United States v. Garcia ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4844
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUNE RACHEL GARCIA,
Defendant - Appellant.
No. 06-4845
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRAVIS HOWARD VIAR,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (6:05-cr-00006-NKM)
Argued: January 30, 2008 Decided: March 26, 2008
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Deborah S. Caldwell-Bono, Roanoke, Virginia; Marc Seguinot,
SEGUINOT & ASSOCIATES, P.C., McLean, Virginia, for Appellants.
Jean Barrett Hudson, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee. ON BRIEF: John L. Brownlee, United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted June Garcia (Garcia) and Travis Viar
(Viar) of conspiracy to distribute more than 500 grams of
methamphetamine (meth). Both appeal their convictions, and, in
addition, Viar appeals his sentence. Garcia contends that her due
process rights were violated by (1) the FBI’s failure to record her
post-arrest interview that, she alleges, contained exculpatory
evidence and (2) the government’s failure to disclose impeachment
material involving one of its witnesses. Because Garcia failed to
present evidence of bad faith on the part of the FBI or its agents
with respect to the agency’s general policy of not recording
interviews, and because the impeachment evidence became available
in time for effective use at trial, we affirm her conviction. Viar
contends that (1) the evidence was insufficient to convict him, (2)
the district court erred in admitting two in-court identifications
of him by government witnesses, and (3) the district court erred in
sentencing by applying a two-level enhancement after finding that
he had committed perjury at trial. Because we conclude that
substantial evidence supported the jury’s guilty verdict against
Viar, and there was no reversible error in the district court’s
admission of his in-court identifications, we affirm Viar’s
conviction. We also affirm Viar’s sentence because the court did
not err in applying the enhancement for perjury.
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I.
In the fall of 2004 the FBI and the Central Virginia Drug
Task Force determined that Ciro “Cito” Garcia (Cito) served as the
common link in a loosely woven meth distribution operation in
central Virginia. Jerry Harper contacted the task force and
offered to serve as a confidential informant with respect to Cito’s
activities, purportedly because Cito had refused Harper’s request
that Cito stop supplying Harper’s parents with meth. As Harper
organized a series of controlled buys from Cito, investigators
developed evidence that Cito and Viar were drug dealers, that
Garcia (Cito’s wife) drove Cito to drug deals and was present
during several, that Mark Guill facilitated drug deals for Cito and
Viar, and that Randy Ellington, Michael Cerillo, George Barbour,
Paul Jano, and Charles Ragland (Jerry Harper’s father) were some of
Cito’s customers.
On June 2, 2005, a federal grand jury returned a
superceding indictment charging offenses relating to this drug
trafficking operation. Count 1 charged Cito, Garcia, Viar,
Barbour, Ellington, Cerillo, Anthony Jamerson, and Guill with
conspiring to distribute more than 500 grams of meth. Count 2
charged Viar with knowingly using and carrying a firearm during and
in relation to, and possessing a firearm in furtherance of, the
crime described in count 1. Count 6 charged Cito and Garcia with
distribution of at least 50 grams of meth on a particular date.
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Garcia and Viar proceeded to trial, and other charged conspirators
entered plea agreements.
Trial began on March 20, 2006. The government offered
the following evidence against Viar. Scott Gillespie, James Cash,
Jano, and Cerillo all testified that they repeatedly bought meth
from Viar. Jano, Cash, Cerillo, Guill, and Ellington testified as
follows with further particulars about Viar’s drug trafficking.
Jano saw Viar sell meth to other customers, and Jano met Viar’s
supplier, a man known as Cito. According to Cash, Viar identified
Cito as his supplier. Cerillo saw Cito at Viar’s house on two
occasions and understood Cito to be Viar’s supplier. Guill saw
Viar sell meth, and he introduced potential drug customers to Viar
and Cito. Ellington bought meth from Cito, but he did not know
Viar. Viar testified in his defense and denied that he had ever
bought drugs from Cito and denied that he had ever engaged in a
drug transaction with any of the witnesses who testified against
him.
The government offered the following evidence against
Garcia through the testimony of Guill, Ragland, Harper, and Jano.
