US v. Nery Ramos Duarte

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:10-cr-00308-AW-4 Copies to all parties and the district court/agency. [999415538].. [13-4468]

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UNPUBLISHED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Affirmed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

appeal,

he

cash.

He

received

challenges

a

several

160-month

sentence.

On

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

payments

payment
to

for

drug

Villagran

in

debts

to

Guatemala.

Villagran
Duarte

and

transported

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.

2

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

under Rule 801(d)(2)(E) of the Federal Rules of Evidence.

rule
Under

this rule, “a statement of the defendant’s co-conspirator is
admissible

against

the

defendant

if

it

was

made

course of and in furtherance of the conspiracy.”

during

the

United States

v. Shores, 33 F.3d 438, 442 (4th Cir. 1994) (internal quotation
marks omitted).
court

finds

involved

in

A co-conspirator’s statements come in “if the

(i)
a

that

the

conspiracy

defendant
with

each

and

the

other

at

declarant
the

time

were
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
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calls

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because

she

investigation.

was

at

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that

time

cooperating

in

the

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

Government

also

conversations

is

in

furtherance

concedes

that

inadmissible

of

the

Navas’s
under

conspiracy).

side

Rule

of

the

The

recorded

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
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and

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most

importantly,

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were

supplemented

testimony of both Sandoval and Navas.

by

the

live

Sandoval’s and Navas’s

live testimony was more substantial than the recordings.

There

was further evidence presented by the Government with expert
testimony
would

be

on

money

aware

laundering

laundering

of

schemes.

both

that

the

And

corroborated

drug

finally,

that

distribution
there

was

Duarte

and

money

uncontradicted

evidence that Duarte transported $1.1 million hidden in a secret
compartment in a vehicle that Duarte received at a residence
where

Duarte

distribution

interacted
network,

organization.

with

co-conspirators

including

the

known

in

the

leader

drug

of

the

We therefore conclude that the admission of the

recorded conversations, although erroneous, was harmless error.
II.
Duarte
permit

expert

qualification
ultimately
witness.

challenges

testimony
of

the

contending

on

the

district

money

court’s

laundering

expert

and

the

need

that

the

expert

both

for

acted

decision
as

to

to
the

the

testimony,

as

a

summary

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
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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.
findings

that

the

We conclude that the district court’s

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

adverse

to

questioning

him.

to

provide

Though

regarding

information

the

the

court

possible

did

and
not

sentences

trial
allow
the

testimony
detailed
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

prosecution in exchange for their testimony.

6

foregone

criminal

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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,

repetition, or relevance.
673,

678-79

cooperating

to

the

government

confusion,

Delaware v. Van Arsdall, 475 U.S.

(1986).

cross-examination

prejudice,

We

have

minimum

and

maximum

penalties

the

was

facing,

whether

the

witness

“upheld

restricting

cooperating government witness was testifying to gain a reduced
sentence,

and

the

terms

downward departure.”

of

his

plea

agreement

concerning

a

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.
delving

into

the

particular

details
7

Restricting counsel from
of

the

sentences

each

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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
admission

of

next

evidentiary

Navas’s

testimony

issue
that

Duarte
in

a

raises

recorded

is

the

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

decision to admit evidence for abuse of discretion.

court’s

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.
8

United

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States

v.

Filed: 08/14/2014

Brewer,

conclude

the

1

F.3d

district

Pg: 9 of 15

1430,

court

1434

did

(4th

not

1993). *

Cir.

commit

plain

We

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
United

to

States

the

same

v.

Hager,

(citations

omitted),

Generally,

if

defendant’s]
“decline

to

a

claims
employ

Cir.

harmless
enough

2007).

errors

to

sentencing

have

*

a

F.3d

single
167,

denied,

warrant
the

.

reversal

unusual

204

134

“determine[s]

reversible

S.
.

(4th
Ct.

.

Cir.

of

2013)

(2014).

none

individually,”

remedy

error.”

1936

that

of

it

[a

will

reversing

for

United States v. Fields, 483 F.3d 313, 362
Hager,

the

court

present

“were

not

widespread

fatally

infected

hearing.”

exists here.

as

721

cert.

court

cumulative error.”
(5th

extent

In

561

F.3d

[the
at

204.

concluded
of

the

prejudicial

defendant’s]
The

that

same

trial

or

situation

Although there was one error in admitting Navas’s

Duarte did not object below.

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recorded telephone conversations after she began cooperating in
the investigation, we determined it to be harmless.
does

not

demonstrate

that

there

were

other

present that fatally infected the trial.

The record

harmless

errors

We will not reverse

the convictions for cumulative error.
VI.
Duarte

argues

that

the

Government

failed

sufficient evidence to support his convictions.

to

adduce

“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

government.”
Cir.

2011)

evidence

is

in

the

light

most

favorable

to

the

United States v. Jaensch, 665 F.3d 83, 93 (4th
(internal
evidence

quotation
that

a

marks

omitted).

reasonable

finder

“Substantial
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
10

knowledge

of

the

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conspiracy;

and

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(3)

the

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defendant’s

participation in the conspiracy.”
F.3d 360, 367 (4th Cir. 2010).

knowing

and

voluntary

United States v. Green, 599

A defendant may be convicted of

conspiracy without knowing all of its details, as long as he
enters

the

conspiracy

understanding

that

it

willfully joins in the plan at least once.

is

unlawful

and

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

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must

prove

the

drug

quantity

attributable to a particular defendant by a preponderance of the
evidence.”
2011).

United States v. Bell, 667 F.3d 431, 441 (4th Cir.

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

application

assessing
of

the

a

challenge

Guidelines,

to

this

the

district

court’s

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.
12

.

.

.

The

judge

may

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consider,

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for

example,

the

price

controlled substance . . . .”
At

sentencing,

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generally

obtained

for

the

USSG § 2D1.1 cmt. n.5.
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

approximately

$17,000-$18,000.

converted

money

of

the

seized

the

The

into

seizure

district

the

sold

court

applicable

for
then

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

foreseeable to him.

Duarte

at

the

time,

it

was

reasonably

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

the

Duarte

“was

the

eyes

and

ears

of

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
13

of

the

Tahoe

and

Duarte’s

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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

Guidelines when there is no drug seizure.

outlined

in

the

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).
knowledge,

the

Even if the Government did not prove actual
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

Guatemala.

money

that

Duarte

was

aware

of

flowing

back

to

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.
court’s

written

Where

there

judgment

is

and

a
its

14

conflict
oral

between

a

pronouncement

district
of

the

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sentence,

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the

oral

sentence

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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.
foregoing

reasons,

instructions

we

judgment

contentions

are

adequately

judgment

because

presented

in

the
the

to

remand

with

We

argument

written

but

district court’s oral pronouncement of Duarte’s sentence.
oral

the

the

the

with

correct

affirm

For the

reflect

dispense

to

Morse, 344 F.2d at 30-31 & n.1.

facts

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED AND REMANDED

15