United States v. Castanada-Ulloa , 15 F. App'x 680 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 19 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 00-6050
(D.C. No. 99-CR-57)
LORENZO LUCHO CASTANEDA- (W.D. Okla.)
ULLOA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and BRISCOE, Circuit Judges.
Defendant-Appellant, Lorenzo Lucho Castaneda-Ulloa, appeals from his
convictions and sentence for conspiracy to possess with intent to distribute and
distribution of cocaine powder, 21 U.S.C. §§ 841(a)(1), 846; interstate
transportation in aid of racketeering, 18 U.S.C. §§ 2, 1952(a)(3); money
laundering, 18 U.S.C. §§ 2, 1956(a)(1)(A); and use of a communication facility to
facilitate a conspiracy to possess with intent to distribute cocaine. 21 U.S.C. §
843(b). See I R. Indict. & Doc. 59. We have jurisdiction pursuant to 28 U.S.C. §
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
1291 and 18 U.S.C. § 3742(a) and we affirm.
Background
After a trial, a jury convicted Mr. Castaneda-Ulloa on one count of
conspiracy to distribute cocaine (Count 1), five counts of facilitating interstate
transportation in aid of racketeering (Counts 2, 3, 5, 6, and 8), one count of
money laundering (Count 7), and one count of use of a communication facility to
facilitate the conspiracy to distribute cocaine (Count 9). See I R. Indict. & Doc.
59. The district court sentenced Mr. Castaneda-Ulloa to 292 months on Count I;
sixty months on each of Counts 2, 3, 5, 6, and 8; 240 months on Count 7; and
forty-eight months on Count 9, all sentences to run concurrently. I R. Doc. 59, at
2. The district court also imposed concurrent terms of supervised release upon
Petitioner’s release from prison, the longest term being five years on Count 1, and
special penalty assessments of $100 per count for a total of $800. Id. at 3-4.
Because the parties are familiar with the facts, we will not restate them here, but
will only refer to them as needed for our analysis.
Discussion
On appeal, Mr. Castaneda-Ulloa raises three issues: (1) whether the district
court’s failure to instruct the jury on drug quantity rises to the level of reversible
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plain error under Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) whether the
jury was given proper instruction regarding accomplice testimony; and (3)
whether a variety of evidentiary issues constitute reversible plain error. We
address each issue in turn.
A. The Apprendi Challenge
Count I of the indictment charged Mr. Castaneda-Ulloa with conspiring to
possess, with the intent to distribute, and distributing cocaine in violation of 21
U.S.C. §§ 841(a)(1), 846. In describing the overt acts that comprised the
conspiracy, the indictment alleged that Petitioner had conspired to possess, with
the intent to distribute, and had distributed approximately eleven kilograms of
cocaine and “kilogram quantities” of cocaine base. I R. Indictment at 3-7. The
quantity of cocaine distributed was not disputed at trial, but the quantity was not
submitted to the jury as an element of the offense that the jury must find beyond a
reasonable doubt. See I R. Doc. 38, at 37 (jury instruction stating “[t]he evidence
in the case need not establish that the amount or quantity of controlled substance
was as alleged in the Indictment, but only that a measurable amount of the
controlled substance was in fact the subject of the acts charged in the
Indictment”). Mr. Castaneda-Ulloa did not object to the jury instructions. V R. at
499.
The presentence report (“PSR”) indicated that Mr. Casteneda-Ulloa was
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responsible for approximately 13.4 kilograms of cocaine powder and 25.5
kilograms of cocaine base. VII R. at 6. Mr. Castaneda-Ulloa did not object to the
facts in the PSR. Id. at 13. The district court adopted the findings of the PSR, I
R. Doc. 59, at 6, and sentenced Petitioner to 292 months’ imprisonment on the
conspiracy charge. Id. at 2. Because the maximum penalty available for a
cocaine conspiracy that does not involve a specified amount of cocaine is twenty
years (240 months), see 21 U.S.C. §§ 841(b)(1)(C), 846, Mr. Castaneda-Ulloa
contends that his sentence of 292 months is contrary to the Supreme Court’s
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). We disagree.
Because Mr. Castaneda-Ulloa did not object to the jury instructions at trial,
we review his Apprendi challenge for plain error only. United States v. Keeling,
235 F.3d 533, 538 (10th Cir. 2000), cert. denied, _ S. Ct._, 2001 WL 578795(June 25, 2001) (No. 00-10161). To notice plain error under Fed. R. Crim. P.
