United States v. Christian Borda , 848 F.3d 1044 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2016 Decided February 21, 2017
No. 13-3074
UNITED STATES OF AMERICA,
APPELLEE
v.
CHRISTIAN FERNANDO BORDA, ALSO KNOWN AS TONY,
APPELLANT
Consolidated with 13-3101
Appeals from the United States District Court
for the District of Columbia
(No. 1:07-cr-00065-1)
(No. 1:07-cr-00065-2)
Elizabeth A. Brandenburg argued the cause for appellant
Borda. With her on the briefs was Marcia G. Shein.
Carmen D. Hernandez, appointed by the court, argued the
cause and filed the briefs for appellant Alvaran-Velez.
Kirby A. Heller, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee.
2
Before: TATEL and WILKINS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Appellants Christian Fernando
Borda and Alvaro Alvaran-Velez challenge the outcome of a
jury trial finding them guilty under 21 U.S.C. §§ 959, 960, 963
of conspiracy to distribute five kilograms or more of cocaine
knowing and intending that the cocaine would be unlawfully
imported into the United States. In support of their challenge,
Appellants allege that the District Court committed numerous
procedural errors, including improper evidentiary admissions
and exclusions, insufficient jury instructions, Brady and Napue
violations, improper closing arguments, and sentencing errors.
Appellants further maintain that there was insufficient
evidence to permit a rational juror to find guilt beyond a
reasonable doubt. For the following reasons, we affirm
Appellants’ convictions but remand for the District Court to
resentence Mr. Alvaran. 1
I.
On December 9, 2010, Appellants Borda and Alvaran
were convicted of conspiracy to distribute at least five
kilograms of cocaine with the intent or knowledge that the
cocaine would be unlawfully imported into the United States.
At trial, Appellants did not contest that they engaged in drug
trafficking, but argued that they lacked the knowledge or intent
to import the drugs into the United States. The conspiracy at
issue in this case involved three separate transactions: (1) Palm
Oil #1; (2) Palm Oil #2; and (3) the El Chino Load. The
evidence presented at trial, taken in the light most favorable to
1
Mr. Borda’s sentence was not challenged on appeal and, therefore,
is not before this Court.
3
the government, see United States v. Bryant, 523 F.3d 349, 353
(D.C. Cir. 2008); United States v. Washington, 12 F.3d 1128,
1135-36 (D.C. Cir. 1994), is as follows.
A.
The first Palm Oil deal occurred between January 2005
and May 2005 and involved the transportation of
approximately 1,553 kilograms of cocaine hidden in drums of
palm oil from Cartagena, Colombia to Puerto Progreso,
Mexico. A Mexican drug trafficker named Raul Valladares
(“Junior”) received the cocaine in Puerto Progreso, a small
Mexican port on the eastern side of the country, in mid-2005.
Junior transported the cocaine from Puerto Progreso to
Monterrey, an inland city located approximately one hour and
forty-five minutes (200 kilometers) by car from the United
States border. According to the evidence, Monterrey lacked
sufficient demand for a load of cocaine as large as the Palm Oil
#1 deal. Beginning in August 2005, Junior began working as
an informant for the United States Drug Enforcement
Administration (“DEA”).
In exchange for transporting the cocaine to Monterrey,
Junior charged Appellants an 18% fee. The transportation fee
was calculated based on the quantity of cocaine, not the total
price (i.e., Junior received payment in kilograms of cocaine,
not money). The usual transportation fee for moving cocaine
across the United States border is 40-45%. After selling the
cocaine, Junior was responsible for paying Appellants $9,100
per kilogram of cocaine, which is the typical price for cocaine
in Monterrey. For cocaine sold in the United States, the usual
price increases to $14,000 or $15,000 per kilogram. Appellants
expected Junior to pay for the cocaine within ten days of
receipt.
4
Junior, however, was unable to reimburse Appellants
within the specified time period. In light of this development,
Mr. Alvaran met with Camilo Suarez, another confidential
informant, on June 15, 2005, to discuss Junior’s failure to pay.
At this meeting, Mr. Alvaran noted that Junior had started to
send “partials” across the border. Despite the successful sale of
cocaine, Appellants still had not received payment. Mr.
Alvaran commented that Monterrey was full of merchandise
(i.e., cocaine), but it was not selling as fast as they had
predicted. Junior later explained that he had already begun
selling the cocaine at market price and would be able to start
delivering money in Monterrey.
Subsequently, on July 20, 2005, Mr. Borda met with Mr.
Alvaran and Mr. Suarez to discuss Junior’s outstanding
payments. Mr. Suarez defended Junior’s payment delay by
explaining that the “market went bad because the border got
harder” for Junior. Appellants then discussed the conditions at
the border in greater detail, including new police officers and
increased inspections. Mr. Borda admitted that he understood
Junior’s difficulties because he had previously been a drug
dealer in the United States. In particular, Mr. Borda acquired
first-hand knowledge of the U.S. drug market while living in
New York and Florida, and was previously convicted in the
Southern District of Florida for conspiracy to possess with the
intent to distribute cocaine back in August 1998. Nonetheless,
Mr. Borda expressed frustration at Junior’s untimely payments
and complained that Junior was not paying the negotiated price.
Mr. Borda referred to the fact that Junior had taken the cocaine
across the border, sold it at the higher U.S. price, brought the
money back to Monterrey, and paid Appellants the Monterrey
price for cocaine.
At trial, Mr. Suarez testified that all 1,553 kilograms of the
Palm Oil #1 deal were eventually transported into the United
5
States, with at least 200 kilograms trafficked to New York.
However, a substantial period of time existed when Mr. Suarez
did not know what Junior had done with the cocaine.
Additionally, Mr. Suarez noted that Mr. Borda previously
refused on two occasions to transport cocaine into the United
States because he did not want the “responsibility” or
“headache.”
By October 2005, Junior had paid Mr. Borda
approximately $6 million. Junior’s payments were all in United
States currency, mostly in $20 bills. However, the testimony at
trial established that the money received for the cocaine was
laundered through a money exchange house before being
distributed to Appellants. Once the proceeds were received in
Monterrey, Mr. Alvaran arranged for the cash to be transported
to Mexico City. Mr. Alvaran’s secretary, Mr. Lucas, would
pick the money up in Mexico City and deliver it to Juan Jaime
Montoya-Estrada, another co-conspirator. The money was then
moved to either Mr. Alvaran’s apartment or Mr. Montoya’s
apartment, where Mauricio Cruz counted the proceeds. The
ledgers kept by Appellants and Mr. Montoya show that Junior
paid between $153,000 and $1,020,000 every couple of weeks
between June 17, 2005 and August 4, 2005.
B.
Following the shipment of the first Palm Oil load, but
before Junior successfully paid for all of the cocaine,
Appellants and Mr. Suarez initiated negotiations for a second
Palm Oil deal. The parties discussed shipping additional
cocaine from Colombia to Mexico, and Mr. Suarez
recommended using Junior on this transaction since the parties
had already completed “one run” with him. Although
Appellants ordered the palm oil, and Junior invested money in
6
the new deal, the transaction never materialized due to Junior’s
late payments on the first Palm Oil load.
C.
Finally, the third transaction, termed the El Chino Load,
occurred in approximately September 2005. In this deal,
Appellants and a drug trafficker named El Chino agreed to
transport 3,000 kilograms of cocaine from Colombia to Mexico
City. The cocaine would be transported in two “go-fast boats,”
and subsequently transferred to a Venezuelan-registered
fishing vessel. The fishing vessel would meet a boat sent by El
Chino off the coast of Honduras, and El Chino’s associates
would then transport the cocaine to Mexico City.
During the initial shipment of cocaine, one of the “go-fast”
boats broke down. As a result, only 1,500 kilograms of cocaine
made it to the Venezuelan fishing vessel. While the fishing
vessel was supposed to meet El Chino’s associates
approximately sixty miles off the coast of Honduras, the crew
spotted a U.S. plane above the vessel and threw the cocaine into
the Caribbean Sea before being intercepted by the U.S. Coast
Guard. Accordingly, when the Coast Guard searched the
vessel, no contraband was discovered.
D.
Following the presentation of evidence in this case, the
jury returned a guilty verdict for both Mr. Borda and Mr.
Alvaran. While the District Court noted that the Government’s
evidence was “not overwhelming,” United States v. Borda, 786
F. Supp. 2d 25, 36, 44 (D.D.C. 2011), it upheld the jury’s
verdict and denied Appellants’ request for a new trial.
