United States v. Miguel Jimenez ( 2013 )

FILED
NOT FOR PUBLICATION MAY 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30265
Plaintiff - Appellee, D.C. No. 2:07-cr-00343-JLR-1
v.
MEMORANDUM *
MIGUEL ANGEL JIMENEZ,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-30282
Plaintiff - Appellee, D.C. No. 2:07-cr-00343-JLR-5
v.
NIVALDO RIASCOS,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-30283
Plaintiff - Appellee, D.C. No. 2:11-cr-00233-JLR-1
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NIVALDO RIASCOS,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-30028
Plaintiff - Appellee, D.C. No. 2:07-cr-00343-JLR-3
v.
HECTOR FABIO ZAPATA,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted March 6, 2013
Seattle, Washington
Before: FERNANDEZ, W. FLETCHER, and RAWLINSON, Circuit Judges.
A jury convicted Defendants Riascos, Zapata, and Jimenez of conspiracy to
import a controlled substance to the United States in violation of 21 U.S.C. §§
952(a), 960(b)(1)(B)(i), and 963, and conspiracy to distribute a controlled
substance in the United States in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
and 846. The jury also found Defendant Jimenez guilty of conspiracy to launder
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money in violation of 18 U.S.C. §§ 1956(a)(2)(A) and 1956(h), and money
laundering in violation of 18 U.S.C. §§ 1956(a)(2)(A) and 2. The defendants
appeal their convictions, and Defendant Zapata appeals his sentence. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and we largely affirm.
1. Sufficiency of the Evidence
The defendants claim there was insufficient evidence to convict. We review
these claims de novo. United States v. Garcia, 497 F.3d 964, 966-67 (9th Cir.
2007). Because Defendant Jimenez did not properly preserve this objection with
respect to his money laundering charges, we review that claim for plain error.
United States v. Eriksen, 639 F.3d 1138, 1148 (9th Cir. 2011). When reviewing a
sufficiency claim, we must “view the evidence in the light most favorable to the
prosecution to determine whether ‘the jury reasonably could have found the
defendant guilty beyond a reasonable doubt.’” Garcia, 497 F.3d at 967 (quoting
United States v. Lothian, 976 F.2d 1257, 1261 (9th Cir.1992)).
We hold that the government presented sufficient evidence that the
defendants intended to import and distribute cocaine in the United States. The
government provided evidence of the conspiracy itself, drug trafficking routes and
practices, and the importance of distribution in the United States in order to profit
from the venture. The jury also heard evidence that at least one conspirator
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acknowledged the final destination. Because there was sufficient evidence to
support the conspiracy to distribute counts, there was sufficient evidence to support
Jimenez’s conspiracy to launder money count and money laundering counts. We
therefore hold there was sufficient evidence to support the convictions.
2. Expert Testimony
Defendant Zapata challenged both the adequacy of the expert disclosures
and the substance of the expert testimony provided by three DEA agents.
a. Rule 16 Disclosures
Zapata claims the summaries of the experts’ testimony were insufficient
under Federal Rule of Criminal Procedure 16. Because no defendant objected at
trial to the adequacy of the disclosures, we review for plain error. We hold that the
disclosures were sufficient to convey the minimal notice required by Rule 16.
b. Improper Opinion
Zapata also argues that the experts improperly opined on the intent of the
defendants in violation of Federal Rule of Evidence 704(b). The parties dispute the
standard of review, but we hold that the arguments fail if reviewed for either an
abuse of discretion or plain error.
The experts in this case did not testify to the intent or knowledge of the
particular defendants. The experts discussed general trafficking routes, control of
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the relevant regions at the relevant times, and the likely destination of a shipment
of the relevant size departing from the relevant point at the relevant time. The
experts testified that they had no personal knowledge of the facts of this case, and
their generalized testimony provided appropriate modus operandi testimony. See
United States v. Freeman, 498 F.3d 893, 906-07 (9th Cir. 2007); United States v.
