United States v. Morales-Vega ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4473
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALMA MORALES-VEGA,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:08-cr-00051-AW-4)
Submitted: May 27, 2010 Decided: August 20, 2010
Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nardine M. Guirguis, GUIRGUIS LAW, PA, Raleigh, North Carolina,
for Appellant. Rod J. Rosenstein, United States Attorney,
Deborah A. Johnston, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alma Morales-Vega appeals her jury conviction and 210-
month sentence for conspiracy to distribute and possess with
intent to distribute cocaine, in violation of 21 U.S.C. § 846(2006). Morales-Vega asserts that: (i) the evidence was
insufficient to convict her of the charged conspiracy; (ii) the
district court erred when it admitted transcripts of
conversations between her alleged co-conspirators; and (iii) the
district court erred when it failed to grant her a mistrial or
order a new trial. Finding no reversible error, we affirm.
To convict Morales-Vega of being involved in a
conspiracy to distribute cocaine, the Government was required to
establish that: (i) an agreement to distribute cocaine existed
between two or more persons; (ii) Morales-Vega knew of the
conspiracy; and (iii) she knowingly and voluntarily became a
part of the conspiracy. See United States v. Yearwood, 518 F.3d
220, 225-26 (4th Cir. 2008). It is “elementary that one may be
a member of a conspiracy without knowing its full scope, or all
its members, and without taking part in the full range of its
activities or over the whole period of its existence.” United
States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). We have
reviewed the record and Morales-Vega’s assertions and find that
the Government’s evidence is sufficient to support her
conviction.
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We reject Morales-Vega’s assertion that the district
court erred when it admitted into evidence transcripts of
recorded conversations between her co-conspirators. For a
statement to be admissible under Fed. R. Evid. 801(d)(2)(E),
there “must be evidence that there was a conspiracy involving
the declarant and the nonoffering party, and that the statement
was made during the course and in furtherance of the
conspiracy.” Bourjaily v. United States, 483 U.S. 171, 175
(1987) (internal quotation marks and citation omitted).
Accordingly, when the government shows by a preponderance of the
evidence that (i) a conspiracy existed of which the defendant
was a member, and (ii) the co-conspirators’ statements were made
in furtherance of the conspiracy, the statements are admissible.
United States v. Neal, 78 F.3d 901, 905 (4th Cir. 1996); United
States v. Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992).
We find that the Government’s evidence amply
demonstrated that a conspiracy to distribute cocaine existed
between Fall 2007 and Winter 2008 and that Morales-Vega was a
member of that conspiracy. Moreover, we find that the admitted
statements were made in furtherance of the conspiracy; all of
the statements that were admitted by the district court and that
are challenged by Morales-Vega on appeal pertained to the
declarants’ desire and efforts to obtain or ability to supply
cocaine for distribution. Accordingly, we find that the
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district court did not err when it allowed the Government to
introduce into evidence transcripts of recorded conversations
between the conspiracy’s participants.
Last, Morales-Vega asserts that the district court
erred when it did not: (i) declare a mistrial after receiving a
letter purporting to be from one of Morales-Vega’s co-
conspirators, and which alleged that Morales-Vega only
reluctantly participated in the conspiracy for which she was
ultimately convicted; or (ii) order a new trial under Fed. R.
Crim. P. 33(a). We find that the district court correctly
observed that the letter — which was received by the district
court while the jury was deliberating — was undated and appeared
to be written by one individual, but signed by another.
Moreover, the letter does not necessarily exculpate Morales-
Vega. To the contrary, the letter actually confirms that she
was involved in the drug trade with the co-conspirator, although
it asserts that she participated with reservation. Accordingly,
we find that the district court did not abuse its discretion by
failing to grant Morales-Vega a mistrial based on the co-
conspirator’s letter. United States v. Wallace, 515 F.3d 327,
330 (4th Cir. 2008) (reviewing district court’s order denying a
motion for mistrial for an abuse of discretion).
To warrant a new trial under Rule 33 based on newly
discovered evidence, Morales-Vega was required to show that: (i)
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the letter and information contained therein was newly
discovered; (ii) she used due diligence to secure the evidence
previously; (iii) the evidence is not merely cumulative or
impeaching; (iv) the evidence is material; and (v) the evidence
would probably result in an acquittal at a new trial. United
States v. Lofton, 233 F.3d 313, 318 (4th Cir. 2000). Unless the
defendant can satisfy all five of these factors, the motion
should be denied. United States v. Chavis, 880 F.2d 788, 793
(4th Cir. 1989). Because Morales-Vega did not establish due
diligence in trying to secure the information contained in the
letter and, in any event, the letter would not likely result in
an acquittal if a new trial were held, Morales-Vega was not
entitled to a new trial.
Based on the foregoing, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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