Petition for Writ of Certiorari — Alfredo Navarro Hinojosa, Petitioner v. United States

No. 23-______

In The

Supreme Court of the United States

ALFREDO NAVARRO HINOJOSA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

APPENDIX

Brent Evan Newton

Counsel of Record

Attorney at Law

19 Treworthy Road

Gaithersburg, MD 20878

(202) 975-9105

brentevannewton@gmail.com

David Gerger

Ashley Kaper

Gerger, Hennessy,

and Martin, LLP

700 Louisiana Street,

Suite # 2300

Houston, TX 77002

(713) 224-4400

Counsel for Petitioners

LANTAGNE LEGAL PRINTING

1108 East Main Street Suite 1201 Richmond Virginia 23219 (800) 847-0477

i

TABLE OF CONTENTS

Opinion of the United States Court of Appeals

for the Fifth Circuit, filed February 28, 2024 ......... A1

A1

Filed February 28, 2024

United States Court of Appeals

for the Fifth Circuit

____________

No. 22-10584

____________

United States of America,

Plaintiff—Appellee,

versus

Alfredo Navarro Hinojosa; Miguel Casas; Martin

Salvador Rodriguez,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:16-CR-536-9

______________________________

Before Jones, Barksdale, and Elrod, Circuit Judges.

Per Curiam:*

After a jury convicted the defendants of a variety

of crimes related to drug sales that occurred in one of

the

defendant’s

nightclubs,

the

defendants

challenged their convictions and sentences. Because

there was extensive evidence in support of each, the

defendants’

convictions

and

sentences

are

AFFIRMED.

_____________________

* This opinion is not designated for publication. See 5th Cir. R.

47.5.

A2

I

Alfredo Navarro Hinojosa owns several

nightclubs in Dallas and Fort Worth, Texas. Miguel

“Mike” Casas and Martin “Chava” Salvador

Rodriguez were two of his most trusted managers

and advisors. Hinojosa, Casas, and Rodriguez, along

with other co-defendants not involved in this appeal,

were charged as part of a thirty-three-count

indictment related to third-party drug sales that

occurred at Hinojosa’s clubs between 2009 and 2016.

The drugs sales, which occurred in the bathrooms of

the clubs, typically consisted of $20 in exchange for a

small bag of cocaine for personal use.

The dispute at trial centered around: (1) whether

the defendants passively acquiesced to the drug

sales occurring in the bathrooms of the clubs or

actively allowed those sales; and (2) when the

defendants learned that the drug sales were

occurring. The evidence presented consisted of

statements made by the defendants to the FBI,

testimony from club employees and drug dealers,

wiretaps and recordings of conversations between

club management, and testimony about controlled

buys conducted by federal agents.

Evidence was presented indicating that

Hinojosa, Casas, and Rodriguez knew about the drug

sales for all or most of the period during which the

sales occurred. Evidence also showed that the

defendants stopped allowing drug sales after the FBI

raided the clubs but resumed allowing sales several

months later because prohibiting sales hurt

attendance and revenue. The defendants presented

evidence indicating that the drug dealing did not

occur with management’s knowledge or approval.

A3

The trial also included testimony from Deputy

Easterling, who testified about the 2017 arrest of

Josephine Hinojosa—Alfredo Hinojosa’s niece—and

Eric Lee, an expert witness who testified about

Hinojosa’s business records and noted numerous red

flags indicating that Hinojosa was probably engaged

in money laundering.

After a seventeen-day trial, Hinojosa, Casas, and

Rodriguez were each convicted on three counts:

making a premises available for drug sales (Count

19); conspiracy to make a premises available for

drug sales (Count 20); and conspiracy to possess

with intent to distribute cocaine (Count 25). The jury

also found that the defendants knew or should have

known that the conspiracy involved at least five

kilograms of cocaine. See United States v. Staggers,

961 F.3d 745, 762 (5th Cir. 2020). The jury did not

reach a verdict on the remaining counts.

The district court sentenced Hinojosa to 192

months, Casas to 168 months, and Rodriguez to 150

months. Hinojosa was sentenced within his guideline

range. Casas received a perjury enhancement and

was sentenced below his guideline range because the

district court determined that he was less culpable

than Hinojosa and should receive a shorter sentence.

Rodriguez was sentenced within his guideline range

and received a lower sentence than Casas based on

his relative culpability.

Hinojosa, Casas, and Rodriguez challenge the

admission of certain evidence against them, the

sufficiency of evidence as to their convictions, and

the district court’s application of the sentencing

guidelines.

A4

II

A

Defendants collectively challenge four aspects of

their trial: (1) They each challenge the admission of

testimony regarding Josephine Hinojosa’s arrest; (2)

Casas and Rodriguez challenge the admission of

Alfredo Hinojosa’s redacted statement; (3) Casas

challenges the admission of Eric Lee’s testimony

about money laundering; and (4) Hinojosa claims

that his trial counsel was ineffective.

Evidence is relevant if “it has any tendency to

make a fact [material to determining the action]

more or less probable than it would be without the

evidence.” Fed. R. Evid. 401. Relevant evidence is

generally admissible unless “its probative value is

substantially outweighed by a danger of . . . unfair

prejudice[.]” Fed. R. Evid. 402, 403.

Evidentiary rulings are reviewed for abuse of

discretion if the argument was preserved and plain

error if not preserved. United States v. Nutall, 180

F.3d 182, 189 (5th Cir. 1999) (discussing the

standard for relevance); United States v. Setser, 568

F.3d 482, 495 (5th Cir. 2009) (discussing the

standard for prejudice); United States v. Lewis, 796

F.3d 543, 546 (5th Cir. 2015) (discussing plain error).

