(E), "[a] statement is not

hearsay if it is a statement by a co-conspirator of a party during the course

and in furtherance of the conspiracy and is offered against the party." United

States v. Graham, 711 F.3d 445, 453 (4th Cir. 2013) (internal quotation

marks omitted). To properly admit such evidence, the government must

prove by preponderance of the evidence "(1) the existence of a conspiracy,

(2) the statement was made by a co-conspirator of the party, (3) the statement was made during the course of the conspiracy, and (4) the statement

was made in furtherance of the conspiracy." United States v. Robinson, 367

F.3d 278, 291-92 (5" Circ. 2004) (quoting United States v. Solis, 299 F.3d

420,443 (5 Circ. 2002). The conspiracy cannot be established initially by

the out-of-court statement at issue; rather, "[t]here must be proof from another source of the existence of the conspiracy and of [defendant]'s connection with it before [the out-of-court statement] can become admissible

against [defendant]." United States v. Stroupe, 538 F.2d 1063, 1065 (4th Cir.

1976). Thus, the Government must introduce "substantial, independent evi-

dence of the conspiracy." Id.

STATEMENT OF THE CASE

A. Proceedings Below

On December 9, 2015, Appellant was named in five counts of a seven

count indictment. (ROA.13-17) This indictment was amended twice, and

for purposes of this appeal, Appellant will use the final amended indictment filed on January 7, 2016. (ROA.72) Count One alleged that from

October 1, 2012 to December 8, 2015 he conspired with Margil Ozuna-

Barrera, Jorge Cruz-Rabell, Rafael Torres Nimer, Emilio Rodriguez, and

other persons known and unknown to the Grand Jury to possess or distribute more than 1,000 kilograms of marihuana, more than one kilogram

of heroin, and 500 kilograms of methamphetamine. (ROA.72) Count

Two alleged that on or about March 27, 2013, Appellant knowingly possessed 1110 kilograms of marihuana. (ROA.73) Count Three alleged that

on May 10, 2013, Appellant knowingly and intentionally possessed with

intent to distribute approximately 348.24 kilograms of marihuana.

(ROA.73-74) Count Four alleged that Appellant and Jorge Cruz-Rabell

possessed with intent to distribute 815.28 kilograms of marihuana on

September 6, 2013. (ROA.74) Count Five alleged that on September 24,

2014 Appellant and Jorge Cruz-Rabell knowingly and intentionally possessed with intent to distribute 254.54 kilograms of marihuana.

(ROA.74-75)

On March 28, 2016, Appellant appeared for a jury trial. (ROA.267)

Appellant’s counsel stipulated to the admissibility of Exhibits 1 through

35. (ROA.267) However, the indictment was amended to remove the

heroin and methamphetamine from Count One. (ROA.268) Additionally,

the Government moved to dismiss Count Five and opted to proceed only

on Counts One through Four. (ROA.268-269)

On November 21, 2018, the Fifth Circuit Court of Appeals affirmed

the Trial Court’s rulings and affirmed Appellant’s conviction.

B. Statement of the Facts

During Appellant’s one day jury trial, the Government called ten witnesses. (ROA.265) The Government’s first witness, Renee Tuinstra, was a

Border Patrol agent who had been working the Falfurrias check point on

March 27, 2013. (ROA.285) That day, Tuinstra came into contact with Pablo

Aroche-Calderon (Aroche). (ROA.286) A search of the truck driven by

Aroche-Calderon revealed bundles of marihuana mixed in with pallets of

broccoli. (ROA.288) Agent Tuinstra also established that Appellant had

crossed the Border Patrol Checkpoint on April 10, 2013 or August 10, 2013

(the record conflicts) when a canine alerted to the truck but no contraband

was found after a seven-point inspection. (ROA.297)