At the sentencing hearing, the District Court found
Appellants responsible for 200 kilograms of cocaine, in
7
accordance with Mr. Suarez’s testimony that Junior delivered
200 kilograms of cocaine to New York. The District Court
further determined that Mr. Alvaran was “a manager or
supervisor” of a conspiracy that included at least five
participants. Given this finding, the District Court added three
extra points to Mr. Alvaran’s offense level, bringing his total
level to 41. The Sentencing Guidelines range for this offense
level is 324 months to 505 months, and the Probation Office
recommended 360 months. The District Court, however, noted
that it was not bound by the Guidelines range, and engaged in
an analysis of the § 3553 factors. See 18 U.S.C. § 3553(a).
Following this evaluation, the District Court imposed a below-
Guidelines sentence of 180 months for Mr. Alvaran, which was
substantially less than Mr. Borda’s sentence of 300 months.
After sentencing, Mr. Borda and Mr. Alvaran filed timely
appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a).
II.
Appellants first argue that the Government’s evidence at
trial was insufficient to permit a rational juror to find that
Appellants knew or intended that the cocaine would be
transported into the United States. Borda Br. 13, 19-25;
Alvaran Br. 6-7, 9-13. In their briefing, however, Appellants
ignore the Government’s presentation of evidence on the intent
element, and erroneously draw all reasonable inferences in
favor of themselves. See Gov’t Br. 18-19; see generally Borda
Br. 20-25; Alvaran Br. 9-13. For the reasons discussed below,
we reject Appellants’ sufficiency of the evidence challenge.
A.
In reviewing a conviction for sufficiency of the evidence,
we must determine whether, after viewing the evidence in the
8
light most favorable to the prosecution, any rational juror could
have found the elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United
States v. Thompson, 279 F.3d 1043, 1050-51 (D.C. Cir. 2002);
United States v. Washington, 12 F.3d 1128, 1135-36 (D.C. Cir.
1994). This standard seeks to preserve the jury’s role as fact-
finder. Jackson, 443 U.S. at 319; United States v. Glover, 681
F.3d 411, 423 (D.C. Cir. 2012). A defendant “faces a high
threshold” and bears a “heavy burden” when seeking to
overturn a guilty verdict on this ground. Washington, 12 F.3d
at 1135; United States v. Branham, 97 F.3d 835, 853 (6th Cir.
1996).
B.
When viewed in the light most favorable to the
Government, the evidence is sufficient to allow a rational juror
to find guilt beyond a reasonable doubt. At trial, witness
testimony suggested that Appellants knew Junior was sending
cocaine across the border. Specifically, Mr. Suarez testified
that Junior had started to send “partials” to the border and
“[t]hey were waiting for the money to come back from there.”
Appellants then conversed about Junior’s difficulties at the
border, and Mr. Borda sympathized with Junior’s hardships
because Mr. Borda had previously been a drug dealer in the
United States. Mr. Suarez further testified that all 1,553
kilograms of the Palm Oil cocaine were transported into the
United States, and at least 200 kilograms were sold in New
York.
The jury’s decision to credit Mr. Suarez’s testimony was
not unreasonable in light of the circumstantial facts presented
by the Government. First, the Government introduced
evidence regarding the geographic location of Mexico and the
United States, focusing particularly on the distance from
9
Monterrey to the U.S. border. Through witness testimony, the
Government established that Appellants knew the Palm Oil
cocaine would be transported by Junior from Puerto Progreso
to Monterrey. Puerto Progreso is a small port, and Monterrey
is an inland city with no direct access to the ocean. Although
Appellants argued that they intended to sell the cocaine in
either Mexico or Europe, a reasonable juror could find that
moving the merchandise inland contradicted this theory.
Further, Monterrey is located only 200 kilometers from the
U.S. border, and the evidence showed that Monterrey had an
insufficient demand for the amount of cocaine contained in the
Palm Oil load. A rational juror could infer that Appellants did
not intend to sell the cocaine in Mexico, but rather intended for
the cocaine to be distributed within the United States.
Second, Appellants received payment for the Palm Oil
cocaine in U.S. currency. At no point in time did Appellants
receive payment in European or Mexican currency, refuting
Appellants’ contentions that they intended to sell the drugs in
Europe or Mexico. To the contrary, Appellants kept ledgers
that showed the receipt of U.S. currency – mostly in $20 bills.
Although the profits passed through a money exchange house
before distribution, a reasonable juror could nonetheless infer
that the receipt of U.S. currency meant that the drugs were sold
in the United States. Thus, Mr. Suarez’s testimony, combined
with the circumstantial evidence of geographic location and
receipt of U.S. currency, could enable a rational juror to find
guilt beyond a reasonable doubt.
While Appellants cite numerous examples of evidence
they believe to be exculpatory or contradicting, see Borda Br.
20-25; Alvaran Br. 9-13, much of that evidence is also
consistent with the jury’s guilty verdict, and the Court must
view all the evidence in a light most favorable to the
prosecution. See Jackson, 443 U.S. at 319; Thompson, 279 F.3d
10
at 1050-51. A reasonable juror could examine the evidence
and, taking all inferences in favor of the Government, conclude
that Appellants knew or intended that the cocaine would be
transported into the United States. Accordingly, Appellants
have not met their high burden to show that no rational juror
could find for the Government, and the evidence is sufficient
to support the jury’s guilty verdict.
III.
Appellants next challenge four specific evidentiary rulings
made by the District Court. First, Appellants contend that the
District Court erred by denying Mr. Borda’s motion to admit a
2006 e-mail from Junior to the DEA. Borda Br. 34-40; Alvaran
Br. 17-19. Second, Mr. Borda argues that the admission of his
New York property records and Florida driver’s license were
irrelevant to the case and prejudicial. Borda Br. 40-42. Third,
Mr. Borda asserts that the District Court erred by admitting his
prior federal drug conviction. Id. at 42-48. Fourth, Mr. Borda
contends that the District Court erroneously admitted co-
conspirator testimony that was unrelated to the charged
conspiracy. Id. at 48-52. We decline to reach the merits of these
arguments because, for the reasons that follow, we find that,
even assuming error, any such error was not prejudicial.
A.
This Court reviews the District Court’s evidentiary
rulings, particularly the admission or exclusion of evidence, for
abuse of discretion. United States v. Vega, 826 F.3d 514, 537
(D.C. Cir. 2016) (per curiam); United States v. Mitchell, 816
F.3d 865, 870 (D.C. Cir. 2016) (explaining that the trial court’s
admissibility rulings are reviewed for abuse of discretion if a
timely objection is made, and plain error if an objection is not
preserved). Even if this Court determines that an evidentiary
error occurred, it will not reverse an otherwise valid judgment
11
unless the error affected the appellant’s “substantial rights.”
FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity or
variance which does not affect substantial rights shall be
disregarded.”); United States v. Russo, 104 F.3d 431, 434 (D.C.
Cir. 1997); United States v. Baker, 693 F.2d 183, 188-89 (D.C.
Cir. 1982). An error affects the appellant’s substantial rights if
it influenced or tainted the outcome of the district court
proceedings. United States v. Olano, 507 U.S. 725, 734 (1993);
United States v. Smith, 232 F.3d 236, 243 (D.C. Cir. 2000). As
the Supreme Court noted in Kotteakos v. United States, “[t]he
inquiry cannot be merely whether there was enough to support
the result, apart from the phase affected by the error. It is rather,
even so, whether the error itself had substantial influence. If so,
or if one is left in grave doubt, the conviction cannot stand.”
328 U.S. 750, 765 (1946). Where the Court is sure “that the
error did not influence the jury, or had but very slight effect,
the verdict and the judgment should stand.” Id. Thus, a reversal
is usually only warranted where the error was prejudicial.
Olano, 507 U.S. at 734; see Baker, 693 F.2d at 188-89.
B.
First, Appellants contend that the District Court erred by
denying Mr. Borda’s motion to admit a 2006 e-mail from
confidential informant Junior to the DEA. See Borda Br. 16,
34-40; Alvaran Br. 17-19. Appellants argue that the e-mail,
which conveyed Mr. Borda’s interest in sending drugs to
Europe, was relevant to the issue of intent and did not contain
impermissible hearsay. Borda Br. 35-40; Alvaran Br. 17-19.
Even assuming that the District Court’s decision to exclude this
e-mail was error, it was not prejudicial.
1.
On March 6, 2006, Junior sent an e-mail to the DEA titled
“Tony-Mexico-Saturday 4 March.” The e-mail included a
12
description of Junior’s meeting with Mr. Borda in which Mr.
Borda offered Junior a new deal to settle Junior’s account.
Most relevantly, the e-mail stated that “[h]e is not interested in
sending anything to the United States. Nothing. He is interested
in Spain, (Valencia) and Mex.” Appellants sought to admit this
e-mail to negate the element of intent.
