US v. Ruben Barraza

Filing 920100219

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4345

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUBEN ORTIZ BARRAZA, a/k/a Ruben Barraza-Ortiz, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:07-cr-00079-FDW-DCK-6)

Submitted:

January 28, 2010

Decided:

February 19, 2010

Before MICHAEL, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Denzil H. Forrester, Charlotte, North Carolina, for Appellant. Edward R. Ryan, Acting United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Ruben Ortiz Barraza was convicted by a jury of

conspiracy to possess with intent to distribute at least 100 kilograms of marijuana, 21 U.S.C.A. §§ 846, 841(b)(1)(B) (West 1999 & Supp. 2009) (Count One), and possession with intent to distribute of at least 100 kilograms of marijuana, 21 U.S.C.A. § 841(a), (b)(1(B), 18 U.S.C. § 18 (2006). In this appeal,

Barraza challenges his conviction and sentence, and the district court's denial of his motion for a new trial under Fed. R. Crim. P. 33 based on newly discovered evidence. We affirm.

The government's trial evidence showed that in January 2007 a tractor-trailer truck was stopped in Mississippi because it lacked a visible Department of Transportation number.

Inspection revealed that it contained rotting fruit and $1.2 million in cash in several suitcases. The driver, Benito

Delagarza, cooperated and made two recorded telephone calls to his boss, Ruben Barraza, who was listed on documents in the truck's cab as the owner of the trucking company. Barraza

agreed to send money so that Delagarza could return to Texas and said he did not know "how much" was in the truck, but that Delagarza should get a receipt for it. two conversations which they with co-defendant Delagarza later recorded Ruben Garcia two in more Texas, trips

during

discussed

preparations

for

using a blue truck and transporting 2000 "pesos" to Charlotte, 2

North

Carolina.

One

of

the

Drug

Enforcement

Administration

(DEA) agents who conducted the investigation in Texas testified that the defendants used the term "pesos" to mean "pounds." On March 19, 2007, Delagarza recorded both audio and video tapes of a truck being loaded at a warehouse leased by Barraza. The lights in the warehouse were dimmed while packages

were placed in the truck, then the lights were turned back on and a forklift was used to fill the truck with pallets of

produce.

Co-defendants Ruben Barraza, Garcia, Edgar Barraza, Barraza operated the forklift. drove the truck away from the

and Juan Garza were present. After Delagarza

warehouse, federal agents kept the truck under surveillance and unloaded produce and more than 2000 pounds of marijuana from it some distance away. Carolina, while The marijuana was flown separately to North When

Delagarza drove the truck to Charlotte.

Delagarza reached Charlotte, the agents reloaded the marijuana onto the truck. Delagarza called Barraza on March 22, 2007, and

was told to go to a warehouse leased by co-defendant Patrick Schwenke. After the marijuana was unloaded by Schwenke, Juan

Sanchez-Solorzano, and others, they were arrested, as was codefendant Sharu Bey, who arrived to buy marijuana. Unaware of

the arrests, Garcia and Garza sent a moneygram to Delagarza the same day.

3

In April and in late May 2007, Delagarza drove loads of marijuana to Indianapolis, Indiana, and to Durham, North

Carolina, as directed by Barraza and Garcia. Garcia were arrested Barraza, in June 2007. and Bey Edgar went

Ruben Barraza and Barraza to trial became and a

fugitive.

Garcia,

were

convicted on all counts.

Garza, Schwenke, Sanchez-Solorzano,

and two other co-defendants entered guilty pleas; however, only Sanchez-Solorzano testified at the trial. Delagarza was

expected to testify, but disappeared shortly before the trial began. Before trial, the government moved to admit tape

recordings of the monitored conversations between Delagarza and defendants Barraza and Garcia. The district court granted the

motion, finding that the defendants' inability to cross-examine Delagarza did not violate the Confrontation Clause because the recorded conversations were among co-conspirators. The court

also held that Delagarza's statements were not hearsay because they were not offered for "the truth of the matter asserted," Fed. R. Evid. 801, but to provide a context for the defendants' statements. The government requested a limiting instruction, to

which the court agreed. During the trial, Barraza and Garcia expressed

frustration at Delagarza's absence.

Garcia's attorney asked the

federal agent in charge of the Charlotte investigation if he 4

knew where Delagarza was, although Barraza's attorney did not agree that the question should be asked. At the close of the

government's evidence, Garcia's attorney informed the court that he intended to request a missing witness instruction; however, he later decided not to do so. closing argument that neither Garcia did point out in his Delagarza nor Schwenke had

testified. At Barraza's sentencing hearing, while objecting to

the drug quantity attributed to him, his attorney brought to the court's attention a page from Garza's presentence report which stated that Garza initially lied about the extent of his

involvement in the conspiracy.

