United States v. Barraza , 365 F. App'x 526 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4345
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUBEN ORTIZ BARRAZA, a/k/a Ruben Barraza-Ortiz,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00079-FDW-DCK-6)
Submitted: January 28, 2010 Decided: February 19, 2010
Before MICHAEL, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Edward R. Ryan, Acting United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ruben Ortiz Barraza was convicted by a jury of
conspiracy to possess with intent to distribute at least 100
kilograms of marijuana, 21 U.S.C.A. §§ 846, 841(b)(1)(B) (West
1999 & Supp. 2009) (Count One), and possession with intent to
distribute of at least 100 kilograms of marijuana, 21 U.S.C.A.
§ 841(a), (b)(1(B), 18 U.S.C. § 18 (2006). In this appeal,
Barraza challenges his conviction and sentence, and the district
court’s denial of his motion for a new trial under Fed. R. Crim.
P. 33 based on newly discovered evidence. We affirm.
The government’s trial evidence showed that in January
2007 a tractor-trailer truck was stopped in Mississippi because
it lacked a visible Department of Transportation number.
Inspection revealed that it contained rotting fruit and $1.2
million in cash in several suitcases. The driver, Benito
Delagarza, cooperated and made two recorded telephone calls to
his boss, Ruben Barraza, who was listed on documents in the
truck’s cab as the owner of the trucking company. Barraza
agreed to send money so that Delagarza could return to Texas and
said he did not know “how much” was in the truck, but that
Delagarza should get a receipt for it. Delagarza later recorded
two conversations with co-defendant Ruben Garcia in Texas,
during which they discussed preparations for two more trips
using a blue truck and transporting 2000 “pesos” to Charlotte,
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North Carolina. One of the Drug Enforcement Administration
(DEA) agents who conducted the investigation in Texas testified
that the defendants used the term “pesos” to mean “pounds.”
On March 19, 2007, Delagarza recorded both audio and
video tapes of a truck being loaded at a warehouse leased by
Barraza. The lights in the warehouse were dimmed while packages
were placed in the truck, then the lights were turned back on
and a forklift was used to fill the truck with pallets of
produce. Co-defendants Ruben Barraza, Garcia, Edgar Barraza,
and Juan Garza were present. Barraza operated the forklift.
After Delagarza drove the truck away from the
warehouse, federal agents kept the truck under surveillance and
unloaded produce and more than 2000 pounds of marijuana from it
some distance away. The marijuana was flown separately to North
Carolina, while Delagarza drove the truck to Charlotte. When
Delagarza reached Charlotte, the agents reloaded the marijuana
onto the truck. Delagarza called Barraza on March 22, 2007, and
was told to go to a warehouse leased by co-defendant Patrick
Schwenke. After the marijuana was unloaded by Schwenke, Juan
Sanchez-Solorzano, and others, they were arrested, as was co-
defendant Sharu Bey, who arrived to buy marijuana. Unaware of
the arrests, Garcia and Garza sent a moneygram to Delagarza the
same day.
3
In April and in late May 2007, Delagarza drove loads
of marijuana to Indianapolis, Indiana, and to Durham, North
Carolina, as directed by Barraza and Garcia. Ruben Barraza and
Garcia were arrested in June 2007. Edgar Barraza became a
fugitive. Barraza, Garcia, and Bey went to trial and were
convicted on all counts. Garza, Schwenke, Sanchez-Solorzano,
and two other co-defendants entered guilty pleas; however, only
Sanchez-Solorzano testified at the trial. Delagarza was
expected to testify, but disappeared shortly before the trial
began.
Before trial, the government moved to admit tape
recordings of the monitored conversations between Delagarza and
defendants Barraza and Garcia. The district court granted the
motion, finding that the defendants’ inability to cross-examine
Delagarza did not violate the Confrontation Clause because the
recorded conversations were among co-conspirators. The court
also held that Delagarza’s statements were not hearsay because
they were not offered for “the truth of the matter asserted,”
Fed. R. Evid. 801, but to provide a context for the defendants’
statements. The government requested a limiting instruction, to
which the court agreed.
During the trial, Barraza and Garcia expressed
frustration at Delagarza’s absence. Garcia’s attorney asked the
federal agent in charge of the Charlotte investigation if he
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knew where Delagarza was, although Barraza’s attorney did not
agree that the question should be asked. At the close of the
government’s evidence, Garcia’s attorney informed the court that
he intended to request a missing witness instruction; however,
he later decided not to do so. Garcia did point out in his
closing argument that neither Delagarza nor Schwenke had
testified.
