Unpublished Disposition, 940 F.2d 1536 (9th Cir. 1991)

Nos. 89-10647, 89-10651 to 89-10654 and 90-10002.

United States Court of Appeals, Ninth Circuit.

Before BRUNETTI and RYMER, Circuit Judges, and WILSON,^*  District Judge.

MEMORANDUM^** 

For appeals 89-10651, 89-10653 and 90-10002, this memorandum decides claims not addressed in the contemporaneously filed opinion.

I. Jimenez-Sanchez's Motion to Dismiss the Indictment

Jimenez-Sanchez's claim fails because indictments are not open to challenge on the ground that there was inadequate evidence before the grand jury. United States v. Calandra, 414 U.S. 338, 345 (1974); Costello v. United States, 350 U.S. 359, 363-64 (1956); Holt v. United States, 218 U.S. 245, 248 (1910).

Rojas-Oquita, Rojas and Escobedo challenge the district court's decision not to suppress the wiretap evidence.

The government's affidavit supporting its wiretap application contained detailed information describing past efforts in the investigation, including the use of informants, physical surveillance and pen registers and tracing devices on telephones. It also explained why those procedures, as well as others, such as grand jury subpoenas and search warrants, were inadequate to uncover further information about the source of narcotics in this conspiracy. The affidavit was sufficiently full and complete to satisfy 18 U.S.C. § 2518(1) (c) and the district court did not abuse its discretion "in finding that the affidavit demonstrated the unavailability of alternate means of investigation." United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986); see also United States v. Brown, 761 F.2d 1272, 1276 (9th Cir. 1985) (alternate investigatory techniques similar to those contemplated here held inadequate); United States v. Bailey, 607 F.2d 237, 242 (9th Cir. 1979) (wiretap held necessary to discover source of narcotics supply, manner of distribution, extent of conspiracy and identity of coconspirators), cert. denied, 445 U.S. 934 (1980).

Nor did the district court clearly err in rejecting defendants' claims that the affidavit contained misleading statements and omissions. Under Franks v. Delaware, 438 U.S. 154 (1978), " [t]he deliberate falsity or reckless disregard whose impeachment is permitted ... is only that of the affiant, not of any nongovernmental informant." Id. at 171 (emphasis added). The district court did not clearly err in concluding that defendants had not met their initial burden of showing intentional or reckless misstatements on the part of the affiants, as opposed to alleged misstatements in the source information from informants. Cf. United States v. Ippolito, 774 F.2d 1482, 1485-86 (9th Cir. 1985) (government misled court about ability to uncover evidence using conventional techniques); United States v. Stanert, 762 F.2d 775, 780 (9th Cir. 1985) (affiant misrepresented source information supplied by informant), amended, 769 F.2d 1410.

III. Suppression of Cash Seized from the Car Escobedo Drove

Rojas-Oquita and Escobedo challenge the district court's refusal to suppress the seized cash.

The information government agents heard from the wiretap of Rojas-Oquita's telephone on December 30, 1987, furnished probable cause to arrest Escobedo after the transaction in the Bosa Donuts parking lot on the same date. Because Escobedo was not detained illegally, there is no resulting taint to render her later consent ineffective. Cf. Florida v. Royer, 460 U.S. 491, 507-08 (1983) (illegal detention taints subsequent consent).

The voluntariness of a consent to a search is determined according to the totality of the circumstances, Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973), even when it occurs with a suspect in police custody. United States v. Heimforth, 493 F.2d 970, 971-72 (9th Cir.), cert. denied, 416 U.S. 908 (1974); see also United States v. Watson, 423 U.S. 411, 425 (1976) (no requirement to inform arrestee that he could withhold consent). Upon review of the transcript of the January 13, 1989, suppression hearing, we see no reason to conclude that the district court clearly erred in finding that Escobedo's consent to the search of the Christmas package was voluntary. See United States v. Licata, 761 F.2d 537, 544-45 (9th Cir. 1985) (voluntariness of consent is question of fact reviewed for clear error; finding not disturbed when supported by record).¹ 

The circumstances of the transaction show that the government agents had reasonable grounds to believe that Escobedo had apparent authority to exercise control over the Christmas package. Government agents were entitled to rely on that reasonable belief in acting upon Escobedo's consent to search the package. United States v. Yarbrough, 852 F.2d 1522, 1534 (9th Cir.), cert. denied, 488 U.S. 886 (1988); United States v. Hamilton, 792 F.2d 837, 842 (9th Cir. 1986).