Next, the Government called Miguel Garcia, a Task Force District Attorney Agent assigned to the High Intensity Drug Trafficking Area’s (HIDTA)

task force. (ROA.302) On March 27, 2013, Agent Garcia responded after a

tractor trailer he had put a Be On the Look Out (BOLO) was stopped at the

Falfurrias checkpoint. (ROA.302) Agent Garcia testified that the weight of

the marihuana exceeded 2,200 pounds. (ROA.304) During cross examination, Agent Garcia admitted that the driver of the tractor trailer, Aroche, took

responsibility for the marihuana. (ROA.306) The Government then called

Border Patrol Agent Frank Flores, who worked the Falfurrias check point on

May 10, 2013. (ROA.308) On that day, Flores seized a marihuana load from

a tractor trailer driven by Julio Santana. (ROA.308-309) He testified that he

could not remember to whom the tractor trailer belonged. (ROA.311) Additionally, Flores testified that the total weight of the marihuana was about,

“700, 770, 774” pounds, and that Appellant was not present as Santana was

alone in the tractor trailer. (ROA.314) During his interview, Santana denied

knowing that the marihuana was in the tractor trailer. (ROA.315) The Government followed up with former Border Patrol Agent Jacob Tubbs who, on

September 6, 2013, was working the primary checkpoint in Falfurrias and

came across a tractor trailer driven by Aroche. (ROA.316-317) When the

tractor trailer was directed to secondary, a search revealed watermelons

comingled with marihuana. (ROA.317) Tubbs testified that the weight of the

marihuana in question was 892 kilograms or approximately 1900 pounds.

(ROA.318) Tubbs took custody of Aroche and verified that he was the same

person who had come through the checkpoint with marihuana five months

earlier. (ROA.323) Tubbs also identified Government’s Exhibit 18 which

showed a decal with E & E Trucking that was present on the tractor trailer

driven by Aroche. (ROA.323) Tubbs conceded that he was aware of prior

occurrences of such decals being fabricated. (ROA.324) Agent Olivarez

from Homeland Security also responded to the Falfurrias checkpoint on September 6, 2013. (ROA.325) Olivarez took control of the marihuana and was

responsible for weighing the packaging and subtracting that from the total

weight of the marihuana for a net weight of 815 kilograms. (ROA.328)

At that point, the Government called Rodolfo Rodriguez to the stand.

(ROA.334) A bench conference ensued due to the witness’ involvement with

the previously dismissed Count Five. (ROA.334) As a result of the bench

conference, the Government withdrew or acknowledged that it would have

to withdraw the exhibits that related to Count Five. (ROA.335) Agent Rodriguez, who at the time was working with HIDTA, interviewed Appellant at

the HIDTA office in Edinburg, Texas on October 1, 2014. (ROA.338-342)

The purpose of the interview was to determine what steps had been taken by

Appellant to address the issues of his drivers being involved in marihuana

seizures. (ROA.345) Appellant denied any knowledge of what the drivers

were doing, but was aware that the drivers had been arrested. (ROA.346)

Appellant informed Agent Rodriguez that Aroche had been fired. (ROA.348)

Agent Rodriguez also established that E and E Trucking had a history of operating legitimate loads. (ROA.350) Agent Rodriguez further stated that the

government had returned the trailer seized in the marihuana arrest back to

Appellant. (ROA.354)

After Agent Rodriguez, the Government called three alleged co-

conspirators Mr. Aroche-Calderin (Aroche), Mr. Rafael Nimer Torres

(Torres), and Mr. Benigno Grey-Ramirez (Grey). A truck driver of 32 years,

(ROA.358) Aroche admitted to having been arrested in March and September of 2013 for possession of marihuana. (ROA.356-357) During his direct

examination, Aroche was asked to identify Appellant whom he acknowledged was in the courtroom, but did not identify. (ROA.357) During direct

examination, Aroche stated Appellant never used the word marihuana.

(ROA.361) Aroche further stated that someone else (not Appellant) had directed him to where the load would be picked up. (ROA.362) Additionally,

Aroche stated that Juaso (later determined to be Benigno Grey) called him

and gave him a reference point. (ROA.362) Aroche acknowledged that he

was hoping for a lesser sentence and that he had been sentenced to 60

months. (ROA.397) During cross-examination, Aroche acknowledged that

during his first interview he had stated that the conspiracy only involved

Grey, and that he only involved Appellant after he had been sentenced.