At Barraza’s sentencing hearing, while objecting to
the drug quantity attributed to him, his attorney brought to the
court’s attention a page from Garza’s presentence report which
stated that Garza initially lied about the extent of his
involvement in the conspiracy. The district court determined
that the information was not relevant to sentencing, but could
have been used to impeach Garza’s credibility had he testified
at trial. The district court found that Barraza was responsible
for more than 4000 kilograms of marijuana, and was a leader in
the conspiracy. The court imposed a within-guideline sentence
of 290 months imprisonment.
Shortly after judgment was entered, Barraza filed a
motion for new trial, claiming that the information in Garza’s
presentence report was newly discovered evidence which
contradicted the testimony of DEA Agent Patina that Barraza was
connected to the Charlotte drug traffickers. Barraza alleged
that his Sixth Amendment Confrontation Clause right was violated
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because Garza did not testify at trial and Patina and other
federal agents were permitted to testify about information they
obtained from “absentee witnesses.” Barraza also claimed that a
chart of telephone calls and contacts based on information
obtained from the defendants’ seized phones and introduced into
evidence through Agent Patina showed a connection between
Barraza and the Charlotte defendants that was dependent on
information from Garza. Barraza argued that a new trial was
necessary where both Garza and Patina would testify.
The government responded that the page from Garza’s
presentence report was not newly discovered evidence, and
produced copies of two pretrial emails from the prosecutor to
Barraza’s attorney describing Garza’s initial claim that he was
involved only with the Charlotte shipment and his subsequent
admission that he was involved with the shipments to
Indianapolis and Durham with both Barraza and Garcia, but would
not testify about those shipments. The district court denied
the motion for new trial, finding that the allegedly new
evidence was not newly discovered and that testimony by Garza at
a new trial would be impeaching at best and probably damaging to
Barraza.
On appeal, Barraza first contends that the
Confrontation Clause, which protects a criminal defendant’s
right “to be confronted with the witnesses against him,” see
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U.S. Const. amend. VI, was violated in several respects.
Barraza argues that the district court’s “missing witness”
instruction should have been limited to co-defendant Garcia.
“It is well settled that the rule regarding missing witness
instructions is that if a party has it peculiarly within his [or
her] power to produce witnesses whose testimony would elucidate
the transaction, the fact that he [or she] does not do it
creates the presumption that the testimony, if produced, would
be unfavorable.” United States v. Brooks, 928 F.2d 1403, 1412
(4th Cir. 1991) (internal quotation marks omitted). Barraza’s
argument is without merit because the district court did not
give a missing witness instruction and Barraza’s attorney agreed
that one would not be warranted. In addition, Barraza has
produced no evidence that Delagarza was accessible only to the
government, or any other reason that he could not have
subpoenaed Delagarza to testify at trial.
Barraza’s real claim appears to be that he was
prejudiced by Garcia’s question to Agent Patina whether he knew
where Delagarza was, which allowed Patina to testify that
Delagarza had disappeared, and permitted the inference that
Delagarza was afraid to testify. In a sidebar conference during
Garcia’s cross examination of Patina, the district court
informed all defense counsel that Garcia was free to ask about
Delagarza, even if the other defendants disagreed with that
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trial strategy. The district court did not abuse its discretion
in permitting Garcia to inquire about Delagarza’s absence. 1
Barraza also apparently believes that the district
court should have given a limiting instruction excluding him
from Patina’s testimony that Juan Garza had pled guilty and
agreed to testify against Barraza. He contends that Patina
mistakenly said Garza agreed to testify against Barraza instead
of against Garcia, given that it was Garcia who had opened the
door to Patina’s testimony. However, Patina provided the
information on redirect examination after Barraza asked him
about two charts of telephone calls that he had prepared, only
one of which included Garza. Barraza himself thus opened the
door to admission of the information. We discern no error on
the part of the district court.
Barraza further contests the admission of his recorded
conversations with Delagarza on the ground that Delagarza was
not present for cross-examination. He acknowledges that his
objection at trial was that the voice on the tape was not him. 2
He now claims that a constitutional error occurred because he
believes that he may benefit from the Supreme Court’s decisions
1
The court struck Patina’s testimony that witnesses
sometimes fail to appear because they are fearful.
2
Barraza’s attorney maintained that the tape had only one
voice on it, not two as the government and translator believed.
