United States v. Ibarra-Diaz

FILED
United States Court of Appeals
Tenth Circuit
November 9, 2015
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-3130
JESUS IBARRA-DIAZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:13-CR-10011-MLB-1)
Rick E. Bailey of Conlee, Schmidt & Emerson, LLP, Wichita, Kansas (Laura B.
Shaneyfelt of Ney, Adams & Shaneyfelt, Wichita, Kansas, on the brief) for
Defendant-Appellant Jesus Ibarra-Diaz.
Alan G. Metzger, Assistant United States Attorney, Wichita, Kansas (Barry R.
Grissom, United States Attorney, and James A. Brown, Assistant United States
Attorney, Topeka, Kansas, on the brief) for Plaintiff-Appellee.
Before HARTZ, O’BRIEN, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
Jesus Ibarra-Diaz appeals from his conviction for possession with intent to
distribute fifty grams or more of a mixture or substance containing
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(viii), and
18 U.S.C. § 2. Mr. Ibarra-Diaz asserts four claims of error on appeal: (1) the
district court violated his Sixth Amendment confrontation rights by admitting
various statements of testimonial hearsay at trial; (2) he was unfairly prejudiced
by the admission of inflammatory testimony from the government’s key witness;
(3) he was deprived of a unanimous jury verdict by an allegedly duplicitous
indictment; and (4) there was insufficient evidence produced at trial to support his
conviction. Exercising jurisdiction under 28 U.S.C. § 1291, we reject these
challenges and affirm Mr. Ibarra-Diaz’s conviction.
I
In January 2013, an undercover detective with the Wichita Police
Department was investigating drug-trafficking activity with the help of a
confidential informant (“CI”). The CI called the detective and identified Mr.
Ibarra-Diaz as a potential target for the investigation. The CI told the detective
that Mr. Ibarra-Diaz had several pounds of methamphetamine for sale; he
provided Mr. Ibarra-Diaz with the detective’s phone number. Working through
the CI, the detective arranged to buy one pound of methamphetamine for $18,000.
On January 8, 2013, the undercover detective received a phone call from
Mr. Ibarra-Diaz’s girlfriend and co-defendant, Ana Valeriano-Trejo. She began
the conversation with a question: “Meet up with us somewhere?” R., Vol. 4, at 1
(Tr. of Gov’t Ex. 35, dated Jan. 8, 2013). The undercover detective suggested
that they meet at the Towne West shopping mall. Ms. Valeriano-Trejo agreed,
2
and asked the detective, “Ok, yeah, he thinks you want to talk to him first or you
want just get ready, get him, get him be ready?” Id. The detective replied,
“Yeah, I want him to be ready.” Id. They agreed to meet at a specified location
at the Towne West shopping mall in approximately thirty minutes. Ms.
Valeriano-Trejo told the detective that she would be coming along, and indicated
that they would be driving a gold Malibu. The detective testified that during the
conversation he could hear a male voice in the background saying, “see if he
wants to talk first.” R., Vol. 3, at 39 (Trial Tr., dated May 7–9, 2013).
After the phone call, the detective held a debriefing session with other
officers to prepare for the planned drug purchase. The team planned to conduct a
“buy/bust” operation, meaning in this instance that officers would move in and
arrest the suspect as soon as the detective saw the drugs and gave a signal. The
detective assigned a surveillance position to each member of the team. Then,
wearing a body wire, he drove to the Towne West shopping mall and parked at
the agreed-upon spot.
After approximately forty-five minutes, a blue Chevrolet Malibu arrived
and parked, facing in the opposite direction, next to the detective’s vehicle. Mr.
Ibarra-Diaz was driving, and was accompanied by Ms. Valeriano-Trejo and an
eight-month-old baby. The detective got out of his vehicle and into the back seat
of the Malibu. Ms. Valeriano-Trejo engaged in small talk with the detective, and
asked Mr. Ibarra-Diaz, “Where is Ricardo[?]” R., Vol. 4, at 8 (Tr. of Gov’t Ex.
3
36). 1 Mr. Ibarra-Diaz told her, “In a little bit he will bring it,” and instructed her
to “call him to come over here.” Id. Ms. Valeriano-Trejo explained to the
detective that “Ricardo” was “just our friend.” Id.Almost immediately thereafter, a brown Ford Explorer SUV arrived and
parked on the opposite side of the detective’s vehicle. The driver of the Explorer,
Ricardo Estrada, got out of his vehicle and spoke with Mr. Ibarra-Diaz through
the open driver’s-side window of the Malibu. The detective was unable to fully
hear Mr. Estrada’s side of the conversation, but the body wire recorded Mr.
Ibarra-Diaz telling Mr. Estrada, “Hey man, get it out and bring it in . . . get it and
bring it in.” Id. at 9. The detective testified that Mr. Estrada continued to talk to
Mr. Ibarra-Diaz while looking at the detective “real hard.” R., Vol. 3, at 53.
According to the detective, at that point he heard Mr. Estrada tell Mr. Ibarra-Diaz
that the detective was a police officer. Although the detective did not
immediately recognize Mr. Estrada, he later recalled that five weeks earlier he
had interviewed Mr. Estrada as a potential CI.
Mr. Ibarra-Diaz told the detective, “Go up to the car.” R., Vol. 4, at 9. The
detective got out of the Malibu and confronted Mr. Estrada, saying, “You think I
am a cop.” Id. At that point, Mr. Ibarra-Diaz drove away, telling Mr. Estrada, “I
am going over there.” Id. at 10. Officers intercepted the Malibu, and took Mr.
1
Capitalization of the text in the exhibit transcripts is altered
throughout.
4
Ibarra-Diaz and Ms. Valeriano-Trejo into custody. The detective arrested Mr.
Estrada and another officer searched the Explorer. Over the vehicle’s right wheel
well was a plastic Walmart bag containing suspected methamphetamine.
Once inside a patrol vehicle, Mr. Estrada voluntarily informed the detective
that over a pound of methamphetamine could be found at the residence that he
shared with Mr. Ibarra-Diaz and Ms. Valeriano-Trejo. Officers obtained a
warrant to search the residence. They uncovered a number of pertinent items,
including methamphetamine. Specifically, officers recovered documents with
Mr. Ibarra-Diaz’s name and picture on them. In one of the bedrooms, they found
men’s clothing, women’s clothing, and a diaper bag containing a plastic watch
box with $1440 inside. The bedroom believed to be Mr. Estrada’s contained a
methamphetamine pipe. In the kitchen area, Officers found Saran Wrap, which
they surmised was used to package drugs. Notably, the officers also found a five-
gallon tub of tile adhesive in a utility area connected to the kitchen. Inside the
tub, they discovered another plastic Walmart bag—like the one previously
discovered in the vehicle’s wheel well—that contained roughly one pound of
suspected methamphetamine.
A forensic chemist analyzed samples taken from the two plastic Walmart
bags and confirmed that both held substances containing methamphetamine.
Laboratory tests revealed that the bag taken from the Explorer contained 447.8
grams of a substance that was 72% pure methamphetamine (i.e., 322.41 grams of
5
actual methamphetamine) and the bag taken from the residence held 432.1 grams
of a substance that was 79% pure methamphetamine (i.e., 341.35 grams of actual
methamphetamine).
A federal grand jury sitting in the United States District Court for the
District of Kansas returned an indictment charging Mr. Ibarra-Diaz, Ms.
Valeriano-Trejo, and Mr. Estrada with one count of possession with intent to
distribute fifty grams or more of a mixture or substance containing
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(viii), and
18 U.S.C. § 2. Mr. Ibarra-Diaz exercised his right to a jury trial. At the close of
the government’s case-in-chief, he moved for a judgment of acquittal. See Fed.
R. Crim. P. 29(a). Citing the “overwhelming evidence” in support of the
government’s case, the district court denied the motion. R., Vol. 3, at 190. At
that point, Mr. Ibarra-Diaz rested his case without testifying or presenting any
evidence of his own. After deliberating, the jury pronounced him guilty.
A Presentence Investigation Report (“PSR”) prepared by the U.S. Probation
Office found that Mr. Ibarra-Diaz was responsible for possession with intent to
distribute 663.76 grams of actual methamphetamine—the sum of the amounts
contained in the two Walmart bags. Under the U.S. Sentencing Guidelines
Manual (“U.S.S.G.”), 2 this drug quantity yielded a base offense level of thirty-six.
2
The U.S. Probation Office applied the 2012 version of the U.S.S.G.
The parties do not challenge this decision on appeal.
6
See U.S.S.G. § 2D1.1(c)(2) (setting base offense level at thirty-six for at least 500
grams but less than 1.5 kilograms of actual methamphetamine). Applying a base
offense level of thirty-six to a criminal history category of I, the PSR calculated
an advisory Guidelines imprisonment range of 188 to 235 months, with a statutory
minimum of five years. The court imposed a sentence of 188 months’
imprisonment—the bottom of Mr. Ibarra-Diaz’s Guidelines range—followed by
four years of supervised release.
