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United States v. Alcorta

United States Court of Appeals, Tenth Circuit

April 10, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
RAYMOND ALCORTA, Defendant-Appellant.

         Appeal 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 Defendant-Appellant.

          James A. Brown, Office of the United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.

          Before KELLY, HARTZ, and MATHESON, Circuit Judges.

          HARTZ, Circuit Judge.

         Defendant 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.

         Defendant 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 unpersuasive.

         I. SUFFICIENCY OF THE EVIDENCE

         A. Standard of Review

         We 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).

         B. The Evidence

         The 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 conspirators testified.

         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.

         After 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.

         1. The Three Trips

         On 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.

         The 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.

         The 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.

         2. Connecting the Deliveries

         The 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.

         The 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[1] 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).

         When 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.

         On June 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.

         On June 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 merged.

         3. Finding the Source

         The investigation showed the connection of Defendant Raymond Alcorta to the conspiracy. We examine that evidence in retrospect, not as Proffitt discovered it.

         The car 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 1534.)

         Proffitt 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.

         Salazar 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.

         Several 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 1706.

         On the 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: Ok
Defendant: Call me
Defendant: ????
Defendant: I need to know if you're going
Defendant: ???

Aplee. App. at 15-25; Aplt. App. Vol. V at 1003-07.

         The two 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 ...

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