The Government opposed admission of the e-mail and
argued that if the District Court admitted Junior’s March 6,
2006 e-mail, it would need to admit another e-mail by Junior
sent later in the day regarding a meeting with a Mexican drug
trafficker named Esteban Olivera (referred to as Estevan). In
this second e-mail, Junior explained that he told Estevan “about
the business with [Borda]” and that Estevan agreed to receive
the containers. The e-mail further reported that “[o]n the trip
we receive from [Mr. Borda], he wants to send to New York.”
The Government argued that the pronoun “he” in the prior
sentence referred to Mr. Borda, and suggested Mr. Borda
intended to distribute cocaine in the United States.
The District Court was faced with dueling e-mails rather
than Junior’s testimony because Junior had disappeared by the
time of trial and was feared to have been kidnapped and
murdered. Ultimately, the District Court declined to admit the
March 6, 2006 e-mail. First, the District Court explained that
the e-mail did not relate to the charged conspiracy because it
occurred six months after the Palm Oil and El Chino deals
concluded. Second, the District Court noted that the use of
ambiguous pronouns in the e-mail rendered it vague and
confusing. Third, the District Court stated that even if the e-
mail had been relevant (i.e., within the scope of the
conspiracy), it constituted hearsay. Finally, the District Court
acknowledged that if Junior’s 2006 e-mail were introduced, the
Government would be permitted to admit the second e-mail on
redirect.
13
2.
Without deciding whether the District Court erred, we find
that the exclusion of Junior’s March 6, 2006 e-mail was not
prejudicial. First, Junior’s 2006 e-mail occurred outside the
scope of the conspiracy and was contradicted by another e-mail
later that day. It therefore had little probative value on the issue
of Mr. Borda’s intent to sell drugs in the United States from
January 2005 to September 2005. Second, Appellants
introduced more probative evidence of their intent at trial,
rendering Junior’s 2006 e-mail duplicative. For example, Mr.
Suarez testified on cross-examination that Mr. Borda rejected
several offers to send cocaine to the United States. Mr. Suarez
further acknowledged that Mr. Borda maintained an interest in
transporting cocaine to Europe, particularly Holland, Italy,
Spain, Switzerland, and Portugal, and that Mr. Borda had
strong connections to ship the cocaine from Mexico to Europe.
Accordingly, Junior’s March 6, 2006 e-mail stating that Mr.
Borda was interested in shipping drugs to Spain and Mexico,
not the United States, was cumulative of other evidence
presented at trial. Exclusion of this e-mail was not prejudicial.
C.
Second, Mr. Borda argues that the District Court erred by
admitting his New York property records and Florida driver’s
license. The District Court deemed this evidence relevant on
the issue of intent. As discussed below, we do not find the
admission of this evidence to be prejudicial.
1.
On August 29, 1994, Mr. Borda and his wife, Martha
Borda, purchased property in New York and recorded the deed
on September 12, 1994. Land records indicate that Martha
Borda has been the owner and occupant of that property since
14
1996. After leaving New York, Mr. Borda obtained a driver’s
license in Florida on November 13, 1996. Witnesses from the
Nassau County Clerk’s office in New York and the Florida
Department of Highway Safety and Motor Vehicles testified to
these facts at trial. Mr. Borda objected to the introduction of
this evidence on relevance grounds.
The District Court overruled Mr. Borda’s objections and
allowed the Government to admit evidence of his U.S. driver’s
license and property ownership. The District Court found the
Government’s argument “perfectly reasonable” that by living
in the United States Mr. Borda possessed knowledge that the
United States is a “major consumer of drugs.” Such knowledge
could inform the jury of Mr. Borda’s intent to distribute drugs
in the United States. Moreover, the District Court explained
that there was nothing prejudicial about the introduction of this
evidence. According to the District Court, the evidence is
actually the opposite of prejudicial, in that it “shows a stable
person who is buying a home and riding a car legally.” The jury
should be free to “accept or reject the connections that the
government is trying to make and the inferences that the
government is asking the jury to accept.”
2.
We agree with the District Court that Mr. Borda was not
prejudiced by the introduction of his property records and
driver’s license. The evidence merely demonstrates that Mr.
Borda legally owned property and obtained a driver’s license
in the United States for a period of time before his deportation
to Colombia. A jury is not likely to leap to the conclusion that
Mr. Borda was guilty from the mere mention of his ties to the
United States some ten years before the conspiracy, as he
argues. Rather, the evidence reflects positively on Mr. Borda,
showcasing an individual with a stable livelihood. Further, to
15
the extent the Government used this evidence to show Mr.
Borda’s knowledge of the U.S. drug market, it was merely
duplicative of other testimony and exhibits already in the
record. Mr. Borda admitted in tape recorded conversations
introduced at trial that he had a prior conviction in the United
States for conspiracy to sell drugs, which implies a strong
knowledge of the U.S. drug market. Thus, the District Court’s
admission of Mr. Borda’s property records and driver’s license
cannot be deemed prejudicial.
D.
Third, Mr. Borda asserts that the District Court erred by
admitting evidence of his 1998 drug trafficking conviction and
incarceration with Mr. Montoya. See Borda Br. 42-48. In
particular, Mr. Borda claims that the prejudicial effect of his
prior conviction outweighed its probative value and his
conviction had no bearing on his specific intent to distribute
narcotics in this case. Id. at 44-45. While his prior drug
trafficking conviction involved distributing drugs that were
already in the United States, the present conspiracy involves
importing drugs into the United States. Id. at 46. Thus, Mr.
Borda argues that his prior conviction did not involve a same
or similar offense and should not have been presented to the
jury. Similarly, Mr. Borda argues that Mr. Montoya should not
have been allowed to reference his incarceration with Mr.
Borda during his testimony. Id. at 17, 47-48. For the reasons
discussed below, we find that any error caused by the
admission of Mr. Borda’s prior drug conviction was not
prejudicial.
1.
Mr. Borda and Mr. Montoya have prior drug convictions
for conspiracy to possess with the intent to distribute cocaine
in violation of 21 U.S.C. § 846. The Southern District of New
16
York sentenced Mr. Montoya to 87 months’ imprisonment on
September 5, 1997, and the Southern District of Florida
sentenced Mr. Borda to 70 months’ imprisonment on August 4,
1998. Although Mr. Borda and Mr. Montoya were
unacquainted at the time of their convictions, they served their
sentences together at the Fort Dix Federal Correctional
Institution and developed a close friendship.
Following their release from prison, both Mr. Borda and
Mr. Montoya were deported to Colombia. Based on their
friendship, Mr. Borda hired Mr. Montoya in early 2005 to be
his personal representative in Mexico City for drug trafficking.
In particular, Mr. Montoya would be responsible for facilitating
the transfer of millions of dollars in U.S. currency, which
represented drug proceeds, from Mexico to Colombia.
On July 15, 2010, the District Court entered an order
prohibiting the Government from introducing the prior
convictions of Mr. Montoya and Mr. Borda. The District Court
reasoned that the “extreme age of these convictions” and “the
fact that the convictions were for significantly different
offenses” rendered the evidence irrelevant to the conspiracy
charged in this case and improper Rule 404(b) evidence.
Alternatively, the District Court explained that the risk of
unfair prejudice substantially outweighed the probative value
of the convictions under Federal Rule of Evidence 403.
Subsequent to this ruling, Mr. Montoya appeared before the
District Court and pled guilty to conspiracy to distribute at least
five kilograms of cocaine with the intent and knowledge that
the cocaine would be imported into the United States. As part
of this plea arrangement, Mr. Montoya agreed to cooperate
with the Government and serve as a witness against Appellants.
The Government explained that Mr. Montoya would be asked
to describe the origin of his relationship with Mr. Borda, which
17
would inevitably reference Mr. Montoya’s and Mr. Borda’s
prior convictions. Such testimony would be necessary to give
context to Mr. Montoya’s explanations regarding how he
became involved in drug trafficking with Mr. Borda. The
Government further stated that Mr. Borda himself referenced
his prior conviction in several recordings and conversations
related to the present conspiracy.
On October 28, 2010, the District Court altered its stance
on Mr. Borda’s prior conviction and denied Mr. Borda’s
Motion in Limine to Exclude Reference to Prior Conviction.
The District Court found that the Government’s evidence was
relevant and would not be used for the purpose of establishing
Mr. Borda’s character or propensity. As such, the evidence
would be admissible under Rule 404(b), and its probative value
would no longer be outweighed by its prejudicial effect.
At trial, Mr. Montoya testified about meeting Mr. Borda at
the Fort Dix Federal Correctional Institution where both men
had served sentences for drug trafficking. The Government
additionally introduced a certified copy of Mr. Borda’s prior
conviction. Defense counsel objected both to the witness
testimony and documentary evidence of the prior conviction.
The District Court overruled the objection.
2.
The District Court’s admission of testimonial and
documentary evidence of Mr. Borda’s prior conviction was not
prejudicial. The evidence was used to illustrate the closeness of
the relationship between Mr. Borda and Mr. Montoya.