The district court determined

that the information was not relevant to sentencing, but could have been used to impeach Garza's credibility had he testified at trial. The district court found that Barraza was responsible

for more than 4000 kilograms of marijuana, and was a leader in the conspiracy. The court imposed a within-guideline sentence

of 290 months imprisonment. Shortly after judgment was entered, Barraza filed a motion for new trial, claiming that the information in Garza's presentence report was newly discovered evidence which

contradicted the testimony of DEA Agent Patina that Barraza was connected to the Charlotte drug traffickers. Barraza alleged

that his Sixth Amendment Confrontation Clause right was violated 5

because Garza did not testify at trial and Patina and other federal agents were permitted to testify about information they obtained from "absentee witnesses." chart of telephone calls and Barraza also claimed that a based on information

contacts

obtained from the defendants' seized phones and introduced into evidence Barraza through and the Agent Patina showed a that connection was between on

Charlotte

defendants

dependent

information from Garza.

Barraza argued that a new trial was

necessary where both Garza and Patina would testify. The government responded that the page from Garza's presentence report was not newly discovered evidence, and

produced copies of two pretrial emails from the prosecutor to Barraza's attorney describing Garza's initial claim that he was involved only with the Charlotte shipment and his subsequent admission that he was involved with the shipments to

Indianapolis and Durham with both Barraza and Garcia, not testify about those shipments. the motion for new trial, finding

but would

The district court denied that the allegedly new

evidence was not newly discovered and that testimony by Garza at a new trial would be impeaching at best and probably damaging to Barraza. On Confrontation appeal, Clause, Barraza which first a contends criminal that the

protects

defendant's

right "to be confronted with the witnesses against him," see 6

U.S.

Const.

amend. that

VI, the

was

violated

in

several "missing

respects. witness" Garcia. witness

Barraza

argues

district been the

court's to

instruction "It is well

should

have

limited rule

co-defendant missing

settled

that

regarding

instructions is that if a party has it peculiarly within his [or her] power to produce witnesses whose testimony would elucidate the transaction, the fact that he [or she] does not do it

creates the presumption that the testimony, if produced, would be unfavorable." United States v. Brooks, 928 F.2d 1403, 1412 Barraza's

(4th Cir. 1991) (internal quotation marks omitted).

argument is without merit because the district court did not give a missing witness instruction and Barraza's attorney agreed that one would not be warranted. In addition, Barraza has

produced no evidence that Delagarza was accessible only to the government, or any other reason that he could not have

subpoenaed Delagarza to testify at trial. Barraza's real claim appears to be that he was

prejudiced by Garcia's question to Agent Patina whether he knew where Delagarza had was, which allowed and Patina to testify inference that that

Delagarza

disappeared,

permitted

the

Delagarza was afraid to testify. Garcia's cross examination of

In a sidebar conference during Patina, the district court

informed all defense counsel that Garcia was free to ask about Delagarza, even if the other defendants 7 disagreed with that

trial strategy.

The district court did not abuse its discretion

in permitting Garcia to inquire about Delagarza's absence. 1 Barraza also apparently believes that the district

court should have given a limiting instruction excluding him from Patina's to testimony that against Juan Garza He had pled guilty that and

agreed

testify

Barraza.

contends

Patina

mistakenly said Garza agreed to testify against Barraza instead of against Garcia, given that it was Garcia who had opened the door to Patina's on testimony. However, Patina provided asked the him

information

redirect

examination

after

Barraza

about two charts of telephone calls that he had prepared, only one of which included Garza. Barraza himself thus opened the We discern no error on

door to admission of the information. the part of the district court.

Barraza further contests the admission of his recorded conversations with Delagarza on the ground that Delagarza was not present for cross-examination. He acknowledges that his

objection at trial was that the voice on the tape was not him. 2 He now claims that a constitutional error occurred because he believes that he may benefit from the Supreme Court's decisions
1

The court struck Patina's testimony that sometimes fail to appear because they are fearful.
2

witnesses

Barraza's attorney maintained that the tape had only one voice on it, not two as the government and translator believed.