52(b), there must be (1) an error that is (2) “plain” and (3) that “affects
substantial rights.” United States v. Olano, 507 U.S. 725, 732 (1993). However,
“Rule 52(b) leaves the decision to correct the forfeited error within the sound
discretion of the court of appeals, and the court should not exercise that discretion
unless the error seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (citation and internal quotations omitted).
The Supreme Court in Apprendi held that “[o]ther than the fact of a prior
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conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490. Because Apprendi states a new rule of constitutional
criminal procedure, it must be applied retroactively to cases pending on direct
review. United States v. Heckard, 238 F.3d 1222, 1234 (10th Cir. 2001), citing
Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Apprendi applies to § 841(b).
Keeling, 235 F.3d at 538.
Mr. Castaneda-Ulloa argues that because drug quantity was not submitted
to the jury to determine beyond a reasonable doubt, he should have been
sentenced under § 841(b)(1)(C), with a maximum sentence of twenty years. He
contends that the district court’s failure to do so was plain error. We have already
decided this issue in Keeling. In Keeling, we held that “[a] jury instruction which
omitted quantity as an element in these circumstances is actual error that is now
plain and obvious.” 235 F.3d at 539. Although we declined to determine whether
such an error affected “substantial rights,” the third prong of the plain-error test,
in that case, we held that “[e]ven if the first three elements of the plain error test
are satisfied, where the evidence on a misdescribed or omitted element of the
offense is overwhelming, the fourth element, that the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings, is not.” Id. at 538(citation omitted). Therefore, even though Mr. Castaneda-Ulloa can demonstrate
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error that is plain concerning the failure to submit drug quantity to the jury, we
decline to notice the error for it fails to “seriously affect[] the fairness, integrity
or public reputation of judicial proceedings.” Olano, 507 U.S. at 732. Our
review of the entire record demonstrated that there was uncontroverted,
overwhelming testimony as to the amount of cocaine powder and cocaine base at
issue in this case.
B. Accomplice Testimony Jury Instruction
Mr. Castaneda-Ulloa argues that his conviction for Count 3 of the
indictment, facilitating interstate transportation in the aid of racketeering in July
1998, must be reversed as the only proof on that count was accomplice testimony,
and the district court failed to instruct the jury to weigh such testimony with great
caution. See Aplt. Br. at 25. The government concedes that accomplice
testimony is the only evidence supporting Appellant’s conviction on Count 3. See
Aplee. Br. at 20. Because Mr. Castaneda-Ulloa did not object to the jury
instructions at trial, V R. at 499, our review once again is for plain error. United
States v. Fabiano, 169 F.3d 1299, 1302 (10th Cir.), cert. denied, 528 U.S. 852(1999); see also Olano, 507 U.S. at 732.
Appellant contends that “[a] conviction on uncorroborated accomplice
testimony is valid only if the jury is instructed that such testimony must be
carefully scrutinized, weighted [sic] with great care, and received with great
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caution.” Aplt. Br. at 25 (citing United States v. Chatman, 994 F.2d 1510, 1514-
15 (10th Cir. 1993)). We have held that when uncorroborated accomplice
testimony is the only evidence supporting conviction that failure “to properly
apprise the jury of the potentially unreliable nature of the accomplices’ testimony
by means of a special cautionary instruction” is plain and reversible error. United
States v. Hill, 627 F.2d 1052, 1055 (10th Cir. 1980) (internal quotations omitted);
see also United States v. Owens, 460 F.2d 268, 269 (10th Cir. 1972) (holding that
failure to instruct the jury that accomplice testimony must “be carefully
scrutinized, weighed with great care, and received with caution” was plain and
reversible error).
We note, however, that “[a] defendant is not entitled to any specific
wording of instructions.” United States v. McGuire, 27 F.3d 457, 462 (10th Cir.
1994) (internal quotations and citation omitted). “Rather, the concern is whether
his rights were recognized in the court’s rulings and in the court’s instructions.”
Hill, 627 F.2d at 1054 (quoting United States v. Hall, 536 F.2d 313, 328 (10th
Cir. 1976)). On plain error review, we analyze jury instructions “as a whole to
determine whether the jury may have been misled, upholding the judgment in the
absence of substantial doubt that the jury was fairly guided.” Fabiano, 169 F.3d
at 1303 (internal quotations and citation omitted).
