At page 156 Analyzing state forfeiture and jury instruction errors33 citing cases“retained the financial risk of distribution by fronting or consigning the drugs”
- United States v. Demetrius Jefferson, 975 F.3d 700 (8th Cir. 2020).published“The key factors in determining management or supervisory authority are control over other participants and organization of the criminal activity.” United States v. Pena, 67 F.3d 153, 156-57 (8th Cir. 1995).
- United States v. Jalen McSmith, 968 F.3d 731 (8th Cir. 2020).published“The key factors in determining management or supervisory authority are control over other participants and organization of the criminal activity.” United States v. Pena, 67 F.3d 153, 156-57 (8th Cir. 1995).
- United States v. Mark Arlin Hammerschmidt, 881 F.3d 633 (8th Cir. 2018).published Moreover, to the extent that the Gaines footnote conflicts with our earlier precedent, e.g., United States v. Pena, 67 F.3d 153, 156-57 (8th Cir. 1995); McFarlane, 64 F.3d at 1237-38 , we are bound by the decisions of the panels that preda…
- United States v. Jamayal Mannings, 850 F.3d 404 (8th Cir. 2017).published“The key factors in determining management or supervisory authority are control over participants and organization of the criminal activity.” Id. (quoting United States v. Pena, 67 F.3d 153, 156-57 (8th Cir. 1995)).
- United States v. Alejandro Valencia, 829 F.3d 1007 (8th Cir. 2016).publishedUnited States v. Pena, 67 F.3d 153, 156 (8th Cir. 1995).
- United States v. Manuel Encee, 256 F.3d 852 (8th Cir. 2001).published U.S. v. Pena, 67 F.3d 153, 156 (8th Cir. 1995).
- United States v. Anthony C. Barrett, 173 F.3d 682 (8th Cir. 1999).published See U.S.S.G. § 3B1.1, comment n. 2; United States v. Pena, 67 F.3d 153, 156-57 (8th Cir.1995).
- United States v. James Kenneth Loveless, 139 F.3d 587 (8th Cir. 1998).published We reject this contention. .The guidelines require “that [the defendant] supervised ‘one or more other participants ’ to trigger this enhancement.” United States v. Pena, 67 F.3d 153, 157 (8th Cir.1995) (quoting U.S.S.G. § 3B1.1, comment,…
- United States v. Toro-Aguilera, No. 97-1193 (8th Cir. Mar. 5, 1998).publishedDel Toro does not dispute the evidence that he occasionally fronted drugs and acknowledges that this court has upheld § 3B1.1(b) enhancements where fronting was involved, citing United States v. Pena, 67 F.3d 153, 156-57 (8th Cir. 1996), a…
- United States v. Jose Del Toro-Aguilera, 138 F.3d 340 (8th Cir. 1998).publishedDel Toro does not dispute the evidence that he occasionally fronted drugs and acknowledges that this court has upheld § 3Bl.l(b) enhancements where fronting was involved, citing United States v. Pena, 67 F.3d 153, 156-57 (8th Cir.1995), an…
Show 16 more citing cases
- United States v. Gustavo Grajales-Montoya, United States of Am. v. Elisa Deluca, Also Known as Elisa Maldonado, Also Known as Elisa Kaukereit, United States of Am. v. George A. Deluca, Also Known as Poppy, 117 F.3d 356 (8th Cir. 1997).publishedAfter a careful look at the record, we believe that the trial court's decision not to use Mrs. Deluca's proffered instruction was not plain error, that is, we conclude that the omitted instruction did not " 'affect the defendant's substant…
- United States v. Grajales-Montoya, 117 F.3d 356 (8th Cir. 1997).publishedAfter a careful look at the record, we believe that the trial court’s decision not to use Mrs. Deluca’s proffered instruction was not plain error, that is, we conclude that the omitted instruction did not “ ‘affect the defendant’s substant…
- United States v. Louie Clement Caffey, 98 F.3d 1336 (4th Cir. 1996).unpublishedUnited States v. Pena, 67 F.3d 153, 156 (8th Cir.1995) (citation omitted); see also Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959) (cooperation of federal law enforcement officers with state law officials does not violate the Double Jeop…
- United States v. Caffey, No. 96-4145 (4th Cir. Oct. 16, 1996).unpublishedUnited States v. Pena, 67 F.3d 153, 156 (8th Cir. 1995) (citation omitted); see also Bartkus v. Illinois , 359 U.S. 121, 123-24 (1959) (cooperation of federal law enforcement officers with state law officials does not violate the Double Je…
- United States v. Norman Everett Black, 88 F.3d 678 (8th Cir. 1996).published United States v. Pena, 67 F.3d 153, 156-57 (8th Cir.1995).
