NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0745n.06 Nos. 10-5419, 10-5808 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. J UAN J. CER VANTES-CORONA DO, (10- 5419) I SMAEL ARREGUI

N DE L A TORRE, (10-5808) Def endants-A

ppellants. ) ) ) ) ) ) ) ) ) ) ) O N A P P E A L S F R O M T H E U N IT E D S T A T E S D IS T R IC T COU RT FOR THE EASTERN DI STRI CT OF TEN

NESSEE

Be fore : MARTI

N, MOORE, and COOK , Circuit J udg es COOK, Circuit J udg e. I n thes e co nsolidated appea ls, J uan J ose Cervante s-Coronado and I smael Arre g uin De L a Torre , Def endants-A

ppellants, challeng e the sufficie ncy of the evidenc e for their drug conspirac y convictions. The panel unanimously ag ree s that oral arg ument is not neede d. Fe d. R. App. P. 34(a)

. Be cause we find the evidenc e sufficie nt to sustain the convictions, we aff irm the district court’s judg ment as to both Appellants.

I

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These case s arise from a multi-mont h drug -traf ficking investiga tion that beg an with the 2005 seizure of a l arge shipment of marijuana in J ohnson City , Tenne ssee. After the seizure, fede ral ag ents lear

ned that indivi d u als involved with the marijuana ring also planned to distributeNos. 10-5419, 10-5808

United States v. Cerv antes-Coronado; De La Tor re larg e quantities of methamphetamine in Tenne ssee and North Carolina. I n lat e 2 0 0 8, a fede ral g rand jury

returne d a super seding indictment char g ing Ce rvante s-Coronado a nd De L a Torr e with

co nspiracy to distribute and possess with the intent to distribute fifty g rams or mor e o f methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a) (1). Following separ ate trials, juries convicted Cervante s-Coronado of the offe nse char g ed and De L a Torre of the lesser included offe nse of conspirac y to distribu t e an d possess with the intent to distribute five g rams or more of methamphe tamine.

The g overnme nt’s case ag ainst Cervante s-Coronado cente red on events that occ u rr ed on J uly 31 and Aug ust 1, 2007. During that time, Cervante s-Co ro n ad o and a fema le companion
trave led from Alabama to Texas and finally on to Asheville, North Carolina, wher e Cervante sCoronado rente d a hotel room at a Crowne Plaza on the evening of Aug ust 1. Cervante s-Coronado paid for the room, number 261, with his unemploy ment debit car d and listed his home addre ss on the hotel reg istration form. Co-Def endant drug purcha sers J ackie and Tony Trivette (brother s )

rec eived inst ructions from their uni dent i fi ed methamphetamine supplier that they could pi ck up a shipment of methamphetamine at the Crowne Plaza. Testify ing for the g overnme nt, Tony Trivette stated that he enter ed an upstairs hotel room on the evening of Aug ust 1 and rec eived a three -to-four

pound packa g e of methamphetamine from a Hispanic femal e. The exchang e occur red in the prese nce of a Hispanic male, who lay on the hotel room bed. Interc epted phone calls showed that the drug supplier direc ted the Trivettes to room 261, and surveillance evidenc e linked the transac tion with that room. The g overnme nt also prese nted evidenc e that the Trivette s’ methamphetamine - 2 -Nos. 10-5419, 10-5808

United States v. Cerv antes-Coronado; De La Tor re supplier had at least five calls (either outgoing or incoming) wit h a cell phone fre quently used by Cervante s-Coronado on or about Aug ust 1.

Cervante s-Coronado testified on his own behalf at trial, deny ing the g overnme nt’s asser tion that he participa ted in the Aug ust 1 transac tion. Although he admitted stay ing at the Crowne Plaza, he deni ed wi t nessing a methamphetamine exchang e and instead claimed that his neig hbor (the fema le co m p an i o n ) met with an unidentified man while he was in the bathroom. Appellant

rec alled that, while in the bathroom, he hear d a knock at t h e hotel room’s front door and, upon leaving the bathroom, he observe d a man exit ing the hotel. Cervante s-Coronado stated that he made the trip with his neig hbor for social purposes and did not know that s h e i n tended to deal drug s. Apar t from the 2007 transac tion, the g overnme nt prese nted evidenc e that Cervante s-Coronado sold methamphetamine to a

