United States v. Lorena Morale

Filing

OPINION FILED - THE COURT: Roger L. Wollman, Kermit E. Bye and Raymond W. Gruender AUTHORING JUDGE:Kermit E. Bye (PUBLISHED) [4365396] [15-1630]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1630
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Lorena Morales
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
____________
Submitted: October 23, 2015
Filed: February 10, 2016
____________
Before WOLLMAN, BYE, and GRUENDER, Circuit Judges.
____________
BYE, Circuit Judge.
Lorena Morales was convicted by a jury of one count of conspiracy to
knowingly distribute a controlled substance and one count of possession with intent
to distribute methamphetamine. The district court1 sentenced Morales to 120 months
1

The Honorable John A. Jarvey, Chief Judge for the United States District
Court for the Southern District of Iowa.

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of imprisonment, the mandatory minimum. Morales challenges the sufficiency of the
evidence and alleges various government misconduct and district court errors. We
affirm.
I
On March 26, 2014, a two-count indictment was filed charging Morales and
two co-defendants with conspiracy to distribute methamphetamine (Count I) and
possession with intent to distribute methamphetamine (Count II). Morales's two codefendants, Melissa Gallardo and Mario Borboa, each reached plea agreements with
the government. Gallardo entered into a plea agreement on July 11, 2014, wherein
she pleaded guilty to Count I of the indictment, the government agreed to dismiss
Count II, Gallardo was required to cooperate with the government, and the
government acknowledged it might file a substantial assistance motion. Borboa did
the same on August 14, 2014. On September 25, 2014, a superseding indictment
applicable only to Morales was filed charging Morales, Gallardo, and Borboa with
one count of conspiracy to distribute methamphetamine (Count I) in violation of 21
U.S.C. §§ 846, 841(a)(1), and (b)(1)(A), and charging Morales with one count of
possession with intent to distribute methamphetamine (Count II) in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A). Morales proceeded to a jury trial in October 2014.
The evidence at trial included the following.
At the time of the offense, Lorena Morales was a 21-year-old woman living in
Los Angeles, California. Although Morales had previously been employed, by early
2014 Morales was no longer working and began traveling with individuals who were
distributing methamphetamine from southern California to other parts of the country.
Two of those individuals are her co-defendants in the present matter.
Gallardo testified she made several trips to deliver methamphetamine for
Borboa. In early 2014, Gallardo traveled from California to Texas to deliver
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methamphetamine to a customer named "Boots." Borboa orchestrated the trip on
behalf of someone higher up. Gallardo delivered methamphetamine to Boots,
collected money from Boots and from other drug customers, and was paid $5,000 by
Borboa for her services. A couple of weeks after this first trip, Gallardo made a
second trip for Borboa, this time from Los Angeles to San Diego, California, and was
paid $250.
Borboa testified about Morales's first drug delivery. In February 2014, Borboa
and Morales traveled to Killeen, Texas, for the purpose of delivering
methamphetamine. Borboa testified that after arriving in Texas, he and Morales
visited Boots, who, in front of Morales, unpacked methamphetamine from Borboa's
car and counted out money for Borboa, which was partial payment for the
methamphetamine. Borboa paid for Morales's expenses during the trip and also gave
her a couple hundred dollars in cash. After Morales returned to California, she texted
Borboa asking when payment would be forthcoming. Borboa then deposited $1,000
into Morales's bank account. Morales testified she was unaware Borboa engaged in
drug trafficking and went to Texas with Borboa because she wanted to visit a friend
in El Paso.
Morales participated in a second delivery a few weeks later, which forms the
basis of the charged conduct in this case. Borboa testified that he arranged, via text
message, for Morales and Gallardo to bring methamphetamine from California to
Iowa, but ultimately Borboa decided to go on the trip as well. Borboa testified that
on February 26, 2014, Morales, driving her own car, picked up Borboa in California.
Before the trip, Borboa had packaged the methamphetamine in heat-sealed packages
and added ground pepper to avoid detection by dogs. Borboa admitted he filled the
duffle bag with the methamphetamine and placed the duffle bag in Morales's trunk.