On two occasions Garcia sold meth that she had stolen from Cito to
Guill or his girlfriend, purportedly to fund a buying trip to Wal-
Mart. Ragland was present on multiple occasions when Garcia
participated in conversations about Cito’s drug business. Once,
when Cito was in jail for a DUI, Garcia, under instructions from
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Cito, called Ragland and gave him seven or eight ounces of meth
“[t]o get rid of.” J.A. 224. Garcia instructed Harper to use code
phrases when he called about a drug purchase. On some occasions
when Jano bought meth from Cito, the transactions took place in
Cito’s truck in front of Garcia, who had accompanied Cito.
Three government witnesses gave testimony that minimized
Garcia’s involvement in Cito’s drug trafficking. Cerillo testified
that Garcia was also present the two times he saw Cito at Viar’s
home; on these occasions Viar sold drugs, but Garcia did not
witness the sales. Ellington disputed Guill’s account that Garcia
was present when Ellington purchased meth from Cito. According to
Harper, during one of the controlled buys from Cito, Cito conducted
the transaction in the bathroom of Harper’s apartment, outside of
Garcia’s presence; Harper also testified that Cito refused to
discuss future sales within earshot of Garcia. In testifying in
her own behalf, Garcia said that her relationship with her husband
Cito had often been troubled; that she objected to his drug use;
that she believed she had told investigators that he was a user and
not a dealer; and that she was not present for any of the drug
deals described by the government’s witnesses. One defense witness
testified that Guill was dishonest, and another testified that Jano
was known to be a liar.
On the last day of the trial, March 22, 2006, the
district court granted Garcia’s motion to dismiss count 6 (the meth
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distribution charge). That same day the jury convicted Viar and
Garcia on count 1 (the drug conspiracy charge) and found Viar not
guilty on count 2 (the firearm charge).
Four months later, on July 28, 2006, Garcia moved to
vacate her conviction, arguing that she was denied a fair trial (1)
because the FBI did not tape her interview after she was arrested
and (2) because the government had violated its discovery
obligations in failing to provide impeachment material in its
possession concerning its witness, Harper. Harper had been
convicted, based on his guilty plea, in Amherst County, Virginia,
of possessing marijuana with intent to distribute and theft of
government property worth $200 or more. At Harper’s plea
proceeding in state court the following information was revealed:
Harper, while working as an informant with state law enforcement
officers, had lied to the officers about a (potential) controlled
purchase of marijuana and had stolen the purchase money that had
been advanced by the officers.
Garcia’s counsel discovered the details of Harper’s state
crime on Tuesday, March 21, 2006, a day in the middle of the
Garcia-Viar trial when court was cancelled because of bad weather.
Garcia’s counsel made the discovery when she went to the Amherst
County courthouse and listened to a recording of Harper’s plea
proceeding. Harper testified for the government the next day,
March 22, 2006, in the Garcia-Viar trial. The government admitted
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its failure to disclose, but argued that because defense counsel
had listened to the recording of the plea proceeding before Harper
testified, the information was available to impeach Harper. In
denying the motion to vacate Garcia’s conviction, the district
court ruled that her case had not been prejudiced by the late
discovery. The court noted that although defense counsel had the
information prior to Harper’s testimony, counsel had elected not to
use the information in cross-examination and did not ask for a
continuance to assess the information.
The presentence reports for Garcia and Viar recommended
adding a two-level enhancement to each defendant’s offense level
for obstruction of justice, based upon the perjurious testimony
given by each at trial. See U.S.S.G. § 3C1.1. The district court
found that both Garcia and Viar committed perjury and applied the
enhancement for both. The court sentenced Garcia to 120 months in
prison and five years of supervised release, and Viar to 262 months
in prison and five years of supervised release. Both appeal.
Garcia challenges her conviction on the grounds that her due
process rights were violated by (1) the FBI’s failure to tape her
post-arrest interview, and (2) the government’s failure to disclose
impeachment evidence about Harper. Garcia does not appeal her
sentence. Viar challenges his conviction on the grounds that (1)
the evidence was insufficient to support his conviction on the drug
conspiracy charge, and (2) the district court erred in admitting
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his in-court identification by government witnesses Gillespie and
Jano. Viar also appeals his sentence, contending that the district
court erred in applying the perjury enhancement.
II.
A.
Garcia contends that the FBI’s decision not to tape her
post-arrest interview constituted a bad faith destruction of
exculpatory evidence, the value of which was apparent before the
destruction. She argues that without an audio recording preserving
“the questions posed, the answers given, the tones of voice[] used,
[and her] demeanor,” she was denied due process and a meaningful
opportunity to present a complete defense. Appellants’ Br. at 26.
