United States v. Juvenal Mondragon ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA Nos. 17-10349, 17-10351
Plaintiff-Appellee, D.C. No.
3:15-cr-00134-VC
v.
JUVENAL MONDRAGON and MEMORANDUM*
LENY ROMERO MOYA
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding
Argued and Submitted December 19, 2018
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and BLOCK,** District Judge.
Defendants Juvenal Mondragon and Leny Moya appeal their convictions and
sentences for possession with intent to distribute 500 grams or more of
methamphetamine under 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). A jury found
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
the defendants guilty after a joint trial. They argue on appeal that the district court
violated their rights in multiple ways during the trial. We affirm.
First, the district court did not abuse its discretion by denying the
defendants’ motions to sever their trials. See United States v. Throckmorton, 87
F.3d 1069, 1071 (9th Cir. 1996) (“We review for abuse of discretion a district
court’s decision denying a motion to sever trials.”). The defendants’ defenses were
not necessarily mutually exclusive. The jury could have found that there was
insufficient evidence to prove that either of them knew what was in the Target bag,
thereby acquitting them both. See United States v. Tootick, 952 F.2d 1078, 1081
(9th Cir. 1991) (“Mutually exclusive defenses are said to exist when acquittal of
one codefendant would necessarily call for the conviction of the other.”). Further,
the facts in Zafiro v. United States, 506 U.S. 534, 536 (1993) are indistinguishable
from those here, confirming that the district court here similarly did not abuse its
discretion.
Second, the district court did not violate Mondragon’s Confrontation Clause
rights by precluding his lawyer from questioning Moya about the 10-year
mandatory-minimum sentence he faced. In determining whether a defendant has
suffered a Confrontation Clause violation when the judge limits his lawyer’s
inquiry into the sentencing exposure of an adverse witness, “the reviewing court
must inquire whether: (1) the excluded evidence was relevant; (2) there were other
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legitimate interests outweighing the defendant’s interest in presenting the evidence;
and (3) the exclusion of evidence left the jury with sufficient information to assess
the credibility of the witness.” United States v. Beardslee, 197 F.3d 378, 383 (9th
Cir. 1999) (citation omitted), opinion amended on denial of reh’g, 204 F.3d 983(9th Cir. 2000). A district court’s decision to limit the scope of cross-examination
is reviewed for abuse of discretion. United States v. Larson, 495 F.3d 1094, 1102
(9th Cir. 2007) (en banc).
Here, the district court did not abuse its discretion in concluding that, on
balance, permitting Mondragon’s lawyer to question Moya about the “serious
federal conviction” he faced and the consequences it would have in his life
sufficiently protected his Confrontation Clause rights. The jury had enough
information about the magnitude of the punishment to assess Moya’s credibility:
the difference in magnitude between a 10-year mandatory-minimum sentence and
an undefined prison sentence for a serious federal drug crime does not amount to a
Confrontation Clause violation, particularly where the jury was already aware that,
as a codefendant also standing trial, Moya had a strong motive to lie to avoid
conviction. See Larson, 495 F.3d at 1107 (holding that the defendant suffered a
Confrontation Clause violation when the magnitude of a witness’s incentive to
testify was not adequately conveyed to the jury).
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Third, Mondragon did not suffer a violation of his Fifth Amendment right to
remain silent when Moya’s lawyer stated that the “only person that came on this
witness stand to tell you whether he did or did not possess it was Leny Moya
himself. Nobody else said that he did.” See United States v. Lopez, 500 F.3d 840,
844 (9th Cir. 2007) (“We review de novo whether references to a defendant’s
silence violate his Fifth Amendment privilege against self-incrimination.” (citation
omitted)). In context, it was clear that Moya’s lawyer was not highlighting
Mondragon’s silence but, instead, contrasting Moya’s testimony with the
government’s lack of testimony or other direct evidence demonstrating that Moya
knew about the methamphetamine.
Lastly, the district court did not err by prohibiting Moya’s lawyer from
highlighting Moya’s willingness to testify in contrast to Mondragon’s silence.
Moya has not demonstrated that his defense probably would have benefited from
the ability to comment on Mondragon’s silence. See United States v. De La Cruz
Bellinger, 422 F.2d 723, 727 (9th Cir. 1970) (“Unless a defendant can show that
his defense probably would have benefited from commenting on a co-defendant’s
refusal to testify, denial of the motion to sever is not prejudicial.”).
AFFIRMED.
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