Admission of this evidence was not prejudicial because (1) Mr.
Borda himself admitted in tape-recorded conversations that he
had a prior drug conviction, (2) the prior conviction was over a
decade old, and (3) the conviction was being used solely to
18
provide context regarding Mr. Montoya’s and Mr. Borda’s
relationship, and was not used to establish propensity.
Further, the District Court adequately instructed the jury
regarding the proper and limited use of Mr. Borda’s prior
conviction, mitigating any prejudice. The District Court told
the jury that the evidence was admitted “solely for your
consideration in evaluating [Mr. Borda’s] intent and
knowledge.” The District Court articulated that conviction of a
past crime “is not evidence” that the defendant is guilty of the
offense in this case, and the jury “must not draw any inference
of guilt” based on the prior conviction. Under these specific
and limited circumstances, the witness testimony and
documentary evidence on this issue were thus harmless.
E.
Finally, Mr. Borda maintains that the District Court erred
by admitting co-conspirator statements regarding transactions
outside the scope of the charged conspiracy. See Borda Br. 18,
48-52. In particular, Mr. Borda complains about the District
Court permitting Mr. Suarez and Mr. Montoya to testify about
drug deals or other conversations unrelated to the Palm Oil #1,
Palm Oil #2, and El Chino deals. Id. at 50. For the reasons that
follow, we do not believe that these co-conspirator statements
unduly prejudiced Mr. Borda.
1.
During the trial, the Government questioned Mr. Suarez
and Mr. Montoya about their relationship with Appellants,
including how the co-conspirators met. Mr. Suarez stated that
he met Mr. Alvaran through a pilot named Tato and that he later
learned from Mr. Alvaran that Mr. Borda was “doing a run”
with one of Mr. Alvaran’s family members, El Rey Zambada.
Mr. Suarez then stated that he accompanied Mr. Alvaran to a
19
meeting with Mr. Borda where he was asked to do a run with a
plane. No further details were given about this meeting, and
Mr. Suarez proceeded to describe the mechanics of recording
his conversations with Appellants. The District Court
overruled Appellants’ objections to Mr. Suarez’s testimony on
these issues.
Similarly, Mr. Montoya began his testimony by explaining
his prior drug trafficking activities in the United States, and
describing how he met Mr. Borda while both men were serving
prison sentences for prior drug trafficking conspiracies. Mr.
Montoya proceeded to explain that his organization was
arrested in 1996 for distributing cocaine, and that the
authorities discovered the group after they arrested a Mexican
national in Houston with 400 kilograms of cocaine and allowed
him to travel to New York. Mr. Montoya explained that “Jorge
Lamos and all of the others in the group” provided him with
this information. The District Court provisionally overruled
Appellants’ objection to this testimony “subject to the
government’s tying it up appropriately.” The parties, however,
never revisited this testimony. Gov’t Br. 48.
2.
Mr. Borda argues that these statements by Mr. Suarez and
Mr. Montoya constitute impermissible hearsay that occurred
outside the scope of the conspiracy and should have been
excluded from the trial. Borda Br. 49-52. Regardless of
whether the District Court erred by permitting these statements,
we find that the admission of this testimony was not
prejudicial. Mr. Suarez’s and Mr. Montoya’s testimony did not
directly implicate Mr. Borda in criminal activity, and was very
brief. Mr. Montoya later clarified that he did not even meet Mr.
Borda until his prison term began at the Fort Dix Federal
Correctional Institution. Thus, regardless of whether the
20
testimony related to the charged conspiracy, it did not affect
Mr. Borda’s substantial rights.
IV.
Appellants next argue that the District Court erred during
closing argument. See id. at 59-60; Alvaran Br. 20-35. In
particular, Appellants advance two contentions. First,
Appellants maintain that the Government misstated evidence
about the transportation fees associated with moving the
cocaine, mischaracterized the identity of the money exchange
house, and improperly analogized the case to bees flying over
the U.S. border. Second, Mr. Alvaran argues that the District
Court erred by precluding him from calling into question the
sufficiency of the Government’s evidence during his closing
remarks. See Alvaran Br. 25-35. This purported error, Mr.
Alvaran contends, prevented the closing arguments from being
“well balanced.” Id. at 32. As explained below, we do not
believe the District Court abused its discretion on either issue.
A.
We first address Appellants’ contention that a new trial
was warranted due to prosecutorial misstatements during
closing argument.
1.
This Court reviews improper prosecutorial statements for
“substantial prejudice,” and reviews the District Court’s denial
of a motion for new trial based on this objection for abuse of
discretion. United States v. Straker, 800 F.3d 570, 628 (D.C.
Cir. 2015) (per curiam); United States v. Alexander, 331 F.3d
116, 128-29 (D.C. Cir. 2003). While it is error for counsel to
rely on any evidence not introduced during the trial, United
States v. Maddox, 156 F.3d 1280, 1282 (D.C. Cir. 1998), a
21
prosecutor’s statements in closing argument “will rarely
warrant a new trial,” United States v. Watson, 171 F.3d 695,
699 (D.C. Cir. 1999). The question this Court must ask is
“whether the prosecutors’ comments ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). The prosecutorial misconduct must have affected the
jury’s ability to view the evidence fairly. United States v.
Thomas, 114 F.3d 228, 246 (D.C. Cir. 1997). To determine the
prejudicial effect of a closing argument error, this Court
examines three factors: (1) the centrality of the issue affected
by the error; (2) the steps taken to mitigate the error; and (3)
the closeness of the case. Watson, 171 F.3d at 700; see United
States v. Moore, 651 F.3d 30, 50 (D.C. Cir. 2011) (per curiam).
2.
At the conclusion of the trial, the Government presented
closing arguments that involved two alleged misstatements of
evidence and an inapt metaphor. First, the Government
erroneously summarized Mr. Suarez’s testimony regarding the
transportation fee Junior received for the Palm Oil #1 deal.
During trial, the parties presented evidence that Junior only
charged Mr. Borda an 18% transportation fee to move the
cocaine from Puerto Progreso to Monterrey. In its closing
argument, however, the Government erroneously summarized
Mr. Suarez’s testimony regarding how the transportation fee
was calculated. While Mr. Suarez’s testimony was that the
transportation fee was based on drug quantity, the Government
alleged that the fee was calculated based on the total price.
Defense counsel objected to this characterization.
Second, the Government argued in summation that
Appellants received payment for the Palm Oil cocaine in U.S.
22
currency. Mr. Montoya testified at trial that Mr. Alvaran
arranged to transport the proceeds of the transaction in armored
trucks from Monterrey to a currency exchange house in Mexico
City. In its closing argument, the Government erroneously
described the money exchange house as “an armored car
company.” Mr. Alvaran further maintains that the Government
failed to identify the currency as U.S. dollars until the proceeds
passed through the money exchange house. See Alvaran Br. 21.
As a result, Mr. Alvaran claims that the fact that the proceeds
“passed through a money exchange house negated any logical
inference that it had originated as dollars.” Id. at 21.
Finally, the Government analogized transportation of the
cocaine into the United States to bees flying across the U.S.-
Mexico border. Specifically, the Government argued that if
Appellants had opened a box of bees at the U.S. border and
instructed the bees not to fly north, some of the bees would
inevitably disobey instructions and cross the border. Similarly,
by transporting cocaine close to the border, Appellants knew
that some of the cocaine would be imported into the United
States. Appellants objected to the metaphor, arguing that
cocaine lacks the ability to self-locomote.
Despite the alleged errors, the District Court denied
Appellants’ request for a new trial. The District Court found
that while the Government misstated evidence relating to the
transportation fees and money exchange house, these errors did
not impact the jury’s ability to judge the evidence fairly.
Although the transportation fee was a central issue in the case,
the jury heard “a great deal of evidence” on this topic, and had
a substantial opportunity to judge the accuracy of the evidence.
It is unlikely that the jury would disregard its own recollection
of the evidence for a brief misstatement in the Government’s
closing argument. Regarding the money exchange house, the
23
District Court noted that the identity of this institution was a
minor point that had no bearing on Appellants’ intent.
3.
The Government’s alleged closing argument errors did not
prejudice Appellants. As a result, the District Court did not
abuse its discretion by denying the motion for new trial on this
ground.
First, as the District Court explained, the case was close
but the jury heard substantial evidence on the issue of the
transportation fees, which was largely uncontested. As the
Government pointed out in its brief, Gov’t Br. 72-73, the
prosecutor’s misstatement did not materially misrepresent the
evidence because the evidence showed that Mr. Borda made
roughly the same profit whether Junior purchased the cocaine
from him at the Monterrey price or at the Houston price, which
was the point of the closing argument. Although the
Government’s calculation was not entirely accurate, neither
Appellant disputed this point in his reply brief. Moreover, the
Government’s position remains consistent with its theory of the
case, namely that the Appellants accepted lower prices in
exchange for avoiding responsibility for importing the cocaine
into the United States. Thus, the misstatement was ultimately
not prejudicial.
