United States v. Ramirez

F I L E D
United States Court of Appeals
Tenth Circuit
March 16, 2007
PUBLISH
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v.
Nos. 05-4099, 05-4103, 05-4108,
DEAN RAM IREZ, also known as
05-4111, & 04-4305
Dean Castillo Ramirez, also known as
Dino; JOSE ANTO NIO V AZQ UEZ;
JULIO CESA R LOPEZ; and
EDU AR DO M OZQ UED A-RA M IREZ,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Utah
(D .C . Nos. 1:03-CR-62-TC &
1:03-CR-69-TC)
Jessica Stengel (Loren E. W eiss, with her on the briefs) Van Cott, Bagley,
Cornwall & M cCarthy, Salt Lake City, Utah, for Defendant-Appellant Dean
Ramirez.
Hakeem Ishola of Ishola Law Firm, P.C., Salt Lake City, Utah, for D efendant-
Appellant Jose Antonio Vazquez.
Stephen R. M cCaughey of Salt Lake City submitted a brief for D efendant-
Appellant Julio Cesar Lopez; and Roy D. Cole of Law Office of Roy D. Cole,
LLC, Ogden, Utah, submitted a brief for Defendant-Appellant Eduardo
M ozqueda-Ramirez.
Elizabethanne Claire Stevens, Assistant United States A ttorney (Paul M . W arner,
United States Attorney, with her on the joint brief for all defendants), Salt Lake
City, Utah, for Plaintiff-Appellee.
Before H EN RY, Circuit Judge, M cW ILLIAM S, and SEYM OUR, Senior Circuit
Judges.
SE YM O UR, Circuit Judge.
On M ay 1 and M ay 15, 2003, two separate grand juries returned multi-
count indictments against D ean Ramirez, Julio Cesar Lopez, Jose Antonio
Vasquez, Eduardo M ozqueda-Ramirez and others for a variety of crimes
stemm ing from a drug trafficking enterprise. The two cases were consolidated for
trial, and a jury found defendants guilty as follows: M r. Ramirez, M r. Vasquez,
and M r. Lopez on one count of conspiracy to distribute cocaine and 500 grams or
more of a mixture or substance containing a detectable amount of
methamphetamine in violation of 21 U.S.C. § 846; M r. Lopez on one count of
possession of 500 grams or more of a mixture or substance containing
methamphetamine w ith intent to distribute in violation of 21 U.S.C. § 841(a)(1);
M r. Ramirez on two counts of possession of a firearm by a restricted person in
violation of 18 U.S.C. § 922(g) and one count of use of a communication facility
in a drug trafficking crime in violation of 21 U.S.C. § 843(b); and M r. M ozqueda-
Ramirez on one count of conspiracy to distribute 50 grams or more of a mixture
or substance containing methamphetamine in violation of 21 U.S.C. § 846, and
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two counts of possession of a firearm by a restricted person in violation of 18 §
U.S.C. 922(g). The district court sentenced M r. Ramirez to 30 years
imprisonment, M r. Vasquez to 10 years imprisonment, M r. Lopez to 20 years
imprisonment, and M r. M ozqueda-Ramirez to 151 months imprisonment. All
defendants appeal their convictions, and M r. Ramirez and M r. M ozqueda-Ramirez
also appeal their sentences. W e affirm.
I
The record reflects that law enforcement officials engaged in a long-term
investigation of a suspected drug trafficking conspiracy in Ogden, Utah. In the
course of its investigation, the government sought and was granted authorization
to wiretap the phone of Jose Aparicio, a.k.a. “Guido,” a suspected member of the
conspiracy. The government subsequently filed an application with the district
court seeking authorization to wiretap M r. Ramirez’s cellular phone. W ith its
application, the government included an affidavit from Agent John Barrett of the
F.B.I. describing the accumulated evidence of M r. Ramirez’s involvement in drug
trafficking.
In his affidavit, Agent Barrett described the role of a confidential source in
gathering evidence of M r. Ramirez’s involvement in drug trafficking. The
confidential informant spoke directly to M r. Ramirez and his associates
concerning the drug trafficking enterprise and corroborated information from an
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anonymous tipster that hidden compartments were being installed in vehicles at
M r. Ramirez’s auto repair shop for use in smuggling drugs. Under law
enforcement supervision, the informant made a number of drug purchases in
which M r. Ramirez was the suspected supplier. On January 29, 2001, the
confidential informant consummated a drug deal with Francisco M adrigal, an
alleged co-conspirator of M r. Ramirez, involving methamphetamine and cocaine
that M r. Ramirez was suspected of supplying. Pen register analysis of M r.
M adrigal’s phone indicated M r. M adrigal called M r. Ramirez twice during the
drug transaction.
Agent Barrett recounted in his affidavit the stop of M r. Ramirez for a
traffic violation following his visit to M r. M adrigal’s house. The suspected
purpose of the visit was to supply M r. M adrigal with drugs for an upcoming sale
to the confidential informant. The particulars of the stop of M r. Ramirez are
described in greater detail below in the context of a motion to suppress. At this
point, w e note only M r. M adrigal’s statements in a nearly concurrent traffic stop.
During that stop, M r. M adrigal identified M r. Ramirez as the source of cocaine
and methamphetamine discovered in the search of his vehicle.
In further support of its application for a wiretap, the government relied
upon conversations between M r. Ramirez and M r. Aparicio overheard on M r.
Aparicio’s wiretapped phone. During those conversations, M r. Aparicio told M r.
Ramirez that he “has a dude that wants to buy some iron,” and that it sells for
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$100.00 to $150.00.” See W iretap Aff. ¶ 46. M r. Aparicio and M ateo Garcia,
a.k.a. “Nene,” then drove to and entered M r. Ramirez’s shop, where closed circuit
television surveillance recorded M r. Garcia exiting the shop with a small object. 1
A subsequent traffic stop for a moving violation turned up a firearm and a box of
amm unition matching the description of the removed object. On February 27,
2003, M r. Aparicio had another conversation with M r. Ramirez in which he said
“Nene wants the gun,” and asked if M r. Ramirez will “take the gun to the shop.”
Id. ¶ 52. M r. Ramirez agreed to send someone to retrieve the gun. Other calls
included statements by M r. Aparicio that he “had the stuff” and was on his way,
id. ¶ 73, and requests by M r. Ramirez for an “8,” a term believed to refer to a 1/8
ounce of cocaine. Id. ¶ 75. In total, M r. Aparicio had 542 contacts over his
wiretapped line with M r. Ramirez’s cellular phone between October 2002 and
M arch 2003.
On M arch 24, 2003, the district court issued an order authorizing the
wiretap of M r. Ramirez’s cellular phone. Numerous conversations were
subsequently monitored and recorded pursuant to the order. Prior to trial, several
defendants filed motions to suppress the evidence obtained from the Ramirez
wiretap, arguing the government failed to make the necessary showings to obtain
1
From September 2002 through M arch 2003 FBI agents physically
surveilled M r. Ramirez and his associates. In addition, law enforcement observed
the entrances of M r. Ramirez’s home and auto repair business with closed circuit
television cameras.
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the order and failed to adequately minimize the interception of non-pertinent
conversations. The district court found that two prerequisites for the
authorization of a wiretap order – probable cause and necessity – were met. The
issue of adequate minimization was deferred for further proceedings.
The government thereafter submitted a memorandum, including an affidavit
by Agent Barrett, in opposition to suppression of the wiretap evidence on
minimization grounds. In his affidavit, Agent Barrett described the V oiceBox III
computer program used to collect and store w iretap data and the w ritten procedure
for the minimization of non-pertinent calls. 2 Defendants expressed the following
concerns w ith particular sets of calls: forty-one calls on the R amirez line w here
the computerized monitoring program failed to disclose the time counts for
minimizations; sixteen calls over two minutes which may or may not have been
minimized and which were allegedly not pertinent and should have been
minimized; twelve non-minimized calls over two minutes that were allegedly non-
pertinent; and nineteen calls over two minutes for w hich there is no audio
2
See Ramirez Rec., vol. III, doc. 110 at 3 (“If you terminate the
interception because the conversation is not pertinent, you may spot-monitor the
conversation to see if its character changes. After a thirty (30) second interval, the
equipment may be activated for approximately thirty (30) seconds to determine if
the conversation continues to be not pertinent. The speakers and/or the nature of
the conversation may change. This procedure of spot-monitoring may be
continued throughout the conversation, but should be kept to the minimum
necessary to ascertain whether the conversation has changes. If during the
spot-monitoring, the conversation is determined to be pertinent, full interception
of the conversation is then appropriate so long as the conversation remains
pertinent.”).
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recording or synopsis. The government responded directly to each of these
assertions by way of A gent Barrett’s affidavit. The district court concluded: “it’s
very clear from the affidavit of A gent Barrett that the general minimization effort
certainly satisfied the statute . . . [and] it appears to me quite clear that the
wiretap statute requirements were complete as far as minimization.” Vasquez
Rec., vol. IV at 15-16. Accordingly, the district court held the wiretap recordings
admissible.
The wiretap of M r. Ramirez’s phone recorded a number of incriminating
conversations. The conversations were peppered with terms whose common
meanings are entirely innocuous. At trial, however, the government presented
evidence of alternate definitions for these terms as they are used in the drug trade.
In all, the recorded calls from the Ramirez and Aparicio wiretaps produced
several hundreds pages of transcribed dialogue, which we describe in the context
of the relevant claims.
In addition to the wiretap evidence, M r. Ramirez sought suppression of the
fruits of two unrelated traffic stops. The first stop on February 16, 2001, was
rooted in an arranged drug deal between the government’s confidential informant
and M r. M adrigal. M r. M adrigal told the informant the drugs would be delivered
to his house prior to the sale, and law enforcement established surveillance of M r.
M adrigal’s house in anticipation of the supplier’s arrival. The surveilling officers
observed a white pick-up truck containing two Hispanic males arrive at the
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residence. The driver entered the house and, a short time later, exited and drove
aw ay. An officer positioned nearby stopped the truck shortly thereafter for a
traffic violation. The driver was identified as Dean Ramirez. The officer, after
returning M r. Ramirez’s relevant documentation, asked if he could search the
vehicle. M r. Ramirez consented, and the officer found $5,060.00 hidden in the
gearshift boot on the floor of the truck. M r. Ramirez denied ownership of the
money and speculated the cash belonged to a mechanic who had recently worked
on the vehicle.