An argument not raised before the district court,

even if challenging an evidentiary ruling that was

objected to before the district court, is not preserved.

Lewis, 796 F.3d at 546. Plain error requires showing

that: (1) the district court clearly or obviously erred

in a way that affected the defendant’s substantial

rights; and (2) the court should correct the error

A5

because it seriously affects the integrity of judicial

proceedings. See id.

An error, even on the abuse-of-discretion

standard, is harmless if it cannot reasonably be

taken to have affected the jury’s decision. Nutall,

180 F.3d at 189 (citations omitted); see also

Kotteakos v. United States, 328 U.S. 750, 764 (1946).

Put another way, we will not overturn a jury verdict

when aside from the improperly admitted evidence,

there is otherwise ample evidence from which the

jury could have convicted the defendant. See United

States v. Perry, 35 F.4th 293, 334 (5th Cir. 2022).

1

Hinojosa, Casas, and Rodriguez each challenge

the admission of testimony regarding the arrest of

Josephine Hinojosa, Hinojosa’s niece.1 Josephine was

arrested in 2017 while traveling from Texas to North

Carolina with fourteen kilograms of cocaine and a

computer drive containing business records related

to the clubs. The defendants argue that the error

was not harmless and their convictions on all three

counts should be reversed. Hinojosa’s challenge is

reviewed under abuse of discretion. The parties

dispute whether Casas and Rodriguez preserved this

argument.

1 The government claims that because relevance and prejudice

are fact-specific inquiries, Casas and Rodriguez cannot adopt

Hinojosa’s arguments about Josephine. Accordingly, the

government argues, their claims fail for inadequate briefing.

We disagree. Hinojosa’s brief discusses the lack of connection

between Josephine’s trip and the clubs and the inherently

prejudicial nature of the quantity of drugs involved in her

arrest. Because the argument does not rely on information

specific to Hinojosa, it can be adopted by Casas and Rodriguez.

A6

We need not resolve the disputed standard of

review or evaluate whether admission of the

Josephine testimony was proper because any error

on either standard of review was harmless. An

erroneous evidentiary ruling is harmless unless

there is a reasonable probability that the improperly

admitted evidence contributed to the conviction.

United States v. Lewis, 774 F.3d 837, 844 (5th Cir.

2014) (finding harmless error on an abuse of

discretion standard).

Here, there was extensive evidence supporting

each of the convictions and the findings that

Hinojosa, Casas, and Rodriguez claim were tainted

by the Josephine testimony. See United States v.

Williams, 620 F.3d 483, 493 (5th Cir. 2010) (finding

any potential Rule 403 error harmless because of the

substantial evidence against the defendant). Based

on that evidence, there is not a reasonable

probability that the testimony about Josephine

contributed to any of the jury’s determinations.

The Counts 19 and 20 charges for making a

premises available for drugs and conspiracy to do the

same turn on whether the defendants knew and

actively allowed the drug sales. Several employees

and drug dealers testified that the drug sales were

conspicuous and ubiquitous as early as 2013.

Humberto Novoa, one of Hinojosa’s most trusted

advisors, testified that sales were occurring as early

as 2013. He explained that “all of us knew” and

referenced Casas and Rodriguez by name. Erick

Lopez, a security guard at OK Corral Fort Worth

from 2009 to 2014, testified that drug sales were

conspicuous and ubiquitous when he worked at the

clubs. Juan Julio Rodriguez, who was the head of

security at Far West and OK Corral Dallas from

A7

2013 to 2016, testified that drug sales consistently

occurred while he worked at the clubs. He also

testified that he told Casas and Rodriguez about the

sales. Luis Rendon, a bouncer at the nightclubs,

testified that he reported the drug sales to Casas

and another manager reported them to Rodriguez in

2013 or 2014. Juan Lara, known as Negro or El

Negro, who oversaw most of the drug dealers who

sold at the clubs, testified that drugs were sold at

the clubs from 2012 to 2015. At a minimum, because

Hinojosa, Casas, and Rodriguez were known as

handson managers,2 the jury could infer from how

prevalent and conspicuous the sales were that each

of the defendants knew about the sales. The ubiquity

of the drug sales is further supported by the

nineteen controlled buys conducted by federal agents

between 2013 and 2016. The timing of each

defendant’s knowledge is discussed in detail below.

There is also evidence that each defendant

approved of the sales. Hinojosa instructed Casas to

occasionally clean up drug activity but otherwise be

more accommodating. This instruction was a

response to customer complaints about the lack of

drugs, which were relayed to Hinojosa by Rodriguez.

Casas and Rodriguez both advocated for allowing

drug sales because customers complained to them

when sales were prohibited.

There was also testimony about a meeting

during which Casas explained that management

decided to resume allowing drug sales because lack

2 There was testimony that Casas and Rodriguez were two of

the few people whom Hinojosa trusted, that they were two of

the top five decision-makers for the clubs, and that they had

the authority to direct employees and make decisions for the

club.

A8

of drug sales was bad for business. Rodriguez made

similar statements at a different meeting. There was

evidence that Casas instructed a security guard to

keep a payment that the security guard received

from a drug dealer, that Rodriguez personally

observed a drug deal in the bathroom in 2014, and

that Hinojosa instructed a security guard to allow

certain drug dealers to sell in the bathrooms. In

other words, through their own statements and

actions, all three defendants demonstrated their

knowledge and approval of the sales.

The idea that the defendants actively facilitated

the sales, rather than passively and reluctantly

accepted them, is bolstered by their recognition that

the drug sales were crucial to club attendance and

revenue. Hinojosa admitted that he allowed drug

sales to occur because preventing them was bad for

business. He was recorded saying, “[w]e can’t really

clean [the drug sales] because then we lose

business.” Hinojosa specifically explained his plan to

allow discreet sales so as not to attract too much

attention.