Borboa and Morales then picked up Gallardo, and the three took turns driving the
vehicle to Iowa. Gallardo testified that during the drive to Iowa, Borboa, Morales,
and Gallardo discussed the location of the delivery, and planned for Borboa and
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Morales to return immediately to California with half the drug proceeds while
Gallardo would stay behind to collect the other half. Morales testified she agreed to
go on the trip because she would see a new part of the country and looked forward
to attending a car show in Iowa. Morales also testified she still had no knowledge
that Borboa and Gallardo engaged in drug trafficking.
Aaron Taylor, a trooper with the Iowa State Patrol, testified about the traffic
stop which occurred on February 27, 2014. As the three co-defendants were driving
through Cass County, Iowa, Trooper Taylor stopped their car for speeding. Morales
was driving the vehicle and was traveling five miles over the speed limit. Gallardo
testified that when Trooper Taylor pulled the vehicle over, Borboa instructed Morales
and Gallardo to tell the false story that the group was traveling to an antique car
show. During the stop, Morales advised Trooper Taylor they were going to a car
show in Iowa, but could not recall Gallardo's surname or the name of the city they
were traveling to. Morales told Trooper Taylor Borboa was her co-worker at a print
shop, and while Morales admitted recently traveling to Texas, she denied going to
Texas with Borboa. Trooper Taylor thought Morales appeared more nervous than a
normal person subject to a traffic stop and noted Morales continued to get more
nervous as the stop continued.
Trooper Taylor and other officers ultimately searched Morales's car, and
Trooper Taylor smelled a strong odor of pepper, along with perfumes, air fresheners,
and Febreze. A K-9 was deployed on the vehicle and indicated to the presence of
drugs. A search of the vehicle revealed a duffle bag in the trunk, which contained six
kilograms of ice methamphetamine with an approximate street value of at least
$368,000. After the officers found the duffle bag, they arrested all three
co-defendants.
After hearing this and other testimony, the jury convicted Morales of both
counts.
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A presentence report ("PSR") was prepared, which calculated a total offense
level of 34, based in part on a two-level reduction for being only a minor participant,
and a two-level increase for obstruction of justice. The PSR calculated a criminal
history category of I, yielding a guideline range of 151 to 188 months of
imprisonment. At sentencing, Morales asked for a minimal participant adjustment,
pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 3B1.2(a) (2014),
which the district court declined to provide. Morales also sought a downward
variance pursuant to 18 U.S.C. § 3553(a), and both Morales and the government
asked for the mandatory minimum sentence of 120 months. The district court
discussed the § 3553(a) factors, varied downward, and sentenced Morales to 120
months of imprisonment.
After sentencing, Morales retained new counsel who filed and briefed the
present appeal.
II
Morales appeals her conviction and sentence alleging various errors. Morales
argues: (1) the government failed to meet its burden of proof; (2) the government
caused unfair prejudice by filing the superseding indictment; (3) the government
made inappropriate remarks during closing arguments; (4) the district court caused
the jury to be composed of biased members; and (5) the district court erred in
imposition of Morales's sentence.
A
Morales challenges the sufficiency of the evidence to support her convictions.
In criminal appeals, we review challenges to the sufficiency of the evidence de novo.
United States v. Sullivan, 714 F.3d 1104, 1107 (8th Cir. 2013). "We view the
evidence in the light most favorable to the guilty verdict, granting all reasonable
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inferences that are supported by that evidence." Id. "We will reverse a conviction
only if no reasonable jury could have found the defendant guilty beyond a reasonable
doubt." Id. (quoting United States v. Wells, 706 F.3d 908, 914 (8th Cir. 2013)).
To convict an individual of conspiracy to distribute a controlled substance
under 21 U.S.C. § 846, "the Government must prove that (1) a conspiracy to
distribute methamphetamine existed; (2) the defendant knew about the conspiracy;
and (3) the defendant knowingly became a part of the conspiracy." United States v.