In this case, the district court failed to give a “special cautionary
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instruction” regarding accomplice testimony. Although the government argues
that the “Accomplice-Plea Agreement” jury instruction given by the district court
was sufficient, see Aplee. Br. at 22, we disagree. The Accomplice-Plea
Agreement jury instruction used by the district court, in relevant part, states that
“[a] plea bargain is one factor you should take into account in evaluating the
testimony of a witness if a part of the bargain or a consequence of it is leniency in
exchange for cooperation in other cases.” I R. Doc. 38, at 12. Unlike some
pattern instructions, it does not advise that the testimony is to be received with
caution and weighed with great care. Although a defendant is not entitled to any
particular language in an instruction, the court’s instruction does not sufficiently
convey the requirement that accomplice testimony must be “carefully scrutinized,
weighed with great care, and received with caution.” The failure of the district
court to give a separate cautionary instruction regarding accomplice testimony
was plain error that affected substantial rights.
We do not notice this error, however, as we do not think that the “fairness,
integrity or public reputation of judicial proceedings” was “seriously affect[ed].”
Olano, 507 U.S. at 732. Reviewing the instructions as a whole, we believe that
the defendant’s rights “were recognized . . . in the court’s instructions.” Hill, 627
F.2d at 1054. This is not a case where only one stock instruction on witness
credibility was given. Cf. United States v. Gardner, 244 F.3d 784, 789-90 (10th
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Cir. 2001) (reversing defendant’s conviction after reviewing the district court’s
failure to give the jury a separate cautionary accomplice instruction de novo). In
addition to a general credibility instruction, the court also gave the accomplice-
plea agreement instruction discussed supra, a drug user instruction, and a prior
felon instruction. See I R. Doc. 38, at 6, 9, 11. Both accomplices that testified
against Petitioner in regards to Count 3 of the indictment were drug addicts or
users and prior felons. We assume that the jury applies the law as given in the
jury instructions to the facts of the case, and the jury instructions as a whole
adequately warned the jury why the accomplices’ testimony could be particularly
unreliable–drug use, former convictions, and the hope of gaining leniency under a
plea agreement. In particular, the drug addict instruction specifically instructed
the jury to consider testimony from a drug user with “great scrutiny.” Id. at 9.
See also United States v. Smith, 692 F.2d 658, 661 (10th Cir. 1982) (holding that
district court’s failure to give an addict instruction was not reversible error
because “[t]he instructions to the jury on accomplice, immune informant, and
felon testimony, along with the general credibility instruction, were sufficient to
alert the jury to consider with special care and weigh with caution the testimony
of [the witness]”). Though it does not figure large in our analysis, Mr.
Casteneda-Ulloa’s counsel also reminded the jury of the importance of judging
the credibility of the government’s witnesses. V R. at 511 (“All the non-law
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enforcement people that have testified in this case, who are admitted conspirators
and admitted violators of the law, have been rewarded for coming to court to
testify. And some of them might possibly receive some additional rewards in the
future . . . .”). We uphold Mr. Castaneda-Ulloa’s conviction on Count 3 of the
indictment.
C. Evidentiary Issues
Finally, Mr. Castaneda-Ulloa raises four alleged evidentiary errors,
claiming that the errors independently and cumulatively constitute plain error
requiring reversal. Petitioner alleges that his conviction should be reversed
because: (1) the prosecutor had its case agent vouch for one of its key witnesses;
(2) the case agent provided hearsay testimony that Mr. Castaneda-Ulloa’s
girlfriend received drug proceeds at the direction of the defendant; (3) the case
agent indicated that Mr. Castaneda-Ulloa was involved in drug dealing beyond
that alleged in the indictment; and (4) the prosecution introduced evidence of
other uncharged drug offenses. Because Mr. Castaneda-Ulloa made no objections
at trial to the admission of any of the above evidence, we review the district
court’s evidentiary decisions for plain error. See, e.g., United States v. Molina,
75 F.3d 600, 602 (10th Cir. 1996). We emphasize once again that “[p]lain errors
are those which are obvious and substantial, and which when viewed in light of
the entire record seriously affect the fairness, integrity, or public reputation of
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judicial proceedings.” United States v. Becker, 230 F.3d 1224, 1231 (10th Cir.
2000) (internal quotations and citation omitted), cert. denied, 121 S. Ct. 1666(2001). After having reviewed the entire record, we hold that Mr. Castaneda-
Ulloa has failed to show that the admission of any of the above evidence, either
independently or cumulatively, was “error,” much less “plain error.”
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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