Because Escobedo had apparent authority to consent to a search, had consented and had been arrested lawfully, the district court did not err in denying the motion to suppress the cash found in the Christmas package.

Escobedo and Jimenez-Sanchez challenge the district court's denial of their motions for severance.

"Generally speaking, defendants jointly charged are to be jointly tried." United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856 (1980). All of these defendants have failed in meeting their heavy burdens to show the district court abused its discretion. See id. (must show violation of one of several substantive rights by reason of joint trial); United States v. Ramirez, 710 F.2d 535, 546 (9th Cir. 1983) (defendant "must show more than that a separate trial would have given him a better chance for acquittal; he must show that the magnitude of the prejudice denied him a fair trial"); United States v. Ford, 632 F.2d 1354, 1373 (9th Cir. 1980) ("must show that the joint trial was so prejudicial as to require the exercise of the district judge's discretion in only one way: by ordering a separate trial"), cert. denied, 450 U.S. 934 (1981). The jury's acquittal of Rojas-Oquita on count 7 and Martinez-Medina on count 8 shows that the jury was able to compartmentalize the evidence. See Escalante, 637 F.2d at 1201 (whether jury can "reasonably be expected to compartmentalize the evidence" is " [t]he prime consideration in assessing the prejudicial effect of a joint trial" (emphasis added)); see also United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987) (jury's failure to convict all defendants on all counts is " [t]he best evidence of the jury's ability to compartmentalize"), cert. denied, 488 U.S. 974 (1988). Thus, there was insufficient prejudice to any of these defendants. See also United States v. Smith, 893 F.2d 1573, 1581 (9th Cir. 1990) ("The possibility that some of the evidence ... 'rubbed off' [on defendant] is insufficient to prove compelling prejudice"). We will not disturb the district court's discretionary decisions to deny these motions to sever.

There was sufficient evidence, taken in the light most favorable to the prosecution, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), linking Rojas-Oquita to a conspiracy to import cocaine (count 2), including evidence of Martinez Medina implicating him in importation. [See, e.g., Exhibits 1B-8B.] There is circumstantial evidence that Mexico was a source of the drugs involved. [See Exhibit 4B.] There was enough circumstantial evidence to infer that Rojas-Oquita knew the drug was imported. See United States v. Flickinger, 573 F.2d 1349, 1360 (9th Cir.), cert. denied, 439 U.S. 836 (1978), overruled on other grounds, United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). The same evidence was sufficient to show, circumstantially, that Rojas-Oquita assisted in the importation (count 5). See United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988).

Given that code words are commonly used to refer to drugs in drug conspiracies, see United States v. Thomas, 586 F.2d 123, 129 (9th Cir. 1978), and viewing the evidence in the light most favorable to the government, the evidence was sufficient to show that Rojas-Oquita's telephone conversations made easier or aided the drug conspiracy (counts 12-19). See United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988). The evidence supported the inferences that Rojas-Oquita's phone calls facilitated the distribution of drugs [ (Exhibits 40B & 49B) ], the setting up of drug transactions [ (Exhibits 34B & 51B) ], the collection of drug debts [ (Exhibits 44B & 47B) ], see United States v. Zavala, 839 F.2d 523, 526-27 (9th Cir.), cert. denied, 488 U.S. 831 (1988), assurances of customer satisfaction [ (Exhibit 55B) ], see United States v. Mason, 658 F.2d 1263, 1270 (9th Cir. 1981).

The government presented numerous pieces of direct and circumstantial evidence that, taken in the light most favorable to the prosecution, link Maria Rojas to the conspiracy to distribute (count 6) and support an inference of intent, including telephone conversations, [see, e.g., Exhibits 16B, 54B, 55B & 57B,] and money collection, [see reporter's transcript vol. 8, pp. 67 ff]. Because only a slight connection to the conspiracy need be proved, see United States v. Ramirez, 710 F.2d 535, 548 (9th Cir. 1983), this evidence is sufficient for conviction. Rojas does not meet her burden on appeal by positing possible innocent explanations for her actions.