- United States v. Shawn William Arnold, 94 F.3d 642 (4th Cir. 1996).unpublishedArnold's prosecution was not barred by the Double Jeopardy Clause because he had previously forfeited in state court the cash he was carrying when he was arrested. * Even if the forfeiture was punitive, federal and state governments may pr…
- United States v. Arnold, No. 95-5277 (4th Cir. Aug. 14, 1996).unpublishedArnold's prosecu- tion was not barred by the Double Jeopardy Clause because he had previously forfeited in state court the cash he was carrying when he was arrested.* Even if the forfeiture was punitive, federal and state governments may p…
- United States v. Lee Warn Scott, 91 F.3d 1058 (8th Cir. 1996).published (role in the offense)
- Mun. of Anchorage v. Skagen, 920 P.2d 284 (Alaska Ct. App. 1996).publishedAccord: United States v. James, 78 F.3d 851, 855 (3rd Cir.1996); United States v. Wilson, 77 F.3d 105, 111 (5th Cir.1996); United States v. Pena, 67 F.3d 153, 156 (8th Cir.1995); United States v. Ruth, 65 F.3d 599, 603-04 (7th Cir.1995), c…
- United States v. Donald Atkinson, No. 95-3504 (8th Cir. June 5, 1996).publishedUnited States v. Pena, 67 F.3d 153, 156 (8th Cir. 1995).
- United States v. Donald T. Atkinson, 85 F.3d 376 (8th Cir. 1996).publishedUnited States v. Pena, 67 F.3d 153, 156 (8th Cir.1995).
- United States v. 152 Char-Nor Manor Blvd. Chestertown, 922 F. Supp. 1064 (D. Md. 1996).published“Under the dual sovereignty doctrine, federal and state governments may independently prosecute a person for the same conduct.” United States v. Pena, 67 F.3d 153, 156 (8th Cir.1995) (citing Heath *1070 v. Alabama, 474 U.S. 82, 89 , 106 S.…
- United States v. Holmes, 395 F. App'x 24 (4th Cir. 2010).unpublished
- United States v. Dennis E. McMullen, 86 F.3d 135 (8th Cir. 1996).published
- United States v. Jerry L. Johnson, 112 F.3d 514 (8th Cir. 1997).unpublished
- United States v. Ishmael Ford-Bey, 657 F. App'x 219 (4th Cir. 2016).unpublished
At page 155 Establishing conspiracy and evidence sufficiency after finding26 citing casessufficiency standard of review
- United States v. Lonnie Dwayne Payne, 377 F.3d 811 (8th Cir. 2004).published “Once a conspiracy has .been established, only slight evidence is needed to link a defendant to the conspiracy.” United States v. Pena, 67 F.3d 153, 155 (8th Cir.1995).
- United States v. David Joseph Mickelson, 378 F.3d 810 (8th Cir. 2004).published However, “[o]nce a conspiracy has been established, only slight evidence is needed to link a defendant to the conspiracy.” United States v. Pena, 67 F.3d 153, 155 (8th Cir.1995).
- United States v. Quintin L. Brown, 311 F.3d 886 (8th Cir. 2002).published United States v. Pena, 67 F.3d 153, 155 (8th Cir.1995).