On M ay 15, 2002, Agent Troy Burnett observed a white truck, different
from the one involved in the February 2001 stop, driving above the speed limit.
W hen Agent Burnett caught up with the vehicle, it was parked at the house of a
known drug user and alleged drug distributor. From the vantage point of his
police cruiser, Agent Burnett observed an individual entering the driver’s side of
the truck. Agent Burnett concluded that the truck could not have been parked for
“more than a minute or so” before the driver w as seen entering it. Id. Agent
Burnett pulled up behind the truck before it could drive away and engaged his
police lights. He exited his vehicle, and M r. Ramirez exited the white truck.
Agent Burnett and M r. Ramirez recognized each other from prior encounters and
addressed each other by name. The agent obtained M r. Ramirez’s driver’s
license, vehicle registration, and proof of insurance.
Near the outset of the stop, Agent Burnett requested the assistance of a
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canine unit. Before the dog arrived, the agent sought and was denied consent
from M r. Ramirez to search the truck. He then questioned both M r. Ramirez and
the resident of the house. M r. Ramirez told the officer he had gone to the home
to obtain auto parts. The resident of the house said M r. Ramirez had come to
borrow a magazine. During these interactions Agent Burnett gauged M r.
Ramirez’s demeanor to be more anxious than in their prior encounters. After the
arrival of the canine unit, the dog performed a sniff of the exterior of the truck. It
scratched and barked at the driver’s side door, the signal indicating the presence
of drug odors, and the officers and the dog began an interior search of the truck.
Agent Burnett discovered $30,020 in the vehicle.
Prior to trial, M r. Ramirez challenged the legality of both stops and sought
to suppress the money retrieved from the searches. After a hearing, the district
court concluded that M r. Ramirez had voluntarily consented to the February 2001
vehicle search, and that the M ay 2002 detention was justified by reasonable
suspicion and the interior search was supported by probable cause. Although the
evidence obtained in both searches was deemed admissible on Fourth Amendment
grounds, the money discovered in the February 2001 stop was not admitted at trial
after the district court concluded its prejudicial effect outweighed its probative
value. The court determined the money found in the M ay 2002 search was
admissible, and the government presented that evidence at trial.
Also prior to trial, M r. M ozqueda-Ramirez’s counsel, Roy. D. Cole,
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petitioned the court for leave to w ithdraw as counsel. Less than two weeks before
the start of trial, a hearing was held before a magistrate judge to examine the
merits of the petition. At the hearing, M r. M ozqueda-Ramirez’s counsel stated
that the “change we’ve had” is that “M r. M ozqueda-Ramirez does not want me on
this case anymore.” Ramirez Rec., supp. vol. VII at 4. The magistrate judge
denied the petition, noting the district court would not delay the sw iftly
approaching consolidated trial and M r. M ozqueda-Ramirez had a lawyer who was
up to speed on the evidence and had personally discussed the evidence with M r.
M ozqueda-Ramirez.
In addition to the contested traffic stops, there were a number of searches
of defendants and their associates that produced relevant evidence. On January 8,
2003, Agent Aaron Johnson of the Ogden City police department visited several
apartments at 1095 16th Street in response to an anonymous complaint of drug
activity at that address. The agent initially knocked on the door of apartment
four, but was told by the residents of the unit that the prior occupants had moved
to apartment five. He then knocked on the door of apartment five. At the time of
the search, M ichael Hurst owned unit five and had lived there when M r. Lopez
and a man known as Javier lived in apartment four. M r. Hurst testified that while
he lived in apartment five, M r. Lopez, known to him as Emilio Felix, had on at
least one occasion supplied him with a small amount of methamphetamine.
W hen M r. Hurst vacated apartment five, he left behind a step exercise
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machine. In early November, M r. Lopez and Javier moved in and began paying
rent to M r. Hurst. By mid-November, M r. Lopez had “faded away,” Ramirez
Rec., vol. XIII at 168, and was living with his wife “somewhere out north.”
Ramirez Rec., vol. XIV at 7. By mid-December, both of the original occupants
had vacated the apartment and it was occupied by Raul Gaitan-Dominguez and
Jesus Solis-Gaona. Javier paid D ecember’s rent for the apartment. M r. Hurst
contacted the apartment’s residents after the January rent was late and asked to
speak with M r. Lopez. One of the then-current occupants called M r. Lopez, and
after a short conversation between M r. Hurst and M r. Lopez, one of the new
residents paid M r. Hurst the January rent.
On the day of the search, M r. Gaitan-Dominguez consented to Agent
Johnson’s search of apartment five. During the search, Agent Johnson noticed
numerous rolls of packing tape and plastic wrap products in a closet just off the
living room. Further investigation of the closet uncovered methamphetamine in a
“ball about the size of a softball” stored in a plastic grocery bag. Ramirez Rec.,
vol. XIII at 92. M ore methamphetamine was found in the kitchen packaged in
one pound bricks. 3 The methamphetamine bricks were individually packed inside
a ziploc style bag, wrapped in plastic wrap sprayed with what Agent Johnson
described as a “cleaning agent” that “smelled like Lysol,” then wrapped again
3
The two bricks weighed between 437 and 443 grams and were between 95
and 96 percent pure. See Ramirez Rec., vol. XIII at 95.
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with plastic wrap, and finally covered by tape. Id. at 94. Agent Johnson located
a number of other items in the apartment, including M r. Gaitan-Dominguez’s
M exican passport; a vehicle title in M r. Lopez’ name w ith the apartment five
address; a letter to M r. Lopez from a collection agency for past due gas payments
at the apartment five address; a phone bill addressed to M r. Lopez at the
apartment five address; and a number of photographs picturing M r. Lopez and M r.
Gatain-Dominguez, among others.
M r. Gaitan-Dominguez and M r. Solis-Gaona were arrested in connection
with the discovery of methamphetamine in apartment five. After their arrest, the
two men placed phone calls from prison that were recorded by the prison phone
system. On January 14, 2003, M r. Gaitan-Dominguez called Diana M urillo, w ith
M r. Lopez allegedly listening on M s. M urillo’s end, see Gov’t Ex. 1R-T1 at 2
(“Hey! Jul . . . he’s going to talk ”), and told M r. Lopez to “get those things out,
as soon as you can and hurry up.” Id. M r. Solis-Gaona called M s. M urillo on the
same day and had further discussions about “tak[ing] the things out of the house.”
Gov’t Ex. 1R-T3 at 2. On January 24, M r. Gaitan-Dominguez called M r. Lopez
from prison to ask that M r. Lopez “move it, man, before they make this into a
bigger deal.” Gov’t Ex. IR-T3 at 3.
On April 18, 2003, Agents Burnett and Johnson conducted a consent search
of the residence of M r. Galaz-Feliz, a suspected member of the conspiracy. The
officers recovered a firearm, $26,175 in cash, and what were interpreted to be
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drug accounting ledgers or pay/owe sheets. 4 During the search, a drug dog alerted
to a slashed tire in the basement of the house. The officers reported M r. Galaz-
Feliz was talking on the phone during the search and was overheard requesting
the other party get a hold of D inosaurio. 5 On the evening of the search of M r.
Galaz-Feliz’s residence, the Ramirez wiretap captured a number of conversations
about the search.
On April 28, 2003, Agent Johnson searched a storage unit in Ogden
pursuant to a search warrant. According to storage business records, that unit
was leased to Emilio Felix, an alias used by M r. Lopez. In the unit, Agent
Johnson discovered a photograph of M r. Lopez; an insurance policy for Emilio
Felix at 1095 16th Street, Apartment Four; a box of sandwich bags; a digital
scale; plastic wrap with a “lysol type smell . . . exactly alike . . . to the stuff that
the methamphetamine was packaged in apartment number five;” and
methamphetamine residue in the packaging as confirmed by chemical analysis.
Ramirez Rec., vol. XIII at 123.
Finally, law enforcement officials seized two cellular phone receipts from
M r. Vasquez when he w as arrested. At the time of his arrest, he did not possess
4
Agent Barrett testified at length about the contents of the documents and
his conclusion that the papers were used as drug ledgers. See Ramirez Rec., vol.
XIV at 102-136.
5
The government alleged throughout the trial that Dinosauri and Dino were
nicknames for D ean Ramirez. See Ramirez Rec., vol. XIII at 80 (Agent Johnson
testified “D ean Ramirez uses the name D inosaurio also.”)
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drug related materials, firearms, or large sums of cash. See Ramirez Rec., vol.
XVII at 60; Ramirez Rec., vol. XVI at 20. M r. Vasquez unsuccessfully argued
against the admission of the receipts as hearsay evidence before the district court.
II
For ease of analysis, we have divided the claims from the four separate
appeals into four thematically related subgroups: admissibility of evidence,
sufficiency of the evidence, issues with counsel, and sentencing. The first group,
contentions that particular pieces of evidence were wrongly admitted, includes the
conversations recorded by the R amirez wiretap; the fruits of M r. Ramirez’s tw o
traffic stops; the cell phone receipts found on M r. Vasquez upon his arrest; and
co-conspirator statements challenged by M r. Vasquez. The second group includes
M r. Lopez’s argument that there was insufficient evidence to convict him for
possession with intent to distribute methamphetamine, and M r. Lopez, M r.
M ozqueda-Ramirez, and M r. Vasquez’s claims that there was insufficient
evidence to support their respective conspiracy convictions. The third category
consists of M r. M ozqueda-Ramirez’s claim of ineffective assistance of counsel
and his appeal of the district court’s denial of his counsel’s motion to withdraw
prior to trial. The final section focuses on M r. M ozqueda-Ramirez’s challenge to
the application of mandatory minimums in light of Booker, and M r. Ramirez’s
arguments about the constitutionality of sentencing factors in relation to his
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sentence and the vagueness of his underlying charge.