(ROA.399) At one point Aroche seems to indicate that because Appellant

owned the trucks he could not deny his participation. (ROA.399-400)

Aroche also acknowledged that Appellant did not tell him about the mari-

huana or where to pick it up, and that Grey (and not Appellant) was the per-

son telling him how much he would get paid. (ROA.401-402) Aroche was

not present for any conversation between Appellant and Grey relating to the

drug trade. (ROA.403) Aroche repeated these assertions when asked about

the second arrest, Grey paid for his ticket and took him to where he was to

pick up the marihuana. (ROA.404) Aroche acknowledged in re-cross examination that he only implicated Appellant after he was shown photos by Agent

Bishop after he was sentenced to 60 months. (ROA.397, 406)

When Torres testified, he stated that he had not dealt with Appellant.

(ROA.412) However, Torres testified that Appellant was present during a

conversation between Torres a man named Andres and Appellant.

(ROA.415) Trial counsel objected, and the trial court overruled the objection

finding that Andres was a co-conspirator. (ROA.416) Torres then described a

conversation where Andres asked Torres if he was interested in trafficking

marihuana, and Andres told him that Appellant had devoted himself to trafficking marihuana. (ROA.416) During cross-examination, Torres acknowledged that he never had any conversation with Appellant regarding trafficking drugs. (ROA.424) The final co-conspirator to testify was Grey. Grey tes-

tified that Appellant had agreed to provide the transportation for the mari-

huana and that Grey would be the middleman. (ROA.431) Grey identified

Appellant for the record. (ROA.432) However, Grey contradicted Aroche

saying he did not have dealings with Aroche. (ROA.437, 442) Still, Grey

admitted to having hired a lawyer for Aroche because they were both “Cuban and Cubans all help each other out.” (ROA.443)

The Government concluded its case by calling the case agent, David

Bishop, to the stand. Agent Bishop testified that Jorge Santana worked for E

and E Trucking and that Mr. Santana had been arrested with 348 kilograms

of marihuana on May 10, 2013. (ROA.456-457) Agent Bishop also established that the March 27 seizure involved 815 kilograms. (ROA.458) Trial

counsel made a motion for a directed verdict, and the trial court denied that

motion without argument. (ROA.476)

The defense rested after Appellant testified and denied any involvement

with the conspiracy. (ROA.488) Trial counsel renewed his motion for a directed verdict which was denied. (ROA.503) After closing arguments, the

trial court instructed the jury without objection from either counsel.

(ROA.517-518) The trial court cautioned the jury that, “it’s your duty to de-

termine the facts. In doing so, you must consider only the evidence present-

10

ed during the trial, including the sworn testimony of witnesses and exhibits.”

(ROA.519) The trial court advised that the Government had called three alleged accomplices: Grey, Torres, and Aroche. (ROA.524) The court informed the jury that the testimony of such accomplices, “is always to be received with caution and weighed with great care”. (ROA.524-525) The court

instructed that, “mere presence at the scene of an event without—even with

knowledge that a crime is being committed, or the mere fact that certain persons may have associated together and discussed common aims and interests

does not necessarily establish proof of the existence of a conspiracy.”

(ROA.529)

ll

REASONS FOR GRANTING THE PETITION

The trial court abused its discretion by allowing the hearsay statements

of an unindicted co-conspirator, Andres, to be admitted into evidence,

through co-conspirator Torres. The trial court committed separate and cumulative error by failing to list Andres in the admonishments it included in the

jury instructions related to the testimony of co-conspirators. Finally, when

the evidence is viewed in a light most favorable to sustaining the verdict, the

Government’s evidence was insufficient to support a finding of guilt in this

case, and Appellant’s case should be dismissed. These errors were duplicated

by the Fifth Circuit Court of Appeals when it affirmed Appellant’s convic-

tion.

12

CONCLUSION

Appellant respectfully requests that his case be dismissed or, in the alter-

native, remanded for a new trial.

Respectfully submitted.