n underc over office r in A labama in D ece mber 2005, and that a confide ntial informant arr ang ed to buy methamphetamine from Cervante s-Coronado at his residenc e in Fe bruar y 2009—the same addre ss used on the hotel reg istration form in 2007. The g overnme nt also prese nted evidenc e from the execution of an arr est war rant ag ainst Cervante s-Coronado in 2009, during which ag ents discover ed methamphe tamine in Cervante s-Coronado’ s possession. During De L a Torre ’s trial, the g overnme nt f ocused on a September 25, 2007, drug -money transac tion in J ohnson City , Tenne ssee, that beg an in the parking lot of a Home Depot and ended in

a hotel room at a local Ramada I nn. The g overnme nt presente d evidenc e that De L a Torre arr ived in J ohnson City on September 25 and rente d the rele vant hotel room at the Ramada I nn. Shortly afte r

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United States v. Cerv antes-Coronado; De La Tor re

De L a Torre chec ked into the hotel, ag en t s interce pted calls betwee n Tony Trivette and his unidentified methamphetamine supplier, wher ein Trivette and the supplier planned a meeting at the Home De pot. Telephone rec ords re veale d that, moments before the Home Depot rende zvous, the methamphetamine supplier called the telephone number that De L a Torre used for th e h otel reg istration form. Testify ing for the g overnme nt, J ackie Trivette stated that he arr ived at the Home Depot parking lot expecting to pay a Hispanic courie r in ex ch an ge fo r a packa g e of methamphetamine. Surveillance ag ents observe d De L a Torre arr ive at the Home Depot parking lot in a Merc edes- Be nz vehicle reg istered in h i s name and approa ch J ackie Trivette. J ackie Trivette testified that he a ttempted to pay a Hispanic male (ide ntified by ag ents as De L a Torr e) during the
encounte r in the Home Depot parking lot, but that the male re fu sed to acc ept pay ment, telling Trivette to follow him t o a motel room. J ackie Trivette followed De L a Torre to his Ramada I nn

room and place d a plastic bag containing $5,000 on the dresse r while De L a Torre and co-D efe ndant Saturnino Alcar az watche d. A short time later, surveillance ag ents observe d Alcar az place something in the trunk of De L a T o rr e’ s M er cede s. Although J ackie Trivette denied rec eiving methamphetamine on t h i s o cc asion, he explained that his course of dealing with the unidentified methamphetamine supplier sometimes involved separa te pay ment and deliver

y transac tions.

Both Appellants moved for a judgme nt of acquittal afte r the g overnme nt rested its case , but Cervante s-Coronado failed to r enew his motion at the close of evidenc e. The district c ourt denied both motions

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United States v. Cerv antes-Coronado; De La Tor re

I I

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Both Appellants claim that the g ove r n me n t p r e s e n ted insufficient evidenc e to sustain a g uilty verdic t on their drug conspirac y char g es. We g ener ally revie w sufficie ncy -of- the-e vidence claims
to deter mine whether “any rational tr i er o f fa ct could find the elements of the crime bey ond a

re as o n ab l e d o u bt,” and, in doing so, view “the evidenc e in the light most favor able to t h e prosec ution

. . . g iving the g overnme nt the benef it of all infere nces that could rea sonably be draw n from the testimony .” United States v. M/G T r a n s p . S er vs., Inc. , 173 F.3d 584, 589 (6th Cir. 1999) (empha sis omitted) (citing Jack son v. Virginia , 443 U.S. 307, 319 (1979))

