United States v. Juan Meraz

FILED
NOT FOR PUBLICATION
OCT 31 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50262
Plaintiff-Appellee, D.C. No. 3:13-cr-04222-L-1
v.
MEMORANDUM*
JUAN CARLOS MERAZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted October 21, 2016**
Pasadena, California
Before: TALLMAN, PARKER,*** and CHRISTEN, Circuit Judges.
Juan Carlos Meraz appeals a jury conviction for importation of
methamphetamine in violation of 21 U.S.C. §§ 952 and 960. The government did
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
not charge the drug quantity, which would have triggered a mandatory minimum
sentence of ten years under 21 U.S.C. § 960(b)(1)(H). The district court denied
Meraz’s motion to dismiss the information as deficient for failing to allege that
Meraz knew the drug type and quantity. The district court varied from the
advisory guidelines sentencing range and sentenced Meraz to seventy months in
custody, followed by five years of supervised release.
At trial, the district court allowed the government to introduce excerpts from
two recorded jail telephone calls between Meraz and his family as admissions by a
party opponent under Federal Rule of Evidence 801(d)(2). The court excluded
excerpts from two different calls—in which Meraz denied his guilt—as
inadmissible hearsay. Meraz argues that the government’s excerpts were
misleading and the court violated Federal Rule of Evidence 106 (Rule of
Completeness) by excluding the additional calls Meraz sought to introduce. Meraz
also asserts that this court should reverse the conviction because the prosecutor
disparaged defense counsel in rebuttal closing argument. We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
1. “We review the district court’s decision on the Rule of Completeness
for an abuse of discretion.” United States v. Vallejos, 742 F.3d 902, 905 (9th Cir.
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2014) (citing United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996)). The two
excerpts the government introduced were not misleading, and the district court
correctly determined that Federal Rule of Evidence 106 did not apply. See id.
(explaining “if the ‘complete statement [does] not serve to correct a misleading
impression’ . . . created by taking something out of context, the Rule of
Completeness will not be applied to admit the full statement” (alteration in
original) (quoting Collicott, 92 F.3d at 983)).
Even if Rule 106 did apply, it “does not compel admission of otherwise
inadmissible hearsay evidence.” Collicott, 92 F.3d at 983 (internal quotation
marks omitted). While the self-inculpatory statements the government introduced
are admissions by a party-opponent and are therefore not hearsay, see Fed. R. Evid.
801(d)(2), the non-self-inculpatory statements Meraz offered were inadmissible
hearsay. See United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (citing
Williamson v. United States, 512 U.S. 594, 599 (1994)). Therefore, the district
court did not abuse its discretion in excluding the additional telephone calls Meraz
sought to introduce.
2. “Where defense counsel objects at trial to acts of alleged prosecutorial
misconduct, we review for harmless error on defendant’s appeal; absent such an
objection, we review under the more deferential plain error standard.” United
3
States v. Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013) (quoting United States v.
Wright, 625 F.3d 583, 610 (9th Cir. 2010)). Meraz only objected to one of the
allegedly disparaging remarks he now challenges: the prosecutor referred to
defense counsel’s argument that Meraz served as an unknowing drug courier as a
“fantasy.”
A prosecutor may not attack “the integrity of defense counsel,” but may
attack “the strength of the defense on the merits.” United States v. Nobari, 574
F.3d 1065, 1079 (9th Cir. 2009). After referring to the defense’s unknowing
courier theory as a “fantasy,” the prosecutor listed all the facts undermining it,
including that Meraz lived three hours away from the United States-Mexico
border; that Meraz did not have a regular crossing pattern traffickers could have
predicted; that the alternative suspects would have had to conceal the drugs in the
spare tire affixed to Meraz’s truck in broad daylight; that the alternative suspects
did not know Meraz planned to visit Mexico on the day of the crime; and that
Meraz parked in an access-controlled parking lot in the United States, which would
have made it difficult for the alternative suspects to retrieve the drugs. The
prosecutor’s comments may have demonstrated less than the desired degree of
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professional courtesy and respect,1 but the prosecutor did not accuse defense
counsel of fabricating a story or perpetrating a scam. Compare Ruiz, 710 F.3d at
1086 (holding “the prosecutor’s characterization of the defense’s case as ‘smoke
and mirrors’ was not misconduct”), with United States v. Sanchez, 176 F.3d 1214,
1224 (9th Cir. 1999) (finding misconduct where prosecutor stated, “[T]he defense
in this case read the records and then told a story to match the records. And, ladies
and gentlemen, I’m going to ask you not to credit that scam that has been
perpetrated on you here.”). The prosecutor’s comments during rebuttal closing
argument did not constitute misconduct.
3. Meraz concedes that this court held in United States v. Jefferson, 791
F.3d 1013, 1019 (9th Cir. 2015), that 21 U.S.C. §§ 952 and 960 do not require the
government to prove a defendant knew the type or quantity of drug imported.
Meraz only raises this issue to preserve it for Supreme Court review.
Meraz’s argument under Alleyne v. United States, 133 S. Ct. 2151 (2013),
also fails, however, because the government did not charge the drug quantity,
which would have triggered the ten-year mandatory minimum sentence under
§ 960(b)(1)(H). Instead, the amount and quantity of methamphetamine were
1
The prosecutor’s comments included: “Let’s indulge in this fantasy,”
“She even had a nice graph,” and a reference to defense counsel’s “nice little
checklist.”
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factored into the advisory guidelines range. The district court applied a two-level
enhancement under United States Sentencing Guidelines § 2D1.1(b)(5) because the
offense involved the importation of methamphetamine that the defendant knew was
imported unlawfully and the defendant was not subject to a mitigating role
adjustment.
After calculating the range, the district court varied from it considerably.
“[W]hen a trial judge exercises his discretion to select a specific sentence within a
defined range, the defendant has no right to a jury determination of the facts that
the judge deems relevant.” United States v. Vallejos, 742 F.3d 902, 906 (9th Cir.
2014) (quoting United States v. Booker, 543 U.S. 220, 233 (2005)). The
§ 2D1.1(b)(5) methamphetamine enhancement “affected neither the statutory
maximum sentence nor any mandatory minimum sentence; thus, neither [Apprendi
v. New Jersey, 530 U.S. 466 (2000)] nor Alleyne v. United States is implicated.”
See id. (citing Alleyne, 133 S. Ct. at 2163).
Each party shall bear its own costs.
AFFIRMED.
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