United States v. Fabian Valdovinos-Perez ( 2017 )

FILED
NOT FOR PUBLICATION
MAR 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30286
Plaintiff-Appellee, D.C. No.
3:14-cr-05159-BHS-8
v.
FABIAN VALDOVINOS-PEREZ, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-30289
Plaintiff-Appellee, D.C. No.
3:14-cr-05159-BHS-10
v.
DAVID LOZANO-ALVARADO,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted March 8, 2017
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.
Fabian Valdovinos-Perez appeals his convictions for conspiracy to distribute
controlled substances in violation of 21 U.S.C. § 841(a)(1) (Count 2), possession
of methamphetamine and heroin with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1) (Count 9), possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 10), and being an illegal
alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A) (Count
11). David Lozano-Alvarado appeals his conviction for conspiracy to distribute
controlled substances in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
The district court did not err by denying Valdovinos-Perez relief under
Brady v. Maryland, 373 U.S. 83 (1963). Valdovinos-Perez failed to establish that
the 200 pages of so-called “Brady-type” material was evidence favorable to the
accused. The government provided its contract with Reyes and evidence regarding
Reyes’s state criminal record to the defendants in sufficient time to be of value at
trial. Because Valdovinos-Perez “had substantial opportunity to use the
documents,” he suffered no prejudice. United States v. Gordon, 844 F.2d 1397,
1403 (9th Cir. 1988).
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Valdovinos-Perez failed to renew at trial his motion to sever, and the record
does not reflect “that he diligently pursued severance or that renewing the motion
would have been an unnecessary formality.” United States v. Decoud, 456 F.3d
996, 1008 (9th Cir. 2006). Therefore, Valdovinos-Perez waived any challenge to
the district court’s failure to sua sponte sever his case from the co-defendants’ trial.
Id.
We reject Valdovinos-Perez’s claim that the evidence was insufficient to
support his convictions because, viewing the record in the light most favorable to
the prosecution, a reasonable jury could find the required elements of each offense
beyond a reasonable doubt. See United States v. Nevils, 598 F.3d 1158, 1164 (9th
Cir. 2010) (en banc). On Count 2, a reasonable jury could find a single conspiracy
based on the common purpose of bringing drugs into Washington, the relative
stability of the conspiracy’s membership, the contacts among the conspirators, and
the reasonable inference that the conspirators were benefitting from their co-
conspirators’ activities. See United States v. Fernandez, 388 F.3d 1199, 1226 (9th
Cir. 2004); United States v. Duran, 189 F.3d 1071, 1080 (9th Cir. 1999); United
States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984). A reasonable jury could also
find that Valdovinos-Perez had at least a “slight connection” to the conspiracy,
United States v. Torralba-Mendia, 784 F.3d 652, 663–64 (9th Cir. 2015) (internal
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quotation marks omitted), given the evidence of his participation in a related drug
deal, his transportation of drugs in furtherance of the conspiracy, and his
apprehension at a stash house. Valdovinos-Perez’s challenge to the sufficiency of
the evidence of possession in Counts 9, 10, and 11 also fails. Viewing the
evidence in the light most favorable to the prosecution, a jury could reasonably
conclude that Valdovinos-Perez constructively possessed the methamphetamine,
heroin, and firearms found in the trailer where he was apprehended. The evidence
tying him to the trailer included testimony indicating that he possessed a key to the
trailer, prior observation of his entering and exiting the trailer, and the presence of
items in the trailer linked to Valdovinos-Perez. See Nevils, 598 F.3d at 1167–70;
United States v. Walker, 993 F.2d 196, 200 (9th Cir. 1993).
When viewed in the light most favorable to the prosecution, sufficient
evidence also supported Lozano-Alvarado’s conspiracy conviction. A reasonable
jury could conclude that Lozano-Alvarado’s question to Reyes whether he would
be making a trip to California, and his statement that perhaps Lozano-Alvarado
would be “the one who will give [Reyes] some things” in California, showed
Lozano-Alvarado’s knowledge of the existence of the conspiracy to transport drugs
from California to Washington, as well as his expectation that he would have an
ongoing role in such a conspiracy. Considering this evidence along with evidence
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that Lozano-Alvarado transported heroin from California, used the same method
for concealing the drugs in a chip bag that other members of the conspiracy used,
and was picked up at the bus station in Portland by one of the members of the
conspiracy at the request of co-conspirator Benitez-Castillo, a reasonable jury
could conclude that Lozano-Alvarado had at least a “slight connection” to the
conspiracy. Torralba-Mendia, 784 F.3d at 664. In light of this evidence, it is
immaterial that Lozano-Alvarado may not have known all the conspirators,
participated in the conspiracy from its beginning, participated in all its enterprises,
or known all its details. Id.
AFFIRMED.
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