Second, the Government’s mischaracterization of the
money exchange house was not prejudicial. The identity of the
money exchange house was not central to the trial. The
Government did not deny or misrepresent that Appellants
laundered the money through an exchange house; rather, the
Government erred only in its brief description of the money
exchange house as an armored car company instead of saying
that the armored car company transported the money to the
24
exchange house. This misstatement did not weigh on the issue
of Appellants’ intent, and thus, was not prejudicial.
Third, the Government’s metaphor comparing cocaine
trafficking to bees does not amount to reversible error. Many
decades ago, the Eighth Circuit explained that when closing
arguments do not go beyond the evidence in the case, “the trial
court is not required to judge with too great nicety the
appropriateness of the comparisons, metaphors, and other
figures of speech with which they may seek to point the
argument or adorn the peroration.” Green v. United States, 266
F. 779, 784 (8th Cir. 1920). The Ninth Circuit recently
espoused similar reasoning, stating that the protections
afforded to defendants under the due process clause do “not
mean that every jarring or badly selected metaphor renders a
trial fundamentally unfair.” United States v. Del Toro-Barboza,
673 F.3d 1136, 1151-52 (9th Cir. 2012).
For instance, the Seventh Circuit held that the
prosecution’s use of a metaphor comparing the growth of a
conspiracy to that of cancer was appropriate. United States v.
Caliendo, 910 F.2d 429, 436-37 (7th Cir. 1990). The Fourth
Circuit similarly upheld the prosecution’s use of a metaphor in
which the defendant hypothetically played a role in
unknowingly funding a terrorist act. United States v. Baptiste,
596 F.3d 214, 226 (4th Cir. 2010). The prosecution’s purpose
in posing this hypothetical was to provide the jurors with an
example of unforeseeable criminal activity so that they could
determine that the defendant’s distribution of drugs was in fact
foreseeable. Id. at 227. Additionally, the metaphor constituted
only a minor part of the closing argument – approximately
fourteen lines in a thirty-six page transcript. Id. Thus, the
metaphor did not prejudice the defendant. See also United
States v. Ross, 703 F.3d 856, 879 (6th Cir. 2012) (holding that
25
the prosecutor’s use of a metaphor to summarize his case
theory was appropriate).
Here, the Government’s use of the bees metaphor did not
prejudice Appellants. The Government used the metaphor to
show that Appellants could not have been blind to the fact that
the cocaine would be transported into the United States, just as
a reasonable person would not have believed that bees released
near the border would obey an instruction not to travel north.
Appellants are correct that bees self-locomote while cocaine
does not, but the metaphor is not so inapt as to raise due process
concerns. Further, as in Baptiste, the use of the bees metaphor
constituted only a small part of the Government’s closing
argument. It is unlikely that the jury would have been unduly
influenced by this metaphor, which comprised a small portion
of a lengthy closing argument. Therefore, the Government’s
metaphor is not reversible error.
B.
Mr. Alvaran additionally contends that the District Court
erred by precluding him from calling into question the
sufficiency of the Government’s evidence during his closing
remarks. Alvaran Br. 25-35. This characterization of the
District Court’s ruling, however, is inaccurate. The District
Court properly sustained the Government’s objection when
Mr. Alvaran tried to reference material that was outside the
record. Thus, the District Court did not abuse its broad
discretion by limiting Mr. Alvaran’s closing argument to the
evidence presented at trial.
1.
The District Court’s decision to limit the scope of closing
argument is reviewed for abuse of discretion. See United States
v. Stubblefield, 643 F.3d 291, 295 (D.C. Cir. 2011); United
26
States v. Hoffman, 964 F.2d 21, 24 (D.C. Cir. 1992) (per
curiam). Abuse of discretion will only be found where the
District Court’s ruling prevented defense counsel from making
an essential point. Hoffman, 964 F.2d at 24. Defense counsel
“must be permitted to argue all reasonable inferences from the
facts in the record,” including negative inferences that arise
when a party fails to call an important witness or introduce
relevant evidence “and it is shown that the party has some
special ability to produce such witness or other evidence.” Id.
Counsel may not, however, premise an argument on evidence
that has not been admitted. Id.; Johnson v. United States, 347
F.2d 803, 805 (D.C. Cir. 1965).
2.
During Mr. Alvaran’s closing argument, defense counsel
asked the jury to speculate about the questions the DEA must
have asked Junior after his arrest in Houston. The Government
objected, and the District Court sustained the objection. At a
sidebar, defense counsel explained that the jury would be asked
“to infer from the evidence that is in, which is that DEA agents
debrief informants, that they would have asked Junior about
what he had shipped, and if he had given them a name, an
address, a time, they could have investigated.” The
Government argued that any debriefing of Junior where he told
the DEA agents about the Palm Oil load would have been
hearsay and inadmissible if the Government had tried to
introduce that evidence. According to the Government, Mr.
Alvaran “cannot stand here and tell the jury that the
government did not bring in inadmissible evidence.”
Additionally, the Government stated that Mr. Alvaran should
not be permitted to argue hearsay that is not in the record. The
District Court agreed and noted that “[t]here is nothing to
support [Mr. Alvaran’s argument] in the evidence.”
27
3.
We agree with the District Court that the record did not
support Mr. Alvaran’s closing argument. Accordingly, the
District Court did not abuse its discretion by limiting Mr.
Alvaran’s closing argument to evidence contained in the
record. While the record established that Junior cooperated
with the DEA, Mr. Alvaran requested that the jury infer that
Junior did not provide inculpatory information to the DEA
because the Government would have introduced that evidence
at trial. Gov’t Br. 77. Mr. Alvaran takes this argument a step
too far.
In Hoffman, this Court found it permissible for defense
counsel to argue at closing that the Government failed to
introduce any fingerprint evidence. Hoffman, 964 F.2d at 24.
The Government conceded that the absence of such evidence
constitutes a relevant “fact” that can be argued before the jury.
Id. The defense counsel in Hoffman, however, “attempted to go
far beyond merely pointing out the lack of fingerprint evidence
and arguing that its absence weakened the Government’s case.”
Id. Defense counsel instead argued that the lack of fingerprint
evidence meant that the police did not try to obtain fingerprint
evidence from the plastic bags containing the narcotics, that
this violated police procedures, and that if fingerprint evidence
had been obtained, it would have been favorable to the defense.
Id. at 24-25. This Court concluded that the defense attorney
“moved from arguing fair inferences from the record to arguing
the existence of facts not in the record.” Id. at 25. Thus, this
Court held that the District Court did not err or abuse its
discretion by precluding these arguments during closing. Id.
Similar to Hoffman, Mr. Alvaran exceeded the permissible
bounds of using negative inferences. At closing, Mr. Alvaran
was permitted to argue that the Government failed to introduce
28
any evidence that drugs had been seized in the United States.
Gov’t Br. 78. This was a logical inference from the record.
However, Mr. Alvaran’s additional argument – i.e., that
because the Government did not produce the cocaine, Junior
must not have been able to tell the Government how the cocaine
was sold in the United States – was an improper expansion of
the record. Further, Mr. Alvaran’s contention that the closing
argument phase “was not well balanced” because of this
restriction misses the mark. See Alvaran Br. 32-35. The
arguments made by the Government were logical extensions of
the evidence contained in the record, unlike Mr. Alvaran’s
statements. See Gov’t Br. 79-81. Therefore, the District Court
did not abuse its discretion.
V.
The next theory Mr. Borda advances is that the District
Court failed to properly identify for the jury which portion of
the testimony and exhibits were being struck from the record.
See Borda Br. 52-57. Although the District Court instructed the
jury to remove specific exhibits from their evidence packet and
to disregard any testimony associated with those exhibits, the
District Court did not specifically identify the content of the
dialogue being struck. Mr. Borda maintains that this constitutes
reversible error because the District Court’s decision to strike
this information occurred approximately one to two weeks after
the evidence was introduced. We hold that the District Court
did not abuse its discretion.
A.
This Court reviews the denial of a requested jury
instruction de novo. United States v. Kayode, 254 F.3d 204, 214
(D.C. Cir. 2001). The Court, however, defers to the District
Court’s choice of language in the jury instructions unless it
constitutes an abuse of discretion. United States v. White, 116
29
F.3d 903, 924 (D.C. Cir. 1997) (per curiam). When evaluating
an alleged error in jury instructions, the Court examines the
charges as a whole and must determine whether “there was a
likelihood of misleading the jury to the extent that it is more
probable than not that an improper verdict was rendered.”
