Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
APR 28 2000
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 99-5120
JORGE RODRIGUEZ-MORENO,
Defendant-Appellant.
(D.C. No. 97-CR-65)

(N.D. Okla.)
ORDER AND JUDGMENT
Before BRORBY , McKAY , and BRISCOE , Circuit Judges.
Defendant Jorge Rodriguez-Moreno appeals his conviction in Oklahoma

federal district court for conspiracy to possess with intent to distribute in excess
of 1,000 kilograms of marijuana, in violation of 21 U.S.C. 846. RodriguezMoreno argues that his conviction was barred by the double jeopardy clause of
the Fifth Amendment and that the doctrine of collateral estoppel barred the
government from presenting evidence of his prior acts. We exercise jurisdiction
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
pursuant to 28 U.S.C. 1291 and affirm.

I.
The Texas indictment and trial
On June 2, 1997, Rodriguez-Moreno was charged in Texas federal district
court with conspiracy to knowingly and intentionally possess with intent to
distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C.
846, and with knowingly and intentionally possessing with intent to distribute
more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. 841, for the
period of April 15, 1997, to May 13, 1997. Mario Garcia-Saldivar, Nasario
Castillo-Salazar, Jose Peralez-Munoz, Juan Castaneda-Mendoza, Arturo Vega
Trejo, and Carlos Alfonso Cabrera were also charged. The complaint was based
on the storage of marijuana at H&S Ropa Usada, a secondhand clothing store in
McAllen, Texas. In July 1997, a jury acquitted Rodriguez-Moreno of all charges.
The trial testimony established that in April 1997, Anthony Dominguez, a
special agent with the United States Drug Enforcement Administration (DEA) in
McAllen, received information from a confidential informant that marijuana was
being stored at Ropa Usada. On the evening of April 30, 1997, Dominguez and
other agents went to the store and Hector Salinas, Sr., the owner, consented to a
search of the store. The agents found 263 pounds of marijuana in a living area in
the back of the building and arrested Salinas and his son, Hector Salinas, Jr.
2
Both Salinas Sr. and Salinas Jr. agreed to cooperate with the agents and they
were released the next morning.
On May 1, 1997, Salinas Sr. asked the agents to return to the store because
there were some boxes that he suspected contained marijuana. The agents found
the boxes contained 1581.5 pounds of marijuana. A few days later, Salinas Sr.
made a DEA-monitored telephone call to Garcia-Saldivar to discuss delivery of
the marijuana. On May 13, 1997, Salinas Sr. told Garcia-Saldivar that he did not
have a way to transport the marijuana. Salinas Sr. went to a convenience store to
meet Garcia-Saldivar and left the store with Garcia-Saldivars brother. They
went to a ranch owned by Garcia-Saldivar, and Salinas Sr. was provided a vehicle
to transport the marijuana. Salinas Sr. drove the truck to the McAllen DEA
office, where agents loaded it with 400 pounds of marijuana. After the truck was
loaded, Salinas Sr. drove it to the Wonder Burger to meet Rodriguez-Moreno.
The truck then was driven by Cabrera from the Wonder Burger to the Central de
Abastos, a produce terminal, where Cabrera was arrested, along with Trejo,
Castillo-Salazar, and Peralez-Munoz. Rodriguez-Moreno was arrested at the
Wonder Burger.
DEA agents went to Ropa Usada later that evening after receiving
information that another load of marijuana was to be delivered and found 1,127
pounds of marijuana in a pickup parked outside the store. Keys to the truck were
3
found in the possession of Castaneda-Mendoza.
The Oklahoma indictment and trial

