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United States v. Kiekow

United States Court of Appeals, Fifth Circuit

September 18, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
WILLIAM EDMUND KIEKOW, also known as William Edward Kiekow, also known as Bill Kiekow, also known as Crack Head Bill; FELIPE U. URIARTE, also known as Phillip; ARTHUR JAMES PIERRE, also known as Boss, Defendants - Appellants

          REVISED September 19, 2017

         Appeals from the United States District Court for the Eastern District of Texas

          Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.

          CARL E. STEWART, Chief Judge

         After a 14-day jury trial, a jury in the Eastern District of Texas convicted Defendants-Appellants William Edmund Kiekow ("Kiekow"), Felipe U. Uriarte ("Uriarte"), and Arthur James Pierre ("Pierre") (collectively, "Appellants") of conspiracy to distribute or possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846.[1] On appeal, Appellants challenge venue and the sufficiency of the evidence supporting their convictions. Kiekow and Uriarte also challenge their sentences. Pierre moves for a new trial based on a Government witness's post-trial change in testimony and challenges the admission of a drug-sniffing dog alert. Pierre and Uriarte challenge statements made during the Government's closing argument rebuttal.

         For the reasons explained herein, we AFFIRM Appellants' convictions and the district court's denial of Pierre's motion for a new trial. As to challenges to the district court's sentencing, we AFFIRM Uriarte's sentence, but will VACATE and REMAND Kiekow's sentence to the district court for resentencing.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This case arises from a longtime federal investigation into drug trafficking from Mexico into the United States. Appellants were charged in a Third Superseding Indictment for their involvement with the importation and sale of marijuana and cocaine from Mexican cartels, most prominently the Zeta Cartel. A jury convicted Appellants of conspiring to distribute cocaine, but not marijuana. Over the 14-day trial, nearly fifty Government witnesses, consisting primarily of alleged co-conspirators-turned-Government cooperators, testified to a far-reaching drug trafficking scheme that began with an individual named Jose Arce working with Miguel Trevino, the then-second-in-command of the Zeta Cartel, and others to ship cocaine into the United States.

         Appellants were involved at varying levels of the drug trafficking conspiracy. The alleged supplier in this case was Uriarte, who owned a tire and rim shop in Houston. Uriarte's tire shop was located adjacent to Federico Garcia's trucking company, F&J Transportation. Garcia was the alleged transporter. The alleged customer was Pierre who lived in Picayune, Mississippi. Kiekow, also in Picayune, lived in a trailer located on Pierre's property. Central to this scheme was the cooperation of police officers in Mexico.[2] Rafita Gonzalez ensured that drugs would get from Mier, Mexico into Roma, Mexico.

         Once the cocaine arrived, and after Arce and others contacted Garcia, Garcia would send one of his drivers from Houston to Roma to help package the drugs utilizing a three-step process of wrapping the drugs, spraying the wrapped drugs with Lysol, and then taping the drugs. After completing that process, Garcia's drivers filled trucks, typically 18-wheelers, with cocaine and transported the drugs to Laredo, Texas.

         Trial testimony elicited from alleged co-conspirators, namely Jorge Gayton, Garcia, Fabian Lara, and Patricio Pena-Martinez, spoke to the breadth of the drug trafficking scheme. Cocaine and marijuana would be delivered from Houston to New York, Tennessee, Illinois, Georgia, Oklahoma, and Picayune. Uriarte's delivery of cocaine to Pierre and Kiekow in Picayune commenced with unloading the drugs at either Garcia's car lot or Uriarte's rim shop. Recounting the process of getting the cocaine to Mississippi, Garcia testified to working alongside Uriarte to hide cocaine in 18-wheeler tires or in a spare tire to a pickup truck.

         Edwin Contreras, one of Garcia's trucking employees, testified to making an initial drive to Picayune in 2007 to deliver cocaine to Pierre. After retrieving the cocaine in Houston, he packed the approximately eight to ten kilograms of cocaine into a hidden compartment of a 2003 Chevrolet Malibu, drove down I- 10 through Baytown, Beaumont, Louisiana and then entered Picayune to deliver the drugs to Pierre's home. A trailer occupied by Kiekow sat between the driveway and Pierre's home. It was sometimes behind this trailer that the drugs were unloaded into duffel bags and handed to Kiekow. Contreras made the same trip and delivery four other times, delivering approximately eight to ten kilograms of cocaine each time.

         Garcia delivered cocaine to Pierre in Mississippi once or twice a month from 2003 through 2008. Each time Garcia sent between six and fifty kilograms of cocaine, charging $19, 000 to $20, 000 per kilogram which Pierre paid in cash. When Pierre was not available, Kiekow managed the transaction by collecting the cocaine and tendering payment.

