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UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

EDGARDO JOSUE AGUILAR, 

 Defendant - Appellant. 

No. 13-6253 

(D.C. No. 5:12-CR-00297-R-16) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, Chief Judge, TYMKOVICH and MORITZ, Circuit Judges. 

_________________________________ 

 Edgardo Josue Aguilar appeals his jury convictions for one count of conspiracy to 

distribute methamphetamine and to possess methamphetamine with intent to distribute in 

violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1); two counts of possession of 

methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and two 

counts of use of a communication facility in violation of 21 U.S.C. § 843(b). Aguilar 

contends (1) the government presented insufficient evidence to support his convictions 

for conspiracy and possession with intent to distribute; (2) the district court violated his 

due process rights by admitting an agent’s testimony about an alleged co-conspirator’s 

post-arrest request for counsel; and (3) the cumulative effect of these errors requires 

 

*

 This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 15, 2015

Elisabeth A. Shumaker 

Clerk of Court

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reversal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

BACKGROUND

This case arose from law enforcement’s investigation of Iran Zamarripa, the 

regional supervisor of an international methamphetamine ring. Aguilar was one of 

Zamarripa’s most trusted local distributors and one of the few individuals who contacted 

Zamarripa directly to obtain methamphetamine, rather than ordering it through 

Zamarripa’s employees. In fact, Zamarripa trusted Aguilar enough to permit him to 

inspect the quality of the organization’s product. 

 At trial, Zamarripa and his local manager, Alfredo Resendiz, testified against 

Aguilar and his alleged co-conspirators. According to Zamarripa and Resendiz, 

Zamarripa fronted Aguilar methamphetamine on two separate dates in May 2012: 

Resendiz testified he transferred a half-pound of methamphetamine to Aguilar on 

May 15, 2012, and Zamarripa testified that on May 21, 2012, he instructed Resendiz to 

leave a pound of methamphetamine at Resendiz’s house for Aguilar to pick up. Within 

days, Aguilar repaid Zamarripa through Resendiz for all 1.5 pounds of fronted 

methamphetamine. 

 The government corroborated this testimony with evidence of law enforcement’s 

visual surveillance and recorded telephone calls between Aguilar and Zamarripa, Aguilar 

and Resendiz, and Zamarripa and Resendiz. Although the recorded conversations 

contained no explicit references to methamphetamine, Zamarripa and Resendiz 

interpreted the calls for the jury, identifying code words the three men used to arrange the 

two transactions. 

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The jury also heard from Special Agent Casey Cox who testified that Aguilar’s codefendant, Bani Moreno, initially responded to Cox’s post-arrest questions. But when 

questioned about his involvement in drug trafficking, Moreno refused to speak without an 

attorney present, and the interview ended. None of the co-defendants’ attorneys objected 

to this testimony or requested a limiting instruction. 

 The jury found Aguilar guilty of one count of conspiracy to distribute 

methamphetamine and to possess methamphetamine with intent to distribute, two counts 

of possession of methamphetamine with intent to distribute, and two counts of use of a 

communication facility in committing these crimes. The district court imposed a 188-

month prison sentence. 

DISCUSSION

I. The government presented sufficient evidence to support Aguilar’s 

convictions. 

 In this direct appeal, Aguilar first challenges the sufficiency of the evidence 

supporting his conspiracy conviction and his two convictions for possession of 

methamphetamine with intent to distribute.1

 

 Aguilar urges us to review his claim de novo, while the government argues for 

plain-error review. But without sufficient evidence to support it, a conviction will almost 

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 In part, Aguilar claims the jury “was required to make repeated and cumulative 

speculative inferences” in order to find him guilty of possession with intent to distribute 

and conspiracy to possess methamphetamine with intent to distribute. Because Aguilar 

fails to identify any impermissible inferences upon which the jury allegedly relied, we 

decline to reach this argument. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 

2007) (citing what is now Fed. R. App. P. 28(a)(8)(A)) (explaining court will not 

consider issues inadequately presented in opening brief). 