A D M ISSIBILITY OF EVIDENCE
1. Ramirez W iretap
M r. Lopez , M r. Ramirez, and M r. Vasquez argue the district court erred in
authorizing the Ramirez wiretap and, as a result, the evidence obtained via the
wiretap should be suppressed. They variously attack the wiretap order on the
grounds that the government failed to demonstrate probable cause, necessity, and
proper minimization. W e address each of the three issues below and conclude the
district court properly authorized the wiretap and admitted the recorded
conversations as evidence at trial.
a. Probable Cause
Title III of the Omnibus Crime Control and Safe Streets Act of 1968
requires the government to demonstrate “probable cause for belief that an
individual is committing, has committed, or is about to comm it” a specified
criminal offense as a prerequisite for the authorization of a valid wiretap. 18
U.S.C. § 2518(3)(a). Defendants argue this requirement was not met with respect
to the wiretap of M r. Ramirez’s cellular phone. W e review the district court's
finding of probable cause “to determine whether the facts and circumstances
within the officer's knowledge based on reasonably trustworthy information are
sufficient to warrant a person of reasonable caution to believe that an offense has
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or is being committed.” United States v. Arm endariz, 922 F.2d 602, 608 (10th
Cir. 1990).
In evaluating the presence of probable cause, we look primarily to the
government’s wiretap application and Agent Barrett’s attached affidavit. The
agent described a number of specific conversations implicating M r. Ramirez in
the distribution of contraband. Among those were a pen register analysis showing
two phone calls placed to M r. Ramirez by M r. M adrigal during a drug deal with a
confidential source, see W iretap Aff. ¶ 23, and a series of recorded phone calls
between M r. Ramirez and M r. Aparicio 6 in which the two parties discussed the
sale of guns and drugs either explicitly or in code. See W iretap Aff. ¶ 52 (“[M r.
Aparicio] then asked Ramirez, if he’ll ‘take the gun to the shop.’”); Id. at ¶ 62(Ramirez asked M r. Aparicio “for more cold one,” allegedly in reference to
methamphetamine); id. ¶ 73 (M r. Aparicio told M r. Ramirez he “had the stuff”);
id. ¶ 75 (M r. Ramirez asked M r. Aparicio for an “8,” an alleged reference to an
1/8 ounce of cocaine, and stated he had the money). In light of this information,
we conclude a person of reasonable caution could believe a crime had been
comm itted. Thus, the order authorizing the wiretap of M r. Ramirez’s phone was
supported by probable cause.
6
Those conversations were recorded by the authorized wiretap of M r.
Aparicio’s phone. The validity of that wiretap w as not challenged by defendants.
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b. Necessity
Defendants assert the government failed to adequately demonstrate the
necessity of wiretapping M r. Ramirez’s phone. W e review a district court's
determination that a wiretap was necessary for an abuse of discretion. United
States v. Ramirez-Encarnacion, 291 F.3d 1219, 1222 (10th Cir. 2002). If
defendants “succeed[] in showing that the necessity requirement was not met,
evidence seized pursuant to the wiretap must be suppressed.” United States v.
Cline, 349 F.3d 1276, 1280 (10th Cir. 2003). Once a wiretap has been authorized,
defendants bear the burden of proving it w as invalid. Id.“Title III contains a ‘necessity’ requirement . . .which must be satisfied
before a wiretap order may be lawfully issued.” United States v. Castillo-Garcia,
117 F.3d 1179, 1185 (10th Cir. 1997) (overruled on other grounds). W hen
requesting a wiretap, the government must provide the court with “a full and
complete statement as to whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be unlikely to succeed if tried or
to be too dangerous.” 18 U.S.C. § 2518(1)(c). The court must then be convinced
“normal investigative procedures have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or to be too dangerous” before
authorizing the requested wiretap. 18 U.S.C. § 2518(3)(c). This precondition for
the issuance of a wiretap order ensures “the relatively intrusive device of
wiretapping is not resorted to in situations where traditional investigative
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techniques would suffice to expose the crime.” United States v. Edwards, 69 F.3d
419, 429 (10th Cir. 1995) (internal quotation marks omitted).
In a wiretap application, the government must explain how normal
investigative techniques have been used in its attempts to gather evidence against
the target of the wiretap, or in the alternative, why “untried techniques would be
either unsuccessful or too dangerous” in serving that purpose. Castillo-Garcia,
117 F.3d at 1187. Normal investigative procedures include:
1) standard visual and aural surveillance; (2) questioning and
interrogation of witnesses or participants (including the use of grand
juries and the grant of immunity if necessary); (3) use of search
warrants; and (4) infiltration of conspiratorial groups by undercover
agents or informants. In addition, if other normal investigative
techniques such as pen registers or trap and trace devices have not
been tried, a similar explanation must be offered as to w hy they also
would be unsuccessful or too dangerous.
Id. at 1187. The “necessity” requirement does not require that law enforcement
officials exhaust all of the above procedures prior to the issuance of a wiretap
warrant. The statutory requirement can be met if the government demonstrates
either normal investigatory techniques have been tried and failed or that they
“reasonably appear to be unlikely to succeed if tried, or to be too dangerous to
try.” Id.M r. Lopez asserts the wiretap affidavit “did not illustrate, w ith
particularity, the necessity for the wiretap.” Lopez Br. at 19. M r. Lopez cites
Castillo-Garcia extensively in an attempt to analogize that case’s invalidated
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wiretap to the wiretap of M r. Ramirez’s phone. The wiretap application in
Castillo-Garcia, however, was supported by “wholly conclusory language”
without the benefit of a particularized discussion of how normal investigative
techniques were used, or w hy they were not used, against the target. Castillo-
Garcia, 117 F.3d at 1194. As is evident from our discussion below, the Ramirez
wiretap does not suffer from the same infirmity.
Looking at each investigative technique in turn, we first consider the prior
use of visual and aural surveillance. As described in the affidavit, law
enforcement officials recorded the comings and goings of individuals into and out
of M r. Ramirez’s auto repair shop and home via closed circuit television
cameras. 7 Furthermore, FBI agents physically surveilled M r. Ramirez from
September 2002 to M arch 2003. According to the government, this video
monitoring and physical surveillance did not reveal “w hich individuals w ith
whom Dean Ramirez associated, if any, were criminal members or customers of
his drug enterprise.” W iretap Aff. ¶ 107. Thus, the government demonstrated it
had tried physical and visual surveillance and adequately explained its failure,
namely, the inability of physical and visual surveillance to distinguish between
legitimate customers of M r. Ramirez’s auto business and those associates engaged
7
Law enforcement officials primarily relied upon video monitoring and not
physical surveillance because M r. Ramirez home and business were “located in
residential neighborhoods, making static physical surveillance difficult.” Barrett
W iretap Aff. ¶ 103.
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in drug trafficking.
Second, Agent Barrett demonstrated that the government had utilized a
confidential informant with significant connections to M r. Ramirez and his
associates. The informant “spoke[] directly to Dean Ramirez and his associates
concerning the drug trafficking activities of Dean Ramirez,” made supervised
drug buys, and spent a “considerable amount of time meeting with [an associate
of M r. Ramirez] in a social setting.” Id. ¶ 9. Investigators, however, found that
even this well-connected confidential source was “unable to gather detailed
information about Ramirez’s Organization or its suppliers.” Id. ¶ 97. They did
not utilize confidential sources from related investigations because those
informants did not have sufficiently strong ties to M r. Ramirez, id. ¶ 101, and
they did not attempt to insert an undercover agent because they believed an
unfamiliar agent would have been less likely to succeed than an informant already
in the confidences of the conspirators. See Castillo-Garcia, 117 F.3d at 1189.
W e are persuaded the government demonstrated it used a confidential informant
to limited avail, and adequately explained why an undercover agent or additional
informant would have been unlikely to succeed.
Third, Agent Barrrett explained why interrogation of the participants or use
of a grand jury coupled w ith grants of immunity was not tried. In prior cases, w e
have found “the risk that witnesses would . . . claim their Fifth Amendment
privilege, or inform principal suspects of the investigation outweighed modest
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potential evidentiary gains.” United States v. VanM eter, 278 F.3d 1156, 1164
(10th Cir. 2002). See also Castillo-Garcia, 117 F.3d at 1192. Similar fears were
articulated in the Ramirez affidavit because many of the “possible witnesses
[we]re conspirators themselves.” W iretap Aff. ¶ 109. Additionally, it was
reasonable to assume that police questioning could compromise the safety of
witnesses and the investigation of M r. Ramirez’s enterprise in light of what
investigators knew about the target. See id. ¶ 118 (confidential informant “was
advised . . . that Ramirez had considered killing M adrigal for speaking to the
police”). Thus, it would appear interrogation or use of a grand jury would have
been both unlikely to succeed and potentially dangerous.
And finally, the use and failure of the remaining methods of normal
surveillance were also well explained. As to search warrants, the affidavit stated
“search w arrants, consent to search investigations, and searches incident to arrest
. . . executed against [individuals] and residences associated with Ramirez have
failed to identify the full scope criminal enterprise.” Id. ¶ 120. Pen registers
were applied to M r. Ramirez’s phones, but the registers did not identify the actual
participants in the phone calls or provide sufficient evidence of criminal activity.
In sum, the record clearly demonstrates how each investigatory technique
was tried and why it failed, or why any unutilized method was likely to be
ineffective. These techniques w ere described not with broad generalities but with
particularity to the ongoing investigation of M r. Ramirez. Consequently, the
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district court did not abuse its discretion by concluding the wiretap was
necessary.
c. M inim ization
Defendants assert law enforcement officials failed to “minimize the
interception of communications not otherwise subject to interception” as required
by 18 U.S.C. § 2518(5). In reviewing whether the statutory minimization
requirement is met, we examine “the reasonableness of the agents' efforts to
refrain from monitoring conversations deemed nonpertinent to the investigation.”
United States v. Willis, 890 F.2d 1099, 1101 (10th Cir. 1989).
W e read defendants’ briefs to allege minimization problems with three
specific sets of calls. W hen these same concerns w ere raised to the district court,
the government submitted a detailed affidavit from Agent Barrett explaining the
general minimization protocol and directly responding to defendants’ questions
about particular calls. The first allegedly troubled set of calls are those where the
line sheets generated by the listening software did “not disclose the time counts
for minimization.” Lopez Br. at 23. However, as was noted in his affidavit,
Agent Barrett manually retrieved that information and provided the data to
defendants. Ramirez Rec., vol. III, doc. 110, att. A ¶ 18. Second, M r. Lopez
contends a number of calls from the Ramirez wiretap were non-pertinent and
should have been minimized, see Lopez Br. at 23, but the government printed the
screen image for each contested call and explained how each call w as evaluated.
