United States v. Roberto Sepulveda , 392 F. App'x 529 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 12 2010
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. 09-50405
Plaintiff - Appellee, D.C. No. 3:07-cr-01982-H-1
v.
MEMORANDUM *
ROBERTO SEPULVEDA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted August 5, 2010 **
Pasadena, California
Before: KOZINSKI, Chief Judge, REINHARDT and WARDLAW, Circuit Judges.
Roberto Sepulveda appeals from his jury conviction of conspiracy to import
cocaine in violation of 21 U.S.C. §§ 952, 960, 963; importation of 5 kilograms or
more of cocaine in violation of 21 U.S.C. §§ 952, 960; conspiracy to possess 5
*
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).
kilograms or more of cocaine with intent to distribute, in violation of 21 U.S.C. §§
841(a)(1) and 846; and possession of 5 kilograms or more of cocaine with intent to
distribute, 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 abuse its discretion in declining to ask every
written question submitted by Sepulveda’s counsel or in denying attorney-
conducted voir dire. The district court’s voir dire was “reasonably sufficient to test
the jury for bias or partiality,” United States v. Jones, 722 F.2d 528, 529 (9th Cir.
1983), and addressed all potential areas of bias identified by Sepulveda in his
submitted questions. Sepulveda, moreover, never objected during voir dire or
sidebar conferences, requested that two jurors be struck for cause, and sufficiently
received the benefit of his right to peremptory challenges.
Sepulveda argues that the district court erred in admitting into evidence cell
phones seized at the Port of Entry because agents were unable to establish a proper
chain of custody. We disagree. As the district court correctly concluded, “[t]he
possibility of a break in the chain of custody goes only to the weight of the
evidence.” United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991).
Sepulveda also failed to offer any evidence that the cell phone was not his, or any
evidence of interference by the agents. “Merely raising the possibility of tampering
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is not sufficient to render evidence inadmissible.” Id. (citing United States v.
Vansant, 423 F.2d 620, 621 (9th Cir. 1970)).
Sepulveda also argues that the district court erred in admitting records from
the Treasury Enforcement Communications System (“TECS”) under the business
records exception of Federal Rule of Evidence 803(6), instead of the public records
exception of Rule 803(8), which we deemed the correct hearsay exception for
TECS records in United States v. Orozco, 590 F.2d 789, 793-94 (9th Cir. 1979). In
addition, he contends that the witness’s inability to testify as to which
governmental department operates the TECS system and where the system’s
headquarters are located undermines the records’ trustworthiness, requiring their
exclusion. Here, as in Orozco, the district court erred in admitting the TECS
records under the business records exception. Nonetheless, we affirm because the
result of the district court’s decision is correct, even though it relied upon an
erroneous legal basis. Id. at 794 n.2. Moreover, Sepulveda has failed to meet his
burden of establishing that the TECS records are untrustworthy, which as public
records “are presumed trustworthy.” United States v. Loyola-Dominguez, 125 F.3d
1315, 1318 (9th Cir. 1997).
Sepulveda further argues that the district court erred in admitting demeanor
testimony by Customs and Border Patrol Officer Bob Vengrin, in violation of
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Federal Rule of Evidence 701. The district court did not abuse its discretion by
admitting Officer Vengrin’s testimony. The record demonstrates that Vengrin’s
testimony was “predicated upon concrete facts within [his] own observation and
recollection.” United States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982).
Sepulveda’s argument that the district court erroneously denied his motion
for judgment of acquittal similarly fails. Viewed in the light most favorable to the
prosecution, “any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original). Here, “a jury could reasonably have inferred a
conspiratorial agreement from the defendants’ long list of coordinated actions.”
United States v. Iriarte-Ortega, 113 F.3d 1022, 1024 (9th Cir. 1997); see also
United States v. Reese, 775 F.2d 1066, 1071-72 (9th Cir. 1985). This included
evidence that the cars driven by Sepulveda and his co-conspirator, which had
arrived virtually in tandem at secondary inspection, had identical non-factory
components; that similarly located side panels in their cars held the same amount
and type of cocaine; that the cocaine bricks bore identical imprinted markings; and
that cell phone records linked to Sepulveda and his co-conspirator demonstrated
that they had each received calls from the same third party immediately preceding
their border crossings.
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Finally, we reject Sepulveda’s claim, raised for the first time on appeal, that
the government impermissibly shifted the burden of proof in its closing argument.
Although the government’s use of the word “presumption” in its closing argument
was imprecise, the statement did not shift the burden of proof from the government
to the defendant. Cf. United States v. Vaandering, 50 F.3d 696, 701-02 (9th Cir.
1995). Moreover, the government twice emphasized that it had the burden of proof
beyond a reasonable doubt in its rebuttal. Cf. id. at 702.
AFFIRMED.
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