Casas and Rodriguez also recognized the

importance of the sales to the business. Novoa

testified that management decided to resume

allowing drug sales as long as they were discreet. He

also testified that when the decision to resume

allowing drug sales was made, Casas and Rodriguez

“were the ones telling Mr. Hinojosa that we should

allow [drug sales in the bathrooms] to happen.”

During a recorded phone call between Hinojosa and

his head of security, Eddie Villareal, Hinojosa stated

that Rodriguez complained to him that the clubs

were being too hard on drugs sales and Hinojosa told

A9

Villareal that he ordered Casas to be “more flex”

about the drug sales.

To be sure, there is also evidence suggesting that

the defendants opposed the sales to the extent that

they were aware of them. Lara testified that he

sometimes bribed security guards to remove rival

drug dealers. He also testified that he never

interacted

with

management

and

believed

management was unaware that the sales were

occurring. A security guard testified to bringing

drugs into the club for a drug dealer so that the

drugs would not be detected by security. A drug

dealer also told an FBI agent that he was warned

not to let Casas see him selling drugs. Casas texted a

security guard to “stay on those bathrooms,” but the

security guard interpreted that to mean he should

make sure that drug sales were not conspicuous.

There is also a conversation in which Hinojosa states

that he would rather have lower attendance than

risk losing his club. Ali Valdez, who managed one of

the clubs, testified that the clubs had a zerotolerance policy for drug sales.

Much of this contrary evidence is consistent with

the jury’s determinations. The bribes were not to get

the security guards to ignore prohibited selling but

to remove competition. The fact that security guards

were used to bring drugs into the clubs is consistent

with the defendants’ stated desire that sales be

discreet. And the statements by Hinojosa and Valdez

lack credibility in light of the evidence that drug

sales occurred, including after the FBI raid. Given

the extensive inculpatory evidence, this contrary

evidence does not establish a reasonable probability

that the testimony about Josephine contributed to

the defendants’ convictions.

A10

Hinojosa contends that the jury’s inability to

reach a verdict on sixteen out of the seventeen

charges for maintaining a drug premises means we

cannot determine whether the testimony about

Josephine influenced the jury’s decisions on Counts

19 and 20. But the Supreme Court has rejected

attempts to use failure to reach a verdict as evidence

of the jury’s views on other issues. Yeager v. United

States, 557 U.S. 110, 124–25 (2009). In Yeager, the

Supreme Court considered whether the jury’s

inability to reach a verdict on some counts proved it

acted irrationally by acquitting on another count. Id.

The Supreme Court explained that “the fact that a

jury hangs is evidence of nothing,” id. at 125,

because “[t]o ascribe meaning to a hung count would

presume an ability to identify which factor was at

play in the jury room.” Id. at 121. So too here. To

determine that the testimony about Josephine was

probably a factor in the Counts 19 and 20 convictions

because the jury hung on other counts would be to

assume that the jury hung on those other counts for

a reason that the Josephine testimony addressed.

The Count 25 charge for conspiracy to possess

with intent to distribute turns on whether there was

sufficient evidence from which the jury could have

inferred an agreement between the defendants and

the drug dealers. United States v. Chapman, 851

F.3d 363, 376 (5th Cir. 2017) (listing elements of

conspiracy). There was a variety of evidence from

which the jury could have inferred a tacit agreement.

Id. (explaining that tacit agreement is sufficient and

can be “proved with circumstantial evidence” or

“inferred from concert of action”). There was

evidence that management allowed certain drug

A11

dealers to sell in the bathrooms, while rival drug

dealers were removed. A drug dealer testified that

Juan Lara, who oversaw most of the drug dealers

who sold in the clubs, received permission from

Hinojosa to resume sales in the clubs. Another drug

dealer testified that his supervisor received

permission from Rodriguez to sell drugs in the

bathrooms.

The defendants shared the same purpose as the

drug dealers and benefitted from their success. And

as the crackdown following the FBI raid and

subsequent return to drug sales demonstrates, the

defendants and drug dealers were coordinated about

when sales could and could not occur. This evidence

of coordination and shared purpose strongly

supports an inference that the defendants and drug

dealers had a tacit agreement to sell drugs.

The defendants each argue that they cannot be

liable under Count 25 because knowledge, approval,

or acquiescence in the purpose of the conspiracy is

insufficient to establish participation. United States

v. Chandler, 586 F.2d 593, 602 (5th Cir. 1978) (citing

United States v. Falcone, 311 U.S. 205 (1940)). In

Chandler, we held that evidence that an officer was

present when deliveries of stolen gasoline were made

was insufficient to sustain a conspiracy conviction

because the evidence did not establish participation.

Id. at 601–02. By influencing when and how the

drug sales occurred, the defendants did more than

just know about or approve of them. They

participated. And because the defendants benefitted

from the sales and decided to resume the sales after

temporarily stopping them, they did more than

merely acquiesce to something that they wished was

not happening. We cannot hold that there was a

A12

reasonable probability that the testimony about

Josephine contributed to the Count 25 convictions.

The drug quantity finding turns on when the

defendants knew the drug sales were occurring.3 The

defendants contend that the evidence recounted

above only shows that they knew about and allowed

the drug sales starting in 2014. The defendants

ignore two ways in which the jury could have

determined that the defendants knew about and

were liable for drug sales occurring before 2014.

First, the defendants rely on testimony from Juan

Julio Rodriguez, in which he stated that Hinojosa

told him to continue allowing sales in the clubs, a

few months after the OK Corral Dallas club opened

in 2014. But the OK Corral Dallas club opened in

2013. If the jury believed that Juan Julio correctly

remembered that the conversation occurred a few

months after the club opened and misremembered

the year, they could have viewed the defendants’

evidence as supporting participation in the

conspiracy in 2013.