//S// Shannon W. Locke

The Locke Law Group

1008 S. Alamo

San Antonio, TX 78210

(210) 229-8300

(210) 229-8301 (Fax)

Attorney for Defendant-Appellant

13

PROOF OF SERVICE

I Shannon W. Locke, hereby certify that on the 3" of May, 2019, I have

served the enclosed PETITION FOR WRIT OF CERTIORARI on each party to the above proceeding or that party’s counsel, and on every other person

required to be served, by depositing an envelope of them and with first-class

postage prepaid, or by delivery to a third-party commercial carrier for delivery within 3 calendar days. To the following:

1.) Solicitor General of the United States, Room 5614, Department of

Justice, 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001.

2.) Carmen Castillo Mitchell, U.S. Attorney’s Office for the Southern

District of Texas, 1000 Louisiana, Ste. 2300, Houston, Texas 77002.

3.) Edilberto Maso Diaz, 4909 FM 2826, Robstown, Texas 78380.

//S/ Shannon W. Locke

SHANNON W. LOCKE

Attorney for Defendant-Appellant

14

APPENDIX A

15

Case: 17-40125 Document: 00514758910 Page:1 Date Filed: 12/13/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 1 7-40125 United States Court of Appeals

Fifth Circuit

FILED

UNITED STATES OF AMERICA, November 21, 2018

Lyle W. Cayce

Plaintiff - Appellee Clerk

Vv.

EDILBERTO MASO DIAZ,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:15-CR-1077-3

Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Edilberto Maso Diaz (Maso) appeals his jury convictions for three counts

of possession with intent to distribute marijuana and one count of conspiracy

to commit the same. He contends that the district court reversibly erred by

permitting the Government to present inadmissible hearsay statements from

an alleged coconspirator and by not offering a cautionary instruction about

that declarant’s statements. He alternatively alleges that these two errors

* 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.

[6

Case: 17-40125 Document: 00514758910 Page:2 Date Filed: 12/13/2018

17-40125

together amounted to cumulative error that deprived him of the right to a fair

trial. Finally, he challenges the sufficiency of the evidence against him. We

conclude that any erroneous admission of hearsay evidence was harmless and

that his remaining arguments are without merit. AFFIRMED.

I

At Maso’s two-day jury trial, the Government called as witnesses border

patrol and law enforcement agents who detailed three incidents in March,

May, and September of 2013 when drivers employed by Maso’s trucking

company, E&E Trucking, were arrested at the Mexican-American border after

large quantities of marijuana were discovered among produce in the backs of

the trucks. The Government then presented witness testimony from three

alleged coconspirators, Pablo Aroche-Calderin (Aroche), Rafael Nimer Torres

(Torres), and Benigno “Juaso” Grey-Ramirez (Grey), all of whom had already

pleaded guilty to related conduct. These three witnesses each admitted during

their testimony that they hoped to receive reduced sentences for testifying

against Maso. As discussed in more detail below, Torres testified to out-ofcourt statements made by Andres, another alleged coconspirator, that Maso

challenges as inadmissible hearsay.

Aroche, the first coconspirator witness, testified that he was arrested in

March and September 2013 for possession of marijuana when, while driving a

truck for E&E, he knowingly attempted to drive loads of marijuana over the

border. Aroche specifically stated that it was his understanding that Maso and

Grey had a business relationship in “drug trafficking, marijuana.” He testified

that, in March, he was sitting in the truck readying to pick up a load of broccoli

when Maso and Grey came up to talk to him. Maso told him that there was

another load that he would be picking up as well, but did not specify what it

was. Grey later called Aroche and told him where to pick up the load. Aroche

2

7

Case: 17-40125 Document: 00514758910 Page:3 Date Filed: 12/13/2018

17-40125

testified that Maso and Grey were both present at the pick-up site while

marijuana was loaded into the truck.

