United States v. Luis Jasso

Filing

OPINION FILED - THE COURT: William Jay Riley, Lavenski R. Smith and Steven M. Colloton AUTHORING JUDGE:Steven M. Colloton (PUBLISHED) [3982790] [12-1158]

United States Court of Appeals
For the Eighth Circuit
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No. 12-1158
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Luis Arciniega Jasso, also known as Hector Ortiz,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: September 21, 2012
Filed: December 10, 2012

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
A jury convicted Luis Arciniega Jasso of conspiracy to distribute
methamphetamine and possession of methamphetamine with intent to distribute, in
violation of 21 U.S.C. §§ 841 and 846. The district court1 sentenced him to 188
1

The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.

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months’ imprisonment on each charge, with the sentences to run concurrently. Jasso
appeals the convictions, challenging two of the district court’s evidentiary rulings.
A grand jury charged Jasso and twelve others with conspiring with each other
and other persons to distribute methamphetamine from in or before April 2009
through on or about October 5, 2010. The indictment also charged Jasso with
possessing methamphetamine with intent to distribute on April 24, 2009. The
substantive count was based on a seizure of drugs from a vehicle in which Jasso was
a passenger.
At trial, the government presented testimony of John Watkins, who cooperated
in the federal investigation of Jasso after police arrested Watkins for possession of
methamphetamine. Watkins testified that Jasso gave him money and drugs as
compensation for driving others who delivered methamphetamine. Prior to trial, the
government moved to exclude evidence of two felony convictions that Watkins
sustained in the 1970s. Federal Rule of Evidence 609(a) places a limit on the
admissibility of convictions where more than ten years have elapsed since the later
of the witness’s conviction or release from confinement from it.
Jasso urged that despite the time elapsed between the 1970s and the trial in
2010, evidence of Watkins’s old convictions should be admitted, because “they
become relevant in an oblique way.” His theory was premised on the fact that during
Watkins’s cooperation in the investigation of Jasso and others, Watkins was charged
in state court with failing to register as a sex offender and for unlawful possession of
a firearm as a felon. Jasso argued that the convictions from the 1970s made Watkins
eligible for punishment as a habitual offender under Arkansas law, such that a prison
term would be mandatory. Nonetheless, he maintained, the State declined to pursue
that enhanced punishment, supposedly in consideration for Watkins’s work on drug
cases for the drug task force. Jasso sought to present evidence of the prior
convictions and the alleged favorable treatment by the State in order to argue that
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Watkins was biased in favor of the federal prosecution in Jasso’s case. The district
court granted the government’s motion to exclude the evidence without a detailed
explanation.
In proffered testimony outside the presence of the jury, Watkins admitted that
he sustained the two convictions in the 1970s for assault and theft. Watkins testified,
however, that he was unaware that his prior convictions made him subject to
prosecution as a habitual offender in Arkansas or that a habitual offender is ineligible
for a sentence of probation. He acknowledged a desire to get out of jail after he was
arrested on the state charges, but said that he did not contact the United States
Attorney’s Office for assistance and did not ask his attorney to do so.
Jasso argues that the district court’s refusal to allow his proposed crossexamination about the prior convictions and favorable treatment by state prosecutors
violated his rights under the Confrontation Clause. “[E]xposure of a witness’
motivation in testifying,” of course, “is a proper and important function of the
constitutionally protected right of cross-examination.” Davis v. Alaska, 415 U.S. 308,
316 (1974). Where there are facts that would support a reasonable inference of bias
that relates to a witness’s credibility, the defendant should be permitted to make an
effective inquiry into that bias. See id. at 319. But “the Confrontation Clause
guarantees an opportunity for effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent, the defense might wish.”
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).
Two aspects of this case lead us to conclude that the district court’s ruling did
not run afoul of the Sixth Amendment. First, the connection between Jasso’s
proposed cross-examination of Watkins and an inference of bias was highly
attenuated. Watkins denied knowledge that he was subject to punishment as a
habitual offender or that he received a benefit from the State’s charging decisions.
He also testified that he sought no assistance from the United States Attorney’s Office
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in connection with his prosecution by state authorities. Jasso proffered no evidence
to contradict these assertions. To infer that the resolution of Watkins’s charges in
