US v. Arnoldo Gamboa

Filing 920110308

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4985 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. ARNOLDO AVITA GAMBOA, a/k/a Angel Martinez, a/k/a Tony, Defendant ­ Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, Chief District Judge. (2:08-cr-00151-2) Submitted: October 26, 2010 Decided: March 8, 2011

Before SHEDD, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Joshua C. Hanks, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Arnoldo Avita Gamboa appeals his convictions and the mandatory life sentence imposed after a jury convicted him of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (2006), and conspiracy to launder money, in violation of 18 U.S.C. § 1956(h) (2006). On appeal,

Gamboa contends that the district court abused its discretion in seating a juror, that the court violated his due process rights by failing to sequester witnesses, that trial counsel rendered ineffective assistance, that the evidence was insufficient to sustain his conviction on the cocaine conspiracy charge, that the Government failed to prove beyond a reasonable doubt the prior convictions used to enhance his sentence, and that his sentence violates the Eighth Amendment. error, we affirm. Gamboa first contends that the district court should have dismissed a juror for cause because she had read two Finding no reversible

newspaper articles about Gamboa's co-defendant.

However, the

juror stated that she had not formed an opinion as to Gamboa's guilt and she did not think that the content of the newspaper articles accordance presented would with at affect the her ability on the a to decide of the the for case in

law

and

basis

evidence cause is

trial.

Generally,

challenge

"limited to situations where actual bias is shown." 2

United

States v. Turner, 389 F.3d 111, 117 (4th Cir. 2004) (internal quotation discretion marks to omitted). the It is within of a the trial judge's juror's

assess

credibility

potential

statements about a lack of bias or prejudice.

See United States Upon review,

v. Thompson, 774 F.2d 1065, 1068 (4th Cir. 1984).

we conclude that the district court did not abuse its discretion in seating the juror over Gamboa's objection. See Poynter ex

rel. Poynter v. Ratcliff, 874 F.2d 219, 222 (4th Cir. 1989) ("A trial judge has very broad discretion in deciding whether to excuse a juror for cause and his decision will not be overturned except for manifest abuse of that discretion."). Gamboa next contends that the district court deprived him of due process by failing to sua sponte sequester the

Government's witnesses.

Under Federal Rule of Evidence 615, the

district court either may sua sponte, or upon a party's motion shall, sequester witnesses to prevent them from hearing other witnesses' testimony. "The purpose of the exclusion rule is

. . . to prevent the possibility of one witness shaping his testimony to match that given by other witnesses at the trial. . . ." 1964). United States v. Leggett, 326 F.2d 613, 613 (4th Cir. As such, a trial court's decision as to the need for

sequestration of witnesses will not be held erroneous absent a showing of prejudice arising from the presence of witnesses

during the trial.

See United States v. Harris, 409 F.2d 77, 81 3

(4th

Cir.

1969). resulting

Here, from

Gamboa the

has

failed court's

to

establish not

the to

prejudice

trial

decision

sequester witnesses, and our review of the record leads us to conclude that the district court did not abuse its discretion in failing to do so sua sponte. In counsel was a related Id. Gamboa failing contends to move can . . that for raise on trial the the

argument, for

ineffective

sequestration of the witnesses. claim of ineffective assistance

"A defendant of counsel .

direct

appeal if and only if it conclusively appears from the record that his counsel did not provide effective assistance. . . ." United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998). In the instant matter, even if we assume arguendo that the

representation provided by Gamboa's trial counsel fell below an objective standard of reasonableness, Gamboa has failed to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). that Because the record does not conclusively demonstrate was ineffective for failing to move for the

counsel

sequestration of the witnesses, we decline to consider Gamboa's claim on direct appeal. Gamboa also argues that the evidence was insufficient to convict him of the cocaine 4 conspiracy charge, relying

substantially on the facts that he was never found in possession of cocaine and the witnesses against him were convicted felons. "A defendant challenging the sufficiency of the evidence to

support his conviction bears a heavy burden."

United States v.

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks omitted). substantial A jury's verdict "must be sustained if there is taking the view most favorable to the

evidence,

Government, to support it."

Glasser v. United States, 315 U.S.

60, 80 (1942); see United States v. Perkins, 470 F.3d 150, 160 (4th Cir. 2006) (defining substantial evidence). We consider

both circumstantial and direct evidence, drawing all reasonable inferences from such evidence in the government's favor. States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). To prove conspiracy with intent to distribute cocaine, "the government was required to establish (1) an agreement to . . . distribute cocaine . . . existed between two or more persons; (2) [the defendant] knew of the conspiracy; and United

(3) [the defendant] knowingly and voluntarily became part of the conspiracy." 2008). United States v. Reid, 523 F.3d 310, 317 (4th Cir.

At trial, Gamboa's alleged co-conspirator testified that

she and Gamboa worked together for years to distribute cocaine, described the methods they used to accomplish distribution, and named several people to whom they delivered cocaine. held that "uncorroborated testimony 5 of an accomplice We have may be

sufficient to sustain a conviction."

United States v. Manbeck,

744 F.2d 360, 392 (4th Cir. 1984); see United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997) ("We may not weigh the

evidence or review the credibility of the witnesses [because] [t]hose citation functions omitted). are reserved for the jury.") other (internal witnesses

Furthermore,

several

testified about their dealings with Gamboa in a manner that corroborated many details of his co-conspirator's testimony. As

such, we conclude that the evidence was sufficient to support the jury's verdict beyond a reasonable doubt on the cocaine conspiracy charge. Gamboa asserts that the Government failed to prove

beyond a reasonable doubt the prior convictions used to enhance his sentence. A person convicted of a drug conspiracy after two

or more prior felony drug convictions faces a mandatory life sentence. 21 U.S.C. § 841(b)(1)(A) (West 1999 & Supp. 2010); 21 Prior to such enhancement, the government must

U.S.C. § 846.

file an information listing the prior convictions on which it seeks to rely. denies the 21 U.S.C. § 851(a)(1) (2006). convictions, the government If the defendant must prove any

prior

issue of fact beyond a reasonable doubt.

21 U.S.C. § 851(b),

(c) (2006); United States v. Kellam, 568 F.3d 125, 145 (4th Cir.), cert. denied, 130 S. Ct. 657 (2009). the Government's evidence submitted 6 at We have reviewed sentencing, which

included three certified judgments against one Arnoldo Avitia, fingerprint records correlating to these convictions (one of

which listed "Gamboa" as an alias of Arnoldo Avitia), and the testimony of a fingerprint expert indicating that the

fingerprint records matched Gamboa's fingerprints. We conclude that the district court did not clearly err in finding that the Government proved Gamboa's three prior felony drug convictions beyond a reasonable doubt. standard of review). Finally, cruel, unusual, Gamboa and argues that his to life the sentence offense, is in See Kellam, 568 F.3d at 143 (stating

disproportionate

violation of the Eighth Amendment.

However, these arguments are

foreclosed by our prior decision in United States v. Kratsas, 45 F.3d 63, 65-68 (4th Cir. 1995). Accordingly, we affirm the district court's judgment and deny Gamboa's motion to file a pro se supplemental brief. 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

7