II
Mr. Ibarra-Diaz challenges his conviction on four grounds. First, he argues
that the district court erroneously admitted a number of statements in violation of
his rights under the Confrontation Clause. Second, he claims that the district
court allowed the detective to present irrelevant and inflammatory testimony, and
he consequently was denied a fair trial. Third, he contends that certain evidence
that the district court admitted into evidence rendered the indictment duplicitous
and deprived him of a unanimous jury verdict. Fourth, and finally, he argues that
there was insufficient evidence to support his conviction; thus, the district court’s
judgment is fatally infirm. We address and reject each of these arguments in turn.
As an initial matter, Mr. Ibarra-Diaz raises all but his sufficiency-of-the-
evidence challenge for the first time on appeal. We generally review an asserted
ground for reversal that a party fails to present in the district court under the
7
“rigorous plain-error standard.” United States v. Cooper, 654 F.3d 1104, 1117
(10th Cir. 2011). To obtain relief under this standard, a defendant:
must show: (1) an error, (2) that is plain, which means clear or
obvious under current law, and (3) that affects substantial rights.
If he satisfies these criteria, this Court may exercise discretion to
correct the error if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings.
United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007) (quoting United
States v. Kimler, 335 F.3d 1132, 1141 (10th Cir. 2003)). 3
3
Although application of plain-error review is generally appropriate in
a circumstance of forfeited contentions of error, matters are somewhat more
complicated in this case. As noted, there are three unpreserved claims of error
here. As to the first two claims (i.e., Mr. Ibarra-Diaz’s claims based on the
admission of statements that, respectively, allegedly violated the Confrontation
Clause, and were impermissibly inflammatory and prejudicial), Mr. Ibarra-Diaz
does not ask for plain-error review. Because he fails to do so, “we could
permissibly decline to consider” them. Abernathy v. Wandes, 713 F.3d 538, 551
(10th Cir. 2013); see United States v. Garcia, 793 F.3d 1194, 1214 (10th Cir.
2015) (“On appeal they do not argue that the admission of the other three
statements was plain error, so we will not review them.”); United States v.
Lamirand, 669 F.3d 1091, 1099 n.7 (10th Cir. 2012) (“[Defendant] has not asked
us to review his late-blooming argument for plain error. Accordingly, we decline
to do so . . . .”). Nevertheless, “[t]he matter of what questions may be taken up
and resolved for the first time on appeal is one left primarily to the discretion of
the courts of appeals, to be exercised on the facts of the individual cases.”
Singleton v. Wulff, 428 U.S. 106, 121 (1976). And, exercising our discretion, we
elect to review these two claims of error, which were forfeited, under the rigorous
plain-error standard of review. As to his third unpreserved contention of error
(i.e., regarding the ostensible duplicitous nature of the indictment), Mr. Ibarra-
Diaz does concede a lack of preservation and urge application of plain-error
review. However, for reasons that are explicated infra, the failure to preserve
duplicity challenges (along with others that allege defects in the indictment) are
handled differently: suffice it to say for now that, ordinarily such challenges must
be raised prior to trial or they are deemed waived. See, e.g., United States v.
Trammell, 133 F.3d 1343, 1354 (10th Cir. 1998). We conclude that Mr. Ibarra-
(continued...)
8
A
Mr. Ibarra-Diaz asserts that the district court violated his Sixth Amendment
confrontation rights by admitting various out-of-court statements from the CI and
Mr. Estrada through the testimony of the detective. The Confrontation Clause
guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him.” U.S. Const. amend. VI; see
United States v. Zar, 790 F.3d 1036, 1051 (10th Cir. 2015) (“The Confrontation
Clause of the Sixth Amendment guarantees a criminal defendant’s right to
confront the witnesses against her.”), petition for cert. filed (U.S. Oct. 27, 2015)
(No. 15-6650). In Crawford v. Washington, 541 U.S. 36 (2004), the U.S.
Supreme Court “limited the Confrontation Clause’s reach to testimonial
statements and held that in order for testimonial evidence to be admissible, the
Sixth Amendment ‘demands what the common law required: unavailability and a
prior opportunity for cross-examination.’” Michigan v. Bryant, 562 U.S. 344, 354
(2011) (quoting Crawford, 541 U.S. at 68).
The Supreme Court declined to precisely define the contours of what
statements might be considered “testimonial.” See Crawford, 541 U.S. at 68(“We leave for another day any effort to spell out a comprehensive definition of
‘testimonial.’”). At a minimum, the term applies to “prior testimony at a
3
(...continued)
Diaz’s post-trial duplicity challenge should be deemed waived.
9
preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations.” Id. And we have previously synthesized the Court’s holdings in
Crawford and Davis v. Washington, 547 U.S. 813 (2006), as follows:
[W]e might today formulate a definition of a testimonial
statement which reads: a formal declaration made by the
declarant that, when objectively considered, indicates the primary
purpose for which the declaration was made was that of
establishing or proving some fact potentially relevant to a
criminal prosecution. Or, to better conform to the current state
of Tenth Circuit precedent, we might say: A formal statement is
testimonial if a reasonable person in the position of the declarant
would objectively foresee that the primary purpose of the
statement was for use in the investigation or prosecution of a
crime.
United States v. Smalls, 605 F.3d 765, 778 (10th Cir. 2010).
The scope of the Confrontation Clause “generally extends no further than
testimonial hearsay.” United States v. Clark, 717 F.3d 790, 815 n.15 (10th Cir.
2013) (emphasis omitted); see United States v. Edwards, 782 F.3d 554, 560 (10th
Cir. 2015) (“The ‘primary object’ of the Confrontation Clause is ‘testimonial
hearsay.’” (quoting Crawford, 541 U.S. at 53)), cert. denied, --- U.S. ----, 2015
WL 3902785 (Oct. 5, 2015). Hearsay is defined as “a statement that: (1) the
declarant does not make while testifying at the current trial or hearing; and (2) a
party offers in evidence to prove the truth of the matter asserted in the statement.”
Fed. R. Evid. 801(c). Thus, “the Clause bars the admission of ‘testimonial’
hearsay unless (1) the declarant testifies at trial, or (2) the declarant is unavailable
to testify and was previously subject to cross-examination concerning the
10
statement.” United States v. Faulkner, 439 F.3d 1221, 1225 (10th Cir. 2006)
(citations omitted) (citing Crawford, 541 U.S. at 59 & n.9).
Because the scope of the Confrontation Clause is generally limited to
testimonial hearsay, the Clause “does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted.” Crawford, 541
U.S. at 59 n.9 (emphasis added); see Edwards, 782 F.3d at 560 (“The Clause does
not bar the use of statements (even testimonial statements) that are not hearsay,
i.e., that are offered for purposes other than establishing the truth of the matter
asserted.”). And, as we have previously explained, “[i]t is essential to understand
that ‘the matter asserted’ is the fact being asserted by the declarant in uttering the
statement,” which “is not necessarily the matter that the party offering the
statement into evidence is trying to prove with the statement.” United States v.
Lewis, 594 F.3d 1270, 1282 (10th Cir. 2010).
Mr. Ibarra-Diaz identifies nine statements 4 that were allegedly admitted
4
Mr. Ibarra-Diaz’s briefing on this issue leaves much to be desired
and is far from pellucid. In his Opening Brief, Mr. Ibarra-Diaz begins with a
section titled, “Facts Regarding Admission of Improper Hearsay Statements.”
Aplt. Opening Br. at 5–8. This section directly quotes various statements in the
record, and provides a citation for each statement. Later, at the beginning of the
argument section of his brief, Mr. Ibarra-Diaz provides bullet points identifying
nine statements by their general description. See id. at 11–12. For example, “The
confidential informant told [the detective] that he was very afraid of Mr. Ibarra-
Diaz.” Id. at 11. In this portion of his brief, however, Mr. Ibarra-Diaz provides
no citations, but merely descriptions, which appear to generally correspond to the
statements provided earlier. Finally, Mr. Ibarra-Diaz presents the meat of his
legal argument—a general discussion of the law governing hearsay and the
(continued...)
11
into evidence in contravention of the Confrontation Clause. 5 Ordinarily, “whether
admission of such evidence violates the Confrontation Clause is reviewed de
novo.” Edwards, 782 F.3d at 560 (quoting United States v. Townley, 472 F.3d
4(...continued)
Confrontation Clause—without any specific connection or citation to any of the
nine statements he has identified. Id. at 12–15. Thus, Mr. Ibarra-Diaz’s
scattershot analysis effectively leaves us—without assistance from him—to match
his nine general descriptions with actual relevant statements in the record, as well
as to subsequently apply the law to those statements. In reluctantly undertaking
this needlessly imprecise and burdensome analysis, we will not hunt through the
record for statements consistent with his nine general descriptions. Rather, we
will restrict our analysis to the record passages that Mr. Ibarra-Diaz identifies at
the beginning of his brief.