The jury also could have determined that the

defendants knew about drug sales as early as 2013

based on the fact that Hinojosa told Juan Julio to

continue allowing drug sales. That testimony does

not suggest Hinojosa was surprised or learning for

the first time that drug deals were happening. The

statement that the sales were necessary strongly

implies, though does not prove, that Hinojosa had

The PSRs, which the district court adopted, calculated the

drug quantity by multiplying the number of weeks attributable

to each defendant by an estimated 50 grams sold per week.

Therefore, the sufficiency of the evidence for the quantity

finding turns on the sufficiency of the evidence for the weeks

attributed to each defendant.

3

A13

experience with drug sales in his clubs for long

enough to know the impact that they had on

revenue. In other words, the conversation is evidence

of participation well before the date when the

conversation occurred. Given that knowledge even

one year earlier than when Hinojosa admits to

knowing drug sales were occurring would be

sufficient to establish a quantity triggering the

mandatory minimum, there was sufficient evidence

for a rational juror to find that the conspiracy

involved at least five kilograms on either standard of

review. And that reasoning applies equally to Casas

and Rodriguez given that management met every

week and Casas and Rodriguez were deeply involved

in running the clubs

The evidence of ubiquitous and conspicuous

drug sales starting well before 2014 also supports

the drug quantity finding. The defendants were very

engaged in running the nightclubs. With the

exception of the months immediately following the

FBI raids when they were concerned about a federal

investigation, the defendants were consistent in (1)

acknowledging the importance of the drug sales to

the business and (2) permitting drug sales provided

that they were discreet. The jury may simply have

inferred that this attitude and approach to the drug

sales occurred prior to 2014.

Just three days after the FBI arrested a number

of drug dealers at each of the three clubs, Hinojosa

was recorded saying that “customers complain” and

“we lose business” when “I get really tough in the

bathrooms.” This conversation is crucial because it

occurred in March 2015 before the defendants

decided in April 2015 to curtail drug sales out of fear

that they were being investigated. It demonstrates

A14

that the defendants did not learn that drug sales

were important to their business during the postraid shut down. That contention, if true, would lend

credence to the argument that the defendants were

not responsible for sales that occurred before 2015.

But the fact that Hinojosa already knew that drug

sales were important to the business greatly

undermines that argument. And the fact that

Hinojosa knew is strong evidence that Casas and

Rodriguez knew as well. Casas and Rodriguez were

Hinojosa’s most trusted advisors. They met every

week.

We cannot say that there was a reasonable

probability that the testimony about Josephine

contributed to the drug quantity finding.

2

Casas and Rodriguez challenge the admission of

a redacted statement that Hinojosa made to the

government on the ground that it violates the Sixth

Amendment. A defendant’s Sixth Amendment right

to confront witnesses against him is violated when:

(1) “several co-defendants are tried jointly”; (2) “one

defendant’s extra-judicial statement is used to

implicate another defendant”; and (3) “the confessor

does not take the stand.” United States v. Restrepo,

994 F.2d 173, 186 (5th Cir. 1993) (citing Bruton v.

United States, 391 U.S. 123, 127 (1968)).

Here, a redacted portion of Hinojosa’s confession

was admitted during trial.4 The admitted statement

was:

At one point, Hinojosa decided to plead guilty and made

admissions to the government. He later decided not to plead

guilty.

4

A15

Question: And so who is the one bringing you

these complaints about the drugs.

Hinojosa: It could be the manager, it could be

the promotion’s guy . . . Because that’s—

that’s the first people to hear the complaints.

The Supreme Court recently reaffirmed that

confessions that directly implicate a co-defendant

fall within Bruton, while those that do so indirectly

do not. Samia v. United States, 599 U.S. 635, 647

(2023). The fact that an inference is required does

not necessarily mean implication is indirect. Id. at

652 (citing Gray v. Maryland, 523 U.S. 185, 195

(1998)) (explaining that admissibility must depend

on the kind of inference because use of descriptions

like “the red-haired, bearded, one-eyed man-withalimp” surely fall within Bruton). Direct implication

can occur when a statement is redacted to remove a

defendant’s name, yet still obviously refers to the

defendant. Id. at 653 (citing Gray, 523 U.S. at 196

(explaining that the blanks would cause the jurors to

speculate as to whom the blanks refer)). By contrast,

if a redacted statement only implicates the

codefendant in conjunction with other evidence,

there is no Confrontation Clause violation.

Richardson v. Marsh, 481 U.S. 200, 208 (1987).

We need not determine whether a Bruton

violation occurred because it is well established that

a Bruton violation may be considered harmless

where, as here, disregarding the co-defendant’s

confession, there is otherwise ample evidence

against the defendant. United States v. Powell, 732

A16

F.3d 361, 379 (5th Cir. 2013) (explaining that a

Bruton violation does not mandate reversal).

As recounted above, there was extensive

evidence indicating that Casas and Rodriguez knew

about and supported the drug sales. Novoa testified

that when the decision to resume allowing drug sales

was made, Casas and Rodriguez “were the ones

telling Mr. Hinojosa that we should allow [drug sales

in the bathrooms] to happen.” During a recorded

phone call between Hinojosa and his head of

security, Eddie Villareal, Hinojosa stated that

Rodriguez complained to him that the clubs were

being too hard on drug sales and told Villareal that

he ordered Casas to be “more flex” about the drug

sales. Compared to this evidence, Hinojosa’s

statement that “the manager” and “the promotion’s

guy” told him about customer complaints was

cumulative, and its admission, even if error, was

harmless.