         At the close of the Government's evidence, Pierre and Uriarte moved for a judgment of acquittal under Rule 29. See Fed. R. Crim. P. 29(a). For reasons stated on the record, the district court denied the motions. They renewed the motions after closing arguments and the district court again denied the motions. Kiekow filed a post-verdict motion for judgment of acquittal and the district court denied the motion.

         The jury convicted Appellants of conspiring to distribute cocaine, but acquitted them of conspiring to distribute marijuana. Additionally, the jury answered a special interrogatory concerning the "quantity [of cocaine] involved in the conspiracy." In doing so, the jury attributed "5 kilograms or more" of cocaine to Uriarte and "500 grams or more but less than 5 kilograms" of cocaine to Kiekow.

         At Kiekow's sentencing in 2014, the district court determined that his total offense level was 32 after applying an enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. See U.S.S.G. § 2D1.1(b)(12). Accordingly, his Sentencing Guidelines range was 121-151 months. The district court sentenced him to 121 months' imprisonment. At Uriarte's sentencing in 2016, the district court acknowledged that although Kiekow received an enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance, the court would not apply the enhancement to Uriarte's sentence given the parties' agreement that imposition of the enhancement potentially implicated a violation of the Ex Post Facto clause. The district court determined that Uriarte's total offense level was 41 after applying a three-level enhancement for being a manager or supervisor in criminal activity that involved five or more participants or was otherwise extensive. See U.S.S.G. § 3B1.1(b). The district court sentenced Uriarte to 300 months' imprisonment.

         II. DISCUSSION

         Appellants raise a number of issues on appeal. Before turning to the evidentiary issues, sentencing challenges, and Pierre's motion for a new trial, we will address challenges common to all Appellants: venue and sufficiency of the evidence.

         A. Venue

         Appellants contend that the Government failed to present sufficient evidence to establish that venue was proper in the Eastern District of Texas. The gravamen of their argument is that venue was improper because the entire testimony centered on drug activity in Mississippi, Louisiana, and Houston- none of which are located in the Eastern District of Texas. Kiekow, relying primarily on this court's decision in United States v. Strain 396 F.3d 689 (5th Cir. 2005), argues that without proof that he committed at least some part of the offense in the Eastern District of Texas, venue is not proper. Because Kiekow and Pierre preserved the issue below, we review the district court's ruling de novo.[3]

         "A defendant's right to be tried in the district in which the crime [allegedly] took place finds its roots in both the Constitution and federal statutory law." United States v. Carreon-Palacio, 267 F.3d 381, 390 (5th Cir. 2001). This court "will affirm a verdict if, viewing all the evidence in the light most favorable to the government, a rational jury could conclude, from the evidence presented at trial, that the government established venue by a preponderance of the evidence." United States v. Garcia Mendoza, 587 F.3d 682, 686 (5th Cir. 2009). Clarifying the contours of venue in multi-district crimes, 18 U.S.C. § 3237(a) provides that "any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). "In conspiracy cases, venue is proper in any district where the agreement was formed or an overt act occurred." United States v. Romans, 823 F.3d 299, 309-10 (5th Cir. 2016) (internal quotations and citation omitted). An overt act is an act performed to effect the object of a conspiracy. Id. at 310. The transportation of drugs and drug proceeds is an overt act. See id.

         The Government presented ample evidence to establish venue. Contrary to Appellants' contentions, evidence demonstrated that travel through the Eastern District of Texas was essential-not incidental--to the alleged drug trafficking scheme.[4] For example, alleged co-conspirator Contreras testified that he picked up cocaine in Houston and delivered eight kilograms of cocaine to Pierre in Picayune. To get there, Contreras testified to going "down I-10…past Beaumont." In all, Contreras testified that he made this trip four times to deliver between eight and ten kilograms of cocaine to Pierre and Kiekow. Gayton, Garcia's brother-in-law and employee, testified that he transported ten to twenty kilograms of cocaine between seven and ten times through Beaumont to Picayune where he would deliver some portion of that haul to Pierre and Kiekow. Garcia also testified that he transported cocaine from Houston to Pierre in Picayune at Uriarte's behest.