- United States v. Jose Alberto Mora-Higuera, Also Known as Mario Ruiz-Armenta, United States of Am. v. Antonio Botello, Also Known as Antonio Benitez Botello, 269 F.3d 905 (8th Cir. 2001).published"A conspiracy may be inferred from circumstantial evidence," Grimaldo, 214 F.3d at 975 , and "[o]nce a conspiracy has been established, only slight evidence is needed to link a defendant to the conspiracy," United States v. Pena, 67 F.3d 1…
- United States v. Jose Mora-Higuera, 269 F.3d 905 (8th Cir. 2001).published“A conspiracy may be inferred from circumstantial evidence,” Grimaldo, 214 F.3d at 975 , and “[o]nce a conspiracy has been established, only slight evidence is needed to link a defendant to the conspiracy,” United States v. Pena, 67 F.3d 1…
- United States v. Donald Edwin Webber, 255 F.3d 523 (8th Cir. 2001).published We will overturn the jury’s finding of guilt only if “no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Pena, 67 F.3d 153, 155 (8th Cir.1995).
- United States v. Efrain Campa-Fabela, 210 F.3d 837 (8th Cir. 2000).published Given Campa-Fabela’s denial of possession, Jennifer Murphy’s testimony was relevant to showing that Campa-Fabela knowingly exercised dominion and control over, and thus possessed, the methamphetamine. 2 See United States v. Pena, 67 F.3d 1…
- United States v. Susan T. Davidson, No. 98-1711 (8th Cir. Oct. 20, 1999).publishedHowever, “[o]nce a conspiracy has been established, only slight evidence is needed to link a defendant to the conspiracy.” United States v. Pena, 67 F.3d 153, 155 (8th Cir. 1995).
- United States v. Susan Davidson, 195 F.3d 402 (8th Cir. 1999).publishedHowever, “[o]nce a conspiracy has been established, only slight evidence is needed to link a defendant to the conspiracy.” United States v. Pena, 67 F.3d 153, 155 (8th Cir.1995).
- United States v. Weaselhead, 36 F. Supp. 2d 908 (D. Neb. 1997).publishedConsequently, when the same act transgresses the laws of two sovereigns, “it cannot truly be averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which…
Show 7 more citing cases
- United States v. Richard Jay Clementi, 70 F.3d 997 (8th Cir. 1995).published
- United States v. Allen J. Kemp, Jr., 72 F.3d 134 (8th Cir. 1995).unpublished
- United States v. Lamond Sykes, 73 F.3d 772 (8th Cir. 1996).published
- Gregory J. Cooke v. United States, 81 F.3d 165 (8th Cir. 1996).unpublished
- United States v. Juan Causor-Serrato, 234 F.3d 384 (8th Cir. 2000).published
- United States v. Howard Dale Morris, United States of Am. v. Charles Jacob Davis, Also Known as Charlie Parker, 327 F.3d 760 (8th Cir. 2003).published
- United States v. Ng Chong Hwa, 161 F.4th 127 (2d Cir. 2025).published
At page 157 Determining conspiracy size and enhancement requirements17 citing casesIf a conspiracy comprises five or more participants, and the defendant played an aggravating role, the sentencing court must impose this three-level enhancement.
- United States v. James Austin, No. 00-2933 (8th Cir. June 18, 2001).published(If a conspiracy comprises five or more participants, and the defendant played an aggravating role, the sentencing court must impose this three-level enhancement.)
- United States v. James Zantreece Austin, 255 F.3d 593 (8th Cir. 2001).published(If a conspiracy comprises five or more participants, and the defendant played an aggravating role, the sentencing court must impose this three-level enhancement.)
- United States v. Mark Arlin Hammerschmidt, 881 F.3d 633 (8th Cir. 2018).published Moreover, to the extent that the Gaines footnote conflicts with our earlier precedent, e.g., United States v. Pena, 67 F.3d 153, 156-57 (8th Cir. 1995); McFarlane, 64 F.3d at 1237-38 , we are bound by the decisions of the panels that preda…
- United States v. Boone, 110 F. Supp. 3d 909 (S.D. Iowa 2015).published(defendant denied knowledge or involvement in drug trafficking)
- United States v. Leland Richard Vinton, 429 F.3d 811 (8th Cir. 2005).published United States v. Pena, 67 F.3d 153, 157 (8th Cir. 1995).