3

Casas also challenges the admission of testimony

by Eric Lee, an expert witness who testified about

Hinojosa’s business records and noted numerous red

flags indicating that Hinojosa was probably using

the clubs for money laundering. Casas argues that

Lee’s testimony was irrelevant and prejudicial.

Specifically, Casas argues that though the

indictment lacked any money laundering claims, Lee

testified extensively that the clubs served a money

laundering function, prejudicing the defendants by

making them look like money launderers for drug

A17

cartels.5 Casas claims Count 21, which charged

Hinojosa and Novoa with conspiracy to structure

transactions to evade reporting requirements, was

improperly used to justify the admission of Lee’s

testimony.6

The testimony was relevant because it provided

another plausible motive for allowing the drug sales:

if attendance and revenue at the clubs decreased, it

would be more difficult to hide the money being

laundered through the clubs. In other words, lack of

cash flow was not just a threat to business, it risked

exposing an illegal money laundering scheme.

Nor was the testimony prejudicial. Lee’s

testimony was a technical analysis of business

records, defense counsel repeatedly told the jury that

there was no money laundering charge, and the jury

instructions cautioned the jury not to consider

charges not contained in the indictment. And any

prejudice did not outweigh the probative value of the

testimony. The central dispute for Counts 19, 20,

and 25 was the defendants’ level of involvement in

the drug sales occurring at the clubs. Evidence that

the defendants had a strong motive for allowing the

5 Count 21 charged Hinojosa and other defendants who are not

part of this appeal with conspiracy to structure transactions to

evade reporting requirements. Unlike money laundering,

structuring transactions to evade reporting requirements does

not require showing that the proceeds involved came from an

illegal activity. Compare 18 U.S.C. § 1956 with 31 U.S.C. §

5324.

6 Count 21 was based on actions taken by Hinojosa and

Novoa. Novoa gave Hinojosa $140,000 and asked him to clean

the money. Hinojosa deposited the money in several of his own

accounts using two separate transactions. He then wired

money from his accounts to a bus company to purchase a bus

for a band that Novoa managed.

6

A18

sales made the defendants’ argument that they

reluctantly acquiesced to the sales less probable.

4

Hinojosa claims that his trial counsel provided

ineffective assistance of counsel by advising him to

withdraw his plea agreement based on a legal

strategy that was directly in conflict with United

States v. Chen, 913 F.2d 183, 190 (5th Cir. 1990).

Specifically, Hinojosa moved for judgment of

acquittal because there was no evidence that he

opened the clubs for the purpose of selling drugs. In

Chen, we explained that “under § 856(a)(2), the

person who manages or controls the building and

then rents to others, need not have the express

purpose in doing so that drug related activity take

place.” Id. He concedes that we cannot evaluate the

merits of his claim based on the existing record, so

he asks us to use our supervisory authority to

remand to the district court for an evidentiary

hearing.

Our typical practice is not to address ineffective

assistance of counsel claims unless there is a record

on the merits from the district court. United States v.

Higdon, 832 F.2d 312, 313–14 (5th Cir. 1987);

United States v. Freeze, 707 F.2d 132, 138–39 (5th

Cir. 1983). We have applied that principle when a

party asks for an evidentiary hearing rather than

resolution on the merits. United States v. Jones, 969

F.3d 192, 199–200 (5th Cir. 2020). Though we have

remanded for evidentiary hearings in conflict-ofinterest cases, that issue is different than ineffective

assistance of counsel. United States v. Infante, 404

F.3d 376, 393 (5th Cir. 2005); United States v.

A19

Solado, 339 F.3d 285, 291–92 (5th Cir. 2003).

Because the practices of other circuits and policy

arguments that Hinojosa advances do not warrant

departing from our typical practice, we do not reach

those arguments.

B

Casas and Rodriguez challenge the sufficiency of

the evidence for their convictions under Counts 19

and 20. Hinojosa, Casas, and Rodriguez challenge

the sufficiency of the evidence for their convictions

on Count 25 and the jury’s finding that the Count 25

drug conspiracy involved at least five kilograms of

cocaine. When reviewing the sufficiency of the

evidence, we consider whether the evidence, “viewed

in the light most favorable to the verdict, would

permit a rational trier of fact to find [the defendant]

guilty beyond a reasonable doubt.” United States v.

Sila, 978 F.3d 264, 270 (5th Cir. 2020) (alteration in

original) (internal quotations and citation omitted).

Our review must consider countervailing evidence,

as well as the evidence supporting the verdict. Id.

1

21 U.S.C. § 856(a)(2), the basis for Count 19 and

the predicate of the conspiracy for Count 20, makes

it a crime to:

manage or control any place, whether

permanently or temporarily, either as an

owner, lessee, agent, employee, occupant, or

mortgagee, and knowingly and intentionally

rent, lease, profit from, or make available for

A20

use, with or without compensation, the place

for the purpose of unlawfully manufacturing,

storing, distributing, or using a controlled

substance.

The purpose prong applies to the person dealing

or using the controlled substance, not the person

who manages or controls the property. Chen, 913

F.2d at 190.

Conspiracy to manage a drug premises requires

a finding that: (1) two or more people reached an

agreement to manage a drug premises; (2) the

defendant knew of the unlawful purpose of the

agreement; and (3) the defendant joined in the

agreement willfully. 21 U.S.C. §§ 846, 856(a)(2).

Casas argues that if § 856(a)(2) imposes liability

merely for failure to take action, it impermissibly

lacks an actus reus. He further argues that if

“making the place available” requires more than

failure to remove drug dealers, there is no evidence

that he completed that requirement. Casas

challenges Count 20 based on the same arguments.

