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United States of America v. Lorena Cervantes

July 22, 2011

UNITED STATES OF AMERICA, APPELLEE,
v.
LORENA CERVANTES, APPELLANT.



Appeal from the United States District Court for the Eastern District of Arkansas.

The opinion of the court was delivered by: Bye, Circuit Judge.

Submitted: June 14, 2011

Before BYE and MELLOY, Circuit Judges, and ERICKSEN,*fn1 District Judge.

A jury found Lorena Cervantes guilty of conspiracy to manufacture more than 1000 marijuana plants in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The district court*fn2 sentenced her to 120 months in prison and five years of supervised release. Cervantes appeals her conviction contending there was insufficient evidence to sustain the jury's guilty verdict, the district court erred by ruling a co-defendant waived his Fifth Amendment right against self-incrimination by pleading guilty, and she was denied the right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004), when the district court admitted as substantive evidence statements a second co-defendant made during his plea hearing. We affirm.

I

Lorena Cervantes, a construction company owner in Rockford, Illinois, purchased a tract of real estate property in Izard County, Arkansas, on January 3, 2008. On April 8, 2008, an Arkansas Game and Fish officer making an aerial inspection to search for instances of illegal turkey baiting observed suspicious rows of dirt mounds on the property. The mounds appeared to be planted. The officer also observed irrigation hosing on the property. He photographed the area and noted the GPS location. On July 31, 2008, the officer visited the property to investigate what he had observed by air months earlier. A day later, two officers returned to the property where they discovered three areas of marijuana growth and plastic cups of marijuana seedlings, along with various cultivating equipment. In addition, the officers found a tool shed, well head, and hoses between the marijuana patches and well.

On August 3, 2008, the officers established a surveillance point approximately 125-150 yards away from the shed area. From the surveillance point, the officers witnessed two Hispanic males speaking Spanish near the shed. The next day, the officers conducted a flyover again taking aerial photos of the property. The flyover revealed a man and pickup truck on the property. After the flyover, the officers drove by the property near the shed where they observed two additional pickup trucks and a Hispanic female, later determined to be Cervantes. As the day went on, the officers observed Cervantes and three males near the shed.

On August 5, 2008, at the surveillance point, the officers witnessed four Hispanic males and Cervantes awaken from the shed and walk about the shed area. The officers observed Cervantes go to and from the well area, as well as walk up a dirt path with two men toward the marijuana patches. Shortly thereafter, officers witnessed Cervantes leave the property in a pickup truck with three Hispanic males, and return with four Hispanic males. When Cervantes left the property once again with three men, law enforcement stopped the vehicle. Cervantes, Jose Rincon (also known as David Ramirez), Jesus Murillo, and Reveriano Madrigal were arrested. Officers executed a search warrant on the property during which Luis Rincon and Heriberto Chavez Jimenez fled into the woods. Luis Rincon and Chavez Jimenez were apprehended two days later.

After the arrests, the search revealed a total of four marijuana growth patches that each included multiple seedlings, mature plants, and dried stalks of previously harvested mature plants, as well as tools, hoses, and other evidence of cultivation. Investigation of the shed area revealed personal items, cultivation equipment, fertilizer, as well as a generator and various documents. Among the documents recovered were receipts for the shed, hosing, irrigation equipment, and cultivation tools. Additionally, a real estate contract documenting Cervantes as the purchaser of the property and receipts for the well and pump were recovered.

Cervantes and five other individuals were charged with one count of conspiracy to manufacture more than 1000 marijuana plants. An interview with Cervantes revealed that on April 4, 2008, Cervantes, along with her brother, Jesus Murillo, and cousin, Reveriano Madrigal, traveled to the property to collect rent and provide electricity. The property was leased to co-defendant Jose Rincon, whom she knew only as David Ramirez, on April 15, 2008. At her trial, Cervantes testified she barely knew Jose Rincon and rarely saw him, yet he was her boyfriend.*fn3 Cervantes also testified she planned to use the property for camping and ranching, and purchased a storage shed for the property.

Cervantes testified she had no knowledge marijuana was being grown on her property at the time of her arrest, and she had never herself grown marijuana there. Additionally, she testified she stayed only around the area of the shed when on the property and she had only walked the full property once when she purchased it. Several officers testified Cervantes was not physically seen engaging in activities near the marijuana patches. Co-defendants Heriberto Chavez Jimenez, Jose Rincon, and Luis Rincon pleaded guilty.

At trial, the government intended to call Jose Rincon to testify against Cervantes. Counsel for Jose Rincon appeared and stated that if called to testify, Jose Rincon would assert his Fifth Amendment right against self-incrimination. As a result, the district court offered to order Jose Rincon to testify, concluding he waived his Fifth Amendment protection by pleading guilty. Notwithstanding the district court's determination, Jose Rincon was never called to testify. Luis Rincon, who had also pleaded guilty, was called to testify. Luis Rincon testified he did not know any of the three defendants being tried, and denied making any statement to officers after his arrest. He denied knowledge of most of what was asked of him by the government. Statements Luis Rincon had given to officers after his arrest were then used to impeach him. After his arrest, Luis Rincon told officers he had come onto the property at the invitation of Cervantes. He stated he lined up the cups for the marijuana plants and his fingerprints would be on those cups. Luis Rincon also told officers he and Madrigal spent more time in the marijuana grow patches than anyone else. The jury was then instructed that Luis Rincon's guilty plea could be used to determine how much, if at all, to rely on his statements. The district court further instructed the jury any inconsistencies in his statements could only be considered as to his truthfulness.

In addition, the government sought to introduce statements Luis Rincon made during his plea colloquy in order to impeach him. Cervantes objected. The district court overruled the objection, and allowed the government to introduce the factual basis for the plea offered by the prosecution during Rincon's plea hearing. At the plea hearing, Rincon acknowledged the accuracy of the government's factual recitation under oath. Rincon's guilty plea colloquy indicated he came to the property at the invitation of Cervantes, among other inconsistencies with his trial testimony. The district court instructed the jury that because Luis Rincon was being questioned about a statement he had given under oath, and those statements were inconsistent with his trial testimony, the jury could consider the prior statements as substantive evidence.

A jury found Cervantes guilty of conspiracy to manufacture marijuana. The district court sentenced Cervantes to the statutory mandatory minimum term of 120 months' imprisonment for a conspiracy involving more than 1000 marijuana plants, followed by five years of supervised release. Cervantes filed a timely appeal. On appeal, she contends the evidence was insufficient to support the verdict, the district court erred in ruling that Jose Rincon waived his Fifth Amendment right against self-incrimination by pleading guilty, and the district court erred in ...


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