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always constitute plain error. Thus, reviewing for plain error in this context differs little 

from our de novo review of a properly preserved sufficiency claim. See United States v. 

Rufai, 732 F.3d 1175, 1189 (10th Cir. 2013) (quoting United States v. Duran, 133 F.3d 

1324, 1335 n.9 (10th Cir. 1998)) (concluding plain error review and review for sufficient 

evidence “‘usually amount to largely the same exercise’”). Under our sufficiency-of-theevidence test, we view the evidence in the light most favorable to the government and ask 

whether the evidence—and any reasonable inferences to be drawn from it—would allow 

a reasonable jury to find the defendant guilty beyond a reasonable doubt. United States v. 

Green, 435 F.3d 1265, 1272 (10th Cir. 2006). 

A. Possession of methamphetamine with intent to distribute 

 To support Aguilar’s convictions under 21 U.S.C. § 841(a)(1), the government 

was required to show Aguilar (1) possessed methamphetamine; (2) knew he possessed it; 

and (3) intended to distribute it. See United States v. Mains, 33 F.3d 1222, 1228 (10th 

Cir. 1994). 

 Although Zamarripa and Resendiz testified Zamarripa fronted2

 Aguilar a halfpound of methamphetamine on May 15, 2012, and a pound of methamphetamine on 

May 21, 2012, Aguilar contends this testimony was insufficient to prove possession with 

intent to distribute. 

 We disagree. First, the government did not rely solely on Aguilar’s coconspirators’ testimony; it presented recorded telephone calls and video surveillance 

 2 See United States v. Hardwell, 80 F.3d 1471, 1498, rev’d on reh’g in part, 88 

F.3d 897 (10th Cir. 1996) (defining “fronting” as “supplying drugs on consignment or on 

credit”). 

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corroborating their testimony. Second, even without the corroborating evidence, 

Zamarripa’s and Resendiz’s testimony—if believed by the jury—sufficiently established 

that Aguilar twice possessed methamphetamine. See United States v. Delgado-Uribe, 363 

F.3d 1077, 1081 (10th Cir. 2004) (explaining we do not determine credibility of 

witnesses in evaluating sufficiency, but ask only whether evidence, if believed, 

established each element of crime). 

 From the same evidence, the jury could also infer Aguilar’s intent to distribute. 

See United States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th Cir. 2004) (stating jury 

may infer intent to distribute from possession of large quantities of drugs); United States 

v. Small, 423 F.3d 1164, 1184 (10th Cir. 2005) (explaining that fronting arrangement 

whereby individual receives drugs on credit suggests expectation that individual will 

redistribute drugs for profit). Thus, we conclude the government presented sufficient 

evidence to allow a reasonable jury to convict Aguilar of two counts of possession of 

methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). 

B. Conspiracy to possess methamphetamine with intent to distribute 

 Aguilar also challenges the sufficiency of the evidence supporting his conspiracy 

conviction. To prove the conspiracy charge, the government was required to show 

Aguilar (1) agreed with at least one other person to violate the law; (2) knew of the 

conspiracy’s objectives; and (3) knowingly and voluntarily involved himself in the 

conspiracy. Further, the government was required to demonstrate (4) interdependence 

between the co-conspirators. See United States v. Foy, 641 F.3d 455, 465 (10th Cir. 

2011). 

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 Evidence that Zamarripa twice fronted Aguilar large quantities of 

methamphetamine was sufficient to allow the jury to infer an agreement between the two 

men to distribute methamphetamine. See United States v. Johnson, 42 F.3d 1312, 1319 

(10th Cir. 1994) (explaining jury may infer agreement between two or more parties based 

on circumstantial evidence indicating concerted action directed toward common goal). It 

was also sufficient to prove the second and third conspiracy elements, i.e., that Aguilar 

knew of the conspiracy’s objectives and knowingly and voluntarily involved himself in 

the conspiracy. See Small, 423 F.3d at 1183 (noting evidence of multiple drug purchases 

for resale permits inference buyer was aware of and “shared common goals with” 

conspiracy); United States v. Bell, 154 F.3d 1205, 1208 (10th Cir. 1998) (stating jury may 

presume defendant who acts in furtherance of conspiracy’s goal is knowing participant). 