According to the two FBI agents who interviewed Garcia, it is FBI
policy not to record interviews.
The decision not to record an interview amounts to the
failure to preserve evidence that might have been useful, rather
than the destruction of evidence. “[U]nless a criminal defendant
can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due
process” or the opportunity to present a complete defense. Arizona
v. Youngblood, 488 U.S. 51, 58 (1988). Garcia presented no
evidence of bad faith on the part of the FBI in adopting the non-
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recording policy or on the part of its two agents in following it.
This claim is without merit.
B.
Garcia also argues that although her counsel discovered,
the day before Harper’s testimony, his plea recording with the
information about his theft of government “buy” money and his lies
to investigators, there was insufficient time to make effective use
of the information at trial. According to Garcia, the government’s
failure to disclose this critical impeachment evidence violated her
due process rights. The government admits its error, but argues
that because Garcia’s counsel had the information before Harper
testified, the failure to disclose does not undermine confidence in
the outcome of the trial.
The suppression by the prosecution of evidence material
to the credibility of a prosecution witness violates due process.
See Brady v. Maryland, 373 U.S. 83, 87 (1963). To establish a
Brady violation, a defendant must show that the undisclosed
information was material and favorable to the defense. Moore v.
Illinois, 408 U.S. 786, 794-95 (1972). Evidence is material if
there is a reasonable probability that its disclosure would have
produced a different result, that is, “a probability sufficient to
undermine confidence in the outcome” of the trial. United States
v. Bagley, 473 U.S. 667, 682 (1985) (quotation and citation
omitted). We have held that there is no constitutional violation
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in the government’s failure to disclose impeachment evidence when
defense counsel is aware of the evidence in time to make effective
use of it at trial. United States v. Smith Grading & Paving, Inc.,
760 F.2d 527, 532 & n.6 (4th Cir. 1985).
As Garcia points out, the government presented Harper as
a concerned son who became a confidential informant because of the
harm that Cito was causing to his parents by supplying them with
meth. Garcia argues that had the impeachment material been
disclosed at the appropriate time, her counsel could have painted
Harper as a thoroughly deceitful person who had every motivation to
lie because his unindicted father (Ragland), a major mover of meth,
owed a substantial debt to Cito, his supplier. Harper, in other
words, was trying to head off federal prosecution of his father and
was trying to bring about Cito’s conviction, which would
effectively prevent Cito from attempting to collect the substantial
drug debt owed to him by Harper’s father. Harper, however, was
not the only witness who testified that Garcia was actively engaged
in the drug trade: Jano testified that Garcia accompanied Cito to
drug sales and was present during sales; Guill testified that
Garcia sold him meth that she stole from Cito; and Ragland
(Harper’s father) testified that Garcia been involved in many
conversations about Cito’s drug business and had asked Ragland to
dispose of a quantity of meth when Cito was in jail. Further,
Ragland’s own testimony revealed his addiction and debt, and the
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defense knew that he had not been charged with participation in the
conspiracy. Thus, an argument about a father-son plot to evade
federal prosecution and a drug debt was readily available to the
defense without the information revealed at Harper’s plea
proceeding.
Ironically, Harper’s testimony was favorable to Garcia in
some respects. Harper testified that Cito took him to a different
room, away from Garcia, to conduct a drug sale and that Cito
refused to discuss future sales within earshot of Garcia. This
testimony supported Garcia’s contention that she was not involved
in Cito’s drug business.
Furthermore, Garcia’s counsel uncovered the details of
Harper’s plea proceedings the day before Harper testified. The
plea proceedings were neither protracted nor complicated and could
have been used to impeach Harper when he testified. If one evening
provided insufficient time for Garcia’s counsel to determine how
best to use the information, she could have moved for a
continuance. No such motion was made. In these circumstances, it
appears that the information was available in time for it to be
used effectively.
In sum, Garcia has failed to demonstrate a reasonable
probability that the outcome of her trial would have been different
if the government had made timely disclosure of Harper’s plea
proceedings. Garcia’s counsel uncovered the information just in
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time to save the government from what would have been a material
failure to disclose impeachment material.
III.
A.
Viar contends that the evidence was insufficient for the
jury to convict him of conspiracy to possess meth with intent to
distribute as charged in count 1. The jury’s guilty verdict “must
be sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942). To prove the conspiracy charge
against Viar, the government was required to establish that (1) an
agreement existed between two or more persons to possess meth with
intent to distribute, (2) Viar knew of the conspiracy, and (3) he
knowingly and voluntarily became a part of the conspiracy. United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc).