The government claims that because Casas

based his sufficiency of the evidence objections on

different grounds before the district court, the

grounds he provides now are reviewed for plain

error.7 Casas argues that his claim that § 856(a)(2)

must contain an actus reus is a constitutional claim

(not a sufficiency of the evidence claim) and a claim

7 Before the district court Casas argued there was insufficient

evidence that he knew drugs were being sold and that there

was an agreement to allow drug sales. On appeal, he argues

that “making a place available” requires more than failure to

remove drug dealers and there was evidence he tried to stop

drug sales.

A21

he made before the district court. Casas’s claims fail

on either standard of review.

Casas’s analogy to strict liability, which is

defined by a lack of a mens rea requirement, is

inapposite to his argument that § 856(a)(2) lacks an

actus reus. The cases he cites discuss mens rea

requirements, not the need for an actus reus. Courts

have upheld convictions based on failure to remove.

See, e.g., United States v. Safehouse, 985 F.3d 225,

235 (3d Cir. 2021). In any case, our court need not

determine whether the statutory text “make

available” and Chen’s language of “allow” require

affirmative action or merely failure to act because

there is evidence Casas acted to make the clubs

available for drug sales. He urged Hinojosa to

resume allowing drug sales for the good of the

business. Hinojosa told Casas to give the drug

dealers greater latitude to conduct sales. We view

the evidence in the light most favorable to the

verdict, Sila, 978 F.3d at 270, and the jury could

reasonably have assumed that Casas followed these

instructions by instructing the security guards to

allow drug sales. Instructing the security guards

constitutes action in furtherance of the illicit sales,

meaning that Casas was not convicted merely for

failure to take action.

Casas’s challenge to Count 20 also fails. Count

20 is a conspiracy charge so it does not require that

Casas actually made a premises available for drug

use, only that he agreed to do so. The evidence that

Hinojosa told Casas to be more flexible with drug

dealers, without additional inference, is sufficient

evidence of an agreement.

Rodriguez argues that there was no evidence

that he was an owner, lessee, agent, employee,

A22

occupant, or mortgagee of the building. There was

testimony that Rodriguez was one of the few people

Hinojosa trusted, that Rodriguez was one of the top

five decision makers for the clubs, that Rodriguez

was second in the business behind Hinojosa, and

that he had the authority to direct employees and

make decisions for the club. There was also

testimony that Rodriguez had authority over the

security guards and instructed them to allow drug

sales. On either standard, this was sufficient

evidence to find that Rodriguez was an agent of the

club.

2

Challenging their Count 25 convictions,

Hinojosa, Casas, and Rodriguez argue that there is

no evidence that any of them entered into an

agreement with any of the drug dealers to possess

cocaine with the intent to distribute it. They argue

that mere knowledge, approval, or acquiescence in

the object or purpose of a conspiracy is insufficient to

prove participation. They claim a contrary

conclusion would render § 856(a)(2) superfluous,

contrary to traditional canons of interpretation.

Rodriguez argues that there was no evidence he

actually or constructively possessed cocaine. Because

Hinojosa did not preserve error, plain error review

applies to his claim. Because Casas and Rodriguez

did, de novo review applies to their claims.

As detailed above, there was extensive evidence

from which the jury could have inferred a tacit

agreement. There was evidence that management

allowed certain drug dealers to sell in the

bathrooms, while rival drug dealers were removed.

A23

A drug dealer testified that Juan Lara, who oversaw

most of the drug dealers who sold in the clubs,

received permission from Hinojosa to resume sales in

the clubs. Another drug dealer testified that his

supervisor received permission from Rodriguez to

sell drugs in the bathrooms. Reasonable minds may

differ regarding the credibility of this testimony and

the extent to which it implies an agreement. As

detailed above, the evidence against the defendants

goes beyond mere knowledge, approval, and

acquiescence.8 See supra IIA1.

Nor are we persuaded by the defendants’

surplusage argument. Inferring an agreement from

providing the location for the drug sales does not

convert every § 856(a)(2) violation into a conspiracy

to possess with intent to distribute. A conspiracy

requires the parties to share the purpose of the

unlawful activity, whereas § 856(a)(2)’s purpose

element only applies to the drug seller. Chen, 913

F.2d at 190. In other words, whether a defendant

can be charged under § 856 and § 841 (conspiracy)

depends on how he made his premises available for

drug sales and whether those facts can support an

inference of a tacit agreement.

8 Rodriguez’s argument about constructive possession also fails

given the deferential standard of review. Constructive

possession is established by showing ownership, dominion, or

control over the contraband itself or the premises containing

the contraband. United States v. Salinas-Salinas, 555 F.2d 470,

473 (5th Cir. 1977). Given his standing in the business,

Rodriguez had control over the premises containing the drugs.

Given that he had control over the security guards, he could

remove people as he saw fit. Additionally, because Count 25 is

a conspiracy charge, what is relevant is that some conspirator

had control over the building. As the owner of the clubs,

Hinojosa had control.

A24

3

Hinojosa, Casas, and Rodriguez argue that there

was insufficient evidence to find that the alleged

conspiracy to possess with intent to distribute

involved at least five kilograms of cocaine.

Specifically, Hinojosa and Casas argue that there

was insufficient evidence showing that they allowed

drug sales to occur before 2014 and they can only be

accountable for drug sales that occurred after they

joined the conspiracy. Rodriguez argues that the

evidence was insufficient to show that he knew of

the drug sales before 2015.9

On either standard of review, the drug quantity

finding was proper. The parties do not dispute that

the drug quantity can be calculated by estimating 50

grams sold per week. They dispute how many weeks

can be attributed to the defendants. That number

depends on when the defendants joined the

conspiracy, which, because the conspiracy is based

on tacit agreement, turns on when they knew the

drug sales were occurring.

