Conviction in ATF-Aided Conspiracy Affirmed; Remanded for Sentencing

United States v. Cervantes, Nos. 11-41385 & 11-41407 (Jolly, Prado, Higginson)

The panel addressed the appellants’ multiple complaints regarding their trial and sentence, affirming their convictions but vacating and remanding the sentences of Cervantes and Alvarez. Here is a brief summary of the highlights:

Appellants Cervantes, Alvarez, and Milan worked with an undercover agent to plan an armed home invasion to steal a large quantity of drugs. The home invasion, though, was a sham, and the appellants were arrested on the day the invasion was set to happen. They were subsequently indicted, and later convicted by jury trial, on six counts.

1. Court can limit number of family members present if limitation adequately explained and trial still "public."  The court only allowed a few family members to be present for voir dire, citing the courtroom’s space limitations and the chilling effect on the jury panel to have too many family members present (comfort and safety concerns). The panel held that the court adequately explained its reasons for limiting the number and that having a few family members present adequately preserved appellants’ right to a public trial.
2. Court did not abuse discretion by failing to ask questions about entrapment during voir dire.  The panel found the appellant’s argument unpersuasive since the court asked jurors if they could follow the law as provided by the court.
3. Court provided sufficient remedy for comment on defendants’ failure to testify.  The first two defendants did not testify. When the third defendant took the stand, the prosecutor asked, "And the first two have already been asked if they wanted to take the stand and they have declined?" Counsel for the first two defendants objected. The court chided the prosecutor and reminded jurors to disregard the comment. The panel held that the comment did not have a clear effect on the jury’s outcome, so it did not warrant reversal.
4. Court did not err in allowing evidence of prior home invasion (Rule 404(b)). This was permissible to prove motive and to rebut the entrapment defense.
5. Evidence was sufficient to support conviction and to support predisposition to commit offense.
6. No cumulative error.
7. Application of firearm enhancement at sentencing was plain error.  Assessment of an enhancement on the drug conspiracy charge for use of a firearm under 2D1.1(b)(1) constituted "inappropriate double punishment" since the appellants were also separately sentenced for possession of a firearm in furtherance of drug trafficking and drug conspiracy. United States v. Benbrook, 119 F.3d 338, 339 (5th Cir. 1997).
8. Application of body armor enhancement was not plain error. The PSR stated that an appellant was wearing bulletproof body armor and the appellant did not object or identify any evidence to show that the PSR was untrue.