5
Some of Mr. Ibarra-Diaz’s arguments under the Confrontation Clause
might be more properly framed as evidentiary objections under Federal Rule of
Evidence 403. See Fed. R. Evid. 403 (“The court may exclude relevant evidence
if its probative value is substantially outweighed by a danger of . . . unfair
prejudice . . . .”). Although Mr. Ibarra-Diaz invokes Rule 403 in a cursory
fashion to argue that the statements were prejudicial, he never develops this line
of argument or applies it to any specific statements. We will not craft such
arguments for him. See United States v. Yelloweagle, 643 F.3d 1275, 1284 (10th
Cir. 2011) (noting that “[w]e cannot make arguments for” a party).
Furthermore, to the extent that Mr. Ibarra-Diaz raises hearsay issues that
are independent of his Confrontation Clause challenges, we decline to address
these arguments for a similar reason. In the Opening Brief, he devotes
approximately three paragraphs to an argument that some (although he does not
specify which) of the nine statements that he identified under his Confrontation
Clause challenge were also admitted in violation of the hearsay rule, Federal Rule
of Evidence 802. However, he makes no meaningful effort to tie these legal
contentions to specific statements or the salient facts. We consider such skeletal
arguments to be inadequate to present an issue for review. See Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to
consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.”). Accordingly, we decline to consider any possible
hearsay arguments that Mr. Ibarra-Diaz may be attempting to present independent
from his Confrontation Clause challenges.
12
1267, 1271 (10th Cir. 2007)). However, although Mr. Ibarra-Diaz raised
contemporaneous objections to some of these statements on hearsay grounds, he
failed to raise any objections or make any arguments regarding them under the
Confrontation Clause. “[W]here a Confrontation Clause objection is not
explicitly made below we will not address the constitutional issue in the absence
of a conclusion that it was plain error for the district court to fail to raise the
constitutional issue sua sponte.” United States v. Perez, 989 F.2d 1574, 1582
(10th Cir. 1993) (en banc); accord United States v. Chavez, 229 F.3d 946, 951
(10th Cir. 2000); United States v. Cass, 127 F.3d 1218, 1225 (10th Cir. 1997). In
a plain-error case, under the Confrontation Clause, ultimately, “we must conclude
the ‘error had an unfair prejudicial impact on the jury’s deliberations.’” Chavez,
229 F.3d at 951 (quoting Perez, 989 F.2d at 1583).
We review each of these nine statements for plain error. Ultimately, we
conclude that Mr. Ibarra-Diaz cannot satisfy the plain-error test as to any of the
statements. Accordingly, we conclude that Mr. Ibarra-Diaz is not entitled to
relief under the Confrontation Clause.
1
Mr. Ibarra-Diaz first argues that it was a violation of his confrontation
rights for the jury to learn, through the detective, that the narcotics investigation
regarding his conduct commenced because of information that the detective
received from a CI. When the government asked the detective how the
13
investigation into Mr. Ibarra-Diaz’s conduct began, the jury heard the following
exchange:
[THE GOVERNMENT:] Would you please describe to the jury
just how that investigation began?
[THE DETECTIVE:] I had an informant that had contacted me
about an individual that I identified as Jesus Ibarra-Diaz. This
informant advised me that ––
[DEFENSE COUNSEL:] Your Honor, I’m going to object
that this is hearsay.
[THE GOVERNMENT:] Your Honor, I’m just trying to
establish how the investigation began and why he did what he did
at a later point so I would argue that it is not hearsay.
THE COURT: I think we can move directly into what he
did as a result of that contact and that will solve any problems.
R., Vol. 3, at 30–31.
This challenge fails because there was no identifiable “statement” of the
informant (the putative “declarant”) admitted through the detective’s testimony.
Fed. R. Evid. 801(a), (b). Although the detective indicated that he had
information—apparently from the informant—that led him to investigate Mr.
Ibarra-Diaz, the defense’s objection brought the detective’s testimony abruptly to
a halt before he could offer into evidence any statement from the informant.
Absent an out-of-court statement from the informant, the detective’s testimony in
this exchange communicated no hearsay. And, if it communicated no hearsay, it
is generally of no concern to the Confrontation Clause. See, e.g., Clark, 717 F.3d
14at 815 n.15; see also Faulkner, 439 F.3d at 1226 (noting, as to the Confrontation
Clause, that “its subject is hearsay”). Accordingly, we discern no Confrontation
Clause error in admitting this portion of the detective’s testimony.
2
Mr. Ibarra-Diaz next claims that his confrontation rights were violated by
the jury hearing that the CI told the detective that he was afraid of Mr. Ibarra-
Diaz. The following exchange occurred during the cross-examination of the
detective:
[DEFENSE COUNSEL:] . . . . Let me ask you this, though. The
reason that you had been involved with Ricardo Estrada five
weeks earlier is because he’s involved in drugs, isn’t he?
[THE DETECTIVE:] That’s not correct.
Q Well, usually a drug detective has contact with individuals
and does interviews with people because they’re involved in
drugs?
A Do you want me to tell you why I had contact with Ricardo?
Q No. I just want to know that you did have contact with him
five weeks before that and you were interviewing him; correct?
A Correct.
Q And you were wanting to utilize his services; correct?
A No. I, I provided him my phone number. He said that he will
call me. Five weeks went by, he never called me. He had
information about dope, about drugs. And the information was
regarding your client.
Q But he never got back with you; correct?
15
A No, he didn’t. He was very scared of your client, too. That’s
why I think he didn’t --
[DEFENSE COUNSEL:] Your Honor, I’d ask that to be
stricken from the record.
A I’m sorry.
THE COURT: Yes. That remark will be stricken.
R., Vol. 3, at 113–14. 6
This challenge fails for two reasons. First, the district court’s decision to
strike the statement means that it was not admitted into evidence at trial at all,
much less improperly admitted. See United States v. Caballero, 277 F.3d 1235,
1242 (10th Cir. 2002) (finding no error “when the court struck [disputed]
testimony and instructed the jury to disregard it”). Second, the district court
cured any unfair prejudice that might have accrued from the statement by
prophylactically issuing to the jury two clear instructions—at the beginning and
end of the proceedings. More specifically, prior to trial, the court informed the
jury that both parties may object to witness testimony and specifically explained,
“If I sustain the objection, this means that you are not to pay attention to the
question, and [if] . . . the witness has already answered, . . . you are to disregard
6
As a preliminary matter, we note that the foregoing testimony does
not appear to reference any fear on the part of the CI—i.e., the ostensible focus of
Mr. Ibarra-Diaz’s objection. In context, it only plainly suggests that Mr. Estrada
may have been afraid of Mr. Ibarra-Diaz. Nevertheless, because we discern no
Confrontation Clause error in this exchange, this seeming incongruity is
immaterial to our analysis and we need not attempt to resolve it.
16
the witness’s answer.” R., Vol. 3, at 10; see also id. (“. . . I expect you to . . . not
go back to the jury room and talk about evidence that I told you not to
consider.”). Second, the court provided a similar, more specific admonition prior
to the case being submitted to the jury: “[A]ny evidence ordered stricken by the
court[] must be entirely disregarded.” R., Vol. 1, at 41 (Jury Instructions, filed
May 9, 2013).
We “presume[] that jurors will conscientiously observe the instructions and
admonitions of the court.” United States v. Battles, 745 F.3d 436, 453 (10th Cir.
2014), cert. denied, 135 S.Ct. 355 (2014) (quoting United States v. Greer, 620
F.2d 1383, 1390 (10th Cir. 1980)); see also United States v. Carter, 973 F.2d
1509, 1513 (10th Cir. 1992) (“We presume jurors will remain true to their oath
and conscientiously follow the trial court’s instructions.”); cf. United States v.
Morgan, 748 F.3d 1024, 1041 (10th Cir. 2014) (explaining that mistrials are often
unnecessary because “[a] cautionary instruction is ordinarily sufficient to cure
any alleged prejudice to the defendant” (quoting United States v. Peveto, 881 F.2d
844, 859 (10th Cir. 1989))). Thus, any potential prejudice engendered by the
detective’s testimony about the CI ostensibly being afraid of Mr. Ibarra-Diaz was
cured by the district court’s clear instructions. Therefore, this contention of error
is without merit.
17
3
Third, Mr. Ibarra-Diaz argues that his confrontation rights were violated by
the detective’s testimony regarding the CI’s role in setting up the transaction.
Specifically, he objects to the detective’s testimony that the CI told him (the
detective) that Mr. Ibarra-Diaz had “some dope” for sale and that the CI told Mr.
Ibarra-Diaz that he knew of someone who was interested in buying the drugs.
The following exchange occurred after defense counsel asked the detective
whether the CI wore a body wire when communicating with Mr. Ibarra-Diaz:
[DEFENSE COUNSEL:] Did you put a body wire on your
confidential informant when they were going to see if they could
negotiate for this $18,000 drug transaction?
