United States v. Nery Ramos Duarte

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4468
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NERY GUSTAVO RAMOS DUARTE, a/k/a El Diablo,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:10-cr-00308-AW-4)
Submitted: July 31, 2014 Decided: August 14, 2014
Before WYNN and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed and remanded by unpublished per curiam opinion.
Matthew G. Kaiser, Justin Dillon, THE KAISER LAW FIRM PLLC,
Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Bonnie S. Greenberg, Andrea L. Smith, Assistant
United States Attorneys, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nery Gustavo Ramos Duarte was found guilty after a
jury trial of conspiracy to distribute controlled substances,
conspiracy to import controlled substances into the United
States, conspiracy to commit money laundering, and conspiracy to
smuggle bulk cash. He received a 160-month sentence. On
appeal, he challenges several evidentiary issues, the
sufficiency of the evidence on all four of his convictions, and
the drug quantity attributed to him at sentencing. We affirm
the judgment, but remand for correction of a clerical error.
In 2003, Duarte was stopped by Arkansas law
enforcement with approximately $1.1 million in cash stashed in a
secret compartment in a Chevy Tahoe that he was driving after
just having left the company of a well known leader of a
significant drug distribution network based out of Guatemala.
The leader’s name was Napolean Villagran. The evidence at trial
also showed that in 2004, Duarte collected money and accepted
cars as payment for drug debts to Villagran and transported
payments to Villagran in Guatemala. Duarte also delivered
messages to co-conspirators Jose Sandoval and Marilyn Navas and
other distributors in the United States on Villagran’s behalf.
In 2006, Duarte negotiated a debt owed to Villagran by Navas and
offered her more drugs to sell to cover her debt. Customs
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records were introduced that showed that Duarte reentered the
United States fifty-eight times over a ten-year period.
I.
Duarte first argues that co-conspirator Marilyn
Navas’s statements during the recorded phone calls with Diego
Paredes and Duarte constituted inadmissible hearsay that was not
subject to the co-conspirator exception to the hearsay rule
under Rule 801(d)(2)(E) of the Federal Rules of Evidence. Under
this rule, “a statement of the defendant’s co-conspirator is
admissible against the defendant if it was made during the
course of and in furtherance of the conspiracy.” United States
v. Shores, 33 F.3d 438, 442 (4th Cir. 1994) (internal quotation
marks omitted). A co-conspirator’s statements come in “if the
court finds (i) that the defendant and the declarant were
involved in a conspiracy with each other at the time the
statement was made; and (ii) that the statement was made in
furtherance of that conspiracy.” Id. (footnote omitted); see
Krulewitch v. United States, 336 U.S. 440, 442 (1949) (holding
that an out-of-court statement of one conspirator may be
admitted against his fellow conspirator only if the statements
were “made pursuant to and in furtherance of objectives of the
conspiracy charged”).
Duarte correctly argues, and the Government concedes,
that the drug conspiracy was over when Navas made the recorded
3
calls because she was at that time cooperating in the
investigation. See United States v. Pratt, 239 F.3d 640, 644
(4th Cir. 2001) (error to admit recorded telephone conversations
initiated by cooperating co-conspirators because they were not
statements made in furtherance of the conspiracy). The
Government also concedes that Navas’s side of the recorded
conversations is inadmissible under Rule 801(d)(2)(E). Both
parties acknowledge that Diego Paredes’ and Duarte’s portions of
the conversation would be admissible as opposing party’s
statements under Fed. R. Evid. 801(d)(2)(A).