-22-
See Ramirez Rec., vol. III, doc. 110, att. A ¶ 20. Lastly, M r. Lopez asserts audio
recordings and synopses w ere not provided for nineteen calls. Agent Barrett
concluded six of the calls were “hookflash” 8 and ten were neither monitored nor
recorded by law enforcement. Id. att. A ¶ 21. In light of these explanations, and
because we review minimization for the reasonableness of the efforts of law
enforcement officials and not the perfection of their results, we conclude the
Ramirez wiretap was properly minimized.
2. Constitutionality of Stops and Searches of M r. Ramirez
M r. Ramirez argues the district court erroneously admitted evidence seized
during two allegedly unlawful traffic stops. On February 16, 2001, an Ogden
police officer stopped M r. Ramirez for failing to signal while he was driving a
white truck. The stop resulted in the discovery of $5,060 in cash hidden in the
gearshift boot. On M ay 15, 2002, Agent Burnett stopped M r. Ramirez’s truck
outside the house of a known drug user and suspected drug dealer after observing
M r. Ramirez speeding. An alert from a dog sniff on the exterior of M r. Ramirez’s
truck led to an interior search that uncovered $30,020 in cash.
Because the government did not introduce the $5,060 found in the first
search as evidence at trial, the issue of the law fulness of the February search is
8
See Lopez Rec., vol. II, doc. 223, Att. C (defining hookflash as
“[m]omentarily depressing the hookswitch (up to 0.8 of a second) [which] can
signal various services such as calling the attendant, conferencing or transferring
calls.”)
-23-
moot. See United States v. Arias-Villanueva, 998 F.2d 1491, 1502 (9th Cir. 1993)
(impliedly overruled on other grounds). W ith respect to the M ay 15, 2002 traffic
stop, we accept the district court’s factual findings unless they are clearly
erroneous and view the evidence in the light most favorable to the government.
See United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). The
ultimate determination of reasonableness under the Fourth A mendment is a
question of law we review de novo. United States v. Zabalza, 346 F.3d 1255,
1258 (10th Cir. 2003).
The Fourth Amendment protects the “right of the people to be secure in
their persons, houses, and effects, against unreasonable searches and seizures.”
U.S. C ONST . amend. IV. A routine traffic stop is a “seizure” within the meaning
of the Fourth Amendment, see Delaware v. Prouse, 440 U.S. 648, 653 (1979),
examined according to the principles outlined in Terry v. Ohio, 392 U.S. 1, 19-20
(1968). See U nited States v. Williams, 403 F.3d 1203, 1206 (10th Cir. 2005).
“To determine the reasonableness of an investigative detention, we make a dual
inquiry, asking first ‘whether the officer's action was justified at its inception,’
and second ‘whether it was reasonably related in scope to the circumstances
which justified the interference in the first place.’” United States v. Bradford,
423 F.3d 1149, 1156 (10th Cir. 2005) (quoting Terry, 392 U.S. at 20).
The first inquiry under Terry is w hether the stop was justified at its
inception. Id. “[A] traffic stop is valid under the Fourth Amendment if the stop
-24-
is based on an observed traffic violation or if the police officer has reasonable
articulable suspicion that a traffic or equipment violation has occurred or is
occurring.” United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995)
(en banc). M r. Ramirez does not dispute the validity of the initial stop for
speeding, and he limits his challenge to the length and scope of his detention after
Agent Burnett initiated the stop. Our analysis is similarly limited.
M r. Ramirez argues, in accord with the second inquiry of Terry, that the
investigative stop “exceeded the reasonable scope and duration of a traffic stop.”
Ramirez Br. at 32. If we were to look only to the original justification for the
stop, as M r. Ramirez seems to suggest, he would be correct. After a validly
initiated traffic stop, however, an “officer may detain a motorist for questioning
unrelated to the initial traffic stop if he has an objectively reasonable and
articulable suspicion that illegal activity has occurred, or the driver voluntarily
consents to further questioning.” Williams, 403 F.3d at 1206. In this instance,
there is no indication that the initial stop developed into a consensual encounter.
Agent Burnett, however, had reasonable suspicion that criminal activity (other
than the traffic violation) had occurred, thus justifying temporarily detaining and
questioning M r. Ramirez while awaiting the arrival of the canine unit.
W hen evaluating the existence of reasonable suspicion, we look to the
“totality of circumstances” to see whether the detaining officer had a
“particularized and objective basis for suspecting legal wrongdoing.” United
-25-
States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation marks omitted).
Factors, which when taken separately may be perfectly innocent
behavior, can support a finding of reasonable suspicion when taken
together. Conversely, although the nature of the totality of the
circumstances makes it possible for individually innocuous factors to
add up to reasonable suspicion, it is impossible for a combination of
wholly innocent factors to combine into a suspicious conglomeration
unless there are concrete reasons for such an interpretation. In
analyzing the factors that may amount to reasonable suspicion, we
must be careful to judge the officer's conduct in light of common
sense and ordinary human experience but also to grant deference to a
trained law enforcement officer's ability to distinguish between
innocent and suspicious circumstances.
United States v. Wallace, 429 F.3d 969, 975-76 (10th Cir. 2005) (citations,
brackets, and quotation marks omitted). The district court discussed the
following factors in holding that Agent Burnett had reasonable suspicion to
believe a crime had occurred or was occurring: (1) the truck was seen parked
outside a residence Agent Burnett knew to be associated with drug-dealing; (2) he
saw the driver enter his vehicle after a stop of extremely short duration; (3) he
had personal knowledge of M r. Ramirez’s participation in drug-trafficking; (4)
M r. Ramirez and the resident of the house gave different reasons for the visit; and
(5) M r. Ramirez’s nervous behavior was inconsistent with his demeanor during
previous interactions with the police.
W ith respect to the location of the truck, the Supreme Court has instructed
that “officers are not required to ignore the relevant characteristics of a location
in determining whether the circumstances are sufficiently suspicious to warrant
-26-
further investigation.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). M oreover,
Officer Burnett testified “visits of extremely short duration” like M r. Ramirez’s
“are a key indicator of drug activity.” Ramirez Rec., vol. II, doc. 288 at 10. See
also Ramirez Rec., vol. VII at 18. W e have previously recognized a “trained
officer’s ability to distinguish between innocent and suspicious circumstances”
even where the conduct has an otherw ise innocuous veneer. See United States v.
W illiam s, 271 F.3d 1262, 1269 (10th Cir. 2001). Thus, although a short stop at
the residence of a known drug user and suspected narcotics dealer might have an
innocent explanation, we accord deference to a trained “law enforcement officer's
ability to distinguish between innocent and suspicious actions.” United States v.
Wood, 106 F.3d 942, 946 (10th Cir. 1997).
At the time of the stop, Officer Burnett was participating in the ongoing
investigation of M r. Ramirez for drug trafficking. “[K]nowledge of a person's
prior criminal involvement . . . can . . . be a factor, along w ith other factors,
giving rise to an articulable suspicion.” United States v. M cRae, 81 F.3d 1528,
1535 n.5 (10th Cir. 1996). See Ramirez Rec., vol. II, doc. 288 at 2. In addition,
Agent Burnett noticed that M r. Ramirez seemed “very nervous” and “evasive,” a
manner of behavior that was “distinct[ly] differen[t]” than in previous police
encounters. Ramirez Rec., vol. VII at 51. Although we are typically chary of
affording evidentiary weight to a defendant’s nervousness in light of the
comm only unnerving nature of police stops, Agent Burnett’s observations
-27-
recognized behavior relative to an individualized baseline and was not making
simply another “generic claim[] that a Defendant was nervous or exhibited
nervous behavior after being confronted by law enforcement officials.” United
States v. Hall, 978 F.2d 616, 621 n.4 (10th Cir. 1992). Compare id. at 621(“neither officer had any prior contact with Defendant with which to compare her
behavior, thereby making Defendant's nervous appearance to the officers merely a
hunch.”). C onsidering, as we must, all of these facts in their totality, see
W illiam s, 403 F.3d at 1207, we conclude A gent Burnett had the necessary
“particularized and objective basis for suspecting legal wrongdoing” to continue
the stop. United States v. Arvizu, 534 U.S. at 273 (internal quotation marks
omitted).
This conclusion represents only the first of two Terry inquiries. Having
determ ined the drug investigation was supported by reasonable suspicion, we
must still assess whether the stop was reasonably related in scope to the
circumstances justifying the interference. Bradford, 423 F.3d at 1156. W e first
note that the dog sniff of the exterior of M r. Ramirez’s vehicle did not require
additional cause or suspicion, see Illinois v. Caballes, 543 U.S. 405, 408-09
(2005), and that Agent Burnett’s reasonable suspicion was sufficient to justify a
short detention to await the arrival of a drug sniffing dog. United States v.
M endoza, 468 F.3d 1256, 1261 (10th Cir. 2006). M r. Ramirez argues the length
of detention was improper, but we have previously held a delay of thirty-eight
-28-
minutes awaiting the arrival of a canine unit, United States v. Villa-Chaparro, 115
F.3d 797, 802-03 (10th Cir. 1997), and a 50-minute total detention while engaging
in a canine search, United States v. Cervine, 347 F.3d 865, 872-73 (10th Cir.
2003), were both proper detentions for reasonable suspicion. M r. Ramirez has
pointed to nothing in the record that would indicate he was detained for a longer
period of time, 9 and we conclude the scope and duration were reasonably related
to the purpose of the detention. Furthermore, once the dog alerted to the driver’s
side door, O fficer Burnett had probable cause to search the interior of the truck.
See United States v. Rosborough, 366 F.3d 1145, 1153 (10th Cir. 2004). Given
that Agent Burnett had reasonable suspicion, that the scope and duration of the
subsequent detention were reasonable, and that he had probable cause to search
the inside of the vehicle, the detention and search did not violate M r. Ramirez’s
Fourth A mendment rights.
3. Admissibility of Cellular Phone R eceipts
At trial, the government sought to offer two cellular phone receipts
possessed by M r. Vasquez at the time of his arrest as evidence of his involvement
in the conspiracy. The district court admitted the receipts over M r. Vasquez’s
hearsay objection, which he renew s on appeal. “Evidentiary rulings are
9
M r. Ramirez seeks to establish the extreme length of his detention by
discussing the apparently dead battery his vehicle suffered during the stop. See
Ramirez Br. at 32. But he also acknowledges the “government estimates the
traffic stop lasted about thirty minutes,” w ithout directly contesting this
conclusion. See id.-29-
committed to the discretion of the trial court, and we review them only for abuse
of discretion. Our review is even more deferential where the evidentiary ruling
concerns the admissibility of what is claimed to be hearsay evidence.” United
States v. Cestnik, 36 F.3d 904, 906-07 (10th Cir. 1994) (citation omitted).