Given that code words are commonly used to refer to drugs in drug conspiracies, see Thomas, 586 F.2d at 129, and viewing the evidence in the light most favorable to the government, the evidence, including the "Tupperware" reference, was sufficient to show that Rojas's telephone conversation, [see Exhibit 57B,] facilitated a drug transaction (count 20). See Adler, 879 F.2d at 495.

The government presented evidence of Escobedo's participation in the December 30, 1987, transaction, her demeanor upon arrest and her conduct during a subsequent conversation with Rojas-Oquita. [see Exhibit 55B] When taken in the light most favorable to the government, a rational trier of fact could conclude from this evidence that she had at least a slight connection to the conspiracy (count 6), see Ramirez, 710 F.2d at 548, and that the evidence supported an inference of intent to assist the accomplishment of the goal of the conspiracy, distributing drugs. See United States v. Guzman, 849 F.2d 447, 448 (9th Cir. 1988) ("agreement to accomplish an illegal objective may be inferred from circumstantial evidence"). Escobedo does not meet her burden on appeal by positing possible innocent explanations for her actions.

The evidence established that the meeting in the Bosa Donuts parking lot was the payment end of a drug transaction. When Escobedo received the box from Jose Ahumada, she told him that she, or someone else, would get in touch with "Fausto" later on. Other evidence showed that "Fausto" (Jimenez-Sanchez) was a drug supplier for Rojas-Oquita. Escobedo expressed no surprise upon her arrest, or upon the revelation that the box contained $20,000 in cash, supporting the inference that she knew its contents. Escobedo's post-arrest telephone conversation with Rojas-Oquita supports the conclusion that she knew she had been involved in a drug transaction; she never asked Rojas-Oquita to explain what was going on, she participated with him in concocting a cover story for her conduct and she informed him of details of her arrest in what the jury could reasonably have concluded was an assessment for purposes of damage control. A rational jury could infer from all these circumstances that Escobedo knew that she was participating in a large drug transaction, from which the jury could infer her knowledge that the drugs involved were intended for distribution. Cf. United States v. Dicesare, 765 F.2d 890, 900 (9th Cir. 1985) (evidence sufficient to convict for drug conspiracy when defendant assisted coconspirator in counting cash, met couriers at airport, maintained apartment that coconspirator used in drug trafficking and met with coconspirator "with secretive precautions"), amended, 777 F.2d 543.

Viewing the evidence in the light most favorable to the government, the evidence was sufficient to show that Escobedo's telephone conversation, [see Exhibit 55B,] facilitated the distribution of drugs by aiding the drug conspiracy (count 19). See Adler, 879 F.2d at 495. The call served to reassure a coconspirator that her arrest would not overly damage the conspiracy. See Mason, 658 F.2d at 1270.

The evidence of Martinez Medina's conversations with Becerra, [see, e.g., Exhibits 1B-8B, 10B & 12B,] along with Rojas's conversations with Becerra, [see, e.g., Exhibit 9B,] viewed in the light most favorable to the government, is sufficient to support the inferences that Martinez Medina had at least a slight connection to the conspiracies (counts 2 & 6) and had the requisite intent. Martinez Medina does not meet his burden on appeal by positing possible innocent explanations for his actions. The same evidence was sufficient to show, circumstantially, that Martinez Medina assisted in the importation (count 5). See Gaskins, 849 F.2d at 459.

Given that code words are commonly used to refer to drugs in drug conspiracies and viewing the evidence in the light most favorable to the government, the evidence [in Exhibit 6C] was sufficient to show that Rojas's telephone conversation facilitated a drug transaction (count 10). See Adler, 879 F.2d at 495. The fact of Martinez Medina's acquittal on the underlying substantive charge (count 8) does not preclude the possibility of his guilt on the facilitation count. United States v. Brown, 761 F.2d 1272, 1277 (9th Cir. 1985).