United States v. Thurman, 417 F.2d 752, 753 (D.C. Cir. 1969)
(per curiam). “An error in a jury instruction does not require
reversal if the error was harmless.” United States v. Cicero, 22
F.3d 1156, 1161 (D.C. Cir. 1994).
B.
The evidence of the conspiracy introduced at trial extended
from January 2005 to September 2005, and included the Palm
Oil #1 deal, Palm Oil #2 deal, and El Chino load. At one point
during the trial, the Government referenced a side deal with Mr.
Alvaran’s nephew. Specifically, Mr. Suarez testified that he
conversed with Mr. Alvaran regarding a drug deal that would
take place in Juarez, Mexico, which is located on the border of
the United States. The English translation of this conversation
was provided to the jury as Government Exhibit 35B.
Appellants objected to this testimony as outside the scope of
the conspiracy. See Borda Br. 52. Additionally, Mr. Borda
further argued that the conversation did not involve him, but
rather referenced a side deal between Mr. Alvaran and Mr.
Suarez. See id. at 52-53. The District Court overruled the
objections and conditionally allowed the Government to
present this evidence subject to appropriately tying it up later.
Further, the District Court permitted the Government to
introduce Exhibit 77B, which comprised four clips from
conversations Mr. Suarez had with Chivo, Junior’s assistant.
Mr. Borda was present during these conversations, but was on
the phone with another individual for part of the time. See id.
at 53. The conversations concerned Chivo’s transportation of
30
money through an account in Florida, and Mr. Borda’s interest
in moving cocaine to Juarez and Atlanta. On redirect, Mr.
Suarez testified that he had a conversation with Mr. Borda on
this subject, and a recording of this conversation was played
for the jury. Id.
At the end of the Government’s evidentiary presentation –
which was approximately two weeks after the admission of
Government Exhibit 35B, and one week after the admission of
Government Exhibit 77B – the District Court reviewed all of
the co-conspirator statements. See id. at 54. The District Court
found that Mr. Suarez’s statements regarding Juarez, Florida,
and Atlanta were not made in furtherance of the charged
conspiracy. Rather, a substantial period of time had passed
between the Palm Oil #1 deal and the conversation with Chivo.
Accordingly, the statements were inadmissible hearsay and not
properly connected to the present charges. The District Court,
therefore, struck the testimony and corresponding exhibits.
In striking the exhibits, the District Court instructed the jury
as follows: “Those exhibits have been struck from the record
and I’d like to take a minute or two for you to find them in your
folders and I’ll take them back from you. It’s 35 A and B, clips
5 and 6.” Defense counsel then requested that the District Court
further instruct the jury that the actual testimony regarding
those exhibits be stricken as well. While the District Court
initially declined this request, saying that the jury would not
understand the difference, it nonetheless provided a brief
explanation to the jury: “Ladies and gentlemen, I’m sure you
all understand. The testimony, the actual testimony in court
regarding those particular exhibits and clips, that testimony is
struck from the record as well.” The District Court noted that
its decision to strike this evidence would only require “one
paragraph or so” to come out. The District Court denied
Appellants’ request to specify exactly what content was being
31
struck – i.e., to refer directly to Juarez, Florida, and Atlanta.
Additionally, at the end of the trial, the District Court instructed
the jury to disregard questions, answers, and exhibits that were
stricken from the record. Mr. Borda maintains that the two-
week delay in striking this evidence, along with the District
Court’s failure to tell the jury exactly what portions of the
testimony were to be disregarded, was error.
C.
Mr. Borda’s argument on this issue is a nonstarter. As a
preliminary matter, Mr. Borda cannot point to any case law –
and we have been unable to identify any precedent – that
requires the District Court to provide a detailed explanation and
summary of all testimony and exhibits being struck from the
record. The District Court instructed the jury as to which
exhibits should be removed, and informed the jury that the oral
testimony concerning those exhibits was also struck from the
record. The jurors physically removed the offending exhibits
from their packets, and were unable to view those exhibits
during deliberations. Nothing mandates a more specific jury
instruction whereby the judge must identify the exact content
of the testimony being struck.
Moreover, it would not have been feasible or realistic for
the District Court to accurately summarize the testimony being
struck from the record because the evidence was confusing and
references in the struck conversations were unclear. When
requesting a more specific instruction, defense counsel even
conceded that he had no idea how a more specific instruction
would be done. For these reasons we decline to find prejudice
or an abuse of discretion.
32
VI.
The next argument raised by Appellants is that the
Government violated its obligation to produce exculpatory
documents under Brady v. Maryland, 373 U.S. 83 (1963). See
Borda Br. 26-31; Alvaran Br. 13-16. In particular, Appellants
identify two instances of alleged Brady violations. First,
Appellants argue that the Government delayed disclosing DEA
reports in which Junior specified Mr. Borda’s interest in
transporting drugs to Europe and Canada. See Borda Br. 31-34.
For purposes of this appeal, Appellants have concentrated their
argument on a 2005 e-mail written by Junior to the DEA. This
e-mail was disclosed before trial. Second, Appellants maintain
that the Government withheld a draft report by DEA agent
Patricia Skidmore, in which Ms. Skidmore documented an
interview she conducted with Junior in January 2006. See id. at
28; Alvaran Br. 13-15. The District Court examined these
allegations and concluded that no Brady violations occurred.
As a result, the District Court denied Appellants’ request for a
new trial on this basis. We agree with the District Court that
the Government did not violate Brady.
A.
Generally, this Court reviews the District Court’s refusal to
grant a new trial for abuse of discretion; however, Brady claims
“present something of a special situation.” United States v.
Oruche, 484 F.3d 590, 595 (D.C. Cir. 2007). On appeal,
whether the Government has breached its obligations under
Brady is a question of law that is reviewed de novo. United
States v. Emor, 573 F.3d 778, 782 (D.C. Cir. 2009); United
States v. Johnson, 519 F.3d 478, 488 (D.C. Cir. 2008). Thus,
the issue is not whether the District Court properly exercised
its discretion by refusing to order a new trial, but whether the
District Court properly determined whether a Brady violation
33
existed. Oruche, 484 F.3d at 596. Once a Brady violation is
established, a new trial is the prescribed remedy and is not
subject to discretion. Id. at 595.
B.
The Supreme Court has imposed upon the prosecution an
affirmative duty to disclose exculpatory evidence to the
defense, even if no request has been made by the accused.
Strickler v. Greene, 527 U.S. 263, 280 (1999); Brady, 373 U.S.
at 87. To prove a Brady violation, the movant must demonstrate
three elements. First, the movant must show that the evidence
at issue is favorable to the accused, either as impeachment or
exculpatory evidence. Strickler, 527 U.S. at 281-82; see also
Kyles v. Whitley, 514 U.S. 419, 433 (1995); United States v.
Bagley, 473 U.S. 667, 676 (1985). Second, the movant must
prove that the evidence was suppressed by the State, either
willfully or inadvertently. Strickler, 527 U.S. at 281-82.
Third, the movant must demonstrate prejudice. Id. To
satisfy the prejudice element, the evidence must be material.
United States v. Brodie, 524 F.3d 259, 268 (D.C. Cir. 2008);
United States v. Bowie, 198 F.3d 905, 908 (D.C. Cir. 1999).
Evidence is “material” if there is a “reasonable probability”
that the result of the trial would have been different had the
evidence been admitted and used appropriately. Kyles, 514
U.S. at 433-34; Bagley, 473 U.S. at 676; Bowie, 198 F.3d at
908. The term “reasonable probability” means that the chances
of reversal must be high enough to “undermine confidence in
the outcome” of the trial. Bowie, 198 F.3d at 908; see United
States v. Bailey, 622 F.3d 1, 8 (D.C. Cir. 2010). When
examining reasonable probability, the Court must not view the
evidence in isolation, but rather must consider the non-
disclosure “dynamically” and take into account the numerous
predictable impacts the evidence could have on trial strategy.
34
United States v. Pettiford, 627 F.3d 1223, 1229 (D.C. Cir.
2010); Johnson, 519 F.3d at 489; Bowie, 198 F.3d at 912.
Cumulative evidence is not considered material as long as it is
“the same kind of evidence” as that introduced at trial. Brodie,
524 F.3d at 269; see Emor, 573 F.3d at 782. Thus, the movant’s
burden is to demonstrate a reasonable probability of a different
trial result. Strickler, 527 U.S. at 291.
C.
Appellants first maintain that the Government violated
Brady by delaying its disclosure of a 2005 e-mail from Junior
stating that Mr. Borda was interested in sending drugs to
Europe and Canada. As an initial matter, this evidence was
disclosed before the trial. A new trial will rarely be warranted
based on a Brady claim where the defendant obtains the
information in time to use it at the trial. United States v.