On February 5, 1999, Rodriguez-Moreno, Garcia-Saldivar, Cruz Herrera,
Ruben Torres, and Arturo Chapa, were charged in Oklahoma federal court in a
fourth superseding indictment with conspiracy to possess with intent to distribute
in excess of 1,000 kilograms of marijuana, in violation of 21 U.S.C. 846. The
indictment charged that from May 1996 to April 29, 1997, Garcia-Saldivar
operated an international marijuana smuggling operation based in McAllen,
Texas, and communicated with co-conspirators to transport the marijuana out of
state to Atlanta, Georgia; Chicago, Illinois; and Tulsa, Oklahoma. RodriguezMoreno moved to dismiss the indictment on double jeopardy grounds, which was
denied. On February 18, 1999, a jury convicted Rodriguez-Moreno of
conspiracy, and Rodriguez-Moreno was sentenced to 240 months of
imprisonment and ten years of supervised release.
The evidence presented at trial established that Rogelio Escalona, who
worked at Garcias Upholstery in McAllen, was involved in the transportation of
marijuana. Terrall Raper owned Fletcher Trucking Company in Tulsa,
Oklahoma, and provided Escalona with the trucks to transport the marijuana. In
the spring or summer of 1996, Rodriguez-Moreno went to Escalonas home in
4
McAllen to arrange to move marijuana upstate for Garcia-Saldivar. Escalona met

with Rodriguez-Moreno and Garcia-Saldivar three weeks to a month later to
discuss transportation. In January or February 1997, Rodriguez-Moreno and
Escalona arranged transportation of 1,000 pounds of marijuana to Atlanta,
Georgia. Escalona did not know the origination of the marijuana, but knew that
Rodriguez-Moreno and another individual delivered it to Roy Garzas home in a
McAllen suburb. Escalona, Herrera, and Garza loaded the marijuana onto a truck
at Garzas house and the truck was driven to Straightways Trucking Company.
The marijuana was then loaded onto Mike Canfields truck from Fletcher
Trucking and was delivered to Atlanta.
In March or April 1997, Rodriguez-Moreno and Escalona arranged the
transportation of 2,200 pounds of marijuana to Chicago, Illinois. Escalona did
not know the origination of the marijuana, but it was loaded onto Canfields
Fletcher truck at Ropa Usada, and was transported by George Pettigrew to
Chicago. Escalona, Garcia-Saldivar, Pettigrew, Herrera, Salinas Sr., Salinas Jr.,
and others were present during the loading.
In April 1997, Chapa drove a Fletcher truck to an empty lot in McAllen
where the truck was loaded with 2,500 pounds of marijuana destined for Tulsa,
Oklahoma. Pettigrew was again the driver of the truck. Canfield took possession
of the truck from Pettigrew between Oklahoma City and Tulsa, and was arrested
5
while driving the truck to Tulsa.
II.
Double jeopardy
Rodriguez-Moreno argues the Oklahoma prosecution against him was
barred by the double jeopardy clause of the Fifth Amendment. We review the
factual findings underlying the defendants double jeopardy claim for clear
, 73 F.3d 1023, 1024-25 (10th Cir.
error. United States v. Rodriguez-Aguirre
1996). The district courts ultimate determination regarding double jeopardy is,
however, a question of law we review de novo.
Id. at 1025.
The double jeopardy clause protects against successive punishments and

[] successive prosecutions for the same criminal offense.
Mintz , 16 F.3d 1101, 1104 (10th Cir. 1994) (quoting
United States v.
United States v. Dixon , 509
U.S. 688, 696 (1993)). [I]f two charges of conspiracy are in fact based on a
defendants participation in a single conspiracy, the former jeopardy clause bars
the second prosecution.
United States v. Daniels , 857 F.2d 1392, 1393 (10th
Cir. 1988). Rodriguez-Moreno has the burden of proving double jeopardy

applies and must prove in fact and in law that only one conspiracy existed in
order to prevail on [his] double jeopardy claim.
(quoting Daniels , 857 F.2d at 1394).
6
Mintz , 16 F.3d at 1104
Rodriguez-Moreno asks this court to apply a totality of the circumstances

test to his claim of double jeopardy. However, this circuit continues to follow
the same evidence test set forth in
Blockburger v. United States , 284 U.S. 299
(1932), to determine whether two conspiracy prosecutions violate the double

jeopardy clause.
Mintz , 16 F.3d at 1104. We are bound by the precedents of
prior panels [of this court] absent en banc reconsideration or a superseding

contrary decision by the Supreme Court.
United States v. Jones , 194 F.3d 1178,
1186 (10th Cir. 1999).

