United States v. Roberto Gutierrez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4045
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERTO PABLO GUTIERREZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:11-cr-00149-BR-1)
Submitted: August 22, 2012 Decided: September 6, 2012
Before FLOYD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard Croutharmel, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Joshua L. Rogers, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roberto Pablo Gutierrez was charged by a federal grand jury
sitting in the Eastern District of North Carolina with
conspiracy to distribute and to possess with the intent to
distribute 500 grams or more of methamphetamine, 21 U.S.C.
§§ 841(a)(1) and 846. Following a jury trial, Gutierrez was
found guilty. He was sentenced to 292 months’ imprisonment. On
appeal, he challenges both his conviction and sentence. We
affirm.
First, Gutierrez contends that the district court erred
when it refused to allow him to testify as to what he believed
would happen to him if he did not participate in the drug
conspiracy. He posits that such testimony was admissible under
Rule 803(3) of the Federal Rules of Evidence. Because this
argument was raised below, our review is for an abuse of
discretion. United States v. Abu Ali, 528 F.3d 210, 253 (4th
Cir. 2008).
Hearsay generally is not admissible in evidence. Fed. R.
Evid. 802. However, Rule 803(3) provides that a hearsay
statement is admissible if it is a statement of the declarant’s
then existing state of mind, provided the statement is not a
statement of memory or belief to prove the fact remembered or
believed. The district court did not abuse its discretion in
excluding the purported testimony under this rule. It is
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unclear what statement of his Gutierrez sought to introduce.
Moreover, to the extent he sought to introduce the statements of
his coconspirators to demonstrate the beliefs he harbored, such
statements do not fall within the rule, because the “state of
mind exception . . . refers to the state of mind of the
declarant, not to the state of mind of the listener or hearer of
the statement.” United States v. Arbolaez, 450 F.3d 1283, 1290
n.6 (11th Cir. 2006). In any event, Gutierrez was allowed to
testify that he believed that, as a result of his agreement to
participate in the conspiracy, his life and the lives of his
family were in danger. Thus, to the extent he was trying to
show that he participated in the conspiracy out of fear,
Gutierrez was permitted to introduce such evidence.
Second, Gutierrez contends that the district court erred
when it prohibited him from testifying about threats made to him
by certain drug operatives. He posits such testimony was
admissible under Rule 804(b)(3). Because this argument was not
made below, our review is for plain error. United States v.
Lowe, 65 F.3d 1137, 1144 (4th Cir. 1995).
Rule 804(b)(3) provides an exception to the hearsay rule
when an unavailable declarant has made a statement against penal
interest. A statement is admissible under this exception if:
(1) the speaker is unavailable; (2) the statement is actually
adverse to the speaker’s penal interest; and (3) corroborating
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circumstances clearly indicate the trustworthiness of the
statement. United States v. Bumpass, 60 F.3d 1099, 1102 (4th
Cir. 1995). The party seeking to introduce the statement has
the formidable burden of establishing these prerequisites.
United States v. Blake, 571 F.3d 331, 350 (4th Cir. 2009).
In this case, even if the first two factors were satisfied,
the corroborating circumstances factor clearly was not met. We
have previously listed several factors relevant in assessing
corroboration of a statement sought to be admitted under Rule
804(b)(3):
(1) whether the declarant had at the time of making
the statement pled guilty or was still exposed to
prosecution for making the statement, (2) the
declarant’s motive in making the statement and whether
there was a reason for the declarant to lie, (3)
whether the declarant repeated the statement and did
so consistently, (4) the party or parties to whom the
statement was made, (5) the relationship of the
declarant with the accused, and (6) the nature and
strength of independent evidence relevant to the
conduct in question.
Bumpass, 60 F.3d at 1102.
In this case, the purported drug operatives were in an
undisclosed location in Mexico, and there is no evidence that
they were exposed to prosecution for threatening Gutierrez while
allegedly holding him at gunpoint. The men, who Gutierrez only
claims to have met once, were allegedly motivated by a desire to
have him transport drugs into the United States. There is no
evidence as to how many times the statements were repeated, and
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the only person to whom the drug operatives made the statements
was Gutierrez. The Bumpass factors demonstrate that these
alleged threats are untrustworthy statements that were designed
to buttress Gutierrez’s claim that he did not voluntarily
participate in the conspiracy. Because Gutierrez cannot meet
the corroborating circumstances factor, there was no error, let
alone plain error, below.
Third, Gutierrez contends that the district court failed to
adequately inquire into the circumstances surrounding his
request for substitute counsel. Our review of this contention
is for an abuse of discretion. United States v. Hackley, 662
F.3d 671, 685 (4th Cir. 2011).
The Sixth Amendment guarantees a criminal defendant the
right to “the Assistance of Counsel for his defence.” U.S.
Const. amend. VI. This right guarantees, among other things,
the right to trial counsel of one’s choosing. Faretta v.
California, 422 U.S. 806, 835 (1975). Such right, however, is
not absolute and “must not obstruct orderly judicial procedure
and deprive courts of the exercise of their inherent power to
control the administration of justice.” United States v.
Gallop, 838 F.2d 105, 108 (4th Cir. 1988). Consequently, in
reviewing the actions of the district court, we consider: (1)
“the timeliness of the motion”; (2) “the adequacy of the
[district] court’s inquiry into the defendant’s complaint”; and
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(3) “whether the attorney/client conflict was so great that it
had resulted in total lack of communication preventing an
adequate defense.” Hackley, 662 F.3d at 685 (citation and
internal quotation marks omitted).
Considering the timeliness of the request for new counsel,
we note that Gutierrez moved for new counsel during a sentencing
hearing that the district court had already continued at his
request. As to the second factor, Gutierrez suggests that the
district court failed to investigate his complaint. That
assertion is belied by the record. The district court inquired
about Gutierrez’s complaint and asked his counsel whether he had
any problems with the representation. Counsel responded that he
was not moving to withdraw. Gutierrez’s complaint was that his
counsel had not “represented [him] well.” (J.A. 422). However,
he gave no basis for his expectations, nor did he specify what
counsel should have been doing that he was not. With regard to
the breakdown in communication factor, there was no such
breakdown. Indeed, Gutierrez never suggested that the lack of
communication prevented an adequate defense. Based on the
factors set forth in Hackley, we find no abuse of discretion.
Finally, Gutierrez contends that his counsel was
constitutionally ineffective for failing to object to the
probation officer’s finding that he did not qualify for a
mitigating role adjustment under United States Sentencing
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Commission, Guidelines Manual, § 3B1.2. However, ineffective
assistance claims are more appropriately raised in a motion
filed pursuant to 28 U.S.C. § 2255, unless counsel’s
ineffectiveness conclusively appears on the record. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). After
review of the record, we find no conclusive evidence that
counsel rendered ineffective assistance, and, accordingly, we
decline to consider the claim on direct appeal.
For the reasons stated herein, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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