REVISED September 19, 2017
from the United States District Court for the Eastern
District of Texas
STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.
E. STEWART, Chief Judge
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. §
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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. Rafita Gonzalez ensured that drugs would
get from Mier, Mexico into Roma, Mexico.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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. 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.
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.
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.
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.
Sufficiency of the Evidence
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
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.
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.
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,
" 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.
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]."
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 ...