Younger, 398 F.3d 1179, 1190 (9th Cir. 2005). The expert testimony did not
require the jury to find a certain mental state if the jury credited the experts. See
United States v. Gonzales, 307 F.3d 906, 911-12 (9th Cir. 2002); United States v.
Morales, 108 F.3d 1031, 1038 (9th Cir. 1997). We thus hold there was no abuse of
discretion or plain error in permitting the testimony.
3. Voluntariness of Custodial Statement
Defendant Jimenez challenges the admission of testimony based on his
inadmissible custodial statement. Defendant Jimenez claims the statement was
involuntary, and so inadmissible for any purpose. We review de novo the district
court’s determination that a statement was voluntary, but review factual findings
for clear error. United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003).
We hold that the government met its burden to prove that Jimenez’s
statement was voluntary. It was not clearly erroneous for the district court to credit
the DEA agent’s testimony over Jimenez’s. There was no physical coercion, and
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there is no evidence of impermissible threats or improper promises by the
government. We agree with the district court that Jimenez’s ultimate refusal to
cooperate suggests that the circumstances did not actually compel his statement.
See United States v. Bautista, 362 F.3d 584, 592-93 (9th Cir. 2004).
4. Testimony Based on the Inadmissible Custodial Statement
The defendants challenge the district court’s admission of testimony that
relied on information a DEA agent received from Defendant Jimenez’s
inadmissible statement. The district court admitted the testimony only to rebut
attacks made by defense counsel on the case agent’s investigation and diligence.
The court specifically instructed the jury not to consider the evidence for the truth
of the matter asserted. The agent did not attribute the evidence to any defendant,
nor did he state the basis for his knowledge.
We first hold that there was no error under Federal Rule of Evidence 403.
The district court did not abuse its discretion in admitting the testimony, the court
offered an adequate limiting instruction, and the record shows the court conducted
a sufficient balancing.
We also hold that the admission of the testimony did not infringe on any
defendant’s rights under the Confrontation Clause. This court reviews de novo
claims of Confrontation Clause violations. United States v. Berry, 683 F.3d 1015,
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1020 (9th Cir. 2012). The Confrontation Clause does not bar testimonial
statements that are not offered to establish the truth of the matter asserted. See
Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004); Tennessee v. Street, 471 U.S.
409, 414 (1985). The testimony in this case was not offered for its truth, but rather
as rebuttal of an inference that the government had not been diligent in its
investigation. There is no evidence that this rationale was pretextual, or that the
scope of the testimony strayed beyond its limited purpose. Compare United States
v. Nguyen, 565 F.3d 668, 674 (9th Cir. 2009) (finding a statement was offered for
the truth where its scope was clearly broader than the claimed non-hearsay
justification). We hold that there was no error.
5. Guilty Plea Statements
Defendant Riascos claims it was error to admit statements he made pursuant
to a 2001 guilty plea. He claims the statements were inadmissible under Federal
Rule of Evidence 410. The statements, however, were made pursuant to a
completed and valid guilty plea; Riascos did not withdraw his plea, nor did he
plead nolo contendere. Rule 410 thus does not apply to his statements, which were
admissible.
6. Severance Motions
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Defendants Jimenez and Zapata challenge the district court’s denial of their
severance motions that were based on admission of Defendant Riascos’s prior
conviction. Defendant Zapata also challenges the denial of his severance motion
that was based on the testimony about his co-defendant’s inadmissible statement.
We review the district court’s denial of a severance motion for an abuse of
discretion. United States v. Stinson, 647 F.3d 1196, 1205 (9th Cir. 2011) (en
banc).
We hold the district court did not abuse its discretion in either situation.