- United States v. Rossi Garrison, No. 98-1611 (8th Cir. Feb. 22, 1999).publishedUnited States v. Pena, 67 F.3d 153, 157 (8th Cir. 1995).
- United States v. James Kenneth Loveless, 139 F.3d 587 (8th Cir. 1998).published We reject this contention. .The guidelines require “that [the defendant] supervised ‘one or more other participants ’ to trigger this enhancement.” United States v. Pena, 67 F.3d 153, 157 (8th Cir.1995) (quoting U.S.S.G. § 3B1.1, comment,…
- United States v. Shaun Thomas, 93 F.3d 479 (8th Cir. 1996).published See U.S.S.G. § 3C1.1, comment, (n. 3(b)); United States v. Pena, 67 F.3d 153, 157 (8th Cir.1995); United States v. Dyer, 910 F.2d 530, 533 (8th Cir.), cert. denied, 498 U.S. 907 , 111 S.Ct. 276 , 112 L.Ed.2d 232 (1990).
- United States v. Jeffrey Lynn Big Crow, United States of Am. v. Duane Leroy Apple, 74 F.3d 163 (8th Cir. 1996).published
- United States v. Henry D. Bauer, 89 F.3d 841 (8th Cir. 1996).unpublished
Show 4 more citing cases
- United States v. Bryant Craig Jennings, 107 F.3d 876 (8th Cir. 1997).unpublished
- United States v. Jeffrey Big Crow, No. 94-3700 (8th Cir. Jan. 22, 1996).published
- United States v. David Michael Lang, No. 96-2267 (8th Cir. Dec. 18, 1996).unpublished
- United States v. Bryant Jennings, No. 96-3347 (8th Cir. Mar. 6, 1997).unpublished
At page 153 “once a conspiracy has been established, only slight evidence is needed to link a defendant to the conspiracy.”0 citing cases
v.
Rafael Alvarez PENA, Defendant-Appellant
Rafael Alvarez Pena appeals Ms conviction and 324-month sentence for conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846. Pena argues that the district court [1] committed numerous trial and sentencing errors. We affirm.
I. Alleged Trial Errors
A. Insufficiency of the Evidence. Pena claims that the evidence presented at trial was insufficient to convict him of the conspiracy charge. We review that evidence in the light most favorable to the jury’s verdict and reverse only if “no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Frayer, 9 F.3d 1367, 1371 (8th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 77, 130 L.Ed.2d 31 (1994).
The evidence linked Pena, a California resident, with three methamphetamine shipments to Des Moines, Iowa. The first sMpment was in early 1994, when Pena “fronted” approximately three pounds of methamphetamine to Jacinto Aranda Gonzalez (“Aran-da”), who was reestablishing a distribution network in Des Moines. In March 1994, Des Moines police investigated Aranda’s Des Moines distributor, Margaret Valadez (“Vala-dez”). She agreed to cooperate and arranged for a second sMpment from Aranda. Sergio Martinez and Francisco Lopez-De-Leon transported tMs shipment from Fresno to Des Moines, where police seized the methamphetamine and arrested the couriers on March 15. Pena had again fronted tMs sMpment, so he received no money because the drugs were never sold.
Aranda arranged to send Valadez a third shipment in April. Pena again bore the financial risk and therefore decided to oversee the shipment. Pena and Aranda packaged the methamphetamine in Califorma, and Pena arranged for Xóchitl Resendiz (“Resen-diz”) and Veronica Ortiz (“Ortiz”) to take a bus from Sacramento to Des Moines and deliver a black travel bag to “the aunt” m Des Moines. Pena drove the two couriers to the Sacramento bus station. On April 12, Resendiz and Ortiz arrived m Des Moines and delivered the travel bag to Valadez. The next day, Pena and Aranda flew to Des Momes. On April 14, Aranda was arrested while negotiating a methamphetamine sale to an undercover officer. Later that day, Pena was arrested with Resendiz and Ortiz at their hotel.