[THE DETECTIVE:] No. This informant wasn’t under my
control. It’s not like I sent this informant to his house. If this
informant was under my control and we would have sent him to
a house to make a purchase or develop information or something,
they would wear some type of wire, recording. But this is
something that the informant called me out of the blue saying
Jesus Ibarra has some dope on him or he had an amount of dope
he’s looking to get rid of. That’s when the informant says, hey,
I know a guy that’s interested in buying some.
R., Vol. 3, at 102–03.
As a general rule, “[a] confidential informant’s statements to a law
enforcement officer are clearly testimonial.” United States v. Lopez-Medina, 596
F.3d 716, 730 (10th Cir. 2010). The government does not argue that the CI was
unavailable to testify or that Mr. Ibarra-Diaz had a prior opportunity to cross-
examine the witness. Instead, the government contends that the statement “did
18
not violate the defendant’s confrontation rights because his counsel elicited this
statement during his cross-examination of [the detective].” Aplee. Answer Br. at
19 (citing United States v. McKenzie, 532 F. App’x 793, 797 (10th Cir. 2013)
(“[B]ecause [Defendant] elicited through his cross-examination of [the agent] the
information he complains was admitted in violation of the Confrontation Clause,
there was no Confrontation Clause violation.”)). Be that as it may, we conclude
that this third challenge is without merit on an alternative basis: the statement was
not hearsay.
More specifically, even assuming that the detective’s testimony relating to
the CI’s communication to him—which generally informed the detective that the
CI had discussed with Mr. Ibarra-Diaz setting up a drug transaction—was
testimonial, that is not enough: the Confrontation Clause “does not bar the use of
statements (even testimonial statements) that are not hearsay, i.e., that are offered
for purposes other than establishing the truth of the matter asserted.” Edwards,
782 F.3d at 560. And it is clear to us that the detective’s testimony was not
offered for a hearsay purpose. In this regard, the detective was not offering this
testimony to establish that Mr. Ibarra-Diaz had told the CI that he had “some dope
on him” or that the CI had told Mr. Ibarra-Diaz that the CI had an interested
buyer (and certainly not to show that Mr. Ibarra-Diaz actually had dope in his
possession)—that is, it was not offered to prove the truth of these matters
asserted—but rather to explain why he did not put a body wire on the CI for this
19
significant drug transaction—i.e., because, unlike situations where the detective is
in control of an informant from the outset and, more specifically, of the
circumstances of the informant’s dealings with a potential target, in this instance,
the CI just called the detective “out of the blue” about the possible drug
transaction with Mr. Ibarra-Diaz. Thus, the detective’s testimony was not offered
for the truth of the matters asserted; that is, it was not hearsay. See, e.g., Lewis,
594 F.3d at 1282 ( “For example, a party may offer a statement by A that the
Yankees won the pennant in 1999. The matter asserted by A is that the Yankees
were American League champions in 1999. But if the party offering A’s statement
is merely trying to prove that A was capable of speech, then A’s statement is not
offered into evidence for the truth of the matter asserted, and the statement is not
hearsay.”). Accordingly, in our view, the admission of the detective’s testimony
at issue here was not error. And, even if it was, it would not have been error of
the clear or obvious sort.
4
Mr. Ibarra-Diaz next claims that it was a violation of his confrontation
rights for the jury to hear testimony from the detective that the CI told him that he
gave the detective’s phone number to Mr. Ibarra-Diaz. Immediately following the
exchange at issue in Part 1, supra, the detective testified as follows:
[THE GOVERNMENT:] With that CI, did you actually set up a
. . . drug transaction with Jesus Ibarra?
20
[THE DETECTIVE:] Yes.
Q And how did that occur?
A Basically, received a phone call on my phone. My CI had
given Jesus my phone number . . . .
R., Vol. 3, at 31.
Again, this testimony provides no basis for relief under the Confrontation
Clause because it contains no “statement” from the CI (i.e., the ostensible
declarant), much less a hearsay one. Rather than a “statement,” the testimony
recounted nonverbal conduct (i.e., providing a phone number) with no indication
that the conduct was intended to be an assertion. 7 Thus, we find nothing in this
portion of the testimony that would implicate the Confrontation Clause. 8
7
See Fed. R. Evid. 801(a) (“‘Statement’ means a person’s . . .
nonverbal conduct, if the person intended it as an assertion.”); see also United
States v. Kool, 552 F. App’x 832, 834 (10th Cir. 2014) (“Although the Supreme
Court has not ruled on when nonverbal conduct constitutes hearsay under
Crawford, we can assume that it will adopt the same view as the Federal Rules of
Evidence. Under those rules, nonverbal conduct cannot be hearsay unless it
constitutes a statement, and it is a statement only if the declarant ‘intended it as
an assertion.’” (quoting Fed. R. Evid. 801(a))).
8
To be sure, we recognize that Mr. Ibarra-Diaz’s challenge to the
admission of this statement may rest on the (arguably well-founded) suspicion
that the detective acquired his information about the CI giving Mr. Ibarra-Diaz
the detective’s phone number from an out-of-court statement of the CI—which, if
articulated in court, would have been (as the argument would go) hearsay.
However, if he truly suspected that the detective was relying on embedded
(unstated) hearsay, Mr. Ibarra-Diaz had a mechanism to ferret this out: the
testimony was open to a proper objection on the grounds of lack of personal
knowledge (i.e, there was no predicate for how the detective knew that the CI
gave his phone number to Mr. Ibarra-Diaz). See Fed. R. Evid. 602 (“A witness
(continued...)
21
5
Mr. Ibarra-Diaz’s fifth challenge relates to the detective’s testimony that
the CI was the person who told the detective that Mr. Ibarra-Diaz had a pound of
methamphetamine available to sell for $18,000. During the detective’s initial
recollection of the investigation into Mr. Ibarra-Diaz, he testified as follows:
[THE GOVERNMENT:] . . . . Was there ever a time that it was
discussed how much you would pay in this drug transaction?
[THE DETECTIVE:] Yeah. One pound of methamphetamine for
$18,000.
Q And that wasn’t discussed with Ana, that was discussed
through the CI; is that correct?
A Correct.
R., Vol. 3, at 31–32.
8
(...continued)
may testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter.”); see, e.g., United
States v. Sinclair, 109 F.3d 1527, 1536 (10th Cir. 1997) (noting that Fed. R. Evid.
602 “provides that a witness’s testimony must be based on personal knowledge”);
see also Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1123 (10th Cir. 2005)
(discussing the requirements of Fed. R. Evid. 602). If, following such an
objection, the detective testified that he only knew about the CI’s delivery of his
phone number to Mr. Ibarra-Diaz because of the CI’s (hearsay) communication to
him of this information, then Mr. Ibarra-Diaz could have made a proper hearsay
objection and at least argued that his confrontation rights were also violated by
the admission of the detective’s testimony. But Mr. Ibarra-Diaz made no such
lack-of-personal-knowledge objection; therefore, any ostensible hearsay statement
underlying the detective’s testimony remained unarticulated, and there was no
basis then—or now—for a Confrontation Clause challenge to this testimony.
22
Again, this testimony provides no basis for relief under the Confrontation
Clause. Although the detective alludes to a conversation involving the CI, he
offers into evidence no testimonial hearsay statement of the CI. Accordingly,
there is no foundation for a violation of the Confrontation Clause. Mr. Ibarra-
Diaz’s challenge as it relates to this statement must fail.
6
In his sixth challenge, Mr. Ibarra-Diaz claims that it was a violation of his
confrontation rights for the jury to learn through the detective’s testimony that the
CI “suggested to [the detective] that he pretend not to be able to speak Spanish
and to be a stripper’s boyfriend from Salina.” Aplt. Opening Br. at 11. This
argument relates to the following exchange with the detective:
[THE GOVERNMENT:] Detective, do you speak Spanish?
[THE DETECTIVE:] I do.
Q Is it a native language for you or a first language?
A My first language, yes.
Q And have you participated in undercover operations in which
you have spoken Spanish?
A Yes.
Q And have you participated in undercover operations in which
you have said that you do not speak Spanish?
A No, this is my first one.
23
Q It was. And why did you on this occasion decide to portray
yourself as somebody who does not speak Spanish?
A It was something to do with the CI said to me, he goes, I
could tell him that you are this stripper’s boyfriend from Salina
and that you don’t speak any Spanish, so I just went along and
said that’s fine and that’s what we went with.
R., Vol. 3, at 32.
It is somewhat difficult to ascertain the truth of the matter for which Mr.
Ibarra-Diaz argues this statement was asserted. Regardless, the testimony does
not constitute hearsay. The statement was only offered to explain the detective’s
conduct and why he chose to conceal his Spanish fluency on this particular
occasion. See United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir. 1992)
(“[T]hose statements were not hearsay declarations because they were not
introduced for the purpose of establishing the truth of the matters asserted in the
statements, but rather, for the purpose of explaining the conduct of the
government agents.”). Because it was not offered for the truth of the matter
asserted, the testimony did not constitute hearsay, and thus did not violate Mr.
Ibarra-Diaz’s rights under the Confrontation Clause.