Federal Rule of Evidence 901(a) "requires that the government make only a prima facie showing of authenticity ' "so that a reasonable juror could find in favor of authenticity or identification." ' " United States v. Blackwood, 878 F.2d 1200, 1202 (9th Cir. 1989) (per curiam) (quoting United States v. Black, 767 F.2d 1334, 1342 (9th Cir.), cert. denied, 474 U.S. 1022 (1985)). The district court did not abuse its discretion in admitting Exhibit 16B because the exhibit itself establishes a prima facie case of authenticity circumstantially. See Carbo v. United States, 314 F.2d 718, 743 (9th Cir. 1963), cert. denied, 377 U.S. 953 (1964). John Becerra told Hector Cotaque to call Rojas-Oquita (Maria Rojas's husband), Cotaque made a call and asked if the recipient was "Chuita" (Maria Rojas's nickname) and upon hanging up implied to Becerra that he had just spoken to a woman and that she knew his nickname. Taken together, these facts are sufficient to allow the jury to determine authenticity.

The district court did not abuse its discretion in allowing the government's cross-examination of Jimenez-Sanchez because the questions were reasonably related to his direct testimony, see United States v. Stenberg, 803 F.2d 422, 434 (9th Cir. 1986); United States v. Miranda-Uriarte, 649 F.2d 1345, 1353-54 (9th Cir. 1981), and to developing inconsistencies in his testimony. See United States v. Hearst, 563 F.2d 1331, 1341-42 (9th Cir. 1977) (per curiam), cert. denied, 435 U.S. 1000 (1978). The district court's instruction to the jury that questions by the lawyers did not amount to evidence cured any potential prejudice.

United States v. Davenport, 753 F.2d 1460 (9th Cir. 1985), is inapposite because in that case, unlike this one, the prosecutor's innuendo regarding the defendant occurred in questioning an alibi witness, not in cross-examining the defendant himself. Id. at 1463. Here, the prosecution was merely properly probing the veracity of the defendant's own testimony. Neither is United States v. Silverstein, 737 F.2d 864 (10th Cir. 1984), on point, because in this case there is no allegation that the prosecution knew it could not prove the substance of its cross-examination questions. See id. at 868 (prosecution knew fact could not be proved by independent evidence); see also id. at 868 n. 3 (distinguishing United States v. Felsen, 648 F.2d 681 (10th Cir.), cert. denied, 454 U.S. 861 (1981), on basis that Felsen's prosecutor "believed that she had admissible evidence supporting the existence of the fact implied in the question").

Rojas-Oquita, Rojas, Escobedo, Martinez Medina and Jimenez-Sanchez each claim prosecutorial misconduct in closing argument.

Even if the prosecution's reference to a school in closing argument was improper or ill-chosen, this single reference in the circumstances of the trial as a whole is not so prejudicial that it denied the defendants a fair trial. See United States v. Makhlouta, 790 F.2d 1400, 1403 (9th Cir. 1986) (closing argument reference to "sell [ing] heroin that kids inject" was "ill-chosen," but did not affect fairness of trial when record as a whole was considered).

Rojas further alleges instances of prosecutorial vouching. Because she did not object to these comments at trial, we review for plain error. United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989). As in Kessi, the statements of which Rojas complained may not have been error and they certainly do not rise to the level of plain error that " ' "seriously affect [s] the fairness, integrity or public reputation of judicial proceedings." ' " Id. (quoting United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936))).

The district court found Rojas-Oquita's offense level to be 32 and his criminal history category a "I," corresponding to a guideline range of 121-151 months. The court departed upward, imposing a sentence of 30 years plus 5 years probation, and listed three reasons for departure: (1) Rojas-Oquita's "extensive involvement in the drug ring he was operating;" (2) the "use of a firearm;" and (3) "a kidnapping that took place."

The district court's departure is invalid because Rojas-Oquita was not notified of the court's intention to depart, because the court did not find that the Sentencing Commission failed to consider the departure circumstances and because the court did not explain the degree of departure.

