United States v. Rosendo Salgado , 616 F. App'x 342 ( 2015 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10477
Plaintiff - Appellee, D.C. No. 3:13-cr-00056-LRH-
VPC-1
v.
ROSENDO SALGADO, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted September 15, 2015**
San Francisco, California
Before: CALLAHAN, CHRISTEN, and FRIEDLAND, Circuit Judges.
A jury convicted Rosendo Salgado of conspiracy to possess
methamphetamine with intent to distribute or to distribute methamphetamine, 21
U.S.C. § 841(a)(1), (b)(1)(A)(viii) and § 846; conspiracy to conduct financial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
transactions that involved the proceeds of unlawful activity, with the intent to
promote that unlawful activity, 18 U.S.C. § 1956(a)(1)(A)(i), (h); and illegal use of
a communication facility, 21 U.S.C. § 843(b). The district court sentenced
Salgado to concurrent 235-month and 48-month prison sentences. Salgado
appeals. We affirm.
Sufficient evidence supports Salgado’s conviction under 18 U.S.C. § 1956.
Viewing the evidence at trial in the light most favorable to the Government, a
rational trier of fact could find that Salgado and his alleged co-conspirators sold
drugs and deposited the proceeds from those illegal drug sales into a bank account.
See United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).
The district court did not plainly err in admitting evidence of drug
transactions in which Salgado was not directly involved: it is not “‘clear’ or,
equivalently, ‘obvious,’” United States v. Olano, 507 U.S. 725, 734 (1993), that
admission of this evidence violated Rule 403 or Rule 404(b) of the Federal Rules
of Evidence. Nor did the district court abuse its discretion in overruling Salgado’s
hearsay objection on this point, because statements concerning these transactions
were not admitted “to prove the truth of the matter[s] asserted in the statement[s].”
Fed. R. Evid. 801(c)(2).
The district court did not plainly err, under Rule 701 or Rule 702 of the
Federal Rules of Evidence, in admitting law enforcement testimony about drug
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jargon, which was given in both a lay-witness capacity and an expert-witness
capacity. See United States v. Freeman, 498 F.3d 893, 901-04 (9th Cir. 2007).
Nor did the district judge plainly err in failing to sua sponte instruct the jury on the
witness’s dual role. See id. at 904.
The admission of Salgado’s co-conspirators statements did not violate the
Confrontation Clause. The Confrontation Clause applies only to statements that
are, inter alia, “[t]estimonial.” Crawford v. Washington, 541 U.S. 36, 59 (2004).
Co-conspirator statements in furtherance of a conspiracy “are not testimonial and
therefore [are] beyond the compass of Crawford’s holding.” United States v.
Allen, 425 F.3d 1231, 1235 (9th Cir. 2005); see also Crawford, 541 U.S. at 56
(noting that “statements in furtherance of a conspiracy” are “by their nature . . . not
testimonial”).
The district court did not clearly err in finding that Salgado “was a leader
and an organizer” of the conspiracy, justifying an enhancement under § 3B1.1(c)
of the Sentencing Guidelines. See United States v. Doe, 778 F.3d 814, 821, 823
(9th Cir. 2015).
“Having found no error in the district court’s rulings, there is no cumulative
error.” United States v. Romero, 282 F.3d 683, 690 (9th Cir. 2002).
Any other arguments that Salgado might have intended to make are waived.
See United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made
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in passing and not supported by citations to the record or to case authority are
generally deemed waived.”).
AFFIRMED.
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