7
The seventh challenge focuses on the detective’s statement that he had prior
information indicating that Mr. Ibarra-Diaz had purchased a Ford Explorer—the
same type of vehicle in which Mr. Estrada and the methamphetamine arrived at
the scene. The relevant testimony occurred when the government presented the
24
detective with several photographs during its case-in-chief:
[THE GOVERNMENT:] Do you recognize these items?
[THE DETECTIVE:] Yes.
Q The items in this picture?
A Yes.
Q How are you able to do so?
A Exhibit 1 is gonna be the Ford Explorer that Ricardo Estrada
came driving in. And it’s got a 30-day tag. And I also had
information prior to this that Jesus had purchased a vehicle which
was a Ford Explorer.
R., Vol. 3, at 72.
This testimony, again, does not offer a hearsay statement. The detective’s
remark that he “also had information” that Mr. Ibarra-Diaz had purchased a Ford
Explorer did not communicate the “oral assertion, written assertion, or nonverbal
conduct” of any out-of-court declarant. Fed. R. Evid. 801(a). The detective
testified in court about the information in his possession and never specified an
assertion from any out-of-court declarant that had provided that information.
Therefore, the complained-of testimony is not hearsay and, consequently, does
not implicate the Confrontation Clause. 9 We reject Mr. Ibarra-Diaz’s challenge
9
Mr. Ibarra-Diaz’s seventh challenge to the admission of the
detective’s testimony likely stems from a similar set of circumstances as his
fourth challenge discussed above, and is consequently plagued by a similar
problem. See supra note 8. The detective testified that he “had information” that
Mr. Ibarra-Diaz had purchased a Ford Explorer—the same kind of vehicle that
(continued...)
25
on this ground.
8
In his eighth challenge, Mr. Ibarra-Diaz argues that his confrontation rights
were violated by the detective’s statement that Mr. Estrada told him that Mr.
Ibarra-Diaz had sent Mr. Estrada to Towne West with the methamphetamine. The
relevant statement occurred during the following exchange:
[THE GOVERNMENT:] Did you actually go ahead and give a
bust signal then after Jesus Ibarra left the scene?
[THE DETECTIVE:] It wasn’t really a bust signal. I mean, they
see me take this guy down to the ground so they know something
isn’t right. And they see this vehicle leave and I’m telling them
stop the blue car . . . the car stop, the blue car, you know, and
they finally get the message and I see a bunch of cars headed to
the north of the mall to make that car stop.
Q Why did you have them stop this car if you hadn’t actually
seen any drugs at that point?
A ‘Cause he had told me –– Ricardo had told me that Jesus ––
[DEFENSE COUNSEL:] I’m going to object, Your Honor.
It’s hearsay.
THE COURT: I’m going to let the witness testify, but
9
(...continued)
Mr. Estrada drove to the Towne West drug transaction—without explaining the
basis for his information. R., Vol. 3, at 72. Mr. Ibarra-Diaz may have suspected
that the detective’s information regarding this matter was predicated on an
unarticulated hearsay statement. However, because Mr. Ibarra-Diaz did not lodge
a lack-of-personal-knowledge objection, see Fed. R. Evid. 602, any such
statement remained just that—unarticulated. And, therefore, there was no
foundation then—or now—for a Confrontation Clause objection.
26
only for the purpose of then explaining what he did, what [the
detective] did as a result. So, you’re not to consider what
Estrada, who is not a witness here, told him for the truth of it,
just for the purpose of explaining why [the detective] took the
action he did. Go ahead.
A Thank you, sir. Jesus told me –– I’m sorry –– Ricardo told
me that Jesus Ibarra had sent him over here with a pound of meth
to bring over here to the mall and that it was in the car [i.e,
Ricardo Estrada’s car].
R., Vol. 3, at 56–57.
We find no error in this limited admission of this testimony. To be sure,
the detective recounted the statement of an out-of-court declarant. But the
statement was not offered for the truth of the matter asserted. Rather, it was
offered to explain the detective’s conduct—that is, his request to the other law
enforcement officers to stop the vehicle containing Mr. Ibarra-Diaz, after the
detective received confirmation from Mr. Estrada that he had actually brought
methamphetamine to the scene in his car for the arranged drug transaction. Thus,
the statement did not constitute hearsay. We have previously endorsed the
admission of similar testimony for this limited purpose. See, e.g., United States
v. Ledford, 443 F.3d 702, 708 (10th Cir. 2005) (admitting statement to explain
why an officer entered a bedroom, not to prove the utterance of a threat); United
States v. Trujillo, 136 F.3d 1388, 1396 (10th Cir. 1998) (concluding that
descriptive testimony was not offered for its truth, but “only explain[ed] what
[agents] were doing in the FBI office”); United States v. Bowser, 941 F.2d 1019,
27
1021 (10th Cir. 1991) (per curiam) (admitting testimony revealing that a CI told
an officer the defendant had a gun not for its truth, but “merely to explain the
officer’s aggressive conduct towards the defendant”).
Further, the district court expressly instructed the jury to appropriately
limit its consideration of the testimony, and we presume that jurors will
conscientiously observe such an instruction. Battles, 745 F.3d at 453. In light of
the non-hearsay purpose for which the testimony was admitted, as well as the
court’s limiting instruction to that effect, we find no error in the admission of the
detective’s testimony.
9
Finally, Mr. Ibarra-Diaz challenges the admission of the detective’s
statement that Mr. Estrada told him there was additional methamphetamine at the
house he shared with Mr. Ibarra-Diaz and Ms. Valeriano-Trejo. The detective
testified as follows:
[THE GOVERNMENT:] Did you –– beyond what we’ve heard
here on the recording, did you speak with Ricardo at the scene?
[THE DETECTIVE:] Yes.
Q Can you tell the Court where he was at?
A He was in the back of the patrol vehicle at the time.
Q And did he actually request to speak to you?
A Yes.
28
Q And what did he say?
A He advised me that there was more additional –– he said a
pound and a half of meth back at their house.
R., Vol. 3, at 71.
The government concedes that this statement constitutes testimonial
hearsay and that its admission thus violates the Confrontation Clause. The
government further concedes that this error was plain (i.e., clear or obvious
error). We proceed therefore to address the remaining two prongs of the plain-
error test because “[w]e see no reason to question this conclusion” of the
government. United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir.
2014); see also Greenlaw v. United States, 554 U.S. 237, 243 (2008) (noting
judicial fealty to the “principle of party presentation[,] . . . . rely[ing] on the
parties to frame the issues for decision”).
Regarding the third prong of the test, Mr. Ibarra-Diaz “bears the burden of
establishing the error impacted substantial rights by demonstrating the outcome of
the trial would have been different but for the error.” 10 United States v. Harlow,
444 F.3d 1255, 1261 (10th Cir. 2006). This he cannot do.
10
On this point, Mr. Ibarra-Diaz appears to misapprehend the burden of
proof. In his Opening Brief, he argues that “the Government certainly cannot
carry its burden of proving that the constitutionally offensive evidence did not
contribute to the verdict.” Aplt. Opening Br. at 13. It is his burden, however, to
establish that the evidence did affect the verdict. See, e.g., Harlow, 444 F.3d at
1261.
29
More specifically, “[a]n error seriously affects the defendant’s substantial
rights, as those terms are used in the plain-error test, when the defendant
demonstrates ‘that there is a reasonable probability that, but for the error claimed,
the result of the proceeding would have been different.’” Rosales-Miranda, 755
F.3d at 1258 (quoting United States v. Mendoza, 698 F.3d 1303, 1310 (10th Cir.
2012)). In light of the overwhelming evidence of his guilt, Mr. Ibarra-Diaz
cannot establish a reasonable probability that the admission of Mr. Estrada’s
statement through the detective affected the outcome of the trial.
As explicated further in Part D, infra, the jury was presented with ample
evidence to conclude that Mr. Ibarra-Diaz possessed with intent to distribute the
methamphetamine found in the Ford Explorer and at his residence. Mr. Ibarra-
Diaz’s recorded statements from the Towne West shopping mall would have
indicated to a rational factfinder that he was waiting for Mr. Estrada to bring the
methamphetamine to the parking lot and also suggested that he exercised
considerable influence over the situation by guiding the actions of Mr. Estrada
and Ms. Valeriano-Trejo. Almost immediately after Mr. Estrada suggested that
the detective might be a law enforcement officer, Mr. Ibarra-Diaz responded by
fleeing the scene. And on the heels of the buy/bust operation at the mall—where
officers recovered 447.8 grams of methamphetamine mixture secreted on the Ford
Explorer—officers recovered an additional 432.1 grams of methamphetamine
mixture at the residence with which Mr. Ibarra-Diaz was clearly associated. In
30
that regard, it is notable that law enforcement recovered documents there with Mr.
Ibarra-Diaz’s name and picture on them.
This overwhelming quantum of evidence belies any notion that, but for the
admission of Mr. Estrada’s statement through the detective, there is a reasonable
probability that the jury would have chosen to acquit Mr. Ibarra-Diaz. Based
upon a careful examination of the record as a whole, we conclude that admission
of this testimonial hearsay had no impact on Mr. Ibarra-Diaz’s substantial rights.