" [B]efore a district court can depart upward on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government, [Federal] Rule [of Criminal Procedure] 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling. This notice must specifically identify the ground on which the district court is contemplating an upward departure." Burns v. United States, 111 S. Ct. 2182, 59 U.S.L.W. 4625, 4628 (U.S. June 11, 1991); accord United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir. 1989). There was no such notice of the court's first reason for departing in this case, and the remedy is vacation of the sentence and a remand for resentencing. United States v. Hedberg, 902 F.2d 1427, 1429 (9th Cir. 1990); Nuno-Para, 877 F.2d at 1415.

The government's argument that Rojas-Oquita's counsel in fact addressed the first departure reason at sentencing fails; the extent of Rojas-Oquita's involvement was certainly addressed, but only generally, not in the context of whether it constituted a proper grounds for departure. No matter how "readily apparent" it is that facts could be used to justify a departure, the notice requirements must be followed. United States v. Rafferty, 911 F.2d 227, 230 (9th Cir. 1990).² 

As to all three reasons for departure, the district court failed "to make a clear finding that the commission did not adequately consider" the specific aggravating circumstances, United States v. Lira-Barraza, 897 F.2d 981, 983 (9th Cir.), reh'g en banc granted, 909 F.2d 1370 (1990), and failed to "state its reasons for the direction and the degree of its departure." Id. at 986 (emphasis added). Such errors also demand vacation of the sentence. United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989) (per curiam); United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989); cf. United States v. Montenegro-Rojo, 908 F.2d 425, 428 (9th Cir. 1990) (example of district court's detailed rationale for departing from guidelines).

Even if these procedural requirements had been met in this case, the district court's first and third reasons for departure would have been invalid. " [D]eparture is permissible if 'the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.' " United States v. Pearson, 911 F.2d 186, 188 (9th Cir. 1990) (quoting 18 U.S.C. § 3553(b)). A departure is unwarranted, and a sentence is therefore invalid, when the sentencing court relies improperly on factors already considered by the guidelines. Nuno-Para, 877 F.2d at 1414.

As to the district court's first factor, the guidelines commentary states specifically that role in the offense is not a proper consideration in sentencing a defendant guilty of a continuing criminal enterprise. U.S.S.G. Sec. 2D1.5, comment. (n. 1); id. at Sec. 2D1.5, comment. (backg'd). Therefore, it is not a proper grounds for departure. Nuno-Para, 877 F.2d at 1414.

The conspiracy to kidnap charge (the district court's third reason for departure) may not be considered in departing, because it is already capable of being considered in arriving at a base offense level. Conduct for which a defendant is not convicted may be considered in determining a defendant's base offense level. United States v. Restrepo, 903 F.2d 648 (9th Cir.), reh'g en banc granted, 912 F.2d 1568 (1990). The conspiracy to kidnap count, even though Rojas-Oquita was acquitted on it, may be considered "relevant conduct" under U.S.S.G. Sec. 1B1.3(a) (2) because it was "part of the same course of conduct or common scheme or plan as the offense [s] of conviction," one of which was maintaining a continuing criminal enterprise. The sentencing court would, though, in order to consider the conspiracy to kidnap charge, need to find, by a preponderance of the evidence, that the conduct occurred. Restrepo, 903 F.2d at 654. The kidnapping charge would be considered a "closely-related" count, see U.S.S.G. Sec. 3D1.2(d) (as amended), because "the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior."³  It is therefore considered by the guidelines, precluding a departure on that basis. Nuno-Para, 877 F.2d at 1414.

The court's second reason, use of a firearm to engage in a continuing criminal enterprise, does not appear to have been taken into account by the guidelines, cf. U.S.S.G. Sec. 2D1.1(b) (1) (use of firearm is specific offense characteristic in certain types of drug offenses), and may therefore be a valid reason to depart.⁴ 

Rojas-Oquita's sentence is vacated and we remand for resentencing.

Maria Rojas was sentenced to 10 years under a guideline range of either 78-97 months or 41-51 months.⁵  Like Rojas-Oquita, she challenges the lack of notice of the specific reasons for departure upon which the district court relied. The presentence report identified only a narcotics incident in 1982. The district court, however, stated its reasons for departure as "due to a heavy involvement in sales. She took phone calls, discussed sales and was in the center of all the activity."