Aroche also gave his account of the September attempt to transport the

load of marijuana, similarly stating that Maso gave him separate delivery

instructions for the load of watermelons and “another load,” which turned out

to be marijuana, that was already in the truck. Aroche testified that Grey told

him that Maso would pay him for the March and September marijuana loads

if they arrived successfully. On cross-examination, Aroche acknowledged that

he initially implicated Grey but not Maso in the marijuana conspiracy, only

claiming Maso’s involvement after he, Aroche, had been sentenced and the

investigating agent asked about Maso.

Torres, who testified next, spoke primarily about a conversation between

him and a man named Andres that occurred while Maso was present. Andres’s

relation to Maso is not clear from the totality of the trial testimony; witnesses

seemed uncertain as to whether he was Maso’s brother, cousin, or friend.

Torres testified that Andres told him that “if [Torres] was willing to traffic

marijuana, they had trucks.” Torres further testified that Andres “told me

Maso devoted himself to trafficking marijuana, that’s what he told me, I never

saw it.” Torres later reiterated: “I knew that Andres and [Maso] devote

themselves to carrying drugs. Maso never told me anything like that, nor did

he insinuate it, but Andres had told me that’s what they devoted themselves

to, Andres told me that.” Torres acknowledged that Maso himself never said

anything to him about trafficking drugs. The defense contemporaneously

objected to the admission of Andres’s statements through Torres’s testimony

as hearsay. The district court overruled the objection, accepting the

Government's justification that Andres was Maso’s coconspirator. Torres

stated that he declined to be involved with the marijuana trafficking, but

3

\8

Case: 17-40125 Document: 00514758910 Page:4 Date Filed: 12/13/2018

17-40125

admitted to later being involved with Andres and Grey in trafficking different

controlled substances, including methamphetamine, and asserted Grey was

also involved. Torres never mentioned any involvement by Maso in these

different drug transactions.

Grey, who testified next, stated that Maso came to his house in 2012 and

“There we talked like the two adults that we were, came to an agreement. He

would provide the means of transportation, I would provide the marijuana.”

Grey said he believed, but was not certain, that he and Maso were present

when Aroche’s truck was loaded with marijuana in March 2013. Grey further

confirmed that Maso’s drivers were paid the way Aroche had testified: Grey

would pay Maso, who would then pay his drivers directly. Grey also testified

that Andres “was not involved in this conspiracy” to traffic marijuana.

Consistent with Torres’s testimony, Grey did state that he had different drug

dealings with Andres and Torres to traffic other substances. However, he

clarified that “[w]ith Mr. Maso I just did marijuana.”

The Government’s final witness, Agent David Bishop, a case agent who

investigated and arrested Maso, also testified about Andres’s involvement or

lack thereof. Bishop affirmed that he believed Grey’s testimony that “Andres

had nothing to do with this particular transaction.” Bishop further stated that

“whether or not Andres was involved in the drug trafficking we haven’t been

able to prove yet.” When asked what he suspected of Andres’s activities,

Bishop stated:

I believe [Torres} was the transporter, [Grey] was the broker in the

Valley and I believe Andres was the recipient. .. . I believe [Torres]

was going to get paid for transporting the batteries. I believe

[Torres] got the batteries from [Grey]. I don’t know if [Grey] knew

that Andres was involved in that transaction. ... I suspect Andres

was [involved in that transaction].

Case: 17-40125 Document: 00514758910 Page:5 Date Filed: 12/13/2018

17-40125

Finally, Maso testified in his defense, stating that Grey had proposed to

him that they carry drugs, but that he refused; that he was not present when

Aroche was told about or loading the drugs; and that he otherwise had no

involvement in his drivers’ drug smuggling using his trucks or any knowledge

of the trafficking incidents until drugs were seized.

When instructing the jury, the court stated the following:

In this case, the government called as witnesses three alleged

accomplices . . . Rafael Nimer Torres, Benigno Grey-Ramirez...

and Pablo Aroche-Calderin . . . all three of whom the government

has entered into a plea agreement providing for the dismissal of

some charges and a lesser sentence than the co-defendant would

otherwise be exposed to for the offense to which the co-defendant

pled guilty... . You should keep in mind that [their] testimony is

always to be received with caution and weighed with great care.