Finally, evidence of the fronting arrangement also was sufficient to establish 

interdependence. See United States v. Acosta-Gallardo, 656 F.3d 1109, 1124 (10th Cir. 

2011) (finding fronting arrangement indicative of interdependence). 

 The government presented evidence Aguilar ordered and obtained considerable 

quantities of methamphetamine from Zamarripa on credit and then promptly made good 

on his debts. Viewing this evidence in the light most favorable to the government, we 

conclude a reasonable jury could convict Aguilar of possession with intent to distribute 

and conspiracy. Thus, we find no error, plain or otherwise. 

II. Aguilar fails to establish the admission of Cox’s testimony regarding 

Moreno’s post-arrest request for counsel constituted plain error. 

Next, Aguilar argues the admission of Cox’s testimony regarding his co-defendant 

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Moreno’s post-arrest request for counsel violated Aguilar’s due process rights under 

Doyle v. Ohio, 426 U.S. 610, 619 (1976) (concluding use of petitioners’ post-arrest 

silence for impeachment purposes violated petitioner’s due process rights). Further, 

Aguilar contends this error was so prejudicial as to require reversal of Aguilar’s 

convictions. 

 Because Aguilar failed to object to Cox’s testimony, we review for plain error. See 

United States v. Kamahele, 748 F.3d 984, 1018 (10th Cir. 2014). To establish plain error, 

Aguilar must demonstrate (1) an error, (2) that is clear or obvious under current law, and 

(3) that affected his substantial rights. If Aguilar can make such a showing, we may 

reverse only if (4) the error seriously affected the fairness, integrity, or public reputation 

of the proceedings. United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir. 2011). 

 Here, we need consider only the third prong of the plain-error test. Even if we 

assume the admission of Cox’s testimony about Moreno’s post-arrest request for counsel 

constituted plain and obvious error, Aguilar must demonstrate the error affected his 

substantial rights, i.e., it was so prejudicial as to affect the trial’s outcome. See United 

States v. Olano, 507 U.S. 725, 734 (1993) (discussing prejudice prong of plain-error test). 

 But Aguilar makes no effort to explain precisely how the admission of Cox’s 

testimony prejudiced his substantial rights. Instead, Aguilar generally suggests, “In a 

conspiracy case such as this one, all co-defendants are prejudiced when the prosecution 

blatantly violates the due process rights of one co-defendant.” Aplt. Br. at 20. 

 Given the substantial evidence of Aguilar’s guilt and his failure to explain how 

Cox’s comment regarding Moreno’s post-arrest request for counsel prejudiced Aguilar, 

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we conclude Aguilar has failed to meet his burden to show the alleged error affected his 

substantial rights. Thus, we reject Aguilar’s claim of error without addressing whether he 

can satisfy the other three prongs of the plain-error test. See United States v. Pablo, 696 

F.3d 1280, 1301 (2012) (declining to address remaining three plain-error requirements 

based on defendant’s failure to meet third requirement). And because Aguilar has, at best, 

demonstrated a single error, we also reject his cumulative-error claim. See United States 

v. Franklin-El, 555 F.3d 1115, 1128 (10th Cir. 2009) (explaining cumulative-error 

analysis applies only when defendant establishes at least two actual errors). 

CONCLUSION

 Because we conclude sufficient evidence supports Aguilar’s convictions for 

conspiracy and possession with intent to distribute, and the district court’s admission of 

evidence of his co-defendant’s post-arrest request for an attorney did not affect Aguilar’s 

substantial rights, we affirm. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge 

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