The district court's departure is invalid because Rojas was not notified of the court's intention to depart, Burns, 59 U.S.L.W. at 4628; Nuno-Para, 877 F.2d at 1415, because the court did not find that the Sentencing Commission failed to consider the departure circumstances, Lira-Barraza, 897 F.2d at 983, and because the court did not explain the degree of departure, id. at 986. Again, the government's argument that she had ample opportunity to address these issues at sentencing misses the point: she addressed issues under the assumption they were being considered in base offense calculations; there was no notice of the specific factors the court intended to use to depart from the guidelines. We vacate Rojas's sentence and remand for resentencing. Hedberg, 902 at 1429; Wells, 878 F.2d at 1233; Nuno-Para, 877 F.2d at 1415; Michel, 876 F.2d at 786.

Even if these procedural requirements had been met in this case, the district court's reasons for departure would have been invalid. See Pearson, 911 F.2d at 188. The district court's reasons go to aggravating role in the offense, a consideration the guidelines specifically deal with in Sec. 3B1.1. Therefore, departure on this basis would be error. Nuno-Para, 877 F.2d at 1414.

The district court accepted the presentence report's recommendation of an offense level of 24, criminal history category of I and applicable guideline range of 51-63 months. The court specifically indicated that it was not departing, yet sentenced Jimenez-Sanchez to 12 years.

The district court obviously departed from the guidelines. The departure is invalid because Rojas was not notified of the court's intention to depart, Burns, 59 U.S.L.W. at 4628; Nuno-Para, 877 F.2d at 1415, because the court did not find that the Sentencing Commission failed to consider the departure circumstances (indeed, there was no listing of departure factors at all), Lira-Barraza, 897 F.2d at 983, and because the court did not explain the degree of departure, id. at 986. The error was not, as the government contends, "ministerial." We vacate Jimenez-Sanchez's sentence and remand for resentencing. Hedberg, 902 at 1429; Wells, 878 F.2d at 1233; Nuno-Para, 877 F.2d at 1415; Michel, 876 F.2d at 786.

Michael J. Brady entered an appearance with this court and is counsel of record for Aguilar-Correa. He filed his opening brief almost two months late and, in contravention of our Circuit Rules, failed to file an excerpt of record. See 9th Cir.R. 30-1.1. This court ordered Aguilar-Correa, on December 7, 1990, to show cause for the failure to file excerpts. Although the response to this order was due in 14 days, none was ever received. On March 4, 1991, this court ordered the late opening brief filed and reminded Aguilar-Correa that he was neither relieved of his obligation to file excerpts of record nor of his obligation to respond to the December 7 order to show cause. The court ordered the response to the prior order to show cause due March 18, but again, neither the response nor the excerpts were forthcoming. Brady did not appear at oral argument, and the last record of his having communicated with this court is dated October 26, 1990.

Sensitive to this inattention on the part of his counsel, Aguilar-Correa moved, pro se, for appointment of counsel and permission to proceed in forma pauperis. We have been able to consider the merits of Aguilar-Correa's arguments on appeal without having to appoint counsel, and his pro se motion is now moot. We cannot, however, leave unaddressed Brady's pattern of neglect of his client and disobedience of our rules and orders. Accordingly, we admonish Brady for his conduct in this matter, see Fed. R. App. P. 46(c); 9th Cir.R. 46-2 & advisory committee's note regarding sactions at paragraphs (7) & (8), and direct the clerk to serve a copy of this memorandum on the Chief Judge of the United States District Court for the District of Arizona, directing the court's attention to this section.

For the reasons stated in this memorandum and in the accompanying opinion, the convictions of Rojas-Oquita (except on counts 2 and 6), Rojas, Escobedo, Martinez Medina and Jimenez-Sanchez are AFFIRMED. Rojas-Oquita's convictions on counts 2 and 6 are VACATED. Aguilar-Correa's conviction is REVERSED. The sentences of Rojas-Oquita, Rojas and Jimenez-Sanchez are VACATED and their cases are REMANDED for resentencing. We also order the clerk to serve a copy of this memorandum on the Chief Judge of the United States District Court for the District of Arizona, directing the court's attention to Section Ten.