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United States v. Hernandez

United States Court of Appeals, Eighth Circuit

March 29, 2019

United States of America, Plaintiff - Appellee,
v.
Ampelio Hernandez, Defendant-Appellant. United States of America, Plaintiff - Appellee,
v.
Oscar Espinoza Lopez, Defendant-Appellant. United States of America, Plaintiff - Appellee,
v.
Raymundo Moreno Lopez, also known as Brother, Defendant-Appellant.

          Submitted: September 27, 2018

          Appeals from United States District Court for the Eastern District of Arkansas - Little Rock

          Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.

          COLLOTON, Circuit Judge.

         A jury convicted Ampelio Hernandez and two brothers, Oscar Espinoza Lopez and Raymundo Moreno Lopez, of conspiracy to distribute methamphetamine. The jury also convicted the Lopez defendants of substantive drug trafficking and firearms offenses, and each Lopez brother pleaded guilty to two counts of fraudulently using a Social Security number. The district court[1] sentenced the defendants to terms of imprisonment. All three appeal their convictions, and Moreno Lopez challenges his sentence on the two counts of Social Security fraud. We affirm.

         I.

         In August 2013, the Central Arkansas Drug Task Force learned from a confidential source that Espinoza Lopez and Moreno Lopez were selling methamphetamine in the area around Searcy, Arkansas. The Task Force, working with the Drug Enforcement Administration, arranged to make controlled purchases of methamphetamine from the two suspects through cooperating informants. Between August 2013 and April 2014, the Task Force acquired 242 grams of methamphetamine via controlled purchases from the Lopez defendants. The Task Force also seized 109 more grams by arresting and searching two customers of the Lopez defendants. From October to December 2014, the Task Force gathered more evidence by intercepting telephone calls and text messages from Espinoza Lopez's telephone pursuant to a court-authorized wiretap.

         A grand jury charged the Lopez brothers and Hernandez with several drug trafficking charges on September 2, 2015, but the investigation continued. The Task Force made a controlled purchase of 28.09 grams of methamphetamine from Moreno Lopez on September 9, 2015. On September 14, investigators executed a search warrant at Moreno Lopez's residence and seized 31.04 grams of methamphetamine and drug paraphernalia. Ten days later, the Task Force searched a storage shed used by Espinoza Lopez and seized evidence relating to drug trafficking. During the investigation, the government also learned that Espinoza Lopez and Moreno Lopez had falsely represented Social Security numbers to their employer and on an application to rent furniture.

         The three defendants eventually were tried on a superseding indictment that alleged a conspiracy to distribute methamphetamine that began "in or about June 2013" and continued through "on or about September 1, 2015." The indictment also included substantive drug trafficking counts and firearms counts against the Lopez defendants. A jury found the defendants guilty on all charges, and the district court imposed sentences.

         II.

         Espinoza Lopez and Moreno Lopez first argue that the district court caused a constructive amendment of the indictment when it allowed evidence of drug trafficking activity during September 2015. The indictment charged a conspiracy that continued "through on or about September 1, 2015," and the Lopez defendants contend that evidence of conduct after September 1 allowed the jury to convict them of an uncharged offense. Alternatively, they assert that the disputed evidence resulted in a prejudicial variance from the allegations in the indictment.

         We reject this contention because events in September 2015 were within the scope of the charged conspiracy. An allegation that the conspiracy continued through "on or about September 1, 2015" encompassed events that occurred "reasonably near" September 1. United States v. Wallace, 713 F.3d 422, 428 (8th Cir. 2013). Conspiratorial acts within September 2015 qualify as occurring reasonably near the beginning of the month. See United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir. 1987) (no material variance where indictment alleged "on or about June 1984" and offense occurred in July or early August); United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988) (no variance where offense occurred within twenty-one days of date alleged); United States v. Harris, 344 F.3d 803, 804-05 (8th Cir. 2003) (events within seven days were reasonably near to date alleged).

         The Lopez defendants next complain that there was insufficient evidence to support their convictions for conspiracy to traffic 500 grams of methamphetamine. They argue that only 352.2119 grams of methamphetamine were seized, and that the jury's finding of 500 grams must have been the product of "speculation and conjecture."

         The sufficiency argument understates the amount of seized methamphetamine. Espinoza Lopez and Moreno Lopez concede that over 352 grams of methamphetamine were seized before September 1, 2015, through controlled buys and seizures after the arrests of known customers. Investigators seized another 59 grams during September 2015; for the reasons discussed, a reasonable jury could attribute this amount to the charged conspiracy. With a total of 411 grams of seized methamphetamine, there was ample evidence for a reasonable jury to infer that the entire conspiracy involved the distribution of more than 500 grams. The government introduced telephone messages and text messages between Espinoza Lopez and his co-conspirators that detailed other drug trafficking activity. For example, in addition to the methamphetamine seized during one customer's arrest in December 2014, the government presented telephone calls from October 2014 concerning a proposed sale of two ounces of methamphetamine to the same customer. Intercepted messages between Espinoza Lopez and another customer documented a series of methamphetamine deliveries totaling over eleven ounces. The evidence also included intercepted communications from which a jury could infer that the Lopez brothers purchased ...


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