Hearsay evidence, defined as a “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted,” Fed. R. Evid. 801(c), is generally inadmissible
unless the statement is explicitly defined as not hearsay, see Fed. R. Evid. 801(d),
or falls under an exception to the hearsay rule, see Fed. R. Evid. 802. In United
States v. Jefferson, 925 F.2d 1242, 1252 (10th Cir. 1991), we held a pager bill
used to prove the truth of the matter asserted, namely that the defendant
purchased the pager, constituted hearsay. See also United States v. M arkopoulos,
848 F.2d 1036, 1039 (10th Cir. 1988) (receipts are improperly admitted hearsay
evidence). By contrast, in United States v. Pulido-Jacobo, 377 F.3d 1124 (10th
Cir. 2004), we held a two month-old receipt for a set of speakers was not hearsay
because it represented an adoptive admission under Federal Rule of Evidence
801(d)(2)(B). Rule 801(d)(2)(B) provides that where a “statement is offered
against a party and is . . . a statement of which the party has manifested an
adoption or belief in its truth,” it is not hearsay. F ED . R. E VID . 801(d)(2)(B). The
question here is whether the phone receipts obtained from M r. Vasquez are an
adoptive admission, as in Pulido-Jacobo, and thus are admissible non-hearsay, or
-30-
are simply inadmissible hearsay as in Jefferson.
In Jefferson, we classified the pager bill as hearsay and broadly rejected the
application of adoptive admissions to bills due to the frequent “inaccuracies
contained” within them. Jefferson, 925 F.2d at 1253 n.13. Reexamining the
application of the adoptive admission rule to bills in Pulido-Jacobo, we
determined Jefferson’s pager bill was not an adoptive admission because “[o]ther
than [M r. Jefferson’s] name on the bill, no evidence existed that the defendant
manifested a belief in the truth of the bill’s contents.” Pulido-Jacobo, 377 F.3d at
1132. Turning to the facts of the case then at hand in Pulido-Jacobo, we
concluded the speaker receipt at issue represented an adoptive admission. W e
distinguished the two documents on two grounds: that M r Pulido-Jacobo “kept his
receipt for over two months after the speaker purchase,” and that “the officers
found speakers in the trunk of the car matching those described in the receipt.”
W e concluded that these “surrounding circumstances tie[d M r. Pulido-Jacobo] and
the document together in some meaningful way” not present in Jefferson. Id.(quotation marks omitted).
After reviewing the record in this case, we are persuaded the context of M r.
Vasquez’s cellular receipt more closely mirrors those of the pager bill in Jefferson
than the receipt in Pulido-Jacobo. M r. Vasquez’s receipts were dated April 21,
2003, and he w as arrested in possession of the receipts on April 28, 2003. Thus,
he possessed the receipts for only a single week, far less than the two months that
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carried the day in Pulido-Jacobo. The facts of this case further differ from those
in Pulido-Jacobo in that the government did not demonstrate M r. Vasquez
possessed the two cellular telephones. The discovery of the speakers, the subject
of M r. Pulido-Jacobo’s receipt, in the trunk of a car in which he was riding
confirmed his connection to the item and the documentation of its purchase. In
this case, not only were the phones not in the possession of M r. Vasquez, but his
name w as not on the bill and the registrants of the phones and the individuals who
paid the bills were never identified. Even in Jefferson, the bearer of the
document’s name w as inscribed on the bill. Because the facts fail to tie M r.
Vasquez to the receipts other than by possession, we conclude he did not adopt
their contents and the district court erred by admitting the receipts into evidence.
The question remains whether the error was harmless. As previously noted,
M r. Vasquez objected to the admission of the receipts upon Rule 801 grounds,
and not as a violation of his Sixth Amendment rights. “[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). “To constitute plain error
under the Confrontation Clause, the constitutional error must be (1) obvious, and
(2) affect substantial rights” in a manner that “had an unfair prejudicial impact on
the jury’s deliberations.” Id. at 1583(emphasis in the original). If w e find there
-32-
is no plain error, we review the Rule 801 hearsay objection “under the
nonconstitutional harmless error standard.” United States v. LaH ue, 261 F.3d
993, 1009 (10th Cir. 2001). “W e will, however, apply the plain error rule less
rigidly when reviewing a potential constitutional error. Furthermore, a closer
scrutiny may also be appropriate when the failure to preserve the precise grounds
for error is mitigated by an objection on related grounds.” Jefferson, 925 F.2d at
1254 (quotation marks and citations omitted).
W e first consider the nature of the receipts because it is relevant to
Confrontation Clause analysis. The Supreme Court held in Crawford v.
Washington, 541 U.S. 36 (2004), that the Confrontation Clause bars admission of
testimonial out of court statements unless the witness is unavailable and the
defendant had a prior opportunity for cross-examination. See id. at 68. Although
the Court did not precisely define “testimonial” in Crawford, we are certain that
receipts from a private business transaction were not what the Court had in mind.
See id. at 68 (“W hatever else the term covers, it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
police interrogations.”).
W e are therefore left to analyze nontestimonial statements, the receipts, to
determine w hether their admission violated the confrontation rights of M r.
Vasquez. W e analyze such statements under the pre-Crawford rubric of Ohio v.
Roberts, 448 U.S. 56, 66 (1980), which requires “a showing of particularized
-33-
guarantees of trustworthiness.” See United States v. Saget, 377 F.3d 223, 227
(2d. Cir. 2004) (“Crawford leaves the Roberts approach untouched with respect to
nontestimonial statements”); United States v. Franklin, 415 F.3d 537, 546 (6th
Cir. 2005) (same). In evaluating the trustw orthiness of the receipts, we return to
our analysis from Jefferson, where we said:
The authenticity of the pager bill was not disputed. It was a bill from
an established company that, on its face, gave every indicia of having
been issued in the ordinary course of business. There was no
indication that [M r. Jefferson], who knew its contents, disputed the
bill in any way. W e need not, and do not, decide whether these
factors establish the requisite “particularized guarantees of
trustw orthiness.” H owever, we do hold that they are sufficient to
prevent a conclusion that it was patently obvious that the
introduction of the pager bill violated [M r. Jefferson’s] confrontation
rights. . . Thus, it was not clear error for the district court to fail to
exclude such evidence under the Confrontation Clause.
Jefferson, 925 F.2d at 1254-55. W e find these conclusions persuasive in light of
the facts in this case and conclude the constitutional error here was not obvious.
W e therefore review the violation of the hearsay rules in this case for
nonconstitutional harmless error. An error is not harmless if “it has a substantial
influence on the outcome or leaves one in grave doubt as to whether it had such
an effect.” United States v. Wacker, 72 F.3d 1453, 1473 (10th Cir. 1995)
(quotation marks omitted). The phone receipts were one among several pieces of
evidence linking M r. Vasquez to the conspiracy. M r. Vasquez’s phone
conversations, the phone conversations of others regarding M r. Vasquez’s
involvement, and the financial accounting sheets naming M r. Vasquez in relation
-34-
to particular quantities of money and drugs paint a vivid picture of his
involvement in drug trafficking w ithout reliance on the phone receipts. Because
of the abundance of other evidence, we are convinced the error was harmless.
4. Admissibility of Co-conspirator Statements
M r. Vasquez contends the district court further erred by admitting recorded
conversations into evidence as “co-conspirator statements” under Federal Rule of
Evidence 801(d)(2)(E). He asserts the admission of this evidence impinged upon
his Sixth Amendment confrontation rights as defined in Bruton v. United States,
391 U.S. 123 (1968), and Crawford.
As we have previously pointed out, “where 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. Solomon, 399 F.3d
1231,1237-38 (10th Cir. 2005) (quoting United States v. Perez, 989 F.2d at 1582).
At the pre-trial Jam es hearing, M r. Vasquez’s counsel objected to the court’s
conclusion that the recorded statements were in furtherance of the conspiracy.
See Ramirez Rec., supp vol. VI at 176-81. But M r. Vasquez cites to no place in
the record where he specifically asserted his confrontation rights or “repeatedly
emphasiz[ed] his inability to cross examine” the declarants. See United States v.
Summers, 414 F.3d 1287, 1297-98 n.7 (10th Cir. 2005). Consequently, we review
the constitutional claim for plain error.
-35-
First, M r. Vasquez argues the admission of transcribed phone conversations
between co-conspirators ran afoul of the Supreme Court’s holding in Bruton.
Specifically, he disputes the admissibility of calls between M r. Ramirez and M r.
Galaz-Felix while the later was incarcerated, in which the two parties appear to be
discussing the debts due from M r. Vasquez. 10 M r. Vasquez’s Bruton argument is
unpersuasive, however, because “[e]vidence which is admissible under the
conspiracy exception to the hearsay rule does not violate the right to confront and
cross-examine guaranteed by the Sixth Amendment. The Bruton doctrine does
not rule situations . . . in which the evidence is admissible under a well
recognized exception to the hearsay rule.” United States v. Cox, 449 F.2d 679,
688-89 (10th Cir. 1971). See also Bourjaily v. United States, 483 U.S. 171, 183-
84 (1987). M r. Vazquez does not dispute on appeal the admission of the phone
conversations under Federal Rule of Evidence 801(d)(2)(E). 11 Ramirez Rec.,
10
See Gov’t Ex. 1R-T86 (M r. Galaz-Felix says, “Y ou have Chilango’s
number, right? . . . Tell him that the old stuff . . . Tell him he owes for the old
stuff . . . and the yellowish kind . . . he was going take off the phone expenses
and stuff.”); Gov’t Ex. 1R-T75 (M r. G alaz-Felix says “I told Chilango that . . .
two out of those four. Two for the thirteen point five and two for twelve and a
half. I mean, and two for thirteen and five hundred . . . Because he owed the part
for five hundred and . . . Two for thirteen and the other one for twelve.”).
11
“In order for statements to be admissible under Rule 801(d)(2)(E), the
proponent of the evidence must establish, by a preponderance of the evidence,
that: (1) a conspiracy existed; (2) the declarant and the defendant were both
members of the conspiracy; and (3) the statements were made during the course
of, and in furtherance of, the conspiracy.” United States v. Lahue, 261 F.3d at
1008 (quoting United States v. Williamson, 53 F.3d 1500, 1517-18 (10th Cir.