You should never convict the defendant upon the unsupported

testimony of an alleged accomplice, unless you believe that

testimony beyond a reasonable doubt.

The court did not mention Andres in this list of alleged accomplices. Maso

raised no contemporaneous objection, nor did he request an alternative

instruction.

The jury subsequently convicted Maso, and he was sentenced to 160

months of imprisonment. Maso timely appeals.

II

Hearsay—out-of-court statements presented for the truth of the matter

asserted—are not admissible in a jury trial unless an enumerated exception

applies. FED. R. EVID. 801, 802. Rule 801(d)(2)(e) provides that such

statements are admissible when they are used against a party and were “made

by the party’s coconspirator during and in furtherance of the conspiracy.” We

review the district court’s decision to admit this evidence for an abuse of

discretion. United States v. Hall, 500 F.3d 439, 443 (5th Cir. 2007). The

2.0

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district court does not abuse its discretion if the Government proves by a

preponderance of the evidence “(1) the existence of the conspiracy; (2) the

statement was made by a coconspirator of the party; (3) the statement was

made during the course of the conspiracy; and (4) the statement was made in

furtherance of the conspiracy.” Id.; see FED. R. EVID. 801(d)(2)(e). In assessing

whether these elements are satisfied, “[t]he statement[s] [themselves] must be

considered[,] but cannot by [themselves] establish the existence of the

conspiracy or participation in it.” United States v. Nelson, 732 F.3d 504, 516

(5th Cir. 2013) (citations and quotation marks omitted). “There must be

‘independent evidence’ establishing the conspiracy.” Id.

Maso contends that Andres’s statements were not admissible under the

coconspirator exception because there was no independent evidence that they

were in furtherance of any conspiracy Maso and Andres participated in

together. See generally United States v. Arce, 997 F.2d 1123, 1128 (5th Cir.

1993) (“The conspiracy that forms the basis for admitting coconspirators’

statements need not be the same conspiracy for which the defendant is

indicted.”). Though there was independent evidence that Maso was involved

in marijuana trafficking and Andres with methamphetamine trafficking with

at least one overlapping coconspirator—Grey—none of this evidence connected

Maso to the methamphetamine or Andres to the marijuana.

However, though Maso’s arguments call the admissibility of these

hearsay statements into question, we conclude that reversal is not warranted

because any error was harmless. “[E]rrors in evidentiary rulings are subject

to the doctrine of harmless error.” United States v. Cornett, 195 F.3d 776, 785

(5th Cir. 1999) (citations omitted). Under this doctrine, “[a]ny error, defect,

irregularity, or variance that does not affect substantial rights must be

disregarded.” FED. R. CRIM. P. 52(a). “Under a harmless error analysis, the

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issue is whether the guilty verdict actually rendered in this trial was surely

unattributable to the error.” Cornett, 195 F.3d at 785 (citations and quotation

marks omitted). “Thus, the error will not require reversal if ‘beyond a

reasonable doubt the error complained of did not contribute to the verdict

obtained.” Id. (citing Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)).! The

burden of proving harmlessness falls to the Government. United States v.

Olano, 507 U.S. 725, 741 (1998).

Here, Aroche and Grey specifically implicated Maso in the marijuana

trafficking independent of Andres’s statements. Grey explicitly discussed how

he and Maso entered into a drug trafficking arrangement and detailed his

subsequent marijuana dealings with Maso. Aroche, similarly, testified that

Maso instructed him to get directions from Grey on where to go to pick up

another unspecified load, and that Maso was then present at the designated

pick-up site while marijuana was subsequently loaded into the truck. Further,

Aroche specifically told the jury that Maso and Grey had a business

relationship in “drug trafficking, marijuana.”

