United States v. A. J. Villalpando , 44 F. App'x 62 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1291
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Southern
v. * District of Iowa.
*
Alejandro J. Villalpando, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: August 21, 2002
Filed: August 27, 2002
___________
Before HANSEN, Chief Judge, FAGG and BYE, Circuit Judges.
___________
PER CURIAM.
Alejandro J. Villalpando was charged with two violations of federal drug laws
and two counts of unlawful possession of a firearm. A jury convicted Villalpando of
conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 846
(2000), as well as the two charges for unlawful possession of a firearm in violation
of 18 U.S.C. § 922(g) (2000). He was acquitted of possession with intent to distribute
methamphetamine. 21 U.S.C. § 841(a)(1) (2000). Villalpando then received new
appointed counsel and the district court* granted Villalpando’s motion for a new trial
on all counts. The government appealed; we affirmed in part (upholding the new trial
for the conspiracy charge) and reversed in part (reversing the grant of a new trial on
the weapons charges). United States v. Villalpando, 259 F.3d 934 (8th Cir. 2001).
Villalpando received a retrial on the conspiracy charge and was again convicted. The
district court sentenced Villalpando to concurrent terms of 120 months in prison (10
years) for the weapons counts and 235 months (19 ½ years) on the conspiracy count.
Villalpando now appeals his conviction for conspiracy to distribute
methamphetamine–the outcome of the retrial–and the resulting 235-month sentence.
Villalpando argues the trial court abused its discretion when it denied his
motion for mistrial during the testimony of Federal Agent Tani Flems. See United
States v. Encee, 256 F.3d 852, 854 (8th Cir. 2001) (standard of review). Flems was
describing her investigation when she stated, “[Villalpando] was giving information
in reference to the Garcia brothers, and during the interview he implicated himself as
being involved in the distribution of drugs with these individuals, and–” (Tr. 233).
Although the district court overruled defense counsel’s immediate motion for a
mistrial on the ground that Flems was testifying about her opinion of Villalpando’s
guilt, it struck Flems’s comment and instructed the jury to disregard this testimony.
We presume the jury followed the district court’s cautionary instructions. Encee, 256
F.3d at 854. A few minutes later, Flems testified without objection that Villalpando
“stated he introduced Leroy Bratcher to Mauri Garcia for the purpose of purchasing
methamphetamine.” (Tr. 237.)
Even assuming Flems’s challenged comment was an improper expression of
her opinion of Villalpando’s guilt, Villalpando’s motion for a mistrial was properly
denied. Because Flems’s challenged comment is consistent with her other testimony
*
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
-2-
and with the testimony of three witnesses who identified themselves as Villalpando’s
co-conspirators, the district court’s quick response in striking the testimony and
instructing the jury to disregard it was sufficient to cure any error that occurred. See
Encee, 256 F.3d at 854; United States v. Nelson, 984 F.2d 894, 897 (8th Cir. 1993).
Thus, the district court did not abuse its discretion by denying Villalpando’s motion
for a mistrial.
Villalpando also argues the district court committed clear error when it found
Villalpando deliberately gave false testimony at trial and, based upon this finding,
assessed a two-level obstruction of justice enhancement. U. S. Sentencing Guidelines
Manual § 3C1.1 (2001); United States v. Taylor, 207 F.3d 452, 454 (8th Cir. 2000)
(standard of review). The presentence report recommended a two-level sentencing
enhancement under § 3C1.1. After hearing the evidence presented at the retrial, the
district court stated it was “convinced not only that the Defendant is guilty, but . . .
by a preponderance of the evidence that the Defendant did, in fact, deliberately give
false testimony during the course of the trial in an effort to influence the result of the
case and he did obstruct justice . . . .” (Sent. Tr. 12-13.) Villalpando does not contend
his testimony was the “result of confusion, mistake, or faulty memory.” United States
v. Dunnigan, 507 U.S. 87, 94 (1993). Thus, we conclude the district court did not
commit clear error when it found that Villalpando’s trial testimony was false and
assessed the § 3C1.1 sentencing enhancement.
For the reasons stated above, we affirm Villalpando’s conviction and sentence.
Additionally, Villalpando’s motion to supplement the record is denied.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-