We conclude that, even if Navas’s recorded statements
were not made in furtherance of the conspiracy as required by
Rule 801(d)(2)(E), or otherwise admissible, the admission of the
transcripts of the phone calls was harmless. See United States
v. Graham, 711 F.3d 445, 453 (4th Cir. 2013) (“The incorrect
admission of a statement under the coconspirator statement
exclusion from the definition of hearsay is subject to harmless
error review.”). “Erroneously admitted evidence is harmless if
a reviewing court is able to say, with fair assurance, after
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.” United States v. Johnson, 587 F.3d 625,
637 (4th Cir. 2009) (internal quotation marks omitted). The
contested recorded conversations were brief, conducted partly in
4
code, and most importantly, were supplemented by the live
testimony of both Sandoval and Navas. Sandoval’s and Navas’s
live testimony was more substantial than the recordings. There
was further evidence presented by the Government with expert
testimony on money laundering that corroborated that Duarte
would be aware of both the drug distribution and money
laundering schemes. And finally, there was uncontradicted
evidence that Duarte transported $1.1 million hidden in a secret
compartment in a vehicle that Duarte received at a residence
where Duarte interacted with co-conspirators in the drug
distribution network, including the known leader of the
organization. We therefore conclude that the admission of the
recorded conversations, although erroneous, was harmless error.
II.
Duarte challenges the district court’s decision to
permit expert testimony on money laundering both as to the
qualification of the expert and the need for the testimony,
ultimately contending that the expert acted as a summary
witness. The district court’s decision whether to admit expert
testimony is reviewed for abuse of discretion. F.C. Wheat Mar.
Corp. v. United States, 663 F.3d 714, 723 (4th Cir. 2011). The
Government called William DeSantis, an Internal Revenue Service
(IRS) special agent, as an expert in money laundering. Although
the general rule is that testimony drawing legal conclusions
5
should be excluded “when the legal regime is complex and the
judge determines that the witness’ testimony would be helpful in
explaining it to the jury, the testimony may be admitted.”
United States v. Offill, 666 F.3d 168, 175 (4th Cir. 2011).
Here, the prosecution involved a complicated drug
distribution network spanning Guatemala and the United States.
The organization used a variety of methods to return the cash
proceeds to Guatemala. We conclude that the district court’s
findings that the testimony would be helpful and DeSantis’s
experience was sufficient to qualify him as an expert were not
an abuse of discretion.
III.
Next, Duarte asserts that, had he been permitted to
thoroughly cross-examine the cooperating witnesses Navas and
Sandoval concerning the penalties they would have faced if they
had not cooperated, he would have more completely demonstrated
their motivation to provide information and trial testimony
adverse to him. Though the court did not allow detailed
questioning regarding the possible sentences the witnesses
faced, the court did permit counsel to question the witnesses as
to whether they had secured a favorable bargain by assisting the
Government, or whether the Government had foregone criminal
prosecution in exchange for their testimony.
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A district court’s decision to limit cross-examination
is reviewed for abuse of discretion. United States v. Scheetz,
293 F.3d 175, 184 (4th Cir. 2002). Under the Confrontation
Clause, a defendant has the right to cross-examine witnesses who
are cooperating with the Government about potential sources of
bias. United States v. Cropp, 127 F.3d 354, 358 (4th Cir.
1997). However, the trial court retains the discretion to place
reasonable limits on cross-examination based on concerns about,
among other things, harassment, prejudice, confusion,
repetition, or relevance. Delaware v. Van Arsdall, 475 U.S.
673, 678-79 (1986). We have “upheld restricting
cross-examination to the minimum and maximum penalties the
cooperating government witness was facing, whether the
cooperating government witness was testifying to gain a reduced
sentence, and the terms of his plea agreement concerning a
downward departure.” Scheetz, 293 F.3d at 184 (citing United
States v. Ambers, 85 F.3d 173, 176-77 (4th Cir. 1996)). An
improper denial of an opportunity to examine a witness for bias
is subject to harmless error review. United States v. Turner,
198 F.3d 425, 430-31 (4th Cir. 1999).
The record plainly reveals that, on cross-examination,
Duarte illustrated that the Government’s witnesses had motive to
present adverse testimony or to lie. Restricting counsel from
delving into the particular details of the sentences each
7
witness potentially—but did not actually—face was an appropriate
discretionary limitation. To have allowed further questioning
on this issue would have simply been cumulative and repetitive.
Therefore, the district court did not abuse its discretion in
imposing this limitation. Scheetz, 293 F.3d at 185 (finding
district court did not abuse its discretion in limiting defense
counsel from questioning cooperating witnesses regarding their
Sentencing Guidelines ranges).
IV.
