United States v. Ruiz ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JUL 14 2000
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-2222
v. (D.C. No. CR-96-695-1-LH)
(New Mexico)
RAMONA RUIZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The 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.
Ramona Ruiz was convicted of conspiracy to possess with intent to
distribute, importation of, and possession with intent to distribute 100 kilograms
and more of marijuana. She was sentenced to sixty-three months incarceration.
Appellate counsel for Ms. Ruiz filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and has moved for leave to withdraw as counsel. We grant leave
to withdraw and dismiss the appeal.
Anders holds that if counsel finds a case to be wholly frivolous after
conscientious examination, he may so advise the court and request permission to
withdraw. Counsel must also submit to both the court and his client a brief
referring to anything in the record arguably supportive of the appeal. The client
may then raise any points she chooses, and the court thereafter undertakes a
complete examination of all proceedings and decides whether the appeal is in fact
frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss
the appeal. See id. at 744.
Ms. Ruiz was convicted after a jury trial at which the government presented
evidence that she had been stopped at a border checkpoint between Mexico and
New Mexico driving a pickup truck with a camper shell in which a large amount
of marijuana was concealed in a hidden compartment. Upon questioning at the
checkpoint, Ms. Ruiz said she had driven to Mexico from her home in Deming,
New Mexico, on a short shopping trip and that when her car had broken down in
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Palomas, Mexico, a man had offered her money to drive a truck containing fifteen
pounds of marijuana back across the border. She stated that she needed to return
home to her children and that she needed the money, so she accepted the offer.
The government, however, also presented evidence from a co-defendant who
testified that he had been approached by Ms. Ruiz and her mother in Deming, and
that they had offered to pay him to drive a truck across the border from Palomas.
He testified that he drove Ms. Ruiz and her mother to Palomas, where he and Ms.
Ruiz each selected one of two trucks with camper shells to drive across the
border. The co-defendant was stopped at the border an hour after Ms. Ruiz
attempted to cross. Marijuana was discovered in a hidden compartment of the
truck he was driving, similar to the compartment in the truck Ms. Ruiz was
driving.
On the morning of the day trial was to begin, trial counsel for Ms. Ruiz
moved for a continuance on the grounds that it was necessary to obtain three
witnesses from Mexico whose testimony would support his client’s version of the
facts and refute the co-defendant’s proposed testimony. Counsel represented to
the court that testimony from a pharmacist who had waited on Ms. Ruiz, a
waitress at the restaurant where she had eaten lunch, and an old friend with whom
she had eaten, would support her testimony that she had gone to Palomas by
herself to shop. Counsel also informed the court that the friend had apparently
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left Palomas for the interior of Mexico to get treatment for her sick child. The
court expressed doubt as to the probative value of these witnesses and requested
assurances that the witnesses would appear to testify. The government expressed
concern as to whether the friend would travel from Mexico, observed that there
were other ways to show Ms. Ruiz had purchased items from the pharmacy, and
noted that the government’s witnesses were there and ready to proceed. The court
denied the continuance, stating that the proposed testimony did not appear to
present a real defense and expressing doubt about the likelihood that the friend
would ever be located or present herself for testimony.
In his Anders brief, counsel raises two possible points, the trial court’s
failure to grant a continuance and the court’s admission of testimony from the co-
defendant that he had previously driven loads of marijuana across the border from
Mexico for one of Ms. Ruiz’ sisters. Pursuant to Anders, Ms. Ruiz was provided
a copy of counsel’s Anders brief and notified of her right to file a pro se brief.
She has chosen not to respond. Anders holds that if we find the appeal frivolous,
we should grant counsel’s request to withdraw and proceed to a decision on the
merits.
We will reverse a denial of a motion for continuance only if the decision
was “arbitrary or unreasonable and materially prejudiced the defendant.” United
States v. McKneely, 69 F.3d 1067, 1076-77 (10th Cir. 1995). Factors relevant to
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this determination include:
[1] the diligence of the party requesting the continuance; [2] the
likelihood that the continuance, if granted, would accomplish the
purpose underlying the party’s expressed need for the continuance;
[3] the inconvenience to the opposing party, its witnesses, and the
court resulting from the continuance; [4] the need asserted for the
continuance and the harm that appellant might suffer as a result of
the district court’s denial of the continuance.
United States v. Wynne, 993 F.2d 760, 767 (10th Cir. 1993) (citations omitted). If
a continuance is sought because a witness is unavailable, the movant must show
that the witness would appear and be willing to testify, and would provide
substantial favorable evidence. United States v. Rodriguez, 15 F.3d 408, 411 (5th
Cir. 1994).
No such showing has been made here. Trial counsel was not diligent in
obtaining the witnesses or in seeking a continuance, and did not provide adequate
assurances that the witnesses could be located and would be willing to come to
court and testify. The inconvenience to the court and the government is manifest.
Moreover, upon review of the record and the substance of the proffered
testimony, we conclude that lack of these witnesses did not materially prejudice
the defense. Accordingly the trial court did not abuse its discretion in denying the
motion for continuance.
The admission of evidence over an objection that its probative value is
outweighed by its prejudice is also reviewed for an abuse of discretion. United
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States v. Wacker, 72 F.3d 1453, 1469 (10th Cir. 1995). The evidence at issue, the
co-defendant’s testimony that Ms. Ruiz knew he had previously driven marijuana
across the border for her sister, was offered by the government to explain why he
was approached by Ms. Ruiz to drive the load. Defense counsel had opened the
door to this testimony by asking the co-defendant whether he had driven loads
before. The evidence was probative of Ms. Ruiz’ involvement in the illegal
activity and nothing in the record shows that Ms. Ruiz was unduly prejudiced by
its admission. The trial court did not abuse its discretion in admitting this
testimony.
We GRANT counsel’s request to withdraw and we DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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