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United States v. Gallegos

United States Court of Appeals, Tenth Circuit

April 30, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
SIMONA GALLEGOS, Defendant - Appellant

Page 1357

Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 5:12-CR-00297-2).

James L. Hankins, Edmond, Oklahoma, for Defendant-Appellant.

David McCrary, Assistant United States Attorney (Sanford C. Coats, United States Attorney, and Leslie M. Maye, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

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

OPINION

Page 1358

MORITZ, Circuit Judge.

Simona Gallegos appeals her 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 one count of use of a communication facility to facilitate the distribution of methamphetamine in violation of 21 U.S.C. § 843(b).

Gallegos argues (1) the district court erred in admitting the hearsay statements of her alleged co-conspirators; (2) the government presented insufficient evidence to support her convictions; (3) a fatal variance occurred because the indictment charged a single large conspiracy but the evidence at trial proved only multiple smaller conspiracies; (4) the district court erred in admitting testimony regarding her co-defendant's post-arrest request for an attorney; and (5) the cumulative effect of these errors requires reversal. Because sufficient evidence supports Gallegos' convictions and because her remaining claims do not warrant reversal under our plain-error test, we affirm.

Background

Simona Gallegos' convictions arose from law enforcement's investigation into the activities of Iran Zamarripa, the regional supervisor of an international methamphetamine ring. Based on her alleged involvement in Zamarripa's organization, Gallegos was tried alongside her common-law husband, Pedro Juarez, and two of their alleged co-conspirators, Bani Moreno and Edgardo Josue Aguilar.

At trial, Special Agent Casey Cox testified about Moreno's post-arrest request for an attorney. Although Moreno initially agreed to speak with Cox, after Cox began to probe Moreno's involvement in the drug trade, Moreno declined to answer further questions without an attorney present. None of the defendants' attorneys objected to Cox's testimony, and Moreno declined the district court's offer of a curative instruction.

Unlike Moreno and Aguilar, both of whom purchased methamphetamine from Zamarripa by the pound, Gallegos assisted Juarez in obtaining considerably smaller quantities of methamphetamine from Zamarripa and his local manager, Alfredo Resendiz. For example, on one occasion, Zamarripa instructed Resendiz to deliver a half-ounce of methamphetamine to Gallegos because Juarez was at work. Gallegos

Page 1359

partially paid for the fronted methamphetamine ten days later. On another occasion, Gallegos met Resendiz to pick up more methamphetamine for Juarez and to pay for a half-ounce of methamphetamine Zamarripa previously fronted Juarez. On still another occasion, Gallegos called Resendiz and used a code word to order a half-ounce of methamphetamine for Juarez. In that call, Gallegos stressed the need for prompt delivery because Juarez " ha[d] people[] waiting." Intercept Tr., Supp. R., at 8. When Resendiz arrived at the apartment Gallegos and Juarez shared, he delivered the methamphetamine to Gallegos.

Based on this evidence, the jury found Gallegos 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 one count of use of a communication facility to facilitate the distribution of ...


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