Garcia, 646 F.3d 1061, 1066 (8th Cir. 2011). Morales argues she could not be found
guilty because her co-defendants were more culpable than she was. However, even
individuals with limited roles in a conspiracy are considered principals under federal
law, 18 U.S.C. § 2, and the government does not need to show a conspirator knew
everything about a planned crime, United States v. Garcia, 785 F.2d 214, 225 (8th
Cir. 1986) ("The government need not prove that the defendant . . . was aware of all
the details [of a conspiracy]."). Accordingly, the government submitted sufficient
evidence to support a conviction for conspiracy to distribute methamphetamine.
To convict an individual of possession with intent to distribute a controlled
substance under 21 U.S.C. § 841(a)(1), "the government has the burden of proving
beyond a reasonable doubt that [Morales] both knowingly possessed and intended to
distribute the drugs." United States v. Parker, 587 F.3d 871, 881 (8th Cir. 2009).
Morales challenges the finding she had knowledge of the drugs and intended to
distribute the drugs, arguing the testimony of her co-defendants was not credible.
"Th[is] argument is inapposite [because] [w]hen reviewing the sufficiency of the
evidence, we do not weigh the evidence or the credibility of the witnesses." United
States v. Johnson, 745 F.3d 866, 869 (8th Cir. 2014).
Borboa testified he never told Morales they would be transporting
methamphetamine, but he had no doubt Morales knew there was a controlled
substance in the vehicle and the intent was to distribute the controlled substance in
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Iowa. This testimony alone is sufficient evidence of Morales's guilt. First, a
defendant does "not need to know the exact nature of the substance in [her]
possession, only that it was a controlled substance of some kind." United States v.
Martin, 274 F.3d 1208, 1210 (8th Cir. 2001). Second, there is sufficient evidence to
uphold a jury verdict "based solely on the testimony of co-conspirators and
cooperating witnesses, [because] it is within the province of the jury to make
credibility assessments and resolve conflicting testimony." United States v. Jefferson,
725 F.3d 829, 834 (8th Cir. 2013).2
B
Morales alleges the district court abused its discretion in failing to sua spone
dismiss the superseding indictment and asks this Court to vacate the superseding
indictment pursuant to Federal Rule of Criminal Procedure 7(d). Specifically,
Morales argues she was prejudiced because the government filed the superseding
indictment omitting her co-defendants from Count II and accordingly making Morales
look more culpable than she really was.
2

As part of arguing the evidence was insufficient to support the convictions,
Morales asserts the district court improperly admitted the testimony of Borboa and
Gallardo under Federal Rule of Evidence 404(b) because the testimony was unreliable
and coerced by the government. Rule 404(b) governs when a court can admit past
"crimes, wrongs, or other acts" of a criminal defendant. To the extent Morales argues
an evidentiary error because Gallardo and Borboa deliberately misstated the facts or
created an incorrect impression for the jury in their testimony about Morales's role,
we note co-defendant testimony is a routine part of criminal prosecutions and,
contrary to Morales's assertion, the government could properly introduce the
co-defendant testimony without the need for Morales's trial attorney to open the door.
See Jefferson, 725 F.3d at 834. We also note the jury learned of both plea
agreements, and, on cross-examination, Morales's trial attorney attempted to impeach
each co-defendant by noting the plea agreements and the possibility of lower
sentences. Accordingly, we find no 404(b) evidentiary errors based on the testimony
of Gallardo and Borboa.
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Federal Rule of Criminal Procedure 7(d) allows a district court, "[u]pon the
defendant's motion," to "strike surplusage from the indictment or information." A
motion to strike surplusage from an indictment is a matter within the discretion of the
district court. United States v. DeRosier, 501 F.3d 888, 897 (8th Cir. 2007). "This
Court has cautioned that such a motion 'should be granted only where it is clear [that]
the allegations contained therein are not relevant to the charge made or contain
inflammatory and prejudicial matter.'" Id. (quoting Dranow v. United States, 307
F.2d 545, 558 (8th Cir. 1962)).
