United States v. Ramos ( 1996 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-50232
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REYNALDO CARRASCO RAMOS,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(M0-95-CR-15)
December 23, 1996
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Reynaldo Carrasco Ramos appeals his convictions of four counts
of distribution of cocaine in violation of 21 U.S.C. § 841 and one
count of maintaining an establishment of manufacturing operations
in violation of 21 U.S.C. § 851. We affirm.
*
Pursuant to Local Rule 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
I
In December 1994, Detective Manuel Beltran of the Midland,
Texas Police Department targeted suspected drug trafficking by
Ramos. Since Ramos knew Beltran and the other local police
officers, Beltran enlisted a confidential informant, Andy Bonilla,
to approach Ramos to purchase cocaine. Wearing a concealed
transmitter, Bonilla went to Tio’s Lounge where he met briefly with
Ramos and offered to purchase an ounce of cocaine. Ramos agreed to
meet Bonilla at Ramos’s residence to make the sale. During this
same recorded conversation, Ramos referred to 400 pounds of
marijuana in his possession. Beltran and another officer followed
Ramos and Bonilla to Ramos’s residence, where Bonilla paid Ramos
$700 in exchange for approximately one ounce of cocaine. Bonilla
purchased cocaine from Ramos on three other occasions; Beltran
monitored each purchase by transmitter.
During voir dire at Ramos’s trial, the prosecutor used a
peremptory challenge to exclude an Hispanic venireperson, Celia
Sosa. The district court required the prosecutor to state his
reason for striking Ms. Sosa; the prosecutor explained that he
struck Ms. Sosa because she had been observed sleeping during a
prior court session. The district court accepted this explanation
and dismissed Ms. Sosa.
During trial, Ramos sought admission of an affidavit signed by
Bonilla and prepared in connection with a prior, unrelated cocaine
case. In the affidavit, Bonilla states that he lived with “Disco
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Joe” Martinez and Tracy Bonilla (Bonilla’s sister) at the time
police raided their residence. Bonilla states that a small amount
of cocaine found during the raid of the residence belonged to him.
Ramos sought admission of the affidavit during his trial as
evidence that Bonilla planted cocaine in other people’s homes and
therefore may have planted cocaine in Ramos’s home. The district
court excluded the affidavit based on its finding that the
affidavit did not indicate that Bonilla planted drugs in the
residence.2 The court ruled, however, that Ramos could question
Bonilla during cross-examination about Martinez’s drug use and
about any prior statements Bonilla had made about Martinez.
Defense counsel did not pursue this line of questioning.
The prosecution presented audiotaped conversations between
Bonilla and Ramos as evidence against Ramos. Portions of the
recordings were inaudible and contained words spoken by
unidentified speakers. The district court ordered the redaction of
portions of two recordings and several pages of corresponding
2
The relevant portion of the affidavit provides:
On or about February 4, 1993, I was living with Joe
Martinez and my sister Tracy Bonilla at 1202 S. Dallas,
Midland, Texas 79701. On February 4, 1993, I had gone to
buy some flowers because it was Tracy Bonilla’s birthday.
While I was gone to the florist, the house was raided and
a very small amount of cocaine was found. The cocaine
that was found in the house was mine. Neither Joe
Martinez nor Tracy Bonilla knew that I had it in the
house nor did they have knowledge that I used cocaine
occasionally and on a recreational basis.
Appellee’s Br. at 10-11 (Def.’s Ex. 16).
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transcripts, expressing concern about both the inaudibility and
unidentified speakers and about Ramos’s reference to his possession
of 400 pounds of marijuana.
After Ramos’s conviction, a probation officer prepared a
Presentence Investigation Report (“PSR”) for the court in which he
relied upon Ramos’s recorded reference to his possession of 400
pounds of marijuana in calculating Ramos’s offense level for
sentencing. Though Ramos objected to the inclusion of this
information in the PSR and objected to its consideration at his
sentencing, the district court found that Ramos’s statement should
be considered as evidence of relevant conduct under § 1B1.3 of the
Sentencing Guidelines (1995). The district court sentenced Ramos
to sixty-three months in custody, three years supervised release,
and a $250 fine.
II
Ramos presents four arguments on appeal: (1) that the
suppression of Bonilla’s affidavit violated Ramos’s Sixth Amendment
right to confront and cross-examine witnesses against him; (2) that
the district court abused its discretion by admitting audiotape
recordings and transcripts that contained inaudible portions and
unidentified speakers; (3) that the district court clearly erred in
finding 400 pounds of marijuana attributable to Ramos for
sentencing purposes; and (4) that the district court clearly erred
in finding that the prosecutor did not discriminate based on race
in using a peremptory challenge to strike an Hispanic juror.
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Ramos contends that the district court’s refusal to admit
Bonilla’s affidavit violated Ramos’s Sixth Amendment right to
cross-examine witnesses against him. He argues that the affidavit
constituted evidence that Bonilla had previously planted drugs in
someone else’s residence, and thus may have planted cocaine in
Ramos’s residence.
A trial court has wide latitude to impose reasonable
restraints upon a defendant’s right to cross-examination. United
States v. Alexius, 76 F.3d 642, 644 (5th Cir. 1996). We review a
district court’s restriction of the scope of cross-examination for
an abuse of discretion. Id. To demonstrate an abuse of
discretion, Ramos must show that the limitations imposed upon his
counsel’s cross-examination were clearly prejudicial. United
States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993), cert. denied,
___ U.S. ___, 115 S. Ct. 54, 130 L. Ed. 2d 13 (1994). In
determining whether the district court abused its discretion, “the
relevant inquiry is whether the jury had sufficient information to
appraise the bias and motives of the witness.” United States v.
Tansley, 986 F.2d 880, 886 (5th Cir. 1993).