First, arguments about the prosecution’s closing arguments and cross examination
are not factually supported in the record. Second, the district court provided
complete and exhaustive limiting instructions. Third, the Confrontation Clause
arguments fail for the reasons previously discussed. Neither Zapata nor Jimenez
has carried the burden of showing he did not receive a fair trial, or that the limiting
instructions were inadequate. See United States v. Johnson, 297 F.3d 845, 855 (9th
Cir. 2002).
7. Sentencing Information
We review de novo the sufficiency of a sentencing information under 21
U.S.C. § 851. United States v. Mayfield, 418 F.3d 895, 1019-20 (9th Cir. 1999).
Defendant Riascos’s argument that the United States Attorney must personally sign
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the penalty information is meritless and has no basis in the statute. We hold there
was no error.
8. Sentencing
Defendant Zapata claims the district court failed to consider his mitigation
arguments and made improper statements regarding his right to counsel. We
review sentences for procedural and substantive reasonableness. United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008). We review the district court’s
sentencing decisions for an abuse of discretion. Id. Zapata’s arguments find no
factual support in the record and are meritless. Under either standard of review
posed by the parties, these arguments fail.
9. Supervised Release
Defendant Riascos challenges the district court’s revocation of his
supervised release from his prior conviction, resulting in an additional thirty
months’ imprisonment (running concurrently). We review the district court’s
decision to revoke a term of supervised release for an abuse of discretion. United
States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir. 2003).
Riascos claims revocation was improper because he did not receive proper
notice under 18 U.S.C. §§ 3583(f) or 3603(1). If the notice requirements of §§
3583(f) and 3603(1) are not met, revocation is still appropriate if the defendant
9
received actual notice of his supervised release terms. United States v. Ortega-
Brito, 311 F.3d 1136, 1138 (9th Cir. 2002). The record contains no evidence of
actual notice, and so we vacate the thirty concurrent months added to Defendant
Riascos’s sentence. We note that any claims that Defendant Riascos was not on
supervised release at the time of the offense are meritless. See United States v.
Ramirez-Sanchez, 338 F.3d 977, 979-80 (9th Cir. 2003).
Because we find no reversible error, we do not disturb the judgments against
any defendant.
AFFIRMED in part, VACATED in part, and REMANDED for correction of
Defendant Riascos’s sentence.
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FILED
U.S. v. Jimenez, No. 11-30265 MAY 17 2013
U.S. v. Riascos, No. 11-30282
MOLLY C. DWYER, CLERK
U.S. v. Riascos, No. 11-30283 U .S. C O U R T OF APPE ALS
U.S. v. Zapata, No. 12-30028
Rawlinson, Circuit Judge, concurring in part and dissenting in part:
I concur in the conclusions of the majority disposition that sufficient
evidence supported the convictions, that admission of the expert and lay testimony
was within the district court’s discretion, that the custodial statement of Defendant
Miguel Jimenez was voluntary, that the guilty plea statements made by Defendant
Nivaldo Riascos were admissible, that the sentencing information complied with
21 U.S.C. § 851, and that the sentence imposed upon Defendant Hector Zapata was
procedurally and substantively reasonable.
I do not concur in the conclusion that the revocation of Riascos’ supervised
release was improper.
Riascos’ supervised release was revoked due to his violation of the standard
condition that he not commit any federal, state or local crime while on supervised
release. Riascos maintains that because he had no notice of this standard
condition, it cannot serve as the basis for revocation of supervised release.
However, Riascos’ judgment of conviction gives notice of this condition
immediately below the heading of SUPERVISED RELEASE. In addition, our
precedent permits us to impute knowledge of a prohibition on further criminal
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activity by the releasee. See United States v. Simmons, 812 F.2d 561, 565 (9th Cir.
1987). It is only “when . . . the proscribed acts are not criminal,” that actual
notice is required. Id. (emphasis added).
Because I am of the view that our precedent is consistent with the district
court’s revocation of supervised release, I would affirm the district court’s
judgment without remanding to vacate the sentence imposed upon Riascos
following revocation of his supervised release.
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