Because Morales did not object to the language of the superseding indictment
before the district court, we review for plain error. United States v. Lee, 374 F.3d
637, 651 (8th Cir. 2004). "Under plain error review, it is the defendant's burden to
prove (1) there was error, (2) that was plain, and (3) affects substantial rights."
United States v. Burnette, 518 F.3d 942, 947 (8th Cir. 2008) (citing Johnson v. United
States, 520 U.S. 461, 466–67 (1997); Fed. R. Crim. Pro. 52(b)).
Rule 7(d) is not the right vehicle for Morales to challenge the superseding
indictment because Rule 7(d) only authorizes the striking of surplusage from an
indictment, but does not authorize a district court to include additional language.
Rule 7(d)'s purpose is to limit the inclusion of irrelevant or inflammatory facts, not
to ensure a complete factual account of the alleged crime. See DeRosier, 501 F.3d
at 897. A criminal defendant has certain rights with regard to an indictment,
including the Fifth Amendment right to be tried upon charges found by a grand jury
and the right to sufficient notice of the offense to bar double jeopardy. United States
v. Camp, 541 F.2d 737, 739–40 (8th Cir. 1976) (citing Ex Parte Bain, 121 U.S. 1
(1887)). Federal Rule of Criminal Procedure 12(b)(3)(B) lists five defects which can
cause an indictment to be dismissed prior to trial and Rule 7 further governs the use
of indictments and provides criminal defendants the right to challenge certain aspects
of indictments. Nowhere, however, is a defendant guaranteed the right to an
indictment including a full and accurate factual account of the alleged crime. By all
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accounts Morales was not the most culpable person; however, the government did not
violate the rights of Morales and did not prejudice her by removing the names of her
co-defendants (who had previously pleaded guilty to Count I) from Count II of the
superseding indictment. Accordingly, Morales has not shown plain error.
C
Morales alleges government misconduct during closing arguments. A review
of the closing argument transcript shows trial counsel never objected to the statements
at issue. Therefore, plain error review applies. United States v. White, 241 F.3d
1015, 1023 (8th Cir. 2001).
Morales first points to the government's discussion of a particular set of text
messages exchanged between Borboa and Morales. Morales testified in her own
defense, and during her cross-examination the government made the following
statement which did not receive a response or further explanation: "So on February
19, 2014, it says—you receive a picture, correct, and that's a picture of Mario
[Barboa] holding an infant and it says, you send, 'Awe, and is that prima's adorable
little baby?' 'Yup.' 'Tell her I say hi and I want the baby.'" During closing argument,
the government brought up these text messages again and said:
Days before this trip started [Borboa] text messages a picture of himself
holding a little baby. We showed that to you and [Morales] texts back
is that prima, cousin's, baby? Yes. I think [Morales] says I want to
kidnap it or I would like one or whatever, so they're exchanging
personal photos, they're taking selfies together in Las Vegas. [Morales]
took a picture of [Borboa] in a swimming pool in Killeen, Texas, or
somewhere around Killeen, Texas, while she was drinking some
alcoholic beverage, and for 15 minutes in that car before those
controlled substances were found [Morales] doesn't say a word to
[Borboa]. Not even hi. Guilty knowledge, ladies and gentlemen. That's

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what that shows. She knew those controlled substances were there. No
question about it.
Morales argues the government brought up kidnapping during closing arguments to
show Morales was prone to kidnapping a child. Such an interpretation takes the
government's comments out of context. Although the only reference to kidnapping
the baby, as opposed to wanting the baby, came during closing arguments, it was not
plain error for the district court to allow the comment. Read in context of the closing
argument, the government was not using the text messages to establish Morales was
interested in taking a child which was not hers, but was rather using the messages to
establish Morales knew the drugs were in the car. Because the text messages were
relevant to Morales's knowledge, the district court did not err in allowing the
government to discuss the text messages.
Morales next argues the government committed misconduct in its discussion
of Morales's credibility as a witness. During closing argument, the government said:
Ladies and gentlemen, you are the sole judges of credibility of the
witnesses and the Court has so instructed you and that is the way the
system works. So in truth, you get to decide because what the defendant
testified to this morning, if she's believable, which means she is not
guilty, the government would agree with that; but is it truthful? Who
has the opportunity to know all the questions? Who sat in the courtroom
the last three or four days? Who listened to the witnesses and knew the
case the government was putting together? Who really had something
to lose here?