As detailed above, there was more than enough

evidence from which the jury could have determined

that the defendants joined the conspiracy as early as

2013, which would provide a sufficient number of

weeks to reach the five-kilogram determination. See

supra IIA1.

9 Rodriguez challenges the jury instructions on the ground that

they allowed the jury to convict without finding that the

conspiracy involved at least five kilograms of cocaine. That is

unsurprising, as whether a defendant is guilty of conspiracy

and whether he receives a mandatory minimum because he

meets a particular quantity threshold are separate questions.

A25

Casas also argues that there was additional

evidence that he tried to stop drug sales through

2015. Viewing the evidence in the light most

favorable to the verdict, this argument is unavailing.

The record indicates periods of time when the clubs

allowed rampant drug sales, allowed some drug sales

while prohibiting others, and prohibited most or all

sales. Casas claims that he told Luis Rendon, a

security guard, to clean up the drug sales. Without

more detail, one could infer that meant stopping

drug sales altogether, making them more discreet, or

getting rid of the unruly drug dealers while leaving

the others. That action also must be viewed against

the background that ubiquitous drug sales were

occurring through 2015 and Casas had substantial

control over security and their oversight of the

bathrooms. In other words, the jury might have

concluded that Casas’s instruction to Rendon was

less persuasive than the other evidence.

The arguments regarding Rodriguez are the

same. He argues that the direct evidence of his

knowledge of the drug sales is insufficient to

establish five kilograms. The question is whether the

ubiquity of drugs and his leadership position support

an inference beyond a reasonable doubt that he

knew about the drugs in earlier years. For the same

reasons discussed regarding Hinojosa and Casas,

there was sufficient evidence to support the

inference.

A26

C

1

Casas challenges the sentencing enhancement

that he received for perjury. A defendant receives a

two-level enhancement for committing perjury.

U.S.S.G. § 3C1.1. A defendant commits perjury if he

provides “false testimony concerning a material

matter with the willful intent to provide false

testimony, rather than as a result of confusion,

mistake, or faulty memory.” United States v. PerezSolis, 709 F.3d 453, 469 (5th Cir. 2013) (citation and

alterations omitted). Because Casas objected to the

PSR’s use of the two-level enhancement, the district

court’s factual finding that Casas obstructed justice

is reviewed for clear error. United States v. JuarezDuarte, 513 F.3d 204, 208 (5th Cir. 2008). There is

no clear error if the finding is plausible considering

the record as a whole, and deference is given to the

district court’s credibility determinations. Id.

Casas testified that he never opposed

restrictions on drug sales in the bathrooms, had no

knowledge of a 2016 meeting in which club

management decided to resume allowing drug sales

at the clubs, and was never instructed to allow drug

sales to occur.

Detective

Hodack

testified

that

Casas

participated in a meeting in 2015 or 2016 during

which club management decided to resume allowing

drug sales in the clubs because the lack of sales had

decreased attendance by more than 50%. Novoa

testified that Casas was part of a meeting around

2016 where club management decided to allow drugs

sales to resume. Hinojosa, on a recorded phone call

A27

with Villareal, said that he told Casas to be more

flexible with the drug dealers.

The Hodack and Novoa testimony contradict

Casas’s statement that he had no knowledge of a

2016 meeting where club management agreed to

resume allowing drug sales. The Hinojosa phone call

contradicts Casas’s statement that he was never

instructed to permit drug sales.

The conflict between Casas’s testimony and the

information provided by Hodack, Novoa, and

Hinojosa, coupled with the reasonable determination

that Casas was less credible, is enough to establish

the falsity element of perjury. Whether Casas was

involved in the decision to resume drug sales was

plainly material to the case. As the district court

thoroughly analyzed, Casas answered each question

emphatically and unequivocally, supporting the

finding that he was intentionally lying rather than

confused, mistaken, or forgetful. The district court

did not clearly err in applying a perjury

enhancement.

2

Rodriguez challenges his sentence on the basis

that the district court erred by attributing a drug

quantity to him beyond that for which he was

personally responsible and by giving him a manager

enhancement despite insufficient evidence for that

finding. Because Rodriguez objected to the manager

enhancement, we review the district court’s

application of the sentencing guidelines de novo and

its factual findings for clear error. United States v.

Bowen, 818 F.3d 179, 192 (5th Cir. 2016).

A28

The drug quantity argument is addressed above.

The manager enhancement applies if the defendant

exercised some degree of control over others involved

in the commission of the offense. See United States v.

Delgado, 672 F.3d 320, 345 (5th Cir. 2012) (en banc);

United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir.

1990). There was extensive testimony that Rodriguez

had control over whether the drug dealers could

remain in the bathrooms selling drugs. Based on this

evidence, the district court’s factual findings did not

constitute clear error. The district court’s application

of the manager enhancement was proper.

*

*

*

For the foregoing reasons, the convictions and

sentences of Hinojosa, Casas, and Rodriguez are

AFFIRMED. Hinojosa’s motion for an evidentiary

hearing is DENIED.

_______________________

Jennifer Walker Elrod, Circuit Judge, concurring:

I agree with the majority opinion that admission

of the Josephine testimony and Hinojosa redacted

statement were both harmless error. I write

separately to explain why these harmless errors

nevertheless constituted an abuse of discretion and

Bruton error, respectively.

I

As the majority explains, Deputy Easterling

testified that Josephine was arrested in 2017 while

A29

traveling from Texas to North Carolina with

fourteen kilograms of cocaine and a computer drive

containing business records related to the clubs.

Hinojosa, Casas, and Rodriguez each claim that

admission of the testimony was an abuse of

discretion because the testimony was irrelevant and

highly prejudicial.

