United States v. Michael Alcantar

FILED
NOT FOR PUBLICATION SEP 30 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10414
Plaintiff - Appellee, D.C. No. 4:11-cr-02230-DCB-
JJM-2
v.
MICHAEL EDWARD ALCANTAR, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted September 11, 2013
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and BEISTLINE, Chief
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ralph R. Beistline, Chief United States District Judge
for the District of Alaska, sitting by designation.
Defendant-Appellant Michael Alcantar appeals his conviction after jury trial
of multiple charges stemming from his participation in an attempt to purchase
cocaine that culminated in the firebombing of a residence. The following are the
relevant convictions: (1) Conspiracy to possess a destructive device, in violation of
18 U.S.C. § 371 and 26 U.S.C. § 5861(d); (2) Possession of a destructive device, in
violation of 26 U.S.C. § 5861(d); (3) Conspiracy to possess with the intent to
distribute between 500 grams and 5 kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B)(ii)(II), and 846; (4) Using or carrying a destructive
device during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §
924(c); and (5) Conspiracy to use or carry a destructive device during and in
relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(o).
The evidence at trial showed that Alcantar was the “supervisor” of a group
of felons who were members of the New Mexican Mafia. They embarked on a
plan to buy and sell drugs in order to benefit members of the group still in prison.
Their planned purchase of drugs at a park in Tucson was unsuccessful because of
the seller’s inability to provide the drugs, and the planned retaliation for his refusal
to provide compensation was a firebombing that hit the wrong target.
Appellant first challenges the sufficiency of the evidence. There was
sufficient evidence of conspiracy to possess with intent to distribute cocaine.
2
Witnesses testified to Alcantar’s approval of the drug purchase plan. The evidence
thus established the defendant’s agreement and intent to participate in a drug
transaction. The agreement and the intent and the illegal objective were clear and
the government satisfied its burden. See United States v. Yossunthorn, 167 F.3d
1267, 1270 (9th Cir. 1999). The evidence was also sufficient to show that the
destructive device was used “during and in relation to” the underlying drug
trafficking conspiracy.
The government failed to disclose some telephone records in apparent
violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). The records would at
best, however, have provided limited impeachment evidence concerning the lack of
phone calls between appellant and one of the coconspirators during the period
before the implementation of the plan. The evidence should have been disclosed
because it could have been used for impeachment, but there is no reasonable
probability that it would have affected the jury’s decision in the case and hence the
defendant suffered no prejudice. See United States v. Kohring, 637 F.3d 895, 902
(9th Cir. 2010) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
Accordingly, there was no violation of the defendant’s constitutional rights. See
United States v. Williams, 547 F.3d 1187, 1202 (9th Cir. 2008) (setting forth the
requisite elements of a constitutional violation).
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The district court properly denied the motion to dismiss that asserted a lack
of jurisdiction under the Commerce Clause. See Gonzalez v. Raich, 545 U.S. 1(2005). Alcantar’s other sentencing arguments are also foreclosed. See United
States v. Major, 676 F.3d 803, 812 (9th Cir. 2012), United States v. Chaidez, 916
F.2d 563, 565 (9th Cir. 1990), United States v. Wilkins, 911 F.2d 337, 339–40 (9th
Cir. 1990).
AFFIRMED.
4