state court resulted in bias toward the federal prosecutors in Jasso’s case, a jury would
have to disbelieve the witness’s denial that he understood the workings of the
Arkansas habitual offender provision and conclude that there was reason for the
witness to favor the federal prosecution of Jasso because of leniency afforded by state
prosecutors in Watkins’s case. Credibility is a matter for the jury, so the jury could
disbelieve Watkins. Even so, there was no affirmative evidence that potential
punishment as a habitual offender was part of Watkins’s plea negotiations with the
State or, more importantly, that there was any cooperation between state and federal
authorities on how to handle the Watkins prosecution in state court. Without such
evidence, it would be a tenuous inference that Watkins desired to please federal
prosecutors as a result of the charging decisions made by state prosecutors in an
unrelated case.
Second, Jasso had other opportunities to develop evidence of Watkins’s
potential bias. Watkins admitted on cross-examination that he “cut a deal with the
drug task force” that they would not charge him for possession of methamphetamine
if he made purchases of drugs from Jasso. In Watkins’s own words, “I rolled over to
save my butt.” Watkins admitted that he continued to use methamphetamine even
while he was assisting the drug task force in an investigation of Jasso, but that he was
not charged with any drug offense. He also acknowledged that he was paid by the
drug task force in exchange for assistance in the investigation. This evidence gave
the jury ample reason to infer that Watkins may have been biased in favor of law
enforcement and the prosecution of Jasso.
A district court may impose reasonable limits on cross-examination based on
concerns about prejudice or confusion of the issues. Delaware v. Van Arsdall, 475
U.S. 673, 678-79 (1986). Given the attenuation between evidence of Watkins’s fortyyear-old convictions and any potential bias, it was reasonable for the district court to
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conclude that admission of the evidence would be unfairly prejudicial or confusing.
Aside from Jasso’s “oblique” theory of relevance, admissibility of a prior conviction
is governed by Federal Rule of Evidence 609, under which “convictions over 10 years
old will be admitted very rarely and only in exceptional circumstances.” Fed. R.
Evid. 609 advisory committee’s note on 1974 amendments. Watkins already was
impeached with evidence of his more recent felony convictions, so there was no
exceptional need for the use of older convictions to question his credibility. See
United States v. Singer, 660 F.2d 1295, 1301 (8th Cir. 1981). The cross-examination
that was allowed, moreover, gave Jasso other means “to obtain the effect that the
excluded examination would have allegedly established.” United States v. Warfield,
97 F.3d 1014, 1024 (8th Cir. 1996). We thus conclude that the district court’s ruling
did not violate Jasso’s rights under the Confrontation Clause.
The second evidentiary dispute concerns testimony by an FBI agent concerning
Jasso’s brother, Bexabet Jasso. The agent testified that she conducted an
investigation in San Diego in 2004 that involved wiretaps on telephones used by Juan
Jasso Arciniega. She explained that evidence in the investigation showed that Juan,
Bexabet, and the appellant here, Luis, were brothers. The government also elicited
testimony from the agent that Bexabet and Juan were indicted in California in
September 2004, and that Bexabet was arrested in Kansas City in February 2010.
Jasso asserts that the evidence of Bexabet’s indictment and arrest was
irrelevant, and that it served only to implicate him through “guilt by association.”
The government argued at trial that the evidence was relevant, because “this is a
family organization,” and that Bexabet’s arrest in 2010 explained why his sister took
over running the drug trafficking business at that time. Another witness, Osvaldo
Duran Sandoval, testified that he received methamphetamine from Bexabet for
redistribution, that Bexabet at some point was “caught,” and that Sandoval then in
February 2010 began to receive methamphetamine from Jorge Medina, who was
married to Lisbeth Jasso. The government asserts that Lisbeth is Jasso’s sister,
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although the evidence appears to establish only that “she might be a relative” of
Bexabet Jasso. T. Tr. 145.
Although the probative value of Bexabet’s arrest in February 2010 appears
minimal, it was not an abuse of discretion for the district court to allow it. Jasso was
arrested in April 2009, but the indictment charged that he was part of a conspiracy
that extended through October 2010. The disputed evidence was relevant to explain
how the conspiracy evolved during the charged time frame, as Jasso was arrested in
2009 and then Bexabet was arrested and replaced by Medina as a supplier of
methamphetamine in February 2010. The FBI agent’s testimony about Bexabet’s
arrest, moreover, was essentially cumulative of Sandoval’s statement—received
without objection—that Bexabet was “caught” in February 2010. Any risk of unfair
prejudice from the agent’s testimony was therefore minimal.
The judgment of the district court is affirmed.
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