See United States v. Atencio, 435 F.3d 1222, 1236 (10th Cir. 2006) (holding that a
similar constitutional error was harmless beyond a reasonable doubt in light of
other significant testimonial and documentary evidence of drug activity); United
States v. Corchado, 427 F.3d 815, 818–19 (10th Cir. 2005) (finding no reasonable
probability of a different result where “ample record evidence aside from
Defendant’s prior conviction testimony” supported the verdict). Accordingly, Mr.
Ibarra-Diaz is not entitled to relief with respect to any of his claims arising under
the Confrontation Clause.
B
Mr. Ibarra-Diaz next argues that he was unfairly prejudiced by the
admission of inflammatory testimony from the detective. During its case-in-
chief, the government played the following excerpt from the body-wire recording
that captured the confrontation between the detective and Mr. Estrada:
[Mr. Ibarra-Diaz:] Go up to the car
31
[The detective:] To the car
....
[The detective:] You think I am a cop
[Mr. Estrada:] You are Ricky
[The detective:] Ricky?
....
[The detective:] What are you talking about
[Mr. Estrada:] You don’t remember me
[The detective:] Huh
[Mr. Estrada:] You don’t remember me
....
[Mr. Ibarra-Diaz:] I am going over there
[The detective:] 42[,] this car over here
[Mr. Estrada:] Remember when I told you I was going to give
him . . . . I was going to give this guy
[The detective:] Why did you tell him I was a cop[?]
[Mr. Estrada:] What?? No
[The detective:] Why did you say I was a cop[?]
[Mr. Estrada:] I didn’t say you were the police, don’t tell him
[The detective:] Do you have that stuff inside[?]
[Mr. Estrada:] Yes, because he told me to take it
32
[The detective—while taking Mr. Estrada into custody:] Stop the
blue car . . . stop the blue car, stop the blue car . . . get the blue
car . . . get the blue car please . . . this guys know [sic] I am a
f***ing cop . . . I interviewed this mother f***er . . . this guys
know [sic] I am a f***ing cop . . . [t]hat’s the guy I interviewed
at the county . . . .
R., Vol. 4, at 9–11. 11
The government paused the recording, and resumed its
questioning of the detective. At that point, the jury heard the
following exchange:
[THE GOVERNMENT:] A little worked up there?
[THE DETECTIVE:] A little bit.
Q Were you scared at that point?
A Yeah. There was a lot going through your body, I mean,
there’s –– it’s hard to explain because you –– we live it, but, I
mean, this ain’t the movies, this ain’t Hollywood, this is the real
deal, I mean, and I’m very calm at first when I say please stop
the car because he’s backing up and, you know, Ana could be
looking at me still because they haven’t passed me. So I’m just
being cool and I’m just talking into the body wire like, hey,
please stop that car, please stop the car. I’m buying time. I
don’t want to put my hand on this guy in front of me yet because
if I do take him into custody or throw him down to the ground,
now we definitely could get into a high speed chase with this guy
because he could be like, okay, it’s all –– it’s blown. So as soon
11
Because the trial transcript only indicates that a “portion” of the
audio recording was played for the jury, see R., Vol. 3, at 69, it is unclear how
much of the recording was played immediately prior to the relevant exchange.
According to the government and the detective, the jury heard the entire thirty-to-
forty minute unedited audio recording (with the exception of set-up procedures
that were recorded prior to Mr. Ibarra-Diaz’s arrival on the scene) during the
government’s examination of the detective. Id. at 61–62.
33
as they pass to the north, they pass JC Penney, that’s when I get
worked up, I guess. This guy, I tell him to get to the ground
first, he doesn’t want to do it. He still has his hand in his pocket.
I don’t have a gun on me. My gun is in my car. There’s a lot
going on through your head. I mean, I’m –– anything could
happen, anything could happen. And the cops aren’t coming fast
enough, even though it’s 15 seconds; but it seems inside your
body like it’s, like, five minutes. I mean, it’s like a long time.
And it’s because all that stress is pumping through your body.
I mean, there’s a lot going on. And I apologize for my language,
but I was worked up. I mean, I got two kids I’m raising by
myself so I don’t want nothing to happen to me. And it’s just
part of the job, too, though.
R., Vol. 3, at 69–70.
Mr. Ibarra-Diaz argues that this testimony was irrelevant, inflammatory,
and unfairly prejudicial. According to him, “[i]t was only with these improper,
extraneous statements that the Government painted a picture of a dangerous,
known drug dealer who caused the detective to become afraid for his safety.”
Aplt. Opening Br. at 17. Because Mr. Ibarra-Diaz failed to object or otherwise
argue to the district court that this testimony deprived him of a fair trial, we
review this claim for plain error. See Cooper, 654 F.3d at 1117.
Although Mr. Ibarra-Diaz never explicitly argues that the admission of this
testimony violated Federal Rule of Evidence 403, that appears to be the gist of his
claim. As a general matter, evidence is relevant if it has “any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” United
States v. Bowling, 619 F.3d 1175, 1182 (10th Cir. 2010) (quoting Fed. R. Evid.
34
401). Relevant evidence is generally admissible. See Fed. R. Evid. 402. “Rule
403, however, permits a court to ‘exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.’” United States v. Archuleta, 737
F.3d 1287, 1292 (10th Cir. 2013) (quoting Fed. R. Evid. 403), cert. denied, 134
S.Ct. 2859 (2014); accord United States v. Kupfer, 797 F.3d 1233, 1242 (10th
Cir. 2015).
The government argues that there was no error in the admission of the
testimony because it was relevant, “either as an explanation of what factually
happened during the incident or to provide context for such explanation.” Aplee.
Answer Br. at 29. And it contends that the comment about the detective’s family
“was relevant, even if marginally so, to explain to the jury that [the detective]
reacted the way he did because he thought he was in a stressful situation.” Id. at
30. We disagree. A significant portion of the detective’s testimony was
irrelevant, and any probative value was likely to be substantially outweighed by
the danger of confusing the issues or misleading the jury.
Nevertheless, that fact alone does not entitle Mr. Ibarra-Diaz to relief under
the plain-error standard of review. Even if the district court erred in admitting
this testimony, such error would not have been clear or obvious. Mr. Ibarra-Diaz
has completely failed to support with relevant legal authorities his contention that
35
the district court clearly or obviously erred in admitting the testimony. See, e.g.,
United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012) (“An error
is plain if it is clear or obvious under current, well-settled law. In general, for an
error to be contrary to well-settled law, either the Supreme Court or this court
must have addressed the issue.” (quoting United States v. Thornburgh, 645 F.3d
1197, 1208 (10th Cir. 2011)). Thus, with no authority to support his argument, he
has failed to show that any such error was clear or obvious.
Moreover, even if Mr. Ibarra-Diaz could demonstrate clear or obvious
error, his claim would necessarily fail at the third prong of plain-error review.
That is, he cannot show that the alleged error had any impact on his substantial
rights. Mr. Ibarra-Diaz’s assertion of prejudice apparently stems from his view
that a reasonable jury would have understood the detective as expressing fear of
violence from him. However, the most natural reading of the passage suggests
that the detective was afraid of Mr. Estrada—not Mr. Ibarra-Diaz. The detective
testified that he did not “get worked up” until Mr. Ibarra-Diaz and Ms. Valeriano-
Trejo “pass[ed] to the north” and were leaving the scene. R., Vol. 3, at 70. At
that point, the principal focus of the detective’s testimony became Mr. Estrada:
“This guy, I tell him to get to the ground first, he doesn’t want to do it. He still
has his hand in his pocket. I don’t have a gun on me. My gun is in my car.” Id.If the detective’s testimony was, as Mr. Ibarra-Diaz contends, intended to “paint[]
a picture of a dangerous, known drug dealer who caused the detective to become
36
afraid for his safety,” Aplt. Opening Br. at 17, then the depiction of such a drug
dealer actually related to Mr. Estrada—not Mr. Ibarra-Diaz. Thus, even if we
were to accept the premise that it was clear or obvious error for the district court
to admit this passage of the detective’s testimony, Mr. Ibarra-Diaz would not be
entitled to relief because the error had no impact on his substantial rights.
C
Mr. Ibarra-Diaz next claims that he was deprived of a unanimous jury
verdict by an allegedly duplicitous indictment. He acknowledges that the
indictment was not duplicitous on its face. At trial, however, the government
introduced evidence of the two separate bundles of methamphetamine that were
taken, respectively, from the Ford Explorer and from the residence that Mr.
Ibarra-Diaz apparently shared with Ms. Valeriano-Trejo and Mr. Estrada. Mr.
Ibarra-Diaz contends that the indictment’s sole count was rendered duplicitous by
the presentation of these two factual predicates for the same offense. Mr. Ibarra-
Diaz concedes that he raises this duplicity challenge for the first time on appeal.
As he sees it, he is nevertheless entitled at least to plain-error review. See Aplt.