The Blockburger same evidence test provides that offenses charged are
identical in law and fact only if the facts alleged in one would sustain a
conviction if offered in support of the other.
Mintz , 16 F.3d at 1104 (internal
quotation omitted). The district court applied the same evidence test in
concluding that the Oklahoma prosecution was not barred by double jeopardy:
Although two of the witnesses in the McAllen, Texas trial would
most likely be called by the prosecution in the Oklahoma case, this is
where the commonality among the evidence ends. The Oklahoma
indictment alleges overt acts which were not alleged in the Texas
indictment, and it does not appear to this Court that evidence
introduced to support the allegations in Texas would suffice to
support the Oklahoma charges. Thus, without deciding whether
there existed one or two conspiracies, it is clear that the same
evidence would not be sufficient to support both inquiries.
Appellants App. I at 93.
In a double jeopardy analysis involving conspiracies, the court must
7
determine whether the two transactions were interdependent and whether the
Defendants were united in a common unlawful goal or purpose.
at 1104 (internal quotation omitted
Mintz , 16 F.3d
). [I]nterdependence involves a
determination of whether the activities of [the] alleged co-conspirators in one

aspect of the charged scheme were necessary or advantageous to the success of
the activities of co-conspirators in another aspect of the charged scheme, or the
success of the venture as a whole.
United States v. Sasser , 974 F.2d 1544, 1550
(10th Cir. 1992) (internal quotation omitted
). Rodriguez-Moreno has not shown
that the Texas conspiracy and the Oklahoma conspiracy were interdependent.
In concluding that the Texas and Oklahoma conspiracies were not
interdependent and therefore did not violate double jeopardy, the district court
stated:
The evidence introduced in this case indicates that the actors
working to perpetuate the conspiracies had no information as to what
was transpiring beyond their own criminal objective. Even law
enforcement officials in both Texas and Oklahoma claimed to have
little or no knowledge of related criminal activity occurring outside
their respective jurisdictions. No evidence was presented in the
Texas trial to indicate that the defendants were running a drug
conspiracy which was intended to culminate with a mass distribution
scheme which would stretch across the United States into Oklahoma,
Illinois, and Georgia. The very DEA agent working on bringing
down the Texas conspiracy testified in the hearing on this issue that
he had no knowledge of facts surrounding the Oklahoma distribution
conspiracy, or of the role of the Fletcher Trucking Company in
carrying out the distribution. The DEA agent testified that the Texas
investigation focused solely on events occurring in McAllen, Texas.
Though he believed the marijuana stored at the HS Ropa Usada was
8
being prepared for distribution because of the massive quantities