Andrews, 532 F.3d 900, 907 (D.C. Cir. 2008). Where evidence
is disclosed late but before trial, the defendant must show a
reasonable probability that an earlier disclosure would have
altered the trial’s result. Id. Here, Appellants have failed to
demonstrate prejudice, which is the cornerstone of Brady.
1.
From August 2005 until his kidnapping and suspected
death in March 2006, Junior worked as an informant for the
DEA. Throughout the course of this relationship, Junior
identified suspected drug trafficking operations. In September
2005, Junior disclosed that Mr. Borda “is discussing a new
route from Colombia to Europe and Canada.”
On October 18, 2010, before commencement of the trial in
early November, the Government disclosed redacted versions
of DEA-6 forms and summaries of Junior’s debriefings by
DEA special agents between August 2005 and March 2006.
35
Junior’s September 2005 e-mail was identified as part of this
discovery. On October 19, 2010, Mr. Borda filed a motion for
disclosure of Brady evidence, arguing that the Government
withheld material exculpatory evidence (including the
September 2005 e-mail) until a few days before trial. The
District Court denied Mr. Borda’s motion and concluded “that
evidence pertaining to Defendant Borda’s involvement in
selling drugs to other countries outside of the United States is
not Brady evidence.” Appellants contest this ruling and argue
that Junior’s e-mail constituted admissible Brady evidence.
2.
Appellants’ Brady argument is unpersuasive, as it fails to
demonstrate materiality or prejudice. Even assuming that
Junior’s 2005 e-mail contained exculpatory evidence and that
the Government inadvertently suppressed this evidence,
Appellants were not prejudiced. Appellants received this e-
mail in time to use it at trial, and they introduced other evidence
that showcased Mr. Borda’s interest in selling cocaine in
Europe. Appellants make no claim that an earlier disclosure
would have altered the result at trial. Rather, the jury heard
similar evidence at trial and nonetheless found Appellants
guilty. Thus, the Government’s delay in producing the e-mail
did not prejudice Appellants. Accordingly, a Brady claim is not
viable.
D.
Appellants next contend that the Government’s failure to
reveal a draft report written by Ms. Skidmore during an
interview with Junior constitutes a Brady violation. See Borda
Br. 26-31; Alvaran Br. 13-15. Similar to the prior Brady claim,
Appellants’ argument fails because they cannot demonstrate
prejudice.
36
1.
After the jury returned a verdict, Appellants alleged that the
Government withheld exculpatory evidence demonstrating that
they did not know or intend for the Palm Oil cocaine to be
transported to the United States. Appellants made this
allegation based on a written statement by Raphael Mejia, who
was incarcerated with Mr. Borda and co-conspirator H.B. at
Northern Neck Regional Jail in Warsaw, Virginia. Mr. Mejia
alleged that H.B. informed him that Mr. Borda “made it very
clear to him (H.B.) and [Junior] that he (Borda) did not want
any cocaine sent to the United States.”
The District Court found that Appellants had raised a
“colorable claim” and required the Government to disclose all
DEA reports and rough notes relating to H.B. and Junior.
Following the Government’s disclosures, Appellants raised
nine additional Brady claims, including an allegation that the
Government failed to disclose a draft report by Ms. Skidmore
of a January 2006 interview with Junior. According to the
report, Junior mentioned that Mr. Borda “advanced” 100
kilograms of cocaine to Junior and H.B. individually, and that
“[u]nbeknownst to Borda,” several co-conspirators, including
Junior, “took an additional 100 kilograms of cocaine believing
they could sell it in Houston for a larger profit.”
In light of this evidence, the District Court convened a post-
trial hearing at which Ms. Skidmore testified. Ms. Skidmore
explained that her notes regarding this conversation with Junior
were only in draft form and had never been finalized due to
Junior’s disappearance. When questioned regarding what facts
were “unbeknownst” to Mr. Borda, Ms. Skidmore explained
that Mr. Borda was unaware that Junior and H.B. had each
taken an extra 100 kilograms of cocaine to sell in Houston. Mr.
Borda was not necessarily unaware that the original 200
37
kilograms of cocaine were to be sold in the United States. Ms.
Skidmore further testified that Junior never indicated to her or
any other agent that Mr. Borda did not know the cocaine was
going to the United States. Following the evidentiary hearing,
the District Court denied Appellants’ motion for a new trial.
See United States v. Borda, 941 F. Supp. 2d 16 (D.D.C. 2013).
Specifically, the District Court found that Ms. Skidmore’s
testimony “directly contradicts Defendants’ interpretation of
the draft report she wrote.”
2.
Similar to the first Brady allegation, Appellants have failed
to show that the exclusion of the DEA report was prejudicial.
To satisfy the prejudice prong, Appellants were required to
show a reasonable probability that the result of the trial would
have been different if the evidence had been admitted. Kyles,
514 U.S. at 433-34; Bagley, 473 U.S. at 676. No such showing
of prejudice has been made in this case. If the District Court
had admitted Ms. Skidmore’s draft report, it is extremely likely
that Ms. Skidmore would have given the same testimony she
provided at the post-trial hearing. This testimony would have
clarified Junior’s statements in a manner at odds with
Appellants’ interpretation. See Gov’t Br. 66-67. In any event,
the report says nothing about the disposition of the remaining
cocaine from the Palm Oil load, including the 200 kilograms
Junior testified he brought to New York. See id. at 65-66. Thus,
it is not reasonably probable that the jury would have arrived
at a judgment of acquittal based on this evidence. As such,
Appellants have failed to establish a Brady violation.
Appellants, however, argue that admission of Ms.
Skidmore’s report would have altered their cross-examination
techniques and trial strategy, particularly with regard to the
amount of cocaine trafficked into the United States. See Oral
38
Arg. at 15:00-16:00, 16:45-17:25, United States v. Borda (Nov.
8, 2016) (13-3074). This argument is unpersuasive. Mr. Suarez
testified at trial that at least 200 kilograms of cocaine from the
Palm Oil load were transported into the United States. Thus,
Ms. Skidmore’s report did not introduce any new or different
information regarding the volume of cocaine trafficked into the
United States. Appellants possessed notice of these facts before
trial, and were not prejudiced by the exclusion of this report.
VII.
Mr. Alvaran separately argues that in addition to the second
Brady violation discussed in Part VI, the Government violated
Napue v. Illinois, 360 U.S. 264 (1959) by failing to alert the
District Court to Mr. Suarez’s false testimony. See Alvaran Br.
16. Specifically, Mr. Alvaran claims that Mr. Suarez’s
testimony about the Palm Oil cocaine being shipped to the
United States was false because Junior told the Government
that it was “unbeknownst” to Mr. Borda that the cocaine was
transported across the border. Id. Mr. Alvaran’s argument,
however, misses the mark. The touchstone of a Napue violation
is that the testimony must be false. Napue, 360 U.S. at 269. Ms.
Skidmore clarified in her post-trial hearing that what was
“unbeknownst” to Mr. Borda was that Junior and H.B. took
additional cocaine to sell in the United States; not that the
original 200 kilograms of cocaine would be sold in New York.
Therefore, Mr. Suarez’s testimony about the Palm Oil cocaine
being shipped to the United States does not directly contradict
Ms. Skidmore’s report. While the 200 kilograms of cocaine
described by Mr. Suarez may not be the same 200 kilograms of
cocaine identified by Ms. Skidmore, nothing in Ms.
Skidmore’s report or her testimony gives rise to an inference
that Mr. Suarez lied on the stand. Thus, this claim is without
merit.
39
VIII.
Mr. Alvaran’s final argument is that the District Court erred
during the sentencing phase. In particular, Mr. Alvaran argues
that the District Court improperly calculated the quantity of
cocaine for which he was responsible and thus, erroneously
applied a three-level sentencing enhancement. Alvaran Br. 35-
43. Mr. Alvaran additionally suggests that the District Court
did not consider mitigating circumstances and that the case
should be remanded for resentencing because he will be older
than Mr. Borda upon his release from prison. Id. at 43-45. For
the reasons that follow, we reject Mr. Alvaran’s contentions of
error but remand for resentencing in light of the retroactive
amendment to the cocaine sentencing guidelines. See generally
18 U.S.C. § 3582(c)(2); U.S. Sentencing Guidelines Manual
§ 1B1.10 App’x C Supplement, Amendment 782 (Nov. 1,
2014) [hereinafter Amendment 782].
A.
This Court reviews the District Court’s factual findings
during the sentencing hearing for clear error. United States v.
Foster, 19 F.3d 1452, 1455 (D.C. Cir. 1994). The District
Court’s inferences from the facts are accorded the same
deferential standard of review as the actual findings. Id.