Opening Br. at 18 (“Because there was no objection raised at the time of trial,
however, the defendant acknowledges that the appropriate standard of review is
that of plain error.”). We disagree. As a result of Mr. Ibarra-Diaz’s failure to
raise his duplicity challenge in the district court, that challenge is waived.
37
An indictment is duplicitous if it “charges the defendant with two or more
separate offenses in the same count.” United States v. Trammell, 133 F.3d 1343,
1354 (10th Cir. 1998) (citing United States v. Haddock, 956 F.2d 1534, 1546
(10th Cir. 1992)). Among other concerns, a duplicitous indictment “‘presents a
danger that the jury may convict a defendant although not reaching a unanimous
agreement on precisely which charge is the basis for the conviction,’ which would
run afoul of ‘the Sixth Amendment guarantee to a unanimous jury verdict.’”
United States v. Washington, 653 F.3d 1251, 1262 (10th Cir. 2011) (alterations
and omission omitted) (quoting United States v. Schneider, 594 F.3d 1219, 1228
(10th Cir. 2010); United States v. Linn, 31 F.3d 987, 991 (10th Cir. 1994)).
As the government argues, however, Mr. Ibarra-Diaz has waived his
duplicity challenge. A “challenge to an indictment based on duplicity must be
raised prior to trial . . . . Raising the objection at the close of the government’s
case is too late.” Trammell, 133 F.3d at 1354 (omission in original) (quoting
United States v. Hager, 969 F.2d 883, 890 (10th Cir. 1992)); see Schneider, 594
F.3d at 1228 n.9 (noting that an untimely challenge to the duplicity of an
indictment was waived); United States v. Henry, 504 F.2d 1335, 1338 (10th
Cir.1974) (“The proper way to attack a duplicitous indictment is by a motion to
elect . . . . [T]his is a motion which must be made prior to trial or it is waived.”
(citations omitted)); cf. United States v. Haber, 251 F.3d 881, 888–89 (10th Cir.
2001) (“In this circuit, a defendant’s failure to ‘timely challenge his indictment
38
on duplicity grounds waives any later challenge based on a failure to use a special
verdict form to avoid the alleged duplicity problem.’” (alteration and omission
omitted) (quoting Trammell, 133 F.3d at 1354)).
Mr. Ibarra-Diaz argues that the duplicitous nature of the indictment did not
become apparent until during trial. 12 However, even assuming this is correct, Mr.
Ibarra-Diaz did not act then—when the ostensible defect surfaced. That is, Mr.
Ibarra-Diaz did not raise a duplicity objection during trial. He offers no
explanation for this failing, and we deem it fatal. 13 The general rule of waiver
12
In this regard, a panel of our court observed that other courts have
“suggested that, where the duplicity of the indictment later becomes apparent, a
defendant cannot be faulted for failing to object before trial.” United States v.
Forster, 549 F. App’x 757, 764 n.3 (10th Cir. 2013); see United States v.
Pietrantonio, 637 F.3d 865, 871 (8th Cir. 2011) (recognizing that an indictment
may be “rendered duplicitous by the evidence presented at trial”); United States v.
Coiro, 922 F.2d 1008, 1013 (2d Cir. 1991) (holding that a pre-trial objection was
not necessary to the alleged multiplicity of an indictment because “neither the
nature of [the defendant’s] conduct nor the fact that [two counts] charge the same
conduct was evident from the face of the indictment.”).
13
Although neither party cites to Federal Rule of Criminal Procedure
12, its provisions operate to generally waive duplicity challenges that are not
raised prior to trial, see Fed. R. Crim. P. 12(b)(3)(B) (2013) (noting that motions
alleging a defect in the indictment must be brought before trial); id. at 12(e)
(stating that a party waives any Rule 12(b)(3) defense or objection not timely
raised). But they also allow for an exception to waiver based on a showing of
“good cause.” Id. at 12(e). “After [Mr. Ibarra-Diaz’s] trial—indeed, after this
panel heard oral argument—amendments to Rule 12 took effect as part of 2014
revisions of the Federal Rules of Criminal Procedure. These amendments resulted
in the repositioning of certain sections of Rule 12 within the rule and also
language changes.” United States v. Madsen, 614 F. App’x 944, 953 (10th Cir.
2015). However, because Mr. Ibarra-Diaz does not invoke Rule 12 at all, much
less seek to avail himself of its good-cause exception, we have need no need to
(continued...)
39
regarding untimely duplicity challenges should govern the resolution of this
claim. 14
D
Finally, Mr. Ibarra-Diaz challenges the sufficiency of the evidence adduced
at trial to support his conviction. 15 “We review de novo the sufficiency of the
evidence upon which [Mr. Ibarra-Diaz] was convicted, ‘ask[ing] only whether
taking the evidence—both direct and circumstantial, together with the reasonable
inferences to be drawn therefrom—in the light most favorable to the government,
a reasonable jury could find the defendant guilty beyond a reasonable doubt.’”
United States v. Bader, 678 F.3d 858, 873 (10th Cir. 2012) (second alteration in
original) (quoting United States v. McCane, 573 F.3d 1037, 1046 (10th Cir.
2009)). “Rather than examining the evidence in ‘bits and pieces,’ we evaluate the
13
(...continued)
parse that rule here—be it the language in effect at the time of trial or that
currently.
14
Even if we accorded Mr. Ibarra-Diaz the benefit of plain-error
review, see Forster, 549 F. App’x at 763–65 (reviewing for plain error a
challenge to an allegedly duplicitous indictment that was “arguably waived”
where indictment was not facially duplicitous), it would offer him no succor. Mr.
Ibarra-Diaz acknowledges that he bears the burden under the second prong of the
plain-error test of showing an error “that is plain, which means clear or obvious
under current law.” Aplt. Opening Br. at 18–19. Nevertheless, he fails to cite a
single case from either this court or the Supreme Court to support his argument
that the district court plainly erred. Accordingly, he has not satisfied this
necessary second prong.
15
Mr. Ibarra-Diaz preserved this argument by moving for an acquittal
at the conclusion of the government’s case-in-chief. See Fed. R. Crim. P. 29.
40
sufficiency of the evidence by considering the collective inferences to be drawn
from the evidence as a whole.” Id. (alteration omitted) (quoting United States v.
Wilson, 107 F.3d 774, 778 (10th Cir. 1997)). “We may not assess the credibility
of witnesses or weigh conflicting evidence, as these tasks are exclusively for the
jury.” United States v. Bowen, 527 F.3d 1065, 1076 (10th Cir. 2008). And
although it must be substantial, the evidence “need not conclusively exclude
every other reasonable hypothesis and it need not negate all possibilities except
guilt.” United States v. Rufai, 732 F.3d 1175, 1188 (10th Cir. 2013) (quoting
United States v. McKay, 715 F.3d 807, 812 (10th Cir. 2013)).
“To support a conviction for possession with intent to distribute, the
government must establish the defendant (1) knowingly possessed the controlled
substance and (2) possessed it with the intent to distribute.” United States v.
Parada, 577 F.3d 1275, 1283 (10th Cir. 2009). “The possession of the controlled
substance may be actual or constructive. Constructive possession may be
established by circumstantial evidence and may be joint among several
individuals.” Id. at 1283 n.8 (quoting United States v. McKissick, 204 F.3d 1282,
1291 (10th Cir. 2000)).
“Constructive possession exists where the defendant knowingly has the
power to exercise control or dominion over the item.” United States v. Bagby,
696 F.3d 1074, 1080–81 (10th Cir. 2012) (alteration omitted) (quoting United
States v. Al-Rekabi, 454 F.3d 1113, 1118 (10th Cir. 2006)). “In the narcotics
41
context, constructive possession is ‘an appreciable ability to guide the destiny of
the [contraband].’” Id. at 1081 (quoting United States v. Ramirez, 479 F.3d 1229,
1250 (10th Cir. 2007)), abrogated on other grounds as recognized in Bagby, 696
F.3d at 1081). In situations where “the contraband is found in an area of joint
occupancy, there must also be proof of ‘some connection or nexus between the
defendant and’ the contraband. Such a nexus is shown where the evidence
‘plausibly supports the inference that the defendant had knowledge of and access
to’ the contraband.” Id. at 1081 (alteration omitted) (citation omitted) (quoting
United States v. King, 632 F.3d 646, 651 (10th Cir. 2011)).
In the indictment, the government advanced two theories to establish Mr.
Ibarra-Diaz’s guilt: liability as (1) principal, and (2) as an aider-and-abettor. See
R., Vol. 1, at 9 (Indictment, filed Jan. 16, 2013). However, notably, Mr. Ibarra-
Diaz confines his sufficiency challenge to the aiding-and-abetting aspect of the
charges against him. See, e.g., Aplt. Opening Br. at 22 (“In this case, the
Government was required to show, in part, that Mr. Ibarra-Diaz aided and abetted
in the possession of the methamphetamine . . . . The appellant submits that the
Government failed in doing so—whether it was relying on the methamphetamine
in Mr. Estrada’s Ford Explorer, or on the methamphetamine in the house.”).
