US v. Noe Juarez, 5th Cir., filed 8/7/17: Dirty Cop Gets Resentencing; 404(b) Evidence, Deliberate Ignorance Instruction, and Body-Armor Enhancement.

Mr. Juarez was a 20-year veteran of the Houston police when he was indicted.  Whew-boy.  And this is what he was doing:  As a police officer he was assisting the Grimaldo drug organization, an arm of the Los Zetas drug cartel, in its efforts to traffic drugs from Mexico to the United States. This wasn’t his first time. He also had involvement with two other, uncharged conspiracies– the “Gallegos conspiracy” and the “Castenada conspiracy” where he was largely engaging in the same conduct at issue here. Juarez was ultimately charge with conspiring to distribute five kilos or more of cocaine hydrochloride in violation of 21 USC §841(a)(1), 841 (b)(1)(A), and §846, and conspiring to possess firearms in furtherance of a drug trafficking crime in violation of 18 USC §942.   Essentially, Juarez helped out the drug cartel by providing its members with firearms, body armor, police scanners, cars, and by helping them evade detection by law enforcement.  His defense at trial was that he believed the Grimaldos were “legitimate businessmen.”

On appeal, he argued the district court judge erred in allowing evidence of these two other conspiracies to be admitted; the 404(b) evidence, that the district court erred in charging the jury with a deliberate ignorance instruction, and that the body-armor sentencing enhancement was wrongfully applied.  Juarez won on this third issue.

As to the extrinsic, 404(b) evidence of the other conspiracies, the Court found that the district court did not abuse its discretion in allowing this evidence to come before the jury. The court’s two-step test for admissibility requires a determination that (1) the extrinsic offense evidence is relevant to an issue other than the defendant’s character and (2) the evidence “possess[es] probative value that is not substantially outweighed by its undo prejudice…and meet[s] the other requirements of [Federal Rule of Evidence] 403.  United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).  Juarez’s claim was that the prejudice of this evidence did not substantially outweigh its probative value. In deciding whether to admit this evidence, the 5th Circuit considers the following factors:  1) the government’s need for the extrinsic evidence, 2) the similarity between the extrinsic and charged offenses; 3) the amount of time separating the two offenses, and 4) the courts limiting instructions.”  United States v. Smith, 804 F.3d 724, 736 (5th Cir. 2015) (quoting United States v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013). Essentially, in this case, the Court found the evidence admissible because Juarez claimed that he did not intend to commit these crimes; that he believed the cartel members were “legitimate businessmen.”  This placed his intent directly at issue, and the Government had the right to respond to it.  The Court assessed these preceding factors, and found they militated in favor of admissibility.  They then assessed the overall prejudicial impact of the evidence, and found it wasn’t so prejudicial to Juarez (it was).

As to the deliberate ignorance instruction, the Court found that Juarez loses on this argument, too.  The judge instructed the jury they could conclude that Juarez knowingly joined the conspiracy if it found that Juarez “deliberately closed his eyes to what would otherwise have been obvious to him.”  Due to concerns that a jury will convict a defendant for what he should have known rather than the appropriate legal standard, the Fifth circuit has often cautioned against the use of the deliberate ignorance instruction.  United States v. Demmitt, 706 F.3d 665 (5th Cir. 2013).  The Court found that a deliberate ignorance instruction is rarely appropriate; it should only be given “where the evidence shows (1) subjective awareness of a high probability of the existence of illegal conduct, and (2) purposeful contrivance to avoid learning of the illegal conduct.”  United States v. Jones, 664 F.3d 966, 979 (5th Cir. 2011). The Court found the following to be indications that maybe Juarez should have known there was a problem:

1. Juarez regularly received payments in cash;
2. He and his coconspirators met at night clubs to conduct transactions;
3. On several occasions he showed co-conspirators firearms he had in his car and offered to sell them although he never asked them why they might be in need of         guns;
4. He sold a co-conspirator a bulletproof police vest;
5. He socialized with co-conspirators while they were using cocaine;
6. He helped co-conspirators identify several federal narcotics agents at a particular restaurant;
7. And he used the code words that members of the drug conspiracy used.

So, even though the Fifth Circuit is fairly restrictive in approving of this jury instruction, it was not an abuse of discretion to give it here.  And one has to admit, these factors are pretty compelling that Juarez should have harbored some doubts about these “legitimate businessmen.”

Here is where Juarez won his new sentencing hearing: The body-armor sentencing enhancement pursuant to USSG §3B1.5.  And this was a big deal.  The PSR recommended a 4-level enhancement based on the conduct, so his Guidelines range increased from 188-235 months to 292-365 months.  He was sentenced to the full 365.   The statute provides for the enhancement when a defendant convicted of a drug trafficking crime or crime of violence uses body armor during the commission of the offense.  “Use” is defined as “(A) active employment in a manner to protect the person from gunfire; or (B) use as a means of bartering.”  USSG §3B1.5 cmt. n. 1.  Here, the district court found that Juarez sold the vests to his co-conspirators and gave the enhancement based on that conduct. Since the statute does not, by its plain language, discuss “selling” then the enhancement is not applicable.  So, given all this, the Court found the error was not harmless, and remanded the case for a new sentencing hearing.

Good news for Juarez, but it looks like this dirty cop is still going to have to serve a lengthy prison term.

And here, a picture of a dirty kitten.