We find no abuse of discretion in the district court’s refusal
to admit the affidavit. The plain language of the affidavit simply
does not support Ramos’s characterization of its contents. In
addition, Ramos has not demonstrated any clear prejudice as a
result of the claimed limitation on his cross-examination of
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Bonilla. The district court ruled that Ramos could question
Bonilla regarding matters addressed in the affidavit, and Ramos
failed to do so. Any prejudice Ramos may have suffered as a result
of the jury’s lack of information regarding these matters is self-
inflicted.
Ramos also argues that the district court abused its
discretion by admitting audiotape recordings and corresponding
transcripts that contained inaudible portions and unidentified
voices. Rulings on the admissibility of evidence are within the
discretion of the trial court. United States v. Eakes, 783 F.2d
499, 506 (5th Cir.), cert. denied, 477 U.S. 906, 106 S. Ct. 3277,
91 L. Ed. 2d 567 (1986). We review those rulings only for an abuse
of discretion. Id. at 506-07.
Tapes are not per se inadmissible because they are partially
inaudible; the issue is whether the unintelligible portions “are so
substantial as to render the recording as a whole untrustworthy.”
United States v. Greenfield, 574 F.2d 305, 307 (5th Cir.) (quoting
United States v. Avila, 443 F.2d 792, 795 (5th Cir.), cert. denied,
404 U.S. 944, 92 S. Ct. 295, 30 L. Ed. 2d 258 (1971)), cert.
denied, 439 U.S. 860, 99 S. Ct. 178, 58 L. Ed. 2d 168 (1978). This
determination is left to the sound discretion of the trial judge.
Id.
Ramos does not argue that the unintelligible portions of the
tapes were so substantial as to render the recordings as a whole
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untrustworthy. He argues that the government did not lay a proper
foundation for admission of the tapes. The record reflects,
however, that the district court specifically clarified the
foundation for admission of the recordings when it questioned
Beltran about the operation of the recording device, the operator’s
competence, the accuracy of the recordings, changes, additions or
deletions to the recordings, the chain of custody, and the
voluntariness of the recordings. In addition, the district court
redacted portions of the recordings and corresponding transcripts,
thereby substantially reducing the inaudible portions and
eliminating most of the statements made by unidentified speakers.
We find no abuse of discretion in the district court’s admission of
the recordings and corresponding transcripts.
Ramos next contends that the district court clearly erred in
finding 400 pounds of marijuana attributable to him for sentencing
purposes. We review for clear error a district court’s factual
findings regarding the quantity of drugs attributable to the
defendant for sentencing purposes. United States v. Vital, 68 F.3d
114, 120 (5th Cir. 1995).
In determining the relevant facts at sentencing, the district
court is not restricted to information that would be admissible at
trial. Id. Instead, it may consider any information that has
sufficient indicia of reliability to support its probable accuracy.
Id. If information is presented to the sentencing judge with which
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the defendant would take issue, the defendant bears the burden of
demonstrating that the information cannot be relied upon because it
is materially untrue, inaccurate, or unreliable. United States v.
Angulo, 927 F.2d 202, 205 (5th Cir. 1991).
In making its drug quantity finding, the district court relied
upon the recording of Ramos’s negotiations with Bonilla and others
at Tio’s Lounge, during which Ramos stated that he had about 400
pounds of marijuana in his possession. This information was also
contained in the PSR prepared by the probation officer. Though
Ramos argued that no evidence supported his possession of the
marijuana, he offered no affidavits or other evidence rebutting his
recorded statement that he possessed the marijuana nor did he offer
any evidence demonstrating that the statement was materially
untrue, inaccurate, or unreliable. See Vital, 68 F.3d at 120
(“[I]f no relevant affidavits or other evidence is submitted to
rebut the information contained in the PSR, the court is free to
adopt its findings without further inquiry or explanation.”).
Thus, we find no clear error in the district court’s drug quantity
finding for sentencing purposes.
Lastly, Ramos argues that the district court clearly erred in
finding that the prosecutor did not discriminate based on race in
using a peremptory challenge to dismiss an Hispanic juror. We
review a district court’s decision regarding a Batson violation for
clear error. Hernandez v. New York, 500 U.S. 352, 369, 111 S. Ct.
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1859, 1871, 114 L. Ed. 2d 395 (1991); United States v. Clemons, 941
F.2d 321, 325 (5th Cir. 1991). Because the trial court’s findings
on the ultimate question of discriminatory intent “largely turn on
evaluation of credibility, a reviewing court ordinarily should give
those findings great deference.” Hernandez, 500 U.S. at 364, 111
S. Ct. at 1868-69 (quoting Batson v. Kentucky, 476 U.S. 79, 98
n.21, 106 S. Ct. 1712, 1724 n.21, 90 L. Ed. 2d 69 (1986)).
In this case, the district court accepted the prosecutor’s
explanation that he dismissed Ms. Sosa because she had been
observed sleeping in a prior court session. Exercising a
peremptory strike against a sleeping venireperson does not offend
Batson. See United States v. Maseratti, 1 F.3d 330, 335-36 (5th
Cir. 1993) (finding that prosecutor’s explanation that he struck
black venireperson because “she appeared to be sleeping during part
of the voir dire” was “clearly race-neutral, and Appellants’
arguments [of Batson violations] are without merit”), cert. denied,
510 U.S. 1129, 114 S. Ct. 1096, 127 L. Ed. 2d 409 (1994), and cert.
denied, ___ U.S. ___, 114 S. Ct. 1552, 128 L. Ed. 2d 201 (1994),
and cert. denied, ___ U.S. ___, 115 S. Ct. 282, 130 L. Ed. 2d 198
(1994). Thus, we find no clear error in the district court’s
decision to dismiss Ms. Sosa.
AFFIRMED.
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