(continued...)
-36-
supp. vol. VI at 178.
Second, M r. Vasquez contends the co-conspirator statements satisfy the
analytical scheme developed in Crawford, which bars testimonial out-of-court
statements unless the witness is unavailable and the defendant had a prior
opportunity to cross-examine. 541 U.S. at 68. In Crawford, the Court interpreted
the primary concern of the Confrontation Clause as limiting the admission of
“testimonial” hearsay. See id. at 51-53. M r. Vasquez argues “the extra-judicial
statements made by the co-defendants here . . . clearly qualifies [sic] as
‘testimonial’ and . . . are inadmissible against M r. Vasquez under Crawford.”
Vasquez Br. at 18 n.17. W e do not agree. Although the Supreme Court declined
to precisely define “testimonial,” see Crawford, 541 U.S. at 68, the C ourt
explicitly noted that, historically, “statements in furtherance of a conspiracy”
present an “example” of “statements that by their nature [a]re not testimonial.” 12
Id. at 56. M oreover, the Court in Crawford cited Bourjaily with approval as one
of several recent cases that “hew closely to the traditional line.” Crawford, 541
11
(...continued)
1995)).
12
In United States v. Faulkner, 439 F.3d 1221, 1225 (10th Cir. 2006), we
said the district court’s conclusion that co-conspirator statements were not
testimonial was “well-supported by Crawford.” Id. Other circuits agree. See
United States v. Hansen, 434 F.3d 92, 100 (1st Cir. 2006); United States v.
M artinez, 430 F.3d 317, 329 (6th Cir. 2005); United States v. Robinson, 367 F.3d
278, 292 n. 20 (5th Cir. 2004); United States v. Reyes, 362 F.3d 536, 540 n.4 (8th
Cir. 2004).
-37-
U.S. at 58. In Bourjaily, the C ourt held the Confrontation Clause did not require
an independent inquiry into the reliability of statements properly admitted under
Rule 801(d)(2)(E). Bourjaily, 483 U.S. at 183. Because Crawford did not
overturn Bourjaily, the latter continues to control our application of the
Confrontation Clause to Rule 801 co-conspirator statements.
In sum, the statements M r. Vasquez asserts w ere wrongly admitted in this
case were not testimonial, and thus do not present Confrontation Clause problems
under Crawford. The statements at issue were admitted pursuant to Rule
801(d)(2)(E), and the district court did not violate M r. Vasquez’s right to
confrontation by admitting the recorded phone conversations.
SUFFICIENCY O F TH E EVIDENCE CLAIM S
1. M r. Lopez’s Conviction for Possession w ith Intent to D istribute
M r. Lopez contends the evidence presented at trial was insufficient to
support his conviction for possession of the methamphetamine discovered at 1095
16th Street, Apartment Five. To sustain a conviction for possession with intent to
distribute, the government must prove that “(1) the defendant possessed the
controlled substance; (2) knew that he had it; and (3) possessed it with the intent
to distribute it.” United States v. Pulido-Jacobo, 377 F.3d at 1131 (quoting
United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000)). M r. Lopez disputes
the sufficiency of the evidence demonstrating his knowing possession of the
-38-
methamphetamine. In evaluating whether the evidence is sufficient to support the
jury's verdict, we “review the record de novo and ask 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 [Defendant] guilty beyond a reasonable doubt.” United States v.
Jenkins, 175 F.3d 1208, 1215 (10th Cir. 1999) (quoting United States v. Voss, 82
F.3d 1521, 1524-25 (10th Cir.)). W e “evaluate the sufficiency of the evidence by
considering the collective inferences to be drawn from the evidence as a whole.”
United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997) (brackets and
quotations marks omitted).
The government did not prove M r. Lopez actually possessed the
methamphetamine during or prior to the drug seizure. His conviction was
founded instead on a demonstration of constructive possession. See United States
v. Carter, 130 F.3d 1432, 1441 (10th Cir. 1997) (“Possession may be actual or
constructive.”). “[C]onstructive possession exists where the defendant has the
power to exercise control or dominion over the item,” United States v. Lopez, 372
F.3d 1207, 1212 (10th Cir. 2004), and “may be established by circumstantial
evidence.” United States v. M cKissick, 204 F.3d 1282, 1291 (10th Cir. 2000).
“W ith regard to narcotics, we have defined constructive possession as ‘an
appreciable ability to guide the destiny of the drug.’” United States v. Culpepper,
834 F.2d 879, 881 (10th Cir. 1987) (quotation marks omitted). Constructive
-39-
possession does not require exclusivity and may apply to multiple individuals. Id.
at 882.
On appeal, M r. Lopez focuses his insufficiency claim on the dearth of
evidence connecting him to apartment five as of the date of the search. Having
reviewed the record, we agree that the evidence presented at trial does not
demonstrate M r. Lopez was then a resident or had continuing broad dominion
over the apartment. 13 However, the legally determinative relationship is not the
one connecting M r. Lopez to the apartment, but the relationship linking M r.
Lopez to the seized methamphetamine. As we recently declared, the “bedrock of
constructive possession . . . is the ability to control the object,” United States v.
Al-Rekabi, 454 F3d 1113, 1120 (10th Cir. 2006), and not the relationship of the
13
M r. Lopez was only tenuously connected to apartment five at the time the
police discovered the drugs. He had not resided there for at least a month and a
half prior to the discovery of the drugs. See Ramirez Rec., vol. XIII at 168 (M r.
Hurst stated [M r. Lopez] “faded away . . . in the middle of November. . . [and]
wasn’t living [at the apartment]”); Ramirez Rec., vol. XIV at 7 (M r. Lopez
informed M r H urst he was living with his wife “somewhere out north.”).
Although a search of the apartment unearthed two bills addressed to M r. Lopez at
that address, one was a collection matter, and the other w as for overdue charges.
The search turned up three photographs of M r. Lopez as w ell as a vehicle title in
his name registered to the address. Two of the three photographs included M r.
Gaitan-D ominguez, the succeeding resident of the apartment. Although both bills
demonstrate M r. Lopez was previously a named bill-payer for the apartment, a
fact neither party contests, neither bill provides evidence of his inhabitation at the
time the drugs were discovered because they are for past services rendered. The
other items found in the apartment only weakly, if at all, demonstrate M r. Lopez’s
control over the apartment in January, as they may simply represent comm on
detritus left behind upon his exit.
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accused to the location where the object was discovered. 14 See Lopez, 372 F.3d at
1212 (“[C]onstructive possession exists w here the defendant has the power to
exercise control or dominion over the item. Control or dominion over the
premises where the item is found is therefore a factor, but not a requirement, for
finding constructive possession of the item itself.”) (internal citations omitted).
Based on the evidence described below, we conclude M r. Lopez had sufficient
control over the drugs to demonstrate constructive possession.
Phone calls made by M r. Solis-Gaona and M r. Gaitan-Dominguez following
their arrests provide compelling evidence that M r. Lopez exercised control over
the drugs found in the apartment. See Gov’t Ex. 1R-T1-3. After his arrest, M r.
Gaitan-Dominguez telephoned M s. M urillo, with M r. Lopez apparently listening
in the background, see id., on a recorded prison telephone line. M r. Gaitan-
Dominguez said “Hey, dude! It’s just so [sic] can get those things out, as soon as
you can and hurry up, do it fast, in every way. Don’t stop for any reason.” G ov’t
Ex. 1R-T1. M s. M urillo, the speaker on M r. Lopez’ end, responded, impliedly in
reference to M r. Lopez, “He says that he agrees. He agrees, he says.” Id. The
prison phone system also recorded a conversation between M r. Solis-Gaona and
M s. M urillo discussing the presence of drugs in the exercise machine at apartment
14
Jury instructions explained constructive possession as “the power and the
intention at a given time to exercise dominion or control over a thing, either
directly or through another person or persons.” Ramirez Rec., vol. II, doc. 346,
Jury Instruction 37, 54.
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five and the need for the “guy . . . to take the things out of the house.” G ov’t
Ex.1R-T2 at 2. 15 In a third prison call involving M r. Lopez, M r. Gaitan-
Dominguez, and M s. M urillo, M r. Gaitan-Dominguez told M r. Lopez, “W ell,
move it, man, before they make this into a bigger deal,” and M r. Lopez responded
“I know, man.” Gov’t Ex.1R-T3 at 3.
Although M r. Gaitan-Dominguez and M r. Solis-Gaona speak in vague
phrases, “this guy,” “the things,” “some stuff,” a jury could reasonably infer that
in these calls M r. Lopez committed to orchestrating the removal of drugs from
apartment five. The callers discuss “some stuff” hidden in the “walking thing,”
and the need to “take them out from there.” G ov’t Ex. 1R-T2 at 2. This
discussion refers euphemistically, but quite specifically, to the drugs hidden in the
exercise machine in apartment five. Furthermore, statements like “get those
things out as soon as you can,” “he’s going to send someone there [to take the
15
The call transcript reads:
[M r. Solis-Gaona]: Tell this guy that’s over here, to . . . to take the
things out of the house.
[M s. M urillo]: Yeah, I already . . . I already told him. He’s going to
send someone there.
....
[M r. Solis-Gaona]: Did you tell him about . . . about the walking
thing?
[M s. M urillo]: No.
[M r. Solis-Gaona]: Didn’t he tell you?.
[M s. M urillo]: uh-uh
[M r. Solis-Gaona]: But that guy already knows about . . . On that
walking thing there’s . . . down there, there’s some stuff there, have
him take them out from there . . . .
Gov’t. Ex. 1R-T2.
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things out of the house],” and “move it, man,” among others, demonstrate M r.
Lopez’s ability to collect and then transfer the drugs from the apartment.
These phone conversations, and the reasonable inferences that can be draw n
therefrom, when view ed, as we must, in a light most favorable to the government,
support a finding that M r. Lopez had the power to exercise control over the drugs.
As the reasonable inferences that can be drawn from the phone calls meet the
requirement of constructive possession, namely ability to control the contraband,
see Lopez, 372 F.3d at 1212, we are untroubled by the failure of old bills and
cast-off photographs to demonstrate M r. Lopez possessed a generalized dominion
over the apartment. W e therefore conclude the evidence presented was sufficient
to sustain M r. Lopez’s conviction for possession of methamphetamine with intent
to distribute.
