USA v. Ignacio Garcia

Filing

OPINION filed [1502007] (Pages: 12) for the Court by Judge Griffith [12-3009]

USCA Case #12-3009

Document #1502007

Filed: 07/11/2014

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 10, 2014

Decided July 11, 2014

No. 12-3009
UNITED STATES OF AMERICA,
APPELLEE
v.
IGNACIO LEAL GARCIA, ALSO KNOWN AS CAMILO, ALSO
KNOWN AS TUERTO,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cr-00446-42)

Carmen D. Hernandez, appointed by the court, argued
the cause and filed the brief for appellant.
Michael A. Levy, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Randall W. Jackson, Special
Assistant U.S. Attorney.
Before: GRIFFITH, KAVANAUGH and SRINIVASAN, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.

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GRIFFITH, Circuit Judge: The Fuerzas Armadas
Revolucionarias de Colombia (FARC) is a left-wing guerilla
group that has waged a violent insurgency against Colombia’s
government for much of the last fifty years. FARC finances
its operations largely through manufacturing and trafficking
cocaine, which it exports throughout the world. Appellant
Ignacio Leal Garcia was part of the regional leadership of
FARC and was convicted by the district court of conspiring to
import cocaine into the United States. Garcia challenges the
fact of his conviction and the length of his sentence, but for
the reasons set forth below we reject his arguments.
I
FARC acts through approximately seventy regional
organizational units called “Fronts.” For at least ten years,
until 2009, Garcia was part of the leadership of the Tenth
Front, which operates in the Arauca region of Colombia.
March 2006 a grand jury indicted Garcia and charged him
with conspiring to smuggle into the United States five
kilograms or more of cocaine in violation of 21 U.S.C.
§ 960(a). He was tried by a jury in 2011.
Although Garcia called no witnesses, his theory of the
case was that he was involved only in FARC’s political
activities and had nothing to do with its drug trafficking
operations. But the government offered extensive evidence of
his drug-trafficking activities. For example, the government
submitted a letter on FARC letterhead, signed by Garcia and
written in handwriting that witnesses identified as his, which
advised members of a rival guerilla organization not to disturb
a group of FARC’s coca farmers. The government also
introduced photographs of Garcia in his FARC military
uniform holding an assault rifle and a recording of radio

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intercepts of Garcia speaking with other FARC members
about their weapons. A Colombian civilian testified that he
had repeatedly transported cocaine, hidden in a compartment
of his truck, at Garcia’s command. Another individual, who
had worked undercover at the direction of the Colombian
Army, testified that he had repeatedly purchased large
quantities of cocaine from Garcia. He also testified that
Garcia had directed him to help arrange eighty-seven separate