Pursuant to the clear error standard, this Court will affirm the
District Court’s decision unless it has a “definite and firm
conviction that a mistake has been committed.” United States
v. Brockenborrugh, 575 F.3d 726, 738 (D.C. Cir. 2009)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)). The Court further gives “due deference” to a District
Court’s application of the Sentencing Guidelines to the facts.
United States v. Henry, 557 F.3d 642, 645 (D.C. Cir. 2009).
40
B.
During the sentencing hearing, the District Court found Mr.
Alvaran responsible for 200 kilograms of cocaine, in
accordance with Mr. Suarez’s testimony that Junior delivered
200 kilograms of cocaine to New York. The District Court
deemed this amount reasonably foreseeable to both Mr.
Alvaran and Mr. Borda “given the scope of the agreement or
the conspiracy into which they had all entered.” The District
Court further found that “there is absolutely no question that
Mr. Alvaran was neither a minimal nor a minor participant” in
the conspiracy. Rather, “he was indeed a manager or
supervisor.” In support of this finding, the District Court
elaborated on the following facts: (1) Mr. Alvaran introduced
Mr. Suarez to Mr. Borda; (2) Mr. Alvaran went to Monterrey
with Junior to make sure that the cocaine had arrived; (3) Mr.
Alvaran arranged for the drug proceeds to be transported to a
money exchange house in Mexico City; (4) Mr. Alvaran
directed Mr. Lucas to bring drug proceeds to Mr. Alvaran’s
apartment for safekeeping; and (5) Junior called Mr. Alvaran
once the cocaine arrived in Puerto Progreso for permission to
move the cocaine to Monterrey. Thus, the District Court could
properly infer that Mr. Alvaran was aware that 200 kilograms
of cocaine would be sent to New York.
Further, the District Court concluded that Mr. Alvaran
“supervised” his secretary, Mr. Lucas, and that the conspiracy
involved at least five people: Mr. Borda, Junior, Mr. Montoya,
Mr. Cruz, and Mr. Lucas. Accordingly, the District Court
determined that Mr. Alvaran “clearly fits within § 3B1.1 of the
guidelines” and that “there is no way that he could be viewed
as a minimal or a minor participant in criminal activity under
§ 3B1.2 of the guidelines.”
41
Given that Mr. Alvaran had a criminal history category of
1 and a base offense level of 38, the District Court imposed 3
extra points because Mr. Alvaran served as a manager or
supervisor. This brought Mr. Alvaran’s total offense level to
41. The Sentencing Guidelines range for this offense level is
324 months to 505 months, and the Probation Office
recommended 360 months. The District Court, however, noted
that it was not bound by this range, and engaged in an analysis
of the § 3553 factors. See 18 U.S.C. § 3553(a).
In evaluating the § 3553 factors, the District Court noted
that Mr. Alvaran had no prior criminal record, which was
“certainly a strong factor on his behalf.” Additionally, the
District Court recognized Mr. Alvaran’s health problems, but
explained that his health concerns were not imminently
threatening and were not an excuse for criminal conduct. The
District Court then proceeded to describe Mr. Alvaran’s
personal history and characteristics, and weighed this history
against the seriousness of the offense and the need for
punishment and deterrence. Following this analysis, the
District Court imposed a sentence of only 180 months, which
was substantially less than Mr. Borda’s sentence of 300
months.
C.
The District Court did not err, much less clearly err, by
awarding a below-Guidelines range sentence to Mr. Alvaran
for his involvement in the Palm Oil drug conspiracy. When
calculating a defendant’s base offense level, the District Court
must analyze “all relevant conduct.” United States v. Seiler,
348 F.3d 265, 268 (D.C. Cir. 2003). The term “relevant
conduct” refers to “all reasonably foreseeable acts and
omissions [committed by] others in furtherance of the jointly
undertaken activity.” U.S.S.G. § 1B1.3(a)(1)(B); Seiler, 348
42
F.3d at 268; see also United States v. Wyche, 741 F.3d 1284,
1292-93 (D.C. Cir. 2014). Here, the District Court explained
that the scope of the conspiracy was not limited to shipping
cocaine from Colombia to Mexico, but rather extended to
Junior’s transportation of the cocaine to Monterrey and his sale
of the cocaine in the United States. The District Court
explained that it was reasonably foreseeable to Appellants that
Junior would sell cocaine in the United States after he
transported it to an inland city near the U.S. border. Mr.
Alvaran was aware that Junior would not be able to sell 1,553
kilograms of cocaine in Monterrey given the low demand for
drugs in that city, and knew Junior had started sending
“partials” to the border by June 15, 2005. Additionally, Mr.
Alvaran was aware that Junior’s delayed payment for the
cocaine was a result of his difficulties at the border. Further,
the District Court found Mr. Suarez’s testimony credible on the
issue that at least 200 kilograms of cocaine had been delivered
to New York. Thus, the District Court did not clearly err by
establishing Mr. Alvaran’s base offense level as 38.
Moreover, the District Court properly applied a three-point
enhancement to the base offense level because Mr. Alvaran
acted as a manager or supervisor of the drug conspiracy, and
the conspiracy involved more than five participants. See
U.S.S.G. § 3B1.1. Sufficient evidence establishes that Mr.
Alvaran participated in planning the Palm Oil transaction from
the beginning, and that he supervised numerous aspects of the
illegal enterprise, including Mr. Lucas’s activities. Mr. Alvaran
not only recruited Mr. Suarez, but he also monitored Junior.
Mr. Alvaran further organized the transportation of the drug
proceeds from Monterrey to Mexico City and safeguarded the
money. When the money was distributed, Mr. Alvaran received
a return on his investment and provided input on how to
allocate Junior’s proceeds. Thus, the three-point enhancement
was not error.
43
Additionally, the District Court offered a reasoned basis
for its decision and did not fail to consider mitigating and non-
frivolous arguments for a lower sentence. Where a defendant
provides a non-frivolous argument for mitigation, the district
court must consider this argument when pronouncing a
sentence. United States v. Bigley, 786 F.3d 11, 12, 14 (D.C. Cir.
2015) (per curiam). In addition to considering these arguments,
the court must provide a “reasoned basis” for its sentencing
decision. United States v. Locke, 664 F.3d 353, 357 (D.C. Cir.
2011). These standards, however, do not require the court to
expressly address every argument advanced by a defendant. Id.
Rather, “so long as the judge provides a ‘reasoned basis for
exercising his own legal decisionmaking authority,’ we
generally presume that he adequately considered the arguments
and will uphold the sentence if it is otherwise reasonable.” Id.
at 358 (quoting Rita v. United States, 551 U.S. 338, 356
(2007)). Where the record makes clear that the judge evaluated
a defendant’s arguments, the presumption of reasonableness
will be upheld. Id.
In particular, Mr. Alvaran contends that the District Court
erred by failing to impose a term of imprisonment that would
result in his release by age sixty-five (as the District Court had
in Mr. Borda’s case). Alvaran Br. 43. This argument is
unpersuasive. The District Court adequately considered Mr.
Alvaran’s personal history and health problems when
pronouncing its sentence. The fact that Mr. Alvaran did not
have a prior criminal history, combined with his age and health
concerns made it unlikely that he would commit additional
crimes. The District Court weighed these factors and imposed
a sentence of 180 months’ imprisonment – well below the
Guidelines range of 324 months to 505 months. Moreover, this
imprisonment term was almost half of the sentence imposed on
Mr. Borda, who received 300 months’ imprisonment. The fact
that Mr. Alvaran will be older than Mr. Borda upon his release
44
from prison is irrelevant. Thus, the District Court did not err in
its sentencing determination.
D.
While we reject Mr. Alvaran’s contentions of error, we
nonetheless remand the case to the District Court for
resentencing. After Mr. Alvaran was sentenced, the U.S.
Sentencing Commission lowered the Guidelines range for
certain offenses involving cocaine, and permitted district courts
to apply these lower ranges retroactively. See U.S.S.G. §
2D1.1; Amendment 782, supra; see also 18 U.S.C. § 3582(c)
(explaining that a district court can modify a term of
imprisonment if the applicable Sentencing Guidelines range
has been retroactively lowered by the Sentencing
Commission). The Government agrees to Mr. Alvaran’s
request for resentencing on this basis. See Gov’t Br. 92 n.18
(stating that the Court “should remand” the case to allow Mr.
Alvaran to file a motion for a reduced sentence). Thus, the case
is remanded to provide Mr. Alvaran with an opportunity to
request a reduced sentence. 2 We, of course, express no view on
the merits of any such request.
***
For the reasons previously discussed, we affirm
Appellants’ convictions and remand the case to the District
Court for resentencing Mr. Alvaran.
So ordered.
2
Mr. Borda did not challenge his sentence on appeal. Therefore, our
remand is limited to Mr. Alvaran.