The next evidentiary issue Duarte raises is the
admission of Navas’s testimony that in a recorded telephone
conversation the person that she referred to as “Diablo” was
Duarte. Duarte contends that the alias of Diablo had no
evidentiary value, that it did not connect him to any piece of
evidence in the case, and the Government did not prove that it
was Duarte’s alias; therefore, he claims the nickname should
have been excluded. The Government argues that Navas was only
questioned about the name to identify that she was speaking with
Duarte and that counsel did not make a timely objection to the
identification. We ordinarily review a district court’s
decision to admit evidence for abuse of discretion. See United
States v. Medford, 661 F.3d 746, 751 (4th Cir. 2011). With
respect to the admission of uncontested evidence, the decision
of the district court is reviewed only for plain error. United
8
States v. Brewer, 1 F.3d 1430, 1434 (4th Cir. 1993). * We
conclude the district court did not commit plain error in
admitting the uncontested evidence identifying that Navas was
referring to Duarte when she called him Diablo.
V.
Duarte argues that the cumulative effect of the
challenged district court evidentiary ruling errors deprived him
of a fair trial and requires reversal. “Pursuant to the
cumulative error doctrine, the cumulative effect of two or more
individually harmless errors has the potential to prejudice a
defendant to the same extent as a single reversible error.”
United States v. Hager, 721 F.3d 167, 204 (4th Cir. 2013)
(citations omitted), cert. denied, 134 S. Ct. 1936 (2014).
Generally, if a court “determine[s] . . . that none of [a
defendant’s] claims warrant reversal individually,” it will
“decline to employ the unusual remedy of reversing for
cumulative error.” United States v. Fields, 483 F.3d 313, 362
(5th Cir. 2007). In Hager, the court concluded that the
harmless errors present “were not widespread of prejudicial
enough to have fatally infected [the defendant’s] trial or
sentencing hearing.” 561 F.3d at 204. The same situation
exists here. Although there was one error in admitting Navas’s
*
Duarte did not object below.
9
recorded telephone conversations after she began cooperating in
the investigation, we determined it to be harmless. The record
does not demonstrate that there were other harmless errors
present that fatally infected the trial. We will not reverse
the convictions for cumulative error.
VI.
Duarte argues that the Government failed to adduce
sufficient evidence to support his convictions. “A defendant
challenging the sufficiency of the evidence . . . bears a heavy
burden.” United States v. Beidler, 110 F.3d 1064, 1067 (4th
Cir. 1997) (internal quotation marks omitted). The jury verdict
must be sustained when “there is substantial evidence in the
record, when viewed in the light most favorable to the
government.” United States v. Jaensch, 665 F.3d 83, 93 (4th
Cir. 2011) (internal quotation marks omitted). “Substantial
evidence is evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” Id. (alteration
and internal quotation marks omitted).
To obtain a conviction for conspiracy to possess with
the intent to distribute a controlled substance, “the Government
must prove the following essential elements: (1) an agreement
between two or more persons to engage in conduct that violates a
federal drug law; (2) the defendant’s knowledge of the
10
conspiracy; and (3) the defendant’s knowing and voluntary
participation in the conspiracy.” United States v. Green, 599
F.3d 360, 367 (4th Cir. 2010). A defendant may be convicted of
conspiracy without knowing all of its details, as long as he
enters the conspiracy understanding that it is unlawful and
willfully joins in the plan at least once. United States v.
Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc). “[T]he fact
that a conspiracy is loosely-knit, haphazard, or ill-conceived
does not render it any less a conspiracy—or any less unlawful.”
Id. The court reverses for insufficient evidence only in “the
rare case where the prosecution’s failure is clear.” Beidler,
110 F.3d at 1067 (internal quotation marks omitted). We have
reviewed the evidence and find that, viewing the evidence in the
light most favorable to the Government, substantial evidence
supports all four counts of conviction.
VII.
Finally, Duarte argues that the district court erred
in attributing sixty-four kilograms of cocaine to him for
purposes of calculating the Sentencing Guidelines range based on
the amount of cash found in the Chevy Tahoe. The Government
contends that the court properly attributed the total amount of
cash in the Tahoe and converted it to the quantity of drugs
associated with the amount.
