United States v. Lazaro Modesto Delgado

4 F.3d 780 UNITED STATES of America, Plaintiff-Appellee, v. Lazaro Modesto DELGADO, Defendant-Appellant. No. 91-10288. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 12, 1992. Decided Sept. 8, 1993. Greg M. Kane and Fred Browne, Law Offices of Fred Browne, Los Angeles, CA, for defendant-appellant. Thomas R. Green, Asst. U.S. Atty., Las Vegas, NV, for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before: ALARCON, HALL and KLEINFELD, Circuit Judges. KLEINFELD, Circuit Judge: 1 Modesto Delgado was convicted of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (c)(2), conspiracy to distribute cocaine, unlawful use of a communication facility, and distribution of cocaine. We reverse Delgado's conviction of engaging in a continuing criminal enterprise, but affirm the convictions on the other counts. The evidence was insufficient to establish that Delgado organized, supervised, or otherwise managed five or more people. The remaining convictions are unaffected. The critical issue on the reversed count is whether Delgado's customers, and their customers, count as persons whom Delgado…

Modesto Delgado was convicted of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (c)(2), conspiracy to distribute cocaine, unlawful use of a communication facility, and distribution of cocaine. We reverse Delgado’s conviction of engaging in a continuing criminal enterprise, but affirm the convictions on the other counts. The evidence was insufficient to establish that Delgado organized, supervised, or otherwise managed five or more people. The remaining convictions are unaffected. The critical issue on the reversed count is whether Delgado’s customers, and their customers, count as persons whom Delgado managed.

I. Facts.

The government arrested two cocaine dealers in Las Vegas, Raul Fernandez and Mario Fajardo, who eventually led Drug Enforcement Administration agents to appellant Delgado. Fernandez and Fajardo testified for the government, and the continuing criminal enterprise case-was based on their testimony and recordings of their telephone conversations with Delgado. Delgado had sold cocaine several times in quantities of several kilograms to each of them.

Fernandez had entered the cocaine business in 1985, when he learned from Delgado at a…

concurring:

Although I agree that Delgado’s conviction of continuing criminal enterprise (“CCE”) must be reversed, I disagree with the majority’s analysis. In my view, the evidence is sufficient, though not overwhelming, to support a jury verdict that Delgado’s drug distributing was part of “a continuing series of violations” of federal drug laws undertaken “in concert with five or more other persons with respect to whom [Delgado] occupies a position of organizer, a supervisory position, or any other position of management....” 21 U.S.C. § 848 (c)(2) (1988). Nevertheless, because the government’s closing argument was both improper and highly prejudicial and the district court failed to give a specific unanimity instruction, the conviction must be reversed.

I

Viewing the evidence and the inferences that a jury could reasonably draw therefrom in the light most favorable to the verdicts, Glasser v. United States, 315 U.S. 60, 80 , 62 S.Ct. 457, 469 , 86 L.Ed. 680 (1942), I conclude there is sufficient evidence to support the jury’s finding that Delgado was an “organizer” with respect to Fernandez and Fajar-do, despite evidence to the contrary.

*789 A

The evidence showed that…