         Drug trafficking necessarily touches various districts, thus presenting the potential for forum shopping by prosecutors. See, e.g., Romans, 823 F.3d at 325 (Costa, J., concurring) (recognizing that "just passing through" travel from Indianapolis to Dallas created venue in seven districts other than the district where the drugs were ultimately sold). This reality does not, however, obviate the very real contact that this drug trafficking scheme had with the Eastern District of Texas based upon these facts. It is not fatal to venue that these co-conspirators were not ultimately arrested or did not complete transactions in the Eastern District of Texas. See Garcia Mendoza, 587 F.3d at 686. As this court's decisions in Romans and Garcia Mendoza make abundantly clear, the meaningful act of transporting drugs across the interstate is not merely a preparatory act to a conspiracy to distribute drugs. See Romans, 823 F.3d at 310-11; Garcia Mendoza, 587 F.3d at 686. Consistent and repeated travel of 18-wheelers and other vehicles filled to the brim with drugs through the Eastern District of Texas is sufficient to establish venue.

         That the Government did not produce tangible evidence-i.e., maps or a traffic citation as in Romans-does not require this court to disregard common sense. The testimony of the alleged co-conspirators that travel from Houston to Picayune, connected via Interstate 10, took them through the Eastern District of Texas is commonsensical. The distance between Houston and Picayune using I-10 is less than 400 miles and the route passes directly through the Eastern District. "Traveling from [Houston] to [Picayune] without passing through the Eastern District would be a quixotic endeavor for anyone, much less drug traffickers facing innumerable risks of apprehension." Garcia Mendoza, 587 F.3d at 686. Further, it is of no occasion that Appellants' alleged co-conspirators, rather than Appellants, maintained this travel. As this court reminds alleged drug trafficking conspirators regularly, "travel through [the Eastern District] in furtherance of the crime alleged establishes venue as to all co-conspirators." Id. at 687.

         Thus, under the Romans and Garcia Mendoza principle, we hold that "a rational jury could conclude . . . that the Government established venue by a preponderance of the evidence." Garcia Mendoza, 587 F.3d at 686.

         B. Sufficiency of the Evidence

         Appellants next challenge the sufficiency of the Government's evidence to support the jury's verdict that they entered into a conspiracy to distribute or possess with intent to distribute cocaine. Appellants' sufficiency challenges lack merit.

         Because Appellants properly preserved their claim, the court reviews de novo their challenge to the sufficiency of the evidence. See United States v. Umawa Oke Imo, 739 F.3d 228, 235 (5th Cir. 2014). "When reviewing the sufficiency of the evidence, a court must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (internal quotations and citation omitted). The court must view the evidence and all reasonable inferences in the light most favorable to the verdict. Id.

         "To establish a conspiracy to distribute a controlled substance, the Government must prove the following beyond a reasonable doubt: (1) the existence of an agreement between two or more individuals to distribute cocaine; (2) the defendant's knowledge of the agreement; and (3) their voluntary participation in the conspiracy." United States v. Olguin, 643 F.3d 384, 393 (5th Cir. 2011). "The jury can infer a conspiracy from circumstantial evidence, " and, although a defendant's "presence alone is insufficient to establish a conspiracy, " the jury "may rely on the defendant's presence and association" as factors in finding that a conspiracy existed. See id. at 393-94.

         Because each Appellant utilized numerous aliases, it was not uncommon for witnesses to use those aliases interchangeably in their testimony: Uriarte is sometimes referred to as "Felipe, " "Phillip, " or "Llanta, "[5] Pierre is sometimes referred to as "Arthur" (his first name) or "Boss, " and Kiekow is sometimes referred to as "Bill." We address the evidence against each Appellant in turn.

         i. Uriarte

         No fewer than five Government witnesses tied Uriarte to each aspect of the alleged drug operation. Pena-Martinez established how Uriarte obtained cocaine. Pena-Martinez testified that he was tasked with distributing drugs to a person known as "Llanta." "Llanta" was identified as Uriarte. Pena-Martinez thereafter "called him and [] delivered drugs to him." In total, he delivered cocaine "five times" to Uriarte's tire shop, amounting to sixty or seventy kilograms of cocaine. Garcia and his drivers described how Uriarte directed transportation of the cocaine. Garcia testified that he ran the trucking operation that transported the cocaine to Pierre. As he explained it, "Uriarte used tires for transportation" of cocaine. Garcia and Uriarte would sometimes place cocaine "in the 18-wheeler tires, in the spare tire or in a spare tire to a pickup truck, to transport it." In the same vein, Gaytan, one of Garcia's drivers, testified he took approximately seven to ten loads of cocaine from Uriarte to Mississippi, and each load was between ten and twenty kilograms. Finally, witnesses testified that Uriarte was involved in the profits of the enterprise. Garcia testified that "[i]f Philip [Uriarte] gave me the kilos of cocaine, that's who I would share the profits [with]."

         The Government also put on evidence demonstrating that Uriarte's tire shop customers paid him $151, 307.61 in cash over three years, but Uriarte deposited $1, 107, 475.00 into his bank account ...


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