from the United States District Court for the District of
Kansas (D.C. No. 5:13-CR-40065-DDC-3)
Jonathan Laurans, Kansas City, Missouri, for
A. Brown, Office of the United States Attorney, Topeka,
Kansas, for Plaintiff-Appellee.
KELLY, HARTZ, and MATHESON, Circuit Judges.
Raymond Alcorta was charged with conspiracy to traffic
methamphetamine with Javier Vega, Karmin Salazar, Adrienne
Lopez, and Angela Lopez, who acted as drug couriers. They all
lived in California; the drugs were delivered to Kansas City.
Vega and Salazar pleaded guilty, while Defendant, Adrienne,
and Angela proceeded to a joint trial in the United States
District Court for the District of Kansas. All three were
found guilty of conspiracy to distribute more than 500 grams
of methamphetamine, and the couriers were also convicted of
possessing methamphetamine with intent to distribute. We have
reversed the convictions of Adrienne and Angela because the
search of their vehicle violated the Fourth Amendment.
See United States v. Lopez, 849 F.3d 921,
929 (10th Cir. 2017). But because Defendant has no standing
to complain of that search and has not done so, we can
consider on this appeal the evidence obtained in that search.
appeals, challenging the sufficiency of the evidence and the
admission of recorded jailhouse conversations of
coconspirators. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm. Defendant's conviction was
supported by sufficient evidence, and his arguments
challenging the admission of the conversations are
SUFFICIENCY OF THE EVIDENCE
Standard of Review
examine the record de novo to determine whether the evidence,
viewed in the light most favorable to the government, could
convince a reasonable jury that the defendant was guilty
beyond a reasonable doubt. See United States v.
Scull, 321 F.3d 1270, 1282 (10th Cir. 2003). Because
successful conspiracies are secret affairs, guilt must often
be established by circumstantial evidence. See United
States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005).
evidence against Defendant consisted mostly of recorded
jailhouse conversations and physical evidence (including cell
phones) gathered from the vehicles of the arrested couriers.
Kansas state police officer Scott Proffitt, who served on a
task force with agents of the federal Drug Enforcement
Administration (DEA), testified about his investigation into
this conspiracy, including his interpretation of the coded
language used by the conspirators in their recorded
conversations, his linking of the conversations to physical
evidence, and his synthesis of this evidence. None of the
government presented evidence of three drug-trafficking trips
by the couriers. Vega and Salazar were arrested during the
first trip after a traffic stop in Kansas. Adrienne and
Angela then successfully executed a trip before also getting
arrested after a Kansas traffic stop on a later try. Each
arrest yielded about four pounds of methamphetamine.
the couriers were arrested and taken to jail, they used
jailhouse phones to make calls that were recorded by jail
officials. Before listening to the recordings, the police
were unaware that the two arrests were related. But with the
aid of the conversations, they pieced together the conspiracy
and concluded that Defendant was at its helm.
The Three Trips
April 27, 2013, Vega and Salazar were arrested while driving
a Jeep Cherokee on Interstate Highway 70 near Russell,
Kansas. They had fallen for a ruse devised by Kansas law
enforcement. A sign on the highway falsely announced a
drug-check lane ahead and another announced a drug dog in
use. After Vega and Salazar passed the signs they took the
next exit and were promptly pulled over for not stopping
properly at a stop sign and nearly hitting another vehicle.
Vega granted consent to search the vehicle, where four pounds
of methamphetamine was hidden in a false battery. Officers
also found five cell phones and various documents.
Lopezes were arrested on U.S. Route 54 two months later, on
June 21. After they were stopped for speeding near Liberal,
Kansas, a search of their vehicle revealed about four pounds
of methamphetamine. Four cell phones and various documents
were also seized from their car. A rental receipt showed that
the car had been rented near Los Angeles on June 20.
government also presented evidence (discussed below) that the
Lopezes drove drugs from California to Kansas City on June
11. After making the delivery, the Lopezes flew back to Los
Angeles with cash.
Connecting the Deliveries
link between the two arrests was discovered by Officer
Proffitt. Soon after the arrest of Vega and Salazar, Proffitt
spoke with them in jail, seeking cooperation for a controlled
delivery. Failing at that, he subpoenaed records of their
phone calls, visitors, and commissary accounts while they
were in jail.
subpoenas yielded over 100 hours of recorded phone calls.
