United States v. Rosemberg Majano ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4227
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROSEMBERG MAJANO,
Defendant - Appellant.
No. 18-4236
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE ALEJANDRO ORELLANA MONTALVO,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:17-cr-00204-LO-1; 1:17-CR-00204-LO-
2)
Submitted: November 30, 2018 Decided: January 9, 2019
Before WYNN and THACKER, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Dwight E. Crawley, LAW OFFICE OF DWIGHT CRAWLEY, Washington, D.C.;
Gregory B. English, ENGLISH LAW FIRM, PLLC, Alexandria, Virginia, for
Appellants. G. Zachary Terwilliger, United States Attorney, Thomas W. Traxler,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Rosemberg Majano and Jose Alejandro Orellana Montalvo appeal their criminal
convictions for importation of heroin and cocaine, in violation of 21 U.S.C. §§ 952(a),
960(a) (2012); conspiracy to import heroin and cocaine, in violation of 21 U.S.C. § 963(2012); and conspiracy to possess with intent to distribute heroin and cocaine, in violation
of 21 U.S.C. §§ 846, 841(a)(1) (2012). On appeal, they claim that the district court
erroneously denied their motions for judgment of acquittal, arguing that the Government
did not present sufficient evidence to establish the element of knowledge. Furthermore,
Orellana claims that the district court erroneously excluded his testimony about his
relationship with one Kevin Lopez, arguing that it was admissible for the limited purpose
of showing his state of mind. We affirm.
“We review de novo a district court’s denial of a [Federal Rule of Criminal
Procedure] 29 motion.” United States v. Burfoot, 899 F.3d 326, 334 (4th Cir. 2018).
“We must sustain a guilty verdict if, viewing the evidence in the light most favorable to
the prosecution, the verdict is supported by substantial evidence.” Id. When considering
the sufficiency of a jury verdict, we must “allow the [G]overnment the benefit of all
reasonable inferences from the facts proven to those sought to be established,” United
States v. Savage, 885 F.3d 212, 219–20 (4th Cir. 2018), “and must assume the jury
resolved all contradictions in testimony in the [G]overnment’s favor,” Burfoot, 899 F.3d
at 334.
Appellants assert that the Government did not sufficiently establish their mens rea
of knowledge as required by the four offenses of which they were convicted, arguing that
the Government did not present “any direct evidence” of their knowing participation in
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the offenses, instead relying on “suspicion and conjecture.” (Appellants’ Br. at 11, 17
(emphasis added)). But “circumstantial evidence may be sufficient to support a guilty
verdict even though it does not exclude every reasonable hypothesis consistent with
innocence.” United States v. Zayyad, 741 F.3d 452, 464 (4th Cir. 2014).
Appellants merely restate their theory of the case without addressing the full range
of substantial evidence that supported their guilty verdicts. With regard to Majano, for
example, the Government introduced evidence showing his nervous reaction to the
investigation, his false exculpatory statements, his implausible explanation for his
actions, and the significant value of the drugs with which he was entrusted. Similarly, the
Government introduced evidence showing Orellana’s evasive behavior and
countersurveillance activities, his possession of drug paraphernalia, his attempts to
destroy incriminating evidence, and his implausible testimony at trial. Even if this
circumstantial evidence does “not exclude every reasonable hypothesis consistent with
innocence,” Zayyad, 741 F.3d at 464, it supports a reasonable inference of Appellants’
knowledge that we construe in favor of the Government, see Burfoot, 899 F.3d at 334.
“The jury had every right to disregard ‘direct’ evidence supporting [Appellants’] theory
in favor of the Government’s equally weighty circumstantial facts supporting [their]
guilt.” Zayyad, 741 F.3d at 464. Accordingly, the district court correctly denied
Appellants’ motions for judgment of acquittal on all counts.
Next, Orellana challenges the district court’s exclusion of a portion of his
testimony as hearsay. Because he raises a new theory of admissibility on appeal, we
review the district court’s determination for plain error. Id. at 458–59. To establish plain
error, Orellana must demonstrate “(1) that the district court erred, (2) that the error was
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plain, and (3) that the error affected his substantial rights,” as well as that the error
“seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”
United States v. Cohen, 888 F.3d 667, 685 (4th Cir. 2018); see also Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1909 n.4 (2018).
Out-of-court statements offered to prove the truth of the matter asserted are
generally inadmissible hearsay. Fed. R. Evid. 801(c), 802. When a party offers an
out-of-court statement only to prove its effect on the listener rather than the truth of the
matter asserted, it does not constitute hearsay. United States v. Reed, 908 F.3d 102, 120
(5th Cir. 2018); see also United States v. Safari, 849 F.2d 891, 894 (4th Cir. 1988); Fed.
R. Evid. 801(c)(2). But regardless of whether Orellana’s full testimony would have been
admissible on this theory at trial, its exclusion is not plain error on appeal. The district
court did in fact permit Orellana to offer significant testimony regarding his
communications with Lopez, for the limited purpose of showing his state of mind during
the conduct in question. The jury considered and rejected that account, and the district
court noted that it was contradicted by the evidence. Thus, the district court did not
plainly err in sustaining the Government’s objection to these narrow portions of
Orellana’s testimony. See Cohen, 888 F.3d at 685.
Accordingly, we affirm the criminal judgments. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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