United States v. Arnulfo Betancort-Salazar ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1505
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Arnulfo Betancort-Salazar, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 27, 2010
Filed: February 1, 2010
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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Arnulfo Betancort-Salazar (Betancort) appeals the district court’s1 judgment,
entered after a jury found him guilty of conspiring to distribute, distributing, and
possessing with intent to distribute methamphetamine, and maintaining a residence
for the purpose of distributing and using a controlled substance, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B), 846, and 856(a)(1), and 18 U.S.C. § 2. Betancort
pleaded guilty to illegally reentering the United States following a deportation. The
district court sentenced him to 144 months in prison. Betancort’s counsel has moved
1
The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing
that portions of an audio tape of a controlled buy should not have been admitted at
trial, that the testimony of cooperating witnesses was unreliable and thus there was
insufficient evidence to convict Betancort, and that the court’s imposition of a 2-level
enhancement for a supervisory role was erroneous. Betancort has filed a supplemental
brief, in which he argues that evidence that marijuana was found during the search of
his residence should not have been admitted at trial.
We hold that the district court did not abuse its discretion in allowing the
government to play portions of the audio tape. See United States v. Oslund, 453 F.3d
1048, 1054 (8th Cir. 2006) (standard of review). Although only portions of the tape
were intelligible and none of Betancort’s conversations--which all occurred in
Spanish--were intelligible, those portions that were understandable were consistent
with the witness testimony, the jury was told that the witnesses did not understand the
Spanish conversations, and Betancort’s counsel was able to argue that the
conversations in Spanish could have been about an unrelated topic. See United States
v. Trogdon, 575 F.3d 762, 765 (8th Cir. 2009) (partially inaudible tapes were
admissible where tapes were audible enough to provide jury with gist of
conversations; court should consider whether defendant had opportunity to offer his
version of inaudible portions), cert. denied, 78 U.S.L.W. 3394 (U.S. Jan. 11, 2010)
(No. 09-7983); cf. United States v. Webster, 84 F.3d 1056, 1065 (8th Cir. 1996)
(video tape that did not preserve all actions and included unclear audio track still had
significant probative value because it showed some sort of trade across kitchen
counter, and police later collected drugs from the counter).
We further hold that the evidence was sufficient to support Betancort’s
convictions. See United States v. Birdine, 515 F.3d 842, 844 (8th Cir. 2008) (this
court reviews sufficiency of evidence in light most favorable to government, resolving
evidentiary conflicts in government’s favor and accepting all reasonable inferences
that support jury’s verdict). Witnesses testified that Betancort was the supplier of
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methamphetamine that was recovered from them, and a search of Betancort’s home
revealed distribution amounts of methamphetamine and a cutting agent. The
testimony also showed that another individual acted as a middle-man for the drug
transactions. See United States v. Parker, 587 F.3d 871, 881 (8th Cir. 2009) (to
sustain conviction for possession with intent to distribute, government must prove
defendant knowingly possessed and intended to distribute drugs; constructive
possession, where defendant has knowledge of object, ability to control it, and intent
to do so, is sufficient); United States v. Hernandez, 569 F.3d 893, 896 (8th Cir. 2009)
(to sustain conviction for distribution of controlled substance, government must prove
defendant knowingly and intentionally distributed controlled substance, and knew it
was controlled substance at time of distribution), petition for cert. filed, (U.S. Nov. 3,
2009) (No. 09-8131); United States v. Cruz, 285 F.3d 692, 700 (8th Cir. 2002) (to
prove conspiracy, government must prove existence of agreement to achieve illegal
purpose, and defendant’s knowledge of agreement and knowing participation in
conspiracy). Although counsel argues that the testimony of the cooperating witnesses
was unreliable, their credibility was for the jury to determine. See United States v.
Foxx, 544 F.3d 943, 950 (8th Cir. 2008) (credibility determinations are well within
province of jury), cert. denied, 130 S. Ct. 91 (2009); United States v. McKay, 431
F.3d 1085, 1094 (8th Cir. 2005) (impeachment evidence was for jury to consider). As
to the conviction for maintaining a drug residence, Betancort testified that he paid to
rent the residence, and the other witnesses testified that he sold drugs from the
residence. See 21 U.S.C. § 856(a)(1) (it is unlawful to knowingly lease any place for
purpose of distributing any controlled substance).
Because Betancort did not object in the district court to the supervisory-role
enhancement, we review for plain error, see United States v. Lovelace, 565 F.3d 1080,
1086-87 (8th Cir. 2009), and we find none, see United States v. Davis, 583 F.3d 1081,
1097 (8th Cir. 2009) (to be subject to role enhancement under U.S.S.G. § 3B1.1(c),
defendant need only manage or supervise one other participant, and terms “manager”
and “supervisor” are construed broadly), petition for cert. filed, (U.S. Jan. 5, 2010)
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(No. 09-8480). Finally, as to Betancort’s pro se argument, we find no plain error in
the admission of evidence that marijuana cigarettes were also found in the search of
his home, as it does not appear that the evidence was admitted to show Betancort’s
character. See Fed. R. Evid. 404(b); United States v. Frazier, 280 F.3d 835, 846-47
(8th Cir. 2002) (other-crimes evidence may be admissible to prove issue which Rule
404(b) specifically permits to be proven).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no nonfrivolous issues for appeal. Accordingly, the judgment
is affirmed. We also grant counsel leave to withdraw.
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