involved, at the time of the Texas indictment he had received no
information regarding a nationwide distribution scheme.
While it may be true that the overlap in the two indictments
indicates that the Oklahoma case encompasses elements of the Texas
case, the conspiracies were not interdependent. Although both
conspiracies to some extent functioned within the city of McAllen,
Texas, the conspiracy alleged in the Oklahoma indictment is of
massive proportions, detailing a distribution ring reaching across the
United States and involving larger quantities of marijuana than were
at issue in the Texas case. The actors in the two conspiracies did not
know of one anothers existence or identity, and there were only two
defendants in common between the two cases, one of whom was
alleged to be the mastermind of both conspiracies. This Court finds
that the two conspiracies, though related, were separate and distinct,
and the prosecution of the Defendant in the Northern District of
Oklahoma does not violate his 5th Amendment right against double
jeopardy.
Appellants App. I. at 98-99.
Rodriguez-Moreno asserts that [i]n the [Oklahoma] indictment and
prosecution, the government alleged and showed no conduct by [RodriguezMoreno] that had not been completed at the time he was indicted in Texas.
Appellants Br. at 40. However, the evidence does not show that the conspiracies
were interrelated. The alleged Texas conspiracy involved the storage and
planned transportation of marijuana from Ropa Usada, with no evidence of
planned nationwide transport. The Oklahoma conspiracy involved a different set
of participants and the transportation of marijuana out of state. The fact that
Ropa Usada was used in both conspiracies does not establish an interdependence
between the conspiracies. Based on the record before us, we agree with the
9
district courts analysis and conclude that the Oklahoma prosecution was not
barred by double jeopardy.
Collateral Estoppel
Rodriguez-Moreno argues that the doctrine of collateral estoppel barred the
government from presenting evidence of the Texas conspiracy at his Oklahoma
trial. The district court allowed Dominguez and Cabrera to testify about
Rodriguez-Morenos acts in Texas to show his state of mind, pursuant to Federal
Rule of Evidence 404(b). The record does not indicate that Rodriguez-Moreno
objected to the testimony at trial. A party must object timely and properly to
preserve an alleged error for appeal.
United States v. Herndon , 982 F.2d 1411,
1414 (10th Cir. 1992). Failure to so object constitutes waiver of the issue
unless there is plain error resulting in manifest injustice.
Id. at 1414-15. We
conclude that the district courts admission of the evidence was not plain error.
The federal doctrine of collateral estoppel stands for the principle that
when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties in any
future lawsuit.
United States v. Gallardo-Mendez
, 150 F.3d 1240, 1242 (10th
Cir. 1998) (quoting Ashe v. Swenson , 397 U.S. 436, 443 (1970)). A prior
acquittal does not bar the government from presenting evidence of that conduct at
10
a later trial under Rule 404(b). Rule 404(b) provides that similar act evidence is
relevant if the jury can reasonably conclude that the act occurred and that the
defendant was the actor.
Dowling v. United States , 493 U.S. 342, 348 (1990).
As the Supreme Court has noted, a second jury might
reasonably conclude that
the evidence is true, even if the first jury did not believe
beyond a reasonable
doubt that the defendant committed the crimes charged.
See id. at 348-49. Even
if the Texas jury did not find the evidence proved beyond a reasonable doubt that
Rodriguez-Moreno was involved in the alleged conspiracy, that finding does not
prevent a second jury from reasonably concluding that the evidence showed
Rodriguez-Moreno was involved. The doctrine of collateral estoppel did not bar
the government from presenting evidence of the Texas acts in the Oklahoma trial
to show Rodriguez-Morenos state of mind under Rule 404(b).
Rodriguez-Morenos conviction is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
11

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

UNITED STATES OF AMERICA,

(D.C. No. 97-CR-65)

ORDER AND JUDGMENT

Before BRORBY , McKAY , and BRISCOE , Circuit Judges.

Defendant Jorge Rodriguez-Moreno appeals his conviction in Oklahoma

pursuant to 28 U.S.C. 1291 and affirm.

found in the possession of Castaneda-Mendoza.

The Oklahoma indictment and trial

McAllen to arrange to move marijuana upstate for Garcia-Saldivar. Escalona met

while driving the truck to Tulsa.

error. United States v. Rodriguez-Aguirre

The double jeopardy clause protects against successive punishments and

United States v. Dixon , 509

United States v. Daniels , 857 F.2d 1392, 1393 (10th

Cir. 1988). Rodriguez-Moreno has the burden of proving double jeopardy

Mintz , 16 F.3d at 1104

Rodriguez-Moreno asks this court to apply a totality of the circumstances

Blockburger v. United States , 284 U.S. 299

(1932), to determine whether two conspiracy prosecutions violate the double

Mintz , 16 F.3d at 1104. We are bound by the precedents of

prior panels [of this court] absent en banc reconsideration or a superseding

United States v. Jones , 194 F.3d 1178,

1186 (10th Cir. 1999).

Mintz , 16 F.3d at 1104 (internal

determination of whether the activities of [the] alleged co-conspirators in one

United States v. Sasser , 974 F.2d 1544, 1550

(10th Cir. 1992) (internal quotation omitted

). Rodriguez-Moreno has not shown

being prepared for distribution because of the massive quantities

United States v. Herndon , 982 F.2d 1411,

United States v. Gallardo-Mendez

, 150 F.3d 1240, 1242 (10th

Dowling v. United States , 493 U.S. 342, 348 (1990).

As the Supreme Court has noted, a second jury might

reasonably conclude that

doubt that the defendant committed the crimes charged.

See id. at 348-49. Even

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