. Def endants

asser ting such claims “bea

r[] a very heavy burden,” United States v. Vannerson , 786 F.2d 221, 225 (6th Cir. 1986) (interna l quotation marks and citation omitted), and an appellate court will only set aside the judgme nt if, afte r vi ewing the record as a whole, it deter m i n es t h at “the judgment is not supported by substantial and competent evidenc e.” United States v. Blakene y , 942 F.2d 1001, 1010 (6th Cir. 1991) (citing United St ates v. Ell zey , 874 F.2d 324, 328 ( 6th Cir. 1989)). We revie w De L a Torr e’ s ap p eal under this standard. Yet beca use Cervante s-Coronado failed to prese rve his sufficie ncy claim by rene wing the motion for acquittal at the close of evide n ce , o ur revie w of his claim “is limit ed to deter minin g wh et h er there was a ‘manife st miscarr iag e of justice.’” United States v. C

hilds , 539 F.3d 552, 558 (6th Cir. 2008) (quoting United St ates v. Price , 134 F.3d 340, 350 (6th Cir. 1998)). “Such a miscarr iag e of justice occur s only if the rec ord is devoid of evidenc e pointing to g uilt.” Id .; see also United States v. Street , 614 F.3d 228, 236 (6th Cir. 2010) (desc ribing the fa ilure to prese rve a s “nea rly fata l” to a suff

iciency claim). - 5 -Nos. 10-5419, 10-5808

United States v. Cerv antes-Coronado; De La Tor re

A drug conspirac y conviction require s proof of the following elements: (1) an ag ree ment to violate drug laws; (2) knowledg e and intent to join t h e co n s p i rac y ; and (3) participa tion in the conspirac y . United States v. Martinez , 430 F.3d 317, 330 (6th Cir. 2005). “[P] roof of a formal ag ree men t is not nece ssary ; ‘a tacit or materia l understanding among the parties’ will suffice .” United States v. Ave ry , 128 F.3d 966, 970–71 (6th Cir. 1997) (quoting United States v. Pearce , 912 F.2d 159, 161 (6th Cir. 1990)). We may infer the exis tence of a conspirac y from circumstantial evidenc e, and we can infer a particula r defe ndant’s participa tion in the conspirac y from his conduct. Martinez , 430 F.3d a t 330 (citations omitted). Once the gover nment has shown the e x istence of a conspirac y , the defe ndant’s involvement with the conspirac y “nee d only be slight.” Ave ry , 128 F.3d at 971; see also United States v . Henley , 360 F.3d 509, 514 ( 6th Cir. 2004).

A. Cerva ntes-Coronado

Cervante s-Coronado arg ues that the g overnme nt failed to prese nt any evidenc e that he knew of the rele vant drug conspirac y on or about Aug ust 1, 2007. At mos t , h e cl ai m s , the g overnme nt established his prese nce in the hote l room where the drug transac tion took place, but he notes that

case s in this circ uit have rec og nized that mere prese nce with conspirator s does n o t establish participa tion in the conspirac y . See, e.g. , United States v. Peters , 15 F.3d 540, 544 (6th Cir. 1994); Pearce , 912 F.2d at 162. Whil e the case s cited by Cervante s-Coronado support the leg al contention he invokes, we reje ct his asser tion that the g overnme nt only established his prese nce at the drug deal.

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United States v. Cerv antes-Coronado; De La Tor re

Fa r from a passive by stander , t h e go v er n m en t ’s ev i dence showed that (1) CervantesCoronado trave led a g rea t distance to come to Asheville, North Carolina, on or about the date of the exchang e; (2) he checke d into the ho t el room on the date of t he ex chang e usi ng his home address for the hotel reg istration form and his unemploy ment debit car d for pay

ment; (3) he observe d the
transac tion from the hotel room b ed ; an d (4 ) t he cell phone he fre quently used during this time period reg istered at least five calls with the methamphetamine supplier on the date of the exchang e. The g overnme nt also established that the addre ss used on the hote l reg istration form in 2007 matched the addre ss used by Cervante s-Coronado for a planned methamphetamine transac tion in 2009, that he possessed methamphetamine at the t ime of hi s 2009 arr est, and that he sol d methamphetamine
to underc over law enfor ceme nt offi ci al s i n 2005. This evidenc e rea dily satisfies the ag ree ment, intent, and participa tion prer equisites for a conspirac y conviction, see Martinez , 430 F.3d at 330, and prec ludes us from finding the rec ord “devoid of evidenc e pointing to g uilt” as require d to show a manifest miscar

riag e of justice, see Childs , 539 F.3d a t 558.