2. Evidence Supporting Conspiracy C onvictions
M r. Lopez, M r. M ozqueda-Ramirez and M r. Vasquez contend the
government failed to prove they knowingly agreed to participate in a conspiracy.
“To prove conspiracy, the government must show: (1) that two or more people
agreed to violate the law, (2) that the defendant knew at least the essential
objectives of the conspiracy, (3) that the defendant knowingly and voluntarily
became a part of it, and (4) that the alleged co-conspirators were interdependent.”
United States v. Small, 423 F.3d 1164, 1182 (10th Cir. 2005). The “government
may establish these elements by direct or circumstantial evidence.” United States
-43-
v. Evans, 970 F.2d 663, 668 (10th Cir. 1992). “W hen reviewing the jury’s
decision, we must view all of the evidence, both direct and circumstantial, in the
light most favorable to the government, and all reasonable inferences and
credibility choices must be made in support of the jury’s verdict.” Id. at 671(quoting United States v. Dickey, 736 F.2d 571, 581 (10th Cir. 1984)).
W e examine M r. Lopez’s claim first. He disputes that sufficient evidence
was presented to demonstrate he agreed with others to violate the law. Such an
agreement “need not be explicit, but rather may be inferred from the facts and
circumstances of the case.” Id. at 669. In this case, the facts from which a jury
could infer an agreement include: (a) the storage unit rented in the name of
Emilio Felix, M r. Lopez’s alias, containing paperwork in that name and sandwich
bags, packing materials, a digital scale, and methamphetamine residue, see
Ramirez Rec., vol. XIII at 120-124; (b) testimony from an Ogden City police
officer that the “smell . . . and the wrapping” in the storage unit “was the same”
as the wrapping for the drugs found in apartment five, id. at 123; (c) M r. Gaitan-
Dominguez’s telephone conversation with M r. Lopez, asking M r. Lopez to “move
it” after M r. Gaitan-Dominguez was arrested in connection with drugs found in
apartment five, Gov’t Ex. 1R-T3 at 3; and (d) M r. Lopez’s recorded phone
conversations with M r. Ramirez discussing the transfer of money and drugs. 16
16
See, e.g., Gov’t Ex. 1R-T37 at 7 (M r. Lopez states “Every time I talk to
[M r. Galaz], he’s just bringing out the money. W here the money is.”); Gov’t Ex.
(continued...)
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Additional evidence connects an individual referred to by the conspirators
as Julio, Jul, or Julia to the distribution of drugs. M r. Lopez contends the record
does not establish that the Julia or Julio appellations noted in phone calls and the
drug ledger refer to him. Even assuming this is true, 17 the aforementioned
evidence directly implicating M r. Lopez is sufficient to establish an agreement.
In this regard, we note that the storage unit was registered to Emilio Felix, an
alias unambigously connected to M r. Lopez, see Ramirez, Rec., vol. XIII at 159,
175 (M r. Hurst identifies M r. Lopez as Emilio Felix, the renter of apartment five,
16
(...continued)
1R-T46 at 3 (M r. Ramirez asks M r. Lopez, “Share some, can you?” M r. Ramirez
then tells M r. Lopez, “[Topo] finished it off.,” M r. Lopez says, “like seven,” and
M r. Ramirez responds, “Y eah, I’ve seen it.” ); Gov’t Ex. 1R-T60 at 5 (M r.
Ramirez says, “[M r. Galaz] had it right in his house, can you believe that?” Lopez
responds “Oh, really?” Ramirez replies, “He had a half, because he gave me
another half, so I could store it for him); Gov’t Ex. 1R-T69 at 7-8 (M r. Ramirez
asks “Y ou still can’t get anything for me, right?” M r. Lopez responds “There
ain’t nothing, Deano. . . . Last night I . . . I called and no one has any . . . Jose
told me that he has some.); Gov’t Ex. 1-RT-74 at 3 (M r. Lopez asks “W hat did he
tell you?” M r. Ramirez responds, “That you owed six . . . and [you] were gonna
give it to him in two’s.”); Id. at 8 (discussing a police search of [M r. Galaz’s]
basement, M r. Lopez states “the guy bought a pick . . . in order to make a stash
down there.”).
17
Contrary to M r. Lopez’s contention, at least one reference to “Julio” can
be reasonably associated with him. In his brief, M r. Lopez acknowledges he
“help[ed] retain an attorney,” A plt. Br. at 37, for M r. Gaitan-Dominguez and M r.
Solis-Gaona after their arrest. In M r. Galaz’s written financial accounting, he
noted, “Julio took 10 thousand for the lawyer.” Gov’t Ex. 1R-24(g). A juror
could reasonably infer that M r. Lopez’s involvement in retaining an attorney and
the ledger’s reference to a “Julio” taking money for a lawyer describe the same
person and action. Although this entry alone does not prove all references to
Julio pertain to M r. Lopez, the listing of M r. Lopez, even once, in the ledger
supports a conclusion that he was part of the criminal enterprise.
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and testifies that M r. Lopez admitted he was both M r. Lopez and M r. Felix), and
M r. Lopez discussed in numerous phone calls with M r. Ramirez what a juror
could reasonably conclude was the trafficking of drugs. None of this evidence
required the jury to conclude an offhand reference to an individual by the
shortened or feminine form of Julio was in fact M r. Lopez. There is sufficient
evidence linking M r. Lopez to the conspiracy even without considering evidence
referencing Julio, Julia, or Juliana.
Similarly, M r. M ozqueda-Ramirez argues there was insufficient evidence
linking him to the conspiracy. He asserts the evidence connecting him to the
conspiracy consisted solely of phone calls between him and M r. Aparicio in
which he made “innocuous statements regarding a white Camaro or a Brave One.”
M ozqueda-Ramirez Br. at 21. He contends that the “reference to a w hite Camaro
could have been just that, a white Camaro and not drugs,” id. at 20, and that a
“Brave One” could represent a “saying that means something to H ispanics”
unrelated to drugs. Id. at 21. If those references were the w hole of M r.
M ozqueda-Ramirez’s statements, we might be inclined to rule in his favor, but his
conversations included numerous additional alleged coded references to drugs and
money, 18 in a context demonstrating his involvement in distribution. 19 The
18
See, e.g., Gov’t Ex. 4A-T5 “a quarter,” “tickets,” “small room of a
hotel,” “the other animal,” “windows,” “ice,” “little eight,” and “a Seven
Eleven”); G ov’t ex. 4A -T11 (“that stuff,” “a ball,” “a notebook”); Gov’t ex. 4A -
18 (“material,” “the brave one,” “white paint”); Ramirez Rec., vol. XIV at 46-47
(continued...)
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extensive recorded dialogue between M r. M ozqueda-Ramirez and M r. Aparicio,
containing what a jury could reasonably conclude was coded language relating to
drug distribution, is sufficient to support M r. M ozqueda-Ramirez’s conspiracy
conviction.
M r. Vasquez makes similar claims as to the sufficiency of the evidence to
support his conspiracy conviction. Previously, we concluded the cellular phone
receipts found on M r. Vasquez when he was arrested were mistakenly admitted
into evidence at trial. Even without the aid of the receipts, however, a reasonable
jury could find M r. V asquez guilty of conspiracy beyond a reasonable doubt.
W iretap recordings capture M r. Vasquez directly conversing about drugs or, more
precisely, terms a reasonable jury could conclude refer to drugs and drug dealing.
18
(...continued)
(A gent Barrett’s testified the term “[h]otel [represents] the pound quantity, a
room being a quarter pound, and a quarter of that, or the small room, would be a
quarter of the quarter” and “from my own experience . . . windows is a common
term for crystal methamphetamine.”).
19
See, e.g., Gov’t. Ex. 4A-T5 (In a phone call involving M r Aparicio and
M r. M ozqueda-Ramirez, M r. Aparicio says “I just wanted to see if you could get
me a small room of a hotel,” and “I w ant to be sure that you can get it.” M r.
M ozqueda-Ramirez later says “I’ve got some but it’s just three or four little ones.
I’ve got them ready”); Gov’t. Ex. 4A-T11 (In a phone call involving M r A paricio
and M r. M ozqueda-Ramirez, M r. A paricio says “There’s this guy that w ants . . . a
ball . . . and there was another guy up there that w anted a whole notebook . . . .
B ut I don’t know if you w ould be able to lend me the whole notebook for two
days.”); Gov’t Ex. 4A-T18 (In a phone call involving M r Aparicio and M r.
M ozqueda-Ramirez, M r. M ozqueda-Ramirez says he is “over here on the streets
already,” M r. Aparicio asks “H ow are you doing on material?” and M r.
M ozqueda-Ramirez responds by asking “which kind? the brave one . . . the white
paint?”).
-47-
For example, M r. Vasquez and M r. Aparicio engaged in the following recorded
conversation:
[Jose Aparicio]: . . . do you have any material.
[V asquez]: . . . the only thing I have left are donuts.
[Jose Aparicio]: No, no problem, I only need a quarter, a hotel.
[Vasquez]: oh.
[Jose Aparicio]: W ith the money on hand.
Gov’t Ex. 4A-T7. Although the government failed to establish “donuts” had a
drug-related meaning, see Ramirez Rec., vol. XIV at 50, it did provide the jury
with specific secondary drug-related definitions for the terms “hotel” and
“quarter.” See id. at 46.
Furthermore, numerous references to M r. Vasquez, by his given name or by
his nickname, Chilango, 20 in other recorded wiretap conversations indicate his
involvement in drug trafficking. 21 Furthermore, M r. Galaz-Felix ’s ledger
20
Notably, M r. Vasquez self-identified as Chilango in a recorded call with
M r. Ramirez. See Gov’t Ex. 1R-T66 (M r. Ramirez asks, “W ho is this?” and M r.
Vasquez responds, “This is Chilango, man”); Gov’t Ex. 2, # 93 (authenticating
M r. V asquez as speaker on above call).
21
See Gov’t Ex. 1R-T6 ( Jose Aparicio tells C arlos A paricio, “It w as a half
ounce that belonged to Chilango.” Carlos A paricio later says, “I just called Chila
a little while ago, to tell him that I wanted, but he says he doesn’t have anything
left . . . . It’s just that when I get some, I tell Chila.”); Gov’t Ex. 1R-T86 (M r.