8

in Giles v. California, 128 S. Ct. 2678 (2008), and MelendezDiaz v. Massachusetts, 129 S. Ct. 2527 (2009). Melendez-Diaz deal with testimonial hearsay. on these cases is inapposite because Both Giles and

Barraza's reliance recorded

Delagarza's

statements were not hearsay as they were not offered to prove the truth of the matter asserted, but to provide a context for Barraza's statements. Barraza also relies on Crawford v. Washington, 541

U.S. 36, 68 (2004) (holding that the Sixth Amendment requires that a witness be unavailable and that the defendant have had a prior opportunity for be cross-examination admitted). This before claim testimonial is similarly

hearsay evidence

may

unavailing because Crawford applies only to testimonial hearsay statements and Delagarza's statements were neither hearsay nor testimonial. furtherance testimonial. of Crawford a recognized are, that by statements their made in not

conspiracy

nature,

Id. at 56.

Therefore, tape-recorded statements

between a defendant and a confidential informant are admissible because (1) the defendant's own statements are neither hearsay nor made in anticipation of a criminal prosecution, and (2) the informant's statements are not hearsay (and thus not covered by Crawford) because they are offered at trial only to provide

context for the defendant's statements and not for the truth of the matter asserted. See United States v. Tolliver, 454 F.3d 9

660, 665-66 (7th Cir. 2006).

Consequently, in this case, the

tape-recorded conversations between Barraza and Delagarza were correctly admitted despite Barraza's inability to cross-examine Delagarza. Next, Barraza argues that the district court clearly erred in finding him to be a leader in the conspiracy. Sentencing Guidelines Manual § 3B1.1(a) (2008). U.S.

The district

court's determination that the defendant had a leadership role in the offense is a factual finding reviewed for clear error. United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009). A four-level increase is provided under § 3B1.1(a) for a

defendant who is an organizer or leader of an offense which involved more than five participants or was otherwise extensive. To qualify, the defendant must have been the organizer or leader of "one or more other participants." Factors to be considered include: the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. USSG § 3B1.1 cmt. n.4. Here, the evidence did not clearly establish the USSG § 3B1.1 cmt. n.2.

relative positions of Barraza and Garcia within the conspiracy. While Delagarza initially identified Barraza as his boss, he 10

apparently received instructions from both Barraza and Garcia relating to the actual delivery of marijuana on various trips he made. However, Barraza ostensibly owned the trucking company

for which Delagarza was driving when he was initially stopped in Mississippi with $1.2 million in his truck. Barraza leased the

warehouse in Texas where the 2000 pounds of marijuana was loaded for shipment to Charlotte. Barraza operated the forklift to

load produce onto the truck, which his attorney argued showed that he was a worker, not a leader. However, at sentencing,

having viewed the videotape of the loading, the district court determined that Barraza appeared to be directing the others

present as well as operating the forklift.

Barraza argues that

Garcia was the leader of the conspiracy, but does not offer concrete evidence of that, that nor he does had he a the refute more any of the

information position.

indicating On the

authoritative court, we

evidence

before

district

conclude that the court did not clearly err in deciding that Barraza had a leadership role in the conspiracy. Finally, Barraza claims that the district court abused its discretion in finding that he had not produced new evidence warranting a new trial. A motion for new trial under Rule 33 Fed. R. Crim.

may be filed up to three years after the verdict. P. 33(b).

The district court's order granting or denying a

motion for new trial under Rule 33 is reviewed for abuse of 11

discretion. Cir. 2001). evidence, a

United States v. Fulcher, 250 F.3d 244, 249 (4th To receive a new trial based on newly discovered defendant must demonstrate: (1) the evidence is

newly discovered; (2) he has been diligent in uncovering it; (3) it is not merely cumulative or impeaching; (4) it is material to the issues involved; Id. and (5) it would probably produce an

acquittal.

Barraza's new trial motion was filed almost a year after he was convicted. presentence government report that He claimed that information in Garza's Garza newly did not cooperate with the which

constituted

discovered

evidence

contradicted Agent Patina's testimony that Garza did cooperate. In response, the government produced evidence that, before

Barraza's trial, it had informed his attorney about Garza's pretrial debriefing, including his initial denial that he was

involved in the conspiracy apart from the Charlotte shipment, his subsequent admission that he had participated further, and his refusal to testify. The information in Garza's presentence Because

report was thus not new to Barraza's defense attorney.

Barraza failed to make a threshold showing of newly discovered evidence, the district court did not abuse its discretion in denying the motion for new trial. We court. therefore affirm the judgment of the district

We dispense with oral argument because the facts and 12

legal before

contentions the court

are and

adequately argument

presented not

in

the the

materials decisional

would

aid

process. AFFIRMED

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