United States of America v. Benjamin Arzola

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3344
UNITED STATES OF AMERICA
v.
BENJAMIN ARZOLA,
Appellant
(D.C. Crim. No. 06-cr-00569-002)
No. 08-3346
UNITED STATES OF AMERICA
v.
RUBEN SOTO,
Appellant
(D.C. Crim. No. 06-cr-00569-004)
No. 08-4154
UNITED STATES OF AMERICA
v.
DOMINGO HERNANDEZ,
Appellant

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(D.C. Crim. No. 06-cr-00569-005)
No. 08-4738
UNITED STATES OF AMERICA
v.
MAXIMINO NIEVES,
Appellant
(D.C. Crim. No. 06-cr-00569-006)
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
District Judge: Honorable Susan D. Wigenton
Submitted Under Third Circuit LAR 34.1(a)
November 20, 2009
Before: RENDELL, BARRY and CHAGARES, Circuit Judges
(Opinion Filed: January 14, 2010)
OPINION
BARRY, Circuit Judge
Benjamin Arzola, Ruben Soto, Domingo Hernandez, and Maximino Nieves raise
numerous challenges to their convictions, sentences, and orders of forfeiture following a

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In a separate opinion, we address and reject the challenges of two of their co-1
defendants, Arsenio and Misael Arzola.
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lengthy drug trafficking trial.1
At trial, the prosecution presented powerful evidence of a vast drug trafficking
conspiracy beginning in 1999 and ending in June 2005. Among other evidence, the
prosecution presented the testimony of numerous cooperating witnesses, substantial
police surveillance of drug transactions, testimony regarding controlled purchases,
hundreds of recorded phone conversations by and among the defendants, and physical
evidence seized during an early morning raid of the conspiracy’s stash houses and the
defendants’ residences, including substantial quantities of cocaine; drug paraphernalia
such as cutting agents, scales, and drug ledgers; guns; and thousands of dollars in cash.
The jury convicted the defendants of conspiracy to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. § 841(a) & (b) and 21 U.S.C. § 846.
Hernandez was also convicted of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1).
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
On appeal, Arzola argues that:
(1) he was denied a fair trial by:
(a) the prosecution’s violation of the Jencks Act, 18 U.S.C. § 3500;

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(b) the District Court’s failure to grant a mistrial following purported juror
misconduct;
(c) the District Court’s failure to dismiss the indictment due to an attorney’s
conflict of interest;
(d) prosecutorial misconduct during the prosecutor’s rebuttal argument, including
mischaracterization of facts, impugning defense counsel’s integrity, and improper
vouching; and
(e) the District Court’s denial of counsel’s attempt to use an easel during the
presentation of evidence;
(2) the District Court improperly denied his request for a hearing on the calculation of the
drug quantity;
(3) the District Court misunderstood the nature of its discretion at sentencing;
(4) the District Court improperly imposed a two-level enhancement for possession of a
firearm;
(5) the prosecution failed to establish by sufficient evidence both the drug quantity and
his aggravating role in the conspiracy; and
(6) his residence should not have been forfeited.
Soto argues that:
(1) there was insufficient evidence supporting his conviction and the weight of drugs
attributed to him;

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(2) the prosecution improperly impugned defense counsel’s ethics and integrity;
(3) the prosecution improperly vouched for a government witness;
(4) his right to remain silent was violated;
(5) the cumulative effect of the trial errors denied him a fair trial;
(6) the District Court abused its discretion in denying him a hearing to challenge the
weight of drugs attributed to him; and
(7) the District Court misconstrued its discretion to sentence him.
Hernandez argues that:
(1) there was insufficient evidence supporting his convictions;
(2) the prosecutor made improper comments during summation;
(3) the District Court erred in concluding that he was responsible for fifty kilograms of
drugs;
(4) for purposes of sentencing, he should only be held accountable for his relevant
conduct, not that of his co-conspirators;
(5) the District Court should have granted a mistrial based on a government witness’s
reference to money laundering;
(6) the District Court erred by applying the enhanced penalty of 21 U.S.C. § 851 to him;
(7) the prosecution selectively and vindictively prosecuted him for not accepting a plea
agreement;
(8) his Fifth Amendment right to silence was violated;

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(9) a mistrial should have been declared based on juror misconduct; and
(10) his prior counsel’s conflict of interest required dismissal of the case.
Finally, Nieves contends that:
(1) there was insufficient evidence underlying his conviction;
(2) his Fifth Amendment rights were violated;
(3) the prosecution improperly solicited evidence of money laundering;
(4) juror misconduct occurred during trial;
(5) the imposition of a gun enhancement was improper;
(6) the calculation of the drug quantity applicable to him for sentencing was improper;
(7) the District Court erred in failing to grant him a minor role reduction; and
(8) his sentence was both procedurally and substantively unreasonable.
Each defendant has joined all other arguments raised by his co-defendants to the
extent applicable to him.
We have carefully reviewed the record, which contained overwhelming evidence
of guilt, and we have considered all of the issues raised by all of the defendants. We find
those issues to be without merit, and reject them without further discussion. See United
States v. Salemo, 61 F.3d 214, 216 n.1 (3d Cir. 1995).
We will affirm the judgments of sentence.

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