Pena concedes there was a conspiracy involving Aranda and others. Once a conspiracy, has been established, only slight evidence is needed to link a defendant to the conspiracy. See United States v. Logan, 49 F.3d 352, 360 (8th Cir.1995). Aranda testified that Pena supplied the methamphetamine and personally supervised the third sMpment. Resendiz testified that Pena arranged her trip to Des Moines. The arresting officers found a piece of paper in Pena’s wallet listing substances used to manufacture methamphetamine. There was ample evidence to convict Pena of conspiracy to distribute methamphetamine.
B. Rule Jf0i(b) Evidence. Pena argues that the district court erred in admitting Resendiz’s testimony that Pena told her of a “kitchen” in the mountains where he manufactured drugs. Pena raised this issue in a pretrial motion in limine. The district court deferred its ruling, and Pena did not renew Ms objection at trial. Thus, the issue was not preserved for appeal. See United States v. Mihm, 13 F.3d 1200, 1204 (8th Cir.1994). As Mihm makes clear, (i) there was no plain error because the district court advised defense counsel to object at trial, and (ii) given Pena’s “wrong place at the wrong time” defense to the conspiracy charge, it was not plain error to admit evidence of Ms other reeent drug trafficking activity.
C. A Double Jeopardy Issue. Pena argues that Ms sentence violates the Double Jeopardy Clause because the State of[*156] Iowa forfeited $930 in cash found when he was arrested. This argument was raised for the first time on appeal. Pena was not placed in jeopardy by the state forfeiture proceeding because he never asserted ownership of the seized cash. Accord United States v. Baird, 63 F.3d 1213, 1217-20 (3d Cir.1995); United States v. Arreola-Ramos, 60 F.3d 188, 192 (5th Cir.1995); United States v. Torres, 28 F.3d 1463, 1465-66 (7th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994). Moreover, the State of Iowa forfeited the cash, while this is a federal sentence. Under the dual sovereignty doctrine, federal and state governments may independently prosecute a person for the same conduct. See, e.g., Heath v. Alabama, 474 U.S. 82, 89, 106 S.Ct. 433, 438, 88 L.Ed.2d 387 (1985). There is no showing that Iowa’s forfeiture proceeding functioned ás a “tool” of the federal government. See United States v. Talley, 16 F.3d 972, 974-75 (8th Cir.1994).
D. Refusal To Give a Multiple Conspiracies Instruction. Pena contends that the district court erred in refusing to give his proposed multiple conspiracies instruction. This issue was not properly preserved because Pena did not specifically object to the instructions as given nor explain why failure to include the requested instruction was error. See Fed.R.Crim.P. 30; United States v. Hoelscher, 914 F.2d 1527, 1534 (8th Cir.1990), cert. denied, 498 U.S. 1090, 111 S.Ct. 971, 112 L.Ed.2d 1057 (1991), and 500 U.S. 943, 111 S.Ct. 2240, 114 L.Ed.2d 482 (1991). Thus, we review the instructions for plain error, that is, “whether the omitted instructions affect the defendant’s substantial rights resulting in a miscarriage of justice.” United States v. Gantos, 817 F.2d 41, 43 (8th Cir.1987), cert. denied, 484 U.S. 860, 108 S.Ct. 175, 98 L.Ed.2d 128 (1987).
A defendant is only entitled to a jury instruction on multiple conspiracies if evidence exists to support such a finding. United States v. Lucht, 18 F.3d 541, 552 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 363, 130 L.Ed.2d 316 (1994). Pena argues that Resendiz’s testimony about Pena’s methamphetamine “kitchen” was evidence supporting the existence of a second conspiracy. However, Rule 404(b) evidence of prior drug trafficking does not support a finding that the charged conduct involved multiple conspiracies. There was no plain error.
II. Alleged Sentencing Errors
A Aggravating Role Enhancement. Pena argues that the district court erred in assessing a three-level enhancement because Pena “was a manager or supervisor ... and the criminal activity involved five or more participants or was otherwise • extensive.” U.S.S.G. § 3Bl.l(b). The district court found that Pena supervised the entire April shipment, controlling Aranda’s participation and recruiting Ortiz and Resendiz to transport the drugs to Des Moines. Further, the court found the conspiracy involved at least five participants: Pena, Aranda, Sergio Martinez, Francisco Lopez-DeLeon, and Valadez, before she became a government informant. We review the factual finding of Pena’s role in the offense for clear error. See 18 U.S.C. § 3742(e); United States v. Maxwell, 25 F.3d 1389, 1399 (8th Cir.1994), cert. denied, — U.S. ——, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994).