Morales contends this statement was prejudicial because it suggested Morales had an
improper motive for watching the trial when in fact she had a constitutional right to
be present. Supreme Court precedent forecloses this argument. In Portuondo v.
Agard, 529 U.S. 61, 69 (2000), the Supreme Court held, in a case with a similar
closing argument, a prosecutor may point out to the jury the benefit a defendant has
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in testifying: that the defendant has listened to all of the other witnesses and can
better piece together a "false" story. Id. at 67-68 ("[I]t is natural and irresistible for
a jury, in evaluating the relative credibility of a defendant who testifies last, to have
in mind and weigh in the balance the fact that he heard the testimony of all those who
preceded him."). Morales focuses on Justice Ginsburg's dissent, and argues we
should adopt her conclusion that "invit[ing] the jury to convict on a basis of conduct
as consistent with innocence as with guilt" is a burden to a criminal defendant's
constitutional rights. Id. at 79 (Ginsburg, J., dissenting). When there is controlling
Supreme Court precedent, we are bound by that decision and cannot elect to adopt the
views of a dissenting Justice. Schwarz v. Witwer Grocer Co., 141 F.2d 341, 343 (8th
Cir. 1944). Accordingly, the district court did not err in allowing the government to
make this statement during closing argument.
D
Morales asks this Court to remand for a new trial because the jury was
improperly empaneled. Morales takes offense with two things. First, Morales argues
the jurors admitted onto the petit jury were too pro-police. Second, Morales argues
the district court judge improperly demonstrated authority and improper influence
over the jurors in the conversations he had during voir dire.
First, Morales now objects, for the first time, to the seating of certain allegedly
pro-police jurors on her petit jury. "Because [Morales] admittedly failed to raise this
objection during the jury selection process, [s]he has waived the issue, intentionally
relinquishing or abandoning a known right." United States v. Klopfenstine, 708 F.3d
1023, 1023 (8th Cir. 2013). Therefore, Morales has "waiv[ed] any challenge to the
seating of a juror on appeal." Id. Acknowledging Klopfenstine is controlling on this
issue, Morales asks this panel to "review the matter accordingly," which we interpret
as a request to reconsider Klopfenstine. "It is a cardinal rule in our circuit that one
panel is bound by the decision of a prior panel." Mader v. United States, 654 F.3d
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794, 800 (8th Cir. 2011) (en banc) (quoting Owsley v. Luebbers, 281 F.3d 687, 690
(8th Cir. 2002)). Accordingly, we cannot reconsider Klopfenstine and conclude
Morales waived any objection to the seating of jurors.
Second, Morales argues the district court's statements during voir dire about
a different criminal case were an improper show of authority. Specifically, at one
point during voir dire the district court asked the potential jurors if anyone had
particular prejudice against methamphetamine. A potential juror raised his hand and
disclosed he was the victim of a methamphetamine-related crime the week before.
The district court asked this juror if he could be fair, and he said he could. This juror
then disclosed the person was wanted on a federal drug warrant, and the district court
commented it would probably see the defendant the same day. The juror responded
the warrant was out of Nebraska, not Iowa, and the district court acknowledged it
would not, then, see the defendant. Morales did not object to this exchange, and now
argues these comments by the district court were an improper display of authority and
gave the jurors a misleading impression. Because Morales did not object below, we
review for plain error. United States v. Granados, 117 F.3d 1089, 1093 (8th Cir.
1997). We determine the district court did not act improperly in engaging in the
above-referenced exchange. There was no improper showing of district court
authority because a federal district court does, in fact, have the authority to handle
federal drug charges. See Comprehensive Drug Abuse Prevention and Control Act
of 1970, codified at 21 U.S.C. §§ 801-971. The comments were also not misleading
because the district court corrected itself once it learned the case at issue was in a
different district. Accordingly, the district court did not plainly err in making
statements about a different criminal matter.