This is not a case, as in Cornett, where there was otherwise “no direct

evidence” that the defendant committed the crime, 195 F.3d at 785, or, as in

United States v. Sumlin, where the “case was a close one, and even the district

judge remarked that he would not have been surprised had the jury returned

a different verdict,” 489 F.3d 683, 692 (5th Cir. 2007). Moreover, the

Government’s closing argument indicates that Torres’s testimony was not

1 Our circuit has alternatively applied a less stringent standard to determine whether

a potential evidentiary error was harmless. See United States v. Gil-Cruz, 808 F.3d 274, 276

(Sth Cir. 2015) (“An error affects substantial rights if there is a reasonable probability that

the improperly admitted evidence contributed to the conviction” (citing United States v.

Sumlin, 489 F.3d 683, 688 (5th Cir. 2007)) (emphasis added). Here, we hold that Maso is not

entitled to relief under either standard.

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critical to its case: referring to Torres as “more of a background witness” and

making no reference to Andres’s statements about Maso devoting himself to

the trafficking of marijuana. Because we conclude beyond reasonable doubt

that the jury would therefore have delivered the same verdict without hearing

the challenged hearsay statements, their admission thus does not justify

reversal.”

For similar reasons, we also reject Maso’s argument that there was

insufficient evidence to support his guilty verdict. We must affirm a guilty

verdict if “after viewing the evidence and all reasonable inferences in the light

most favorable to the prosecution,” we determine that “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt.” United States v. Vargas-O’Campo, 747 F.3d 299, 301 (5th Cir. 2014)

(emphasis in original). Because we hold that the jury would have returned the

same verdict even without Andres’s testimony, there is certainly enough

evidence to sustain the verdict when considering all evidence, including

Andres’s testimony, in the light most favorable to this verdict.

2 Maso alleges that he may not have been found guilty without Andres’s statements

because Aroche and Grey were unreliable witnesses who contradicted each other. This

argument, however, relies on a mischaracterization of Grey’s testimony. Maso claims that

when Grey testified he did not have any “dealings” with Aroche, he was denying ever meeting

or knowing him, which would be inconsistent with Aroche’s account. Grey's testimony as a

whole, however, clarifies that his statement instead addressed the structure of the

conspiracy, emphasizing that he coordinated with Maso directly and Maso then handled the

specifics of hiring and paying his drivers. (‘I have said from the beginning that my dealings

have been with Mr. Maso, not with any driver. .. . I never had any business with Aroche.”).

Indeed, Grey made similar statements about Torres, a member of the

methamphetamine trafficking activities with which Grey also admitted his involvement.

Grey stated he had met Torres, but felt it necessary to clarify that Torres “was never hired

by me to handle any drugs. ... The fact that I was involved does not mean that I hired him.”

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Til

We review a party’s claim that the district court erred in its jury

instructions for abuse of discretion, asking “whether the charge, as a whole, is

a correct statement of law.” United States v. Bennett, 874 F.3d 236, 242 (5th

Cir. 2017) (cleaned up). Where, as here, the appellant failed to object at trial,

the instructions are reviewed for plain error only. Under this standard of

review, Maso must establish a forfeited error that is clear or obvious and that

affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135

(2009). If he satisfies the first three prongs of the plain error analysis, this

court has the discretion to correct the error if it “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (cleaned up).

Maso alleges that the district court abused its discretion by not including

Andres in the list of alleged accomplices who the jury was instructed to believe

only with caution and great care. Maso’s argues on appeal that there is no

valid reason for not including Andres in this instruction. However, Maso here

ignores the critical distinction that Andres, unlike the testifying witnesses, did

not make the prejudicial statements in hopes of receiving a reduced sentence

after a guilty plea. Maso makes no further attempt to engage with Bennett's

demanding standard. The district court’s instruction was not an abuse of

discretion, plain or otherwise.

Accordingly, Maso’s contention that the hearsay admission and jury

instructions together constitute cumulative error is also meritless. “The

cumulative error doctrine provides for reversal when an aggregation of nonreversible errors, i.e., plain and harmless errors that do not individually

warrant reversal, cumulatively deny a defendant’s constitutional right to a fair

trial.” United States v. Cervantes, 706 F.3d 603, 619 (5th Cir. 2013) (citing

United States v. Delgado, 672 F.3d 320, 343-44 (5th Cir. 2012) (en banc)).

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