We note that in the context of his sufficie ncy arg ument Cervante s -C o ro n ado obliquely objects to the district court’s admission of evidenc e that he committed other drug crimes. Cervante sCoronado conce d es , howeve r, t hat he opened the door for the gover nment’s presentation of som e of this evidenc e. Be cause Cervante s-Coronado’ s brief does not direc tly challeng e the district court’s evidentiar y ruling s, does not identify the matter in his statement of issues, a nd trea ts the i ssue in a

cursor y manner without citation to any traditional leg al authorities, we deem it forf eited. See, e.g. , United States v. Johnson , 440 F.3d 832, 846 (6th Cir. 2006) (dec lining to consider an issue that did - 7 -Nos. 10-5419, 10-5808

United States v. Cerv antes-Coronado; De La Tor re

not a ppear in the statement of issues a nd rec eived only

“per functory ” tre atment in the brief ). As a sufficie ncy arg ument, Cervante s-C o ronado’ s objection lacks merit beca use sufficie ncy analy sis entails consideration of both proper an d i m proper evidenc e. United States v. Lopez-Me dina , 461 F.3d 724, 750 ( 6th Cir. 2006); United States v. Quinn , 901 F.2d 522, 530–31 ( 6th Cir. 1990).

B. D e L a Torr e

D e la Torre arg

ues that the g overnme nt’s case relies entirely o n u n c o r r o b o r a te d c ir c u ms ta n ti a l evidenc e. Specif

ically , De L a Torr e cha lleng es four aspec ts of the g overnme nt’s evidenc e ag ainst him: (1) his testify ing co-D efe ndants did not identify him in court; (2) the g overnme nt’s conce ssion that no exchang e took place in the Home Depot parking lot; (3) J ackie Trivette’ s testimony that the

man in the hot el room encounte r (purpor tedly De L a Torre ) told him that he did not have any methamphetamine; and (4) the fac t that the g overnme nt never sear ched his Merc edes or hotel room. Ample evidenc e, howeve r, supported the jury ’s conclusion that De L a Torre intentionally joined and participa ted in the methampheta mine conspirac y .
The g overnme nt’s evidenc e place d De L a Torre at the scene of the expected drug transac tion (the Home Depot parking lot) shortly afte r his chec k-in at the hotel and t h e m ethamphetamine supplier’s call to T ony

Trivette that se t the meeting place . J ackie Trivette’ s testimony established that the y oung man (identified by ag ents as De L a Torre ) ref used to acc ept the money in the parking lot, but instead told J ackie to follow him to a hotel. J ackie Trivette left the money on the dresse r in De L a Torre ’s hotel room, in De L a Torre ’s prese nce, and ag ents later saw co-D efe ndant Alcar az - 8 -Nos. 10-5419, 10-5808

United States v. Cerv antes-Coronado; De La Tor re place an objec t in De L a Torre’s Merce des. The gove rnment fur ther linked the te lephone number that De L a Torre u s ed to rese rve the hotel room with phone calls made by the methamphetamine supplier wit hin minutes of t he Home Depot rendezvous. Neither the circum s t anti al nature of t his evidenc e nor the lack of corr oboration war rants a judgme nt of acquittal. See, e.g. , United States v. Stewart , 628 F.3d 2 4 6 , 255 (6th Cir. 2010) (re cog nizi ng that coconspirator’s uncorr oborate d testimony may support conspirac y conviction); Henley , 360 F.3d at 514 (noting that “slig ht” proof

can tie a defe ndant to a conspirac y ). This e vidence does more tha n place De L a Torre at the scene of a money exchang e; i t shows him both arr iving at a pre-orda ined l o cation for a drug transac tion and providing instructions for the Tri v et t es to make pay ment in a secure location. I t also permits the rea sonabl e infere nce that De L a Torre coordina ted the Home Depot meeting with the methamphetamine supplier

. Considering this evidenc e in the light most favor able to the g overnme nt and d ra wi n g al l

rea sonable inferenc es i n the gover nment’s favor, we conclude that a rational fac tfinder could find bey ond a re asonable doubt that De L a Torr e committed the drug conspirac y offe nse.

I I I

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For these re asons, we A FF I RM the district court’s judg ment as to both convictions.

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