Pena argues that he was not a manager or supervisor of the conspiracy because Aranda was the Des Moines ringleader while Pena was a mere seller of drugs in separate transactions to independent parties. Pena cites United States v. Belletiere, 971 F.2d 961, 969-70 (3d Cir.1992), a case applying the four-level “organizer or leader” enhancement under U.S.S.G. § 3Bl.l(a). The government’s evidence clearly proved that Pena overstepped a mere seller’s role. Pena retained the .financial risk of distribution by fronting or consigning the drugs to Aranda and his' Des Moines network. After the March shipment was intercepted, Pena took personal control of the April shipment, arranging transportation and following the drugs to their Des Moines destination. In the words of Aranda, Pena “didn’t trust me ... because we had lost the last shipment.”
The key factors in determining management or supervisory authority are control over other participants and organization of[*157] the criminal activity. See United States v. Rowley, 975 F.2d 1357, 1364 (8th Cir.1992); U.S.S.G. § 3B1.1, comment, (nn.1, 2). Pena controlled Aranda, organized the April shipment, and retained the financial risk of distribution. The guidelines only require that Pena supervised “one or more other participants” to trigger this enhancement. See U.S.S.G. § 3B1.1, comment, (n.2); United States v. Adipietro, 983 F.2d 1468, 1473 (8th Cir.1993). The finding that he was a manager or supervisor is not clear error.
Pena also argues that there were not at least five people involved in the conspiracy because Valadez was a government informant. We disagree. Before becoming an informant, Valadez participated in the conspiracy by receiving and distributing the first shipment supplied by Pena through Ar-anda. She may be counted because of this activity prior to her cooperation with the police. See United States v. Dyer, 910 F.2d 530, 533 (8th Cir.1990), cert. denied, 498 U.S. 907, 111 S.Ct. 276, 112 L.Ed.2d 232 (1990), and 498 U.S. 949 (1990). The district court properly counted Aranda, Pena, and the couriers of the ill-fated February shipment, Sergio Martinez and Francisco Lopez-De-Leon. See United States v. Harry, 960 F.2d 51, 53 (8th Cir.1992). Thus, its finding that the conspiracy included five participants was not clear error.
If a conspiracy comprises five or more participants, and the defendant played an aggravating role, the sentencing court must impose this three-level enhancement. See United States v. Kirkeby, 11 F.3d 777, 778-79 (8th Cir.1993). The district court properly imposed a three-level aggravating role enhancement.
B. Obstruction of Justice Enhancement. Pena argues that the district court improperly enhanced his sentence for obstruction of justice based upon Pena’s perjury at trial. A finding of trial perjury supports an obstruction of justice enhancement. See U.S.S.G. § 3C1.1, comment. (n.3(b)). If a defendant objects to a proposed enhancement based on perjury, the trial court
must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of jus-tice_ The district court’s determination that enhancement is required is sufficient, however, if ... the court makes a finding of an obstruction or impediment of justice that encompasses all of the factual predicates for a finding of perjury.
United States v. Dunnigan, — U.S. -, -, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993) (citations omitted). The federal crime of perjury requires proof of “false testimony concerning a material matter with the willful intent to provide false testimony_” Dunnigan, — U.S. at -, 113 S.Ct. at 1116; see 18 U.S.C. § 1621(a).
At sentencing, the district court identified specific instances in which Pena had falsely denied knowledge of or involvement in drug trafficking, with the intent to cause the jury to find him not guilty. These findings are sufficient under Dunnigan, and they are not clearly erroneous. Therefore, the obstruction enhancement must be affirmed. See United States v. Oakie, 12 F.3d 1436, 1444 (8th Cir.1993).
The judgment of the district court is affirmed.
. The HONORABLE HAROLD D. VIETOR, United States District Judge for the Southern District of Iowa,