Because of the delay between subpoenaing the calls and
receiving the recordings, Proffitt listened to the calls more
than a month after they occurred. He discovered that Vega had
been communicating with Adrienne before she was arrested. In
a call between Vega and his niece Michelle
Holguin on June 8, three days before
Adrienne's successful drug-delivery trip to Kansas City,
Holguin told Vega that a woman he barely knew named Grumpy
(Adrienne's nickname) had a crush on him and wanted to
get to know him by writing to him in jail and talking on the
phone. Vega was receptive to talking with her. The next day
Adrienne called him and said that she would visit him at the
Kansas jail. She told him that she would be headed to the
area to "visit [her] sister" that week and hoped to
see him then. Ex. 6 (Conversation 6-13).
Adrienne and Vega talked again on June 11, she said that she
was "like an hour" away from Kansas City. Ex. 6
(Conversation 6-16). Vega coached her to avoid ruse drug
checkpoints (the police tactic that had landed him in jail),
telling her, "[I]f you see anything on the freeway no
matter what it says do not get off keep going."
Id. From later calls, Proffitt learned that Adrienne
did not visit Vega on that trip but was already planning
another trip to Kansas soon and would visit him.
14, Adrienne told Vega that she would be "over there I
think this week or next weekend." Ex. 6 (Conversation
6-20). Upon hearing this, Vega reminded Adrienne of his
warning about signs, saying, "Listen really carefully to
what I'm telling you, okay? . . . Whenever you're
driving on 605 . . . . and you see any signs-no matter what
it says, no matter what it says do not get off."
Id. She replied, "I know! You already told me,
" and then said, "[D]on't tell me nothing about
none of that bullshit on the phone but I'll talk to you
when I see you." Id.
20, Adrienne told Vega that she and her friend Angela were
planning to leave California that day, drive for 20 hours
straight, and arrive in Kansas City the next day. After
learning from later recordings that Adrienne and Angela had
been arrested during this trip, Proffitt determined which DEA
agent was investigating them, and the two investigations were
Finding the Source
investigation showed the connection of Defendant Raymond
Alcorta to the conspiracy. We examine that evidence in
retrospect, not as Proffitt discovered it.
used by Vega and Salazar on April 27 was owned by Vega's
sister, Veronica, who had been Defendant's girlfriend.
Defendant's name appeared on several documents found in
the car. The proof of insurance listed two insured drivers,
Defendant and Veronica. There were papers relating to
Defendant's boxing business. And perhaps most
significantly, there were receipts from auto-repair shops
with Defendant's name as the customer. (The drugs were
concealed in a fake battery, and Proffitt testified that this
alteration to the car would have required "some degree
of time and effort to effect." Aplt. App. Vol. VII at
examined the five phones found in the car. He explained to
the jury the importance of cell phones to a drug conspiracy:
The criminal enterprise of distributing drugs is just like
the rest of us. There has to be contact made. Usually at a
distribution level it's not a real close proximity,
it's a long distance. So these people probably aren't
driving over to the house and saying hello and discussing
these things. It's through phone calls and/or text
messages. So in my job I would say one of my prime pieces of
evidence is usually the cell phones that they're taking
with them or have with them.
Id. Vol. IV at 920.
claimed ownership of two of the phones, Vega claimed two, and
neither claimed the fifth. The contact list on one of
Salazar's phones included the name "Ray" with a
phone number in area code 562. That this "Ray" was
Defendant was confirmed by evidence found in the car.
Defendant's full name and that number were listed on two
of the invoices from auto-repair centers, on a Western Union
money-transfer receipt, and on a handwritten note.
calls had been made on March 23 and 24 from Salazar's
phone to Defendant's phone. And on March 28, Salazar sent
Defendant the following text: "Hello. I've been in
bed for the past two days. Haven't done anything. But as
soon as I do I'll let you know. You know where I am and
don't think that I'm avoiding you." Id.
Vol. V at 984-85, Vol. VII at 1705-06. Defendant responded,
"Okay." Id. Vol. V at 985, Vol. VII at
unclaimed phone found in the car there were text messages on
April 22 (five days before the arrests) between a person who
identified himself as "javi"-a name frequently used
by Javier Vega in the recorded prison conversations-and
Defendant's 562 number:
Defendant: You almost here??
Vega: Where u @?
Vega: Its me javi where u @?
Defendant: Call me
Defendant: I need to know if you're going
Aplee. App. at 15-25; Aplt. App. Vol. V at 1003-07.
phones in the car claimed by Vega had nothing stored on them.
In a recorded jailhouse conversation with Defendant on June
22, Vega provided an explanation:
Vega: Listen, what I did when I was leaving, right-
Defendant: Uh huh.
Vega: And before I left, when everything was all ready, I
mean, I had ...