Evidence is relevant if “it has any tendency to

make a fact [material to determining the action]

more or less probable than it would be without the

evidence.” Fed. R. Evid. 401. Relevant evidence is

generally admissible unless “its probative value is

substantially outweighed by a danger of . . . unfair

prejudice[.]” Fed. R. Evid. 402, 403. Evidentiary

rulings are reviewed for abuse of discretion if the

argument was preserved and for plain error if not

preserved. United States v. Nutall, 180 F.3d 182, 189

(5th Cir. 1999) (discussing the standard for

relevance); United States v. Setser, 568 F.3d 482, 495

(5th Cir. 2009) (discussing the standard for

prejudice).

The relevance of the testimony is tenuous at

best. There was no evidence that Josephine was

traveling with anyone affiliated with Hinojosa’s

clubs, nor that the drugs in the car were tied to any

of the drug dealers who sold at Hinojosa’s clubs.

Josephine was not on a trip for the clubs when she

was arrested, and she was arrested in 2017, after

drug sales at the clubs had ceased. The records

found in the car contained routine payroll

information and contained no information about

drug sales at the clubs.

Testimony about the arrest lacked any

connection to any of the charges except that someone

associated with the clubs was found with a large

A30

quantity of drugs. The association between the

defendants and Josephine does not make her actions

relevant absent some connection to the business or

alleged conspiracy. That lack of relevance makes it

very easy for the testimony to be more prejudicial

than probative. The testimony created the

impression that the clubs were engaged in largescale drug-trafficking. The jury instruction warning

the jury that mere association does not prove a

conspiracy may have limited the prejudicial effect of

the testimony, but it did not make it more relevant.

Even factoring in the jury instruction, the testimony

about Josephine should have been excluded because

there was a substantial danger that it was more

prejudicial than probative.

II

As the majority also explains, Casas and

Rodriguez challenge the admission of a redacted

statement that Hinojosa made to the government on

the ground that it violates the Sixth Amendment. A

defendant’s Sixth Amendment right to confront

witnesses against him is violated when: (1) “several

co-defendants are tried jointly”; (2) “one defendant’s

extrajudicial statement is used to implicate another

defendant”; and (3) “the confessor does not take the

stand.” United States v. Restrepo, 994 F.2d 173, 186

(5th Cir. 1993) (citing Bruton v. United States, 391

U.S. 123, 127 (1968)). This is a so-called Bruton

error.

A31

Here, a redacted portion of Hinojosa’s confession

was admitted during trial.1 The admitted statement

was:

Question: And so who is the one bringing you

these complaints about the drugs.

Hinojosa: It could be the manager, it could be

the promotion’s guy . . . Because that’s—

that’s the first people to hear the complaints.

The Supreme Court recently reaffirmed that

confessions that directly implicate a co-defendant

fall within Bruton, while those that do so indirectly

do not. Samia v. United States, 599 U.S. 635, 647

(2023). The fact that an inference is required does

not necessarily mean implication is indirect. Id. at

652 (citing Gray v. Maryland, 523 U.S. 185, 195

(1998)) (explaining that admissibility must depend

on the kind of inference because use of descriptions

like “the red-haired, bearded, one-eyed man with a

limp” surely fall within Bruton). Direct implication

can occur when a statement is redacted to remove a

defendant’s name, yet still obviously refers to the

defendant. Id. at 653 (citing Gray, 523 U.S. at 196

(explaining that the blanks would cause the jurors to

speculate as to whom the blanks refer)). By contrast,

if a redacted statement only implicates the

codefendant in conjunction with other evidence,

there is no confrontation clause violation.

Richardson v. Marsh, 481 U.S. 200, 208 (1987).

At one point, Hinojosa decided to plead guilty and made

admissions to the government. He later decided not to plead

guilty.

1

A32

Casas and Rodriguez are not directly implicated

by the redaction itself. The redacted statement did

not contain “deleted” or other fillers that would

cause the jurors to speculate as to whom the blanks

referred. On the contrary, reading the redacted

statement, one does not know information has been

removed.

Whether the references to “manager” and

“promotion’s guy” directly implicate Casas and

Rodriguez poses a closer question. The indictment

listed multiple managers and promoters. However,

Hinojosa’s statement referenced “the manager,” not

“a manager,” arguably implicating Casas as the

general manager of the clubs. Rodriguez, in the

indictment, was introduced as the manager in

charge of monthly promotions while Novoa, the other

promoter, was introduced as Hinojosa’s protégé

without reference to his role as a promoter.

Given their status in the business and

prominence at trial, the reference to their job titles

implicated Casas and Rodriguez just as a reference

to the owner would implicate Hinojosa. The jury did

not need any additional evidence to think that

Hinojosa’s statement referenced Casas and

Rodriguez. To be sure, references to “the manager”

and “the promotion’s guy” do not implicate with the

same level of certainty as would a reference to “a

red-haired, bearded, one-eyed man.” Gray, 523 U.S.

at 196. However, I read Gray’s example of a redhaired, bearded, one-eyed man as an extreme one

used to illustrate a point, not as defining the level of

uniqueness required for direct implication. Here, the

use of the titles “manager” and “promotion’s guy”

were sufficiently specific to directly implicate Casas

and Rodriguez.

A33

The risk of a violation is heightened by the lack

of a jury instruction. Samia’s holding that no Bruton

violation occurs when a party is only indirectly

implicated relied in part on the fact that the district

court provided a limiting instruction to the jury.

Samia, 599 U.S. at 640. Here, no limiting instruction

was given.

*

*

*

I agree that admission of the Josephine

testimony and redacted statement were harmless

error, given the extensive evidence against the

defendants. But I would have also held that

admission of the Josephine testimony was an abuse

of discretion and the admission of the redacted

statement was Bruton error. I concur.