E
Finally, Morales argues the district court erred in a variety of different ways in
imposing her sentence. When we review a sentence, we "must first ensure that the
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district court committed no significant procedural error," such as improperly
calculating the guideline range. United States v. Feemster, 572 F.3d 455, 461 (8th
Cir. 2009) (en banc). In the absence of procedural error, we "then consider the
substantive reasonableness of the sentence." Id.
Morales begins by arguing the district court committed a procedural error by
improperly calculating her guideline range when it imposed a two-level enhancement
for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Even if we determine the
district court procedurally erred by imposing this enhancement, "[p]rocedural errors,
like the miscalculation of a defendant's offense level, are subject to harmless-error
review." United States v. Sigillito, 759 F.3d 913, 940 (8th Cir. 2014), cert. denied,
135 S. Ct. 1019 (2015). Because application of the enhancement does not impact the
mandatory minimum, Morales did not qualify for safety-valve relief, and, "[i]n the
absence of a government motion, a district court is without authority to impose a
sentence below a statutory minimum," United States v. Freemont, 513 F.3d 884, 888
(8th Cir. 2008), any error is harmless.
Morales also argues the district court imposed an unreasonable sentence
because it relied too heavily on the testimony of her co-defendants. "We review the
substantive unreasonableness of sentences under a standard akin to an abuse-ofdiscretion standard, cognizant that it will be the unusual case when we reverse a
district court sentence—whether within, above, or below the applicable Guidelines
range—as substantively unreasonable." United States v. Sayles, 754 F.3d 564, 567
(8th Cir. 2014). "A sentence may be unreasonable if the district court fails to
consider a relevant factor which should have received significant weight; gives
significant weight to an improper or irrelevant factor; or considers the appropriate
factors but commits a clear error of judgment." Id. The district court discussed the
proper 18 U.S.C. § 3553(a) factors and did not rely on any inappropriate factor or
commit a clear error of judgment. Because Morales received the mandatory minimum

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and the district court appropriately discussed and weighed the relevant factors, we
find the sentence is not substantively unreasonable.
Morales also argues the district court erred in failing to provide her with safetyvalve relief. The PSR recommended Morales be found ineligible for safety valve
relief and she did not challenge this recommendation. "Because [Morales] did not
raise this argument during the sentencing hearing, our review is for plain error."
United States v. Atterberry, 775 F.3d 1085, 1088 (8th Cir. 2015), reh'g denied, No.
14-1354 (8th Cir. Feb. 17, 2015). Morales faced a statutory mandatory minimum
sentence of 120 months of imprisonment based on the quantity of drugs involved in
her conviction. See 21 U.S.C. § 841(b)(1)(A). The safety-valve exception to
mandatory minimum sentencing statutes authorizes a district court to sentence a
defendant below a mandatory minimum sentence if a defendant meets the five criteria
listed in 18 U.S.C. § 3553(f). Morales asserts she meets all five requirements for
safety-valve relief, including the requirement in § 3553(f)(5) that a defendant
"truthfully provide[] to the Government all information and evidence [she] has
concerning the offense or offenses." Morales bears the burden of establishing she
qualified for safety-valve relief. United States v. Soto, 448 F.3d 993, 995 (8th Cir.
2006). Morales has not met this burden because she cannot establish she ever
truthfully provided to the government all information about the charged offense. In
fact, beyond a brief interaction with the Trooper Taylor during the traffic stop,
Morales never provided additional information to the government. Accordingly,
district court did not plainly err in failing to grant Morales safety-valve relief.

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The district court varied downward to impose the mandatory minimum
sentence of 120 months of imprisonment. The district court committed no procedural
or substantive errors in the imposition of this sentence and we affirm the sentence.3
III
Accordingly, we affirm the convictions and sentence.
______________________________

3

We have examined all other issues raised by Morales as relates to her sentence
but find no other claims merit discussion. Therefore, we affirm the district court on
those issues without comment. See 8th Cir. R. 47B.
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