Viar contends that the only evidence of his involvement
with the charged conspiracy “rested largely” upon the testimony of
cooperating government witnesses, some of whom were co-conspirators
and all of whom either benefitted or hoped to benefit by
cooperating. The jury was made aware that these witnesses had
committed drug offenses themselves and that they stood to gain by
cooperating with the government. The bearing of these factors on
the credibility of the witnesses was for the jury to determine,
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Burgos, 94 F.3d at 862, and the jury found them to be sufficiently
credible to return a guilty verdict against Viar on the conspiracy
count. As a result, there was substantial evidence that Viar was
a distributor of meth and that Cito was his supplier; that Viar
sold substantial quantities of meth to certain customers; and that
these customers, in turn, sold the meth to others. The evidence
thus established that Viar knowingly participated in a conspiracy
to possess meth with the intent to distribute.
B.
Viar also contends that the district court erred in
admitting the in-court identifications of him by Gillespie and
Jano. According to Viar, the prosecutor impermissibly coached
these two witnesses in their efforts to locate Viar in the
courtroom. Because Viar failed to make a contemporaneous objection
to the admission of this identification testimony, our review is
for plain error. We may correct an error not brought to the
attention of the trial court if (1) there is an error (2) that is
plain and (3) that affects substantial rights. “If all three [of
these] conditions are met, [we] may then exercise [our] discretion
to notice a forfeited error, but only if (4) the error seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Johnson v. United States, 520 U.S. 461, 467 (1997)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)
(quotations omitted; last alteration in original)).
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When Gillespie and Jano were testifying, the prosecutor
asked each of them to identify Viar. Viar claims that in response
both witnesses pointed at someone other than Viar. The prosecutor
then asked each witness if he was pointing at the person (Viar)
sitting next to Mr. Howard (Viar’s lawyer), and each responded in
the affirmative. To begin with, the jury would have observed
whether Gillespie and Jano had any difficulty in identifying Viar
at trial. Thus, the circumstances of the identification were
available to the jury for its consideration in assessing the
credibility of these two witnesses and in weighing the evidence.
Even if we assume plain error (that is, the identifications
resulted from impermissible suggestions by the prosecutor), the
error did not affect Viar’s substantial rights. At least four
other government witnesses identified Viar, and Viar does not
challenge their in-court identification of him. As a result, there
is no ground for us to correct any error in the in-court
identification of Viar by Gillespie and Jano.
C.
Finally, Viar contends that the district court erred
when it enhanced his sentence for obstruction of justice,
specifically for perjury in his trial testimony. According to
Viar, the court applied the enhancement without finding each
element of perjury. Section 3C1.1 of the sentencing guidelines
provides for a two-step increase in offense level “[i]f . . . the
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defendant willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense.”
Perjury counts as obstruction of justice. U.S.S.G. § 3C1.1 cmt.
n.4(b) (2008). A defendant commits perjury “if [he] gives false
testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion,
mistake, or faulty memory.” United States v. Dunnigan, 507 U.S.
87, 94 (1993). A perjury enhancement must be upheld if the
district court “makes a finding of an obstruction of, or impediment
to, justice that encompasses all of the factual predicates for a
finding of perjury.” Id. at 95.
Viar’s presentence report recommended that he be given a
perjury enhancement based on his testimony that he had never dealt
in meth or bought it from Cito. Viar’s testimony went to the
ultimate issue before the jury, this is, whether he conspired to
posses meth with intent to distribute. In considering Viar’s
objection to the recommended enhancement, the district court noted
that it was required to find the elements of perjury in order to
impose the enhancement. In conducting its evaluation, the court
determined that “the jury could not have reached the result it did
if [it] did not decide that the other[] [witnesses] were telling
the truth and he [Viar] was testifying falsely,” J.A. 462. The
court thus found that “the evidence is pretty overwhelming that
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[Viar] testified falsely to a material fact, with intent to
deceive.” J.A. 463. Viar, of course, did not contend that his
testimony was affected by confusion, mistake, or faulty memory.
The district court’s findings, read in context, incorporated each
of the elements of perjury as required by Dunnigan. There was no
error in the application of the perjury enhancement.
* * *
Garcia’s conviction is affirmed, and Viar’s conviction
and sentence are affirmed.
AFFIRMED
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