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“[T]he government must prove the drug quantity
attributable to a particular defendant by a preponderance of the
evidence.” United States v. Bell, 667 F.3d 431, 441 (4th Cir.
2011). We review the district court’s calculation of the
quantity of drugs attributable to a defendant for sentencing
purposes for clear error. United States v. Crawford, 734 F.3d
339, 342 (4th Cir. 2013), cert. denied, 134 S. Ct. 1528 (2014);
see also United States v. Perez, 609 F.3d 609, 612 (4th Cir.
2010) (when assessing a challenge to the district court’s
application of the Guidelines, this court reviews factual
findings for clear error and legal conclusions de novo). Under
this standard, we will reverse the district court’s finding only
if it is “left with the definite and firm conviction that a
mistake has been committed.” Crawford, 734 F.3d at 342
(internal quotation marks and citation omitted).
When determining facts relevant to sentencing, such as
approximated drug quantity, courts are allowed to “‘consider
relevant information without regard to its admissibility under
the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable accuracy.’” Crawford, 734 F.3d at 342 (quoting U.S.
Sentencing Guidelines Manual § 6A1.3(a) (2010). “Where there is
no drug seizure . . . the sentencing judge shall approximate the
quantity of the controlled substance. . . . The judge may
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consider, for example, the price generally obtained for the
controlled substance . . . .” USSG § 2D1.1 cmt. n.5.
At sentencing, the district court attributed
sixty-three or sixty-four kilograms of cocaine to Duarte. The
district court used the seized amount of $1.1 million and, based
on the testimony of a cooperating witness, determined that a
kilogram of cocaine at the time of the seizure sold for
approximately $17,000-$18,000. The district court then
converted the money seized into the applicable quantity of
drugs, and found the base offense level to be thirty-six under
USSG § 2D1.1. In so finding, the district court determined that
Duarte had knowledge of the money, and even if the exact amount
was not known to Duarte at the time, it was reasonably
foreseeable to him. The court also determined that Duarte was
more than a mere courier when it denied Duarte’s argument that
he should receive a lesser role adjustment. The court believed
that Duarte “was the eyes and ears of the head guy in
Guatemala.”
Duarte argues that he should not be accountable for
the converted amount of cash, because the Government did not
prove that he knew how much cash was secreted in the vehicle,
the Government’s expert testified that couriers frequently do
not know the quantity of money that they are asked to carry, and
despite the police surveillance of the Tahoe and Duarte’s
13
presence around it, the Government did not present testimony
that Duarte ever looked in the compartment prior to leaving with
the vehicle.
The court followed the procedure outlined in the
Guidelines when there is no drug seizure. See United States v.
Kiulin, 360 F.3d 456, 461 (4th Cir. 2004) (district court did
not clearly err in calculating drug quantity by converting cash
to its drug equivalent). Further, “actual knowledge of the type
or quantity of contraband is not critical to the drug quantity
determination.” United States v. Fullilove, 388 F.3d 104, 108
(4th Cir. 2004). Even if the Government did not prove actual
knowledge, the evidence in the record demonstrated that
sixty-three to sixty-four kilograms of cocaine was reasonably
foreseeable considering the scope of the organization and the
amount of money that Duarte was aware of flowing back to
Guatemala. Therefore, there was no clear error.
Accordingly, we affirm the judgment but remand to the
district court for the limited purpose of correcting a clerical
error. In its written judgment, the district court erroneously
lists the sentence for count four to run consecutively to the
sentences for counts one, two, and three. However, the clear
oral pronouncement at sentencing indicated all counts are to run
concurrently. Where there is a conflict between a district
court’s written judgment and its oral pronouncement of the
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sentence, the oral sentence controls. United States v.
Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003) (citing United
States v. Morse, 344 F.2d 27, 30 n.1 (4th Cir. 1965)). The
remedy for such a conflict is to remand to the district court
with instructions to correct the written judgment to conform to
the oral sentence. Morse, 344 F.2d at 30-31 & n.1. For the
foregoing reasons, we affirm the judgment but remand with
instructions to correct the written judgment to reflect the
district court’s oral pronouncement of Duarte’s sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED AND REMANDED
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