“Under 18 U.S.C. § 2, anyone who ‘aids, abets, counsels, commands,
induces or procures’ the commission of an offense is ‘punishable as a principal.’”
United States v. Cesareo-Ayala, 576 F.3d 1120, 1125 (10th Cir. 2009) (quoting 18
42
U.S.C. § 2). “[A] person aids and abets a crime when (in addition to taking the
requisite act) he intends to facilitate that offense’s commission.” Rosemond v.
United States, --- U.S. ----, 134 S.Ct. 1240, 1248 (2014). To sustain a conviction
for aiding and abetting, the government “must prove that the defendant (1)
‘willfully associated himself with the criminal venture’ and (2) sought ‘to make
the venture succeed through some action of his own.’” United States v. Rosalez,
711 F.3d 1194, 1205 (10th Cir. 2013) (alteration omitted) (quoting United States
v. Jackson, 213 F.3d 1269, 1292 (10th Cir.), vacated on other grounds, 531 U.S.
1033 (2000)). “‘Mere presence at a crime scene’ or knowledge alone that ‘a
crime is being committed’ is insufficient.” Id. (quoting United States v. Delgado-
Uribe, 363 F.3d 1077, 1084 (10th Cir. 2004)).
Specifically, relying on Rosalez, supra, and United States v. Burks, 678
F.3d 1190, 1198 (10th Cir. 2012), Mr. Ibarra-Diaz argues that the government
failed to prove that he willfully associated with the criminal venture.
Specifically, he contends that (1) the detective “never had any conversation with
Mr. Ibarra-Diaz concerning the methamphetamine”; (2) nothing in their
conversation at the mall “would indicate that they were referring to drugs-for
example no ‘code’ words were used–or that Mr. Ibarra-Diaz had any notion that
Mr. Estrada had methamphetamine in the Ford Explorer”; and (3) no physical
evidence or testimony linked him to the methamphetamine or drug packaging
43
found in the Explorer or at his residence. Aplt. Opening Br. at 23–24. We find
this argument to be meritless.
As a threshold matter, we note that Mr. Ibarra-Diaz has waived any
challenge to his conviction as a principal by failing to raise or brief the issue.
See, e.g., Bowling, 619 F.3d at 1181 n.1 (“[Defendant] waived these
arguments . . . because he did not raise them on appeal in his opening brief.”);
Wyoming v. Livingston, 443 F.3d 1211, 1216 (10th Cir. 2006) (“Wyoming did not
address this issue in its opening appellate brief. The issue is therefore waived.”);
Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005) (“The
failure to raise an issue in an opening brief waives that issue.”).
By effectively waiving any challenge to the government’s principal theory
of liability, Mr. Ibarra-Diaz has, for all practical purposes, acknowledged that
there was sufficient evidence to convict him as a principal. “And when there is
sufficient evidence to support a conviction on one theory of guilt on which the
jury was properly instructed, we will not reverse the conviction on the ground that
there was insufficient evidence to convict on an alternative ground on which the
jury was instructed.” United States v. Ayon Corrales, 608 F.3d 654, 657 (10th
Cir. 2010); accord United States v. Hillman, 642 F.3d 929, 939–40 (10th Cir.
2011). Thus, we could resolve this issue in the first instance on the basis of Mr.
Ibarra-Diaz’s failure to challenge his liability as a principal. Put another way,
44
given that this aspect of his conviction stands unchallenged, Mr. Ibarra-Diaz’s
liability for aiding and abetting is essentially irrelevant.
Even if we were to disregard this failure of Mr. Ibarra-Diaz to challenge his
conviction as a principal, however, we would conclude that the record is replete
with evidence upon which a reasonable jury could convict Mr. Ibarra-Diaz for
aiding and abetting. “One need not participate in an important aspect of a crime
to be liable as an aider and abettor; participation of a relatively slight moment is
sufficient. Even mere words or gestures of encouragement constitute affirmative
acts capable of rendering one liable under this theory.” Rufai, 732 F.3d at 1190
(alteration omitted) (quoting Bowen, 527 F.3d at 1078). And we “have repeatedly
held that circumstantial evidence may support a jury’s reasonable inference of
guilty knowledge by the defendant.” Id. at 1190–91 (quoting United States v.
Rahseparian, 231 F.3d 1257, 1262 (10th Cir. 2000)).
It is dispositive that a reasonable factfinder could easily infer that Mr.
Ibarra-Diaz was involved in setting up the drug transaction at the Towne West
shopping mall and, more specifically, aided and abetted Mr. Estrada in possession
with intent to distribute methamphetamine. During the initial phone conversation
with the detective, Ms. Valeriano-Trejo repeatedly referenced her male
associate—whom, based on the totality of the evidence, a reasonable factfinder
could conclude was Mr. Ibarra-Diaz. See R., Vol. 4, at 1–2 (“Meet up with us
somewhere?”; “We just wanted to know where”; “Well, we’re way out west”;
45
“Ok, yeah, he thinks you want to talk to him first or you just want . . . him be
ready?” (emphases added)). And the detective testified that he heard a male voice
in the background saying, “see if he wants to talk first.” R., Vol. 3, at 39.
Shortly thereafter, Mr. Ibarra-Diaz arrived at the Towne West shopping mall with
Ms. Valeriano-Trejo as the passenger in his vehicle.
Once they arrived at the mall, Mr. Ibarra-Diaz demonstrated his role as a
fully knowledgeable participant through his own statements and actions. After
Ms. Valeriano-Trejo inquired about “Ricardo,” Mr. Ibarra-Diaz indicated his own
knowledge of the planned transaction by explaining, “In a little bit he will bring
it.” R., Vol. 4, at 8. Then, Ms. Valeriano-Trejo asked Mr. Ibarra-Diaz, “Do I tell
him to go over there,” to which he replied, “Um-hum.” Id. The detective
interpreted this as Ms. Valeriano-Trejo inquiring of Mr. Ibarra-Diaz whether she
should tell the detective to go over to Mr. Estrada to do the drug deal. See R.,
Vol. 3, at 64. Mr. Ibarra-Diaz directed Ms. Valeriano-Trejo to “call him to come
over here,” presumably referring to Mr. Estrada, and instructed Mr. Estrada to
“get it out and bring it in . . . get it and bring it in.” Id. at 8–9. 16
16
Among other factors, the jury could rely on the tone and substance of
Mr. Ibarra-Diaz’s statements on the recording as it considered his role in the drug
transaction at the shopping mall. See United States v. Triana, 477 F.3d 1189,
1195 (10th Cir. 2007) (reviewing constructive possession finding and noting “that
the jury could reasonably have determined from the tone and substance of the
audio recording that [Defendant], not [Defendant’s significant other in the car],
was the dominant person in their relationship”).
46
That officers actually recovered 447.8 grams of methamphetamine from the
right wheel well of the Explorer reinforces the conclusion that Mr. Ibarra-Diaz
played a major role in orchestrating a significant drug transaction. A reasonable
jury could infer that the methamphetamine is the item that Mr. Ibarra-Diaz wanted
Mr. Estrada to retrieve. And his flight from the scene once Mr. Estrada suggested
that the detective was a police officer gives rise to a reasonable inference that Mr.
Ibarra-Diaz had knowledge and culpability related to the drugs found in the
vehicle. See, e.g., United States v. Martinez, 681 F.2d 1248, 1256 (10th Cir.
1982) (per curiam) (“Traditionally flight has been viewed as an admission by
conduct which expresses consciousness of guilt.”).
Moreover, Mr. Ibarra-Diaz’s argument that they never explicitly stated they
were talking about drugs is unavailing. See, e.g., Cesareo-Ayala, 576 F.3d at
1126 (finding use of vague words like “stuff” sufficient to support possession
charge); Ramirez, 479 F.3d at 1251 (“Although [Defendants] speak in vague
phrases, ‘this guy,’ ‘the things,’ ‘some stuff,’ a jury could reasonably infer that in
these calls [Defendant] committed to orchestrating the removal of drugs . . . .
[T]he reasonable inferences that can be drawn from the phone calls meet the
requirement of constructive possession, namely ability to control the contraband
. . . .”).
Therefore, at the very least, there was ample evidence to convict Mr.
Ibarra-Diaz of being an aider and abetter of possession with intent to distribute
47
with respect to the Towne West transaction. And that is enough. We need not go
further to assess whether he could have been permissibly convicted as an aider
and abetter with respect to the drugs found at his alleged residence, and thus
refrain from doing so.
In sum, even were we to disregard Mr. Ibarra-Diaz’s fatal waiver of a
challenge to his conviction as a principal, we would conclude that a rational
factfinder could readily convict him of being an aider and abetter of the charged
crime of possession with intent to distribute. Accordingly, we reject Mr. Ibarra-
Diaz’s sufficiency-of-the-evidence challenge.
III
For the foregoing reasons, we AFFIRM Mr. Ibarra-Diaz’s conviction.
48