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in Giles v. California, 128 S. Ct. 2678 (2008), and Melendez-
Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). Both Giles and
Melendez-Diaz deal with testimonial hearsay. Barraza’s reliance
on these cases is inapposite because Delagarza’s recorded
statements were not hearsay as they were not offered to prove
the truth of the matter asserted, but to provide a context for
Barraza’s statements.
Barraza also relies on Crawford v. Washington, 541
U.S. 36, 68 (2004) (holding that the Sixth Amendment requires
that a witness be unavailable and that the defendant have had a
prior opportunity for cross-examination before testimonial
hearsay evidence may be admitted). This claim is similarly
unavailing because Crawford applies only to testimonial hearsay
statements and Delagarza’s statements were neither hearsay nor
testimonial. Crawford recognized that statements made in
furtherance of a conspiracy are, by their nature, not
testimonial. Id. at 56. Therefore, tape-recorded statements
between a defendant and a confidential informant are admissible
because (1) the defendant’s own statements are neither hearsay
nor made in anticipation of a criminal prosecution, and (2) the
informant’s statements are not hearsay (and thus not covered by
Crawford) because they are offered at trial only to provide
context for the defendant’s statements and not for the truth of
the matter asserted. See United States v. Tolliver, 454 F.3d
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660, 665-66 (7th Cir. 2006). Consequently, in this case, the
tape-recorded conversations between Barraza and Delagarza were
correctly admitted despite Barraza’s inability to cross-examine
Delagarza.
Next, Barraza argues that the district court clearly
erred in finding him to be a leader in the conspiracy. U.S.
Sentencing Guidelines Manual § 3B1.1(a) (2008). The district
court’s determination that the defendant had a leadership role
in the offense is a factual finding reviewed for clear error.
United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).
A four-level increase is provided under § 3B1.1(a) for a
defendant who is an organizer or leader of an offense which
involved more than five participants or was otherwise extensive.
To qualify, the defendant must have been the organizer or leader
of “one or more other participants.” USSG § 3B1.1 cmt. n.2.
Factors to be considered include:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
USSG § 3B1.1 cmt. n.4.
Here, the evidence did not clearly establish the
relative positions of Barraza and Garcia within the conspiracy.
While Delagarza initially identified Barraza as his boss, he
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apparently received instructions from both Barraza and Garcia
relating to the actual delivery of marijuana on various trips he
made. However, Barraza ostensibly owned the trucking company
for which Delagarza was driving when he was initially stopped in
Mississippi with $1.2 million in his truck. Barraza leased the
warehouse in Texas where the 2000 pounds of marijuana was loaded
for shipment to Charlotte. Barraza operated the forklift to
load produce onto the truck, which his attorney argued showed
that he was a worker, not a leader. However, at sentencing,
having viewed the videotape of the loading, the district court
determined that Barraza appeared to be directing the others
present as well as operating the forklift. Barraza argues that
Garcia was the leader of the conspiracy, but does not offer
concrete evidence of that, nor does he refute any of the
information indicating that he had a more authoritative
position. On the evidence before the district court, we
conclude that the court did not clearly err in deciding that
Barraza had a leadership role in the conspiracy.
Finally, Barraza claims that the district court abused
its discretion in finding that he had not produced new evidence
warranting a new trial. A motion for new trial under Rule 33
may be filed up to three years after the verdict. Fed. R. Crim.
P. 33(b). The district court’s order granting or denying a
motion for new trial under Rule 33 is reviewed for abuse of
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discretion. United States v. Fulcher, 250 F.3d 244, 249 (4th
Cir. 2001). To receive a new trial based on newly discovered
evidence, a defendant must demonstrate: (1) the evidence is
newly discovered; (2) he has been diligent in uncovering it; (3)
it is not merely cumulative or impeaching; (4) it is material to
the issues involved; and (5) it would probably produce an
acquittal. Id.Barraza’s new trial motion was filed almost a year
after he was convicted. He claimed that information in Garza’s
presentence report that Garza did not cooperate with the
government constituted newly discovered evidence which
contradicted Agent Patina’s testimony that Garza did cooperate.
In response, the government produced evidence that, before
Barraza’s trial, it had informed his attorney about Garza’s pre-
trial debriefing, including his initial denial that he was
involved in the conspiracy apart from the Charlotte shipment,
his subsequent admission that he had participated further, and
his refusal to testify. The information in Garza’s presentence
report was thus not new to Barraza’s defense attorney. Because
Barraza failed to make a threshold showing of newly discovered
evidence, the district court did not abuse its discretion in
denying the motion for new trial.
We therefore affirm the judgment of the district
court. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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