Galaz-Felix says to M r. Ramirez, “Y ou have Chilango’s number, right? . . . Tell
him that the old stuff . . . Tell him he owes for the old stuff . . . and the yellow ish
kind . . . he was going take off the phone expenses and stuff.”); Gov’t Ex. 1R-
T66 (M r. V asquez discusses M r. Galaz-Felix’s arrest with M r. Ramirez, “He
asked me to call you . . . . They got him with just the tickets, right?”); Gov’t Ex.
1R-T75 (M r. Galaz-Felix says to M r. Ramirez “I told Chilango that . . . two out of
those four. Two for the thirteen point five and two for twelve and a half. I mean,
(continued...)
-48-
includes a number of entries for “Vasquez” and variations of the nickname
Chilango accompanied by references to money and items and quantities that could
be interpreted as drug related euphemisms. Taking this evidence together with
the reasonable inferences to be drawn therefrom in the light most favorable to the
government, we conclude a reasonable jury could find M r. Vasquez guilty of
conspiracy beyond a reasonable doubt.
TRIAL CO UNSEL ISSUES
1. Claim of Ineffective Assistance of M r. M ozqueda-Ramirez’s Counsel
M r. M ozqueda-Ramirez argues his original trial counsel was ineffective for
failing to file pre-trial motions or join the motions of other defendants and for
failing to recognize a conflict of interest earlier in the trial process. As we have
previously noted, however, “[i]neffective assistance of counsel claims should be
brought in collateral proceedings, not on direct appeal. Such claims brought on
direct appeal are presumptively dismissible, and virtually all will be dismissed.”
United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). See also
M assaro v. United States, 588 U .S. 500, 504 (2003). Accordingly, we dismiss
21
(...continued)
and two for thirteen and five hundred . . . . Because he owed the part for five
hundred and . . . Two for thirteen and the other one for twelve.”); Gov’t Ex. 1R-
T56 (M r. Galaz-Feliz tells M r. Ramirez that “C hilango called me . . . I told him to
drop by . . . to take it over to you. . . so just keep it there for me and I’ll pick it
up.” during a conversation about stashing drugs).
-49-
M r. M ozqueda-Ramirez’s present ineffectiveness claim. He may reassert this
claim in future collateral proceedings.
2. Denial of M otion for W ithdraw al of M r. M ozqueda-Ramirez’s Counsel
M r. M ozqueda-Ramirez asserts the district court erred in denying his
attorney’s motion to withdraw as counsel. See M ozqueda-Ramirez Rec., vol. II at
163. W e review the denial of such a motion for an abuse of discretion. See
United States v. Johnson, 961 F.2d 1488, 1490 (10th Cir. 1992). “To warrant a
substitution of counsel, the defendant must show good cause, such as a conflict of
interest, a complete breakdown of communication or an irreconcilable conflict
which leads to an apparently unjust verdict.” United States v. Porter, 405 F.3d
1136, 1140 (10th Cir. 2005) (quotation marks omitted). In his brief, M r.
M ozqueda-Ramirez restates his ineffectiveness claim, discussing the difficulties
encountered by counsel in preparing for trial in a limited time frame and the
“scant”ness of evidence proving his involvement in the conspiracy, essentially
reiterating his sufficiency arguments. He does not demonstrate good cause for
removal of counsel as defined in Porter. Our independent review of the M arch 2,
2004 motion hearing before the magistrate judge does not convince us of the
existence of a complete breakdown in the attorney-client relationship. See
Ramirez Rec., sup. vol. VII at 9 (M r. M ozqueda-Ramirez explaining to the
magistrate judge, “I just want to switch attorneys.”). W e are not persuaded the
district court abused its discretion in denying M r. M ozqueda-Ramirez’s request
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for w ithdrawal of his attorney.
SENTENCING ISSUES
1. Application of M andatory M inimum
The district court sentenced M r. M ozqueda-Ramirez to 151 months
imprisonment, followed by five years of supervised release, in accordance with
the lower end of the recommended guidelines range. See Rec., vol. XI at 16. M r.
M ozqueda-Ramirez now asserts “the trial judge erred by imposing minimum
mandatory sentencing in light of . . . Blakely . . . and . . . Booker.” M ozqueda-
Ramirez. Br. at 25. In doing so, he fails to cite facts in the trial record or post-
Booker case law from the Tenth Circuit to clarify and support his claim. As best
as we can decipher, a statutory minimum mandatory sentence of five years was
required on M r. M ozqueda-Ramirez’s conviction for conspiracy to distribute
controlled substances, and M r. M ozqueda-Ramirez’s argument is that the
application of a mandatory minimum violated his Sixth A mendment right to a jury
trial. W e have held, however, that United States v. Booker, 543 U.S. 125 (2005),
“does not apply to statutory minimum sentences.” United States v. Harris, 447
F.3d 1300, 1307 (10th Cir. 2006). Consequently, although we cannot tell from
the provided record how the minimum mandatory on one count factored into his
total guideline range, the court did not err in sentencing him to the extent that the
sentence incorporated a mandatory minimum required by statute.
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2. Sentencing of M r. Ramirez
M r. Ramirez contends the district court erred by imposing a sentence based
on facts not proven beyond a reasonable doubt or admitted by him, in violation of
Booker and its antecedents. Specifically, he argues the district court comm itted a
constitutional Booker error by relying on evidence not proven to the jury to
establish his possession of a gun, his use of a minor, and his leader status. See
United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005).
The Probation Office, in drafting M r. Ramirez’s presentence report
(“PSR”), originally assigned a base offense level of 38. At M r. Ramirez’s
sentencing hearing, the district court rejected the PSR’s recommendation and
instead assigned a base level of 32 to account for a lower drug quantity. See
Ramirez Rec., vol. XXI at 19. The court supplemented the base level of 32 with 4
additional levels for being a leader, 2 for possession of a gun, and 2 for the use of
a minor to commit an offense. M r. Ramirez’s offense level then totaled 40, which
led to a recommended range of 360 months to life when combined with his
criminal history category of IV. The court noted it did “not believe that [18
U.S.C. §] 3553 requires a life sentence.” Id. at 4. Before determining M r.
Ramirez’s actual sentence, the court “recognize[d], as we all do now, [the
Sentencing Guidelines] are not mandatory. They are a factor.” Id. at 26. See
also id. at 4 (“I’m not bound by the guidelines.”). The court then sentenced M r.
Ramirez to 30 years imprisonment and 5 years of supervised release.
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The type of constitutional error M r. Ramirez asserts does not apply here
because the district court did not apply the guidelines as mandatory.
“[C]onstitutional [Booker] error . . . occurs when the district court applies the
Guidelines in a mandatory fashion, makes factual findings (other than the fact of
prior convictions), and imposes a sentence above the maximum that would apply
in the absence of such findings.” United States v. Yazzie, 407 F.3d 1139, 144
(10th Cir. 2005) (emphasis added). As the Supreme Court itself indicated in
Booker,
[i]f the Guidelines as currently written could be read as merely
advisory provisions that recommended, rather than required, the
selection of particular sentences in response to differing sets of facts,
their use would not implicate the Sixth Amendment. W e have never
doubted the authority of a judge to exercise broad discretion in
imposing a sentence within a statutory range.
543 U.S. at 233. The remedy in Booker established an advisory scheme, and the
district court in this case properly contemplated the guideline recommendations as
a non-binding factor. There was no “constitutional Booker error” as it was
defined in Yazzie and Gonzalez-Huerta.
After Booker, the fixed statutory maximum and not the discretionary
guidelines range establishes the “maximum” for purposes of Apprendi v. New
Jersey, 530 U.S. 466 (2000). See United States v. Crockett, 435 F.3d 1305, 1319
(10th Cir. 2006). Only if M r. Ramirez’s sentence exceeded the statutory
-53-
maximum, which in this case was life imprisonment, 22 would he have a potentially
cognizable Apprendi argument. The district court’s use of sentencing
enhancem ents did not violate M r. Ramirez’s Sixth A mendment rights.
M r. Ramirez also contends 21 U.S.C. §§ 841 and 846 are void for
vagueness because the guideline sentencing factors were not defined by statute as
elements of the crimes or charged in the indictment. M r. Ramirez concedes he
“had sufficient notice to know that conspiring to distribute 500 grams or more of
a mixture containing methamphetamine was unlawful conduct,” but he asserts he
“could not have known that he would be subject to criminal liability for his role
in the offense or relevant conduct” recognized by sentencing enhancements.
Ramirez. Br. at 17.
The Sentencing Guidelines provide that “[c]onduct that is not formally
charged or is not an element of the offense of conviction may enter into the
determination of the applicable guideline sentencing range.” U.S.S.G. § 1B1.3,
backg’d, and the Supreme Court has said sentencing courts “may exercise[]
discretion . . . in imposing sentence within statutory limits in the individual case.”
Apprendi, 530 U.S. at 481(emphasis in the original). See also Booker, 543 U.S. at
22
See 21 U.S.C. § 841(1)(A)(viii) (“In the case of a violation . . . involving
. . . 500 grams or more of a mixture or substance containing a detectable amount
of methamphetamine . . . such person shall be sentenced to a term of
imprisonment which may not be . . . more than life.”) (emphasis added); 21 U.S.C.
§ 846 (“Any person who . . . conspires to commit any offense defined in this
subchapter shall be subject to the same penalties as those prescribed for the
offense.”).
-54-
233. W here the guidelines are merely advisory, as they were at the time of M r.
Ramirez’s sentencing, the maximum sentence is the statutory limit, not the upper
bound of the calculated guidelines range.
M r. Ramirez’s only conviction was for violating § 841 and § 846, the
content of which he concedes he had sufficient notice. “The evidence produced at
trial demonstrates that [the defendant] had knowledge of the illegality of his
activities, and thus this is not a situation where he could not reasonably
understand that his contemplated conduct is proscribed.” United States v. Day,
223 F.3d 1225, 1229 (10th Cir. 2000) (internal quotation marks omitted). The
district court here exercised its discretion to arrive at a carefully considered
sentence that fell within the statutory range. The sentencing enhancements were
not required to be included in the statute as elements of the crime because they
were properly within the court’s discretion at sentencing. W e will not deem the
statute vague due to their absence.
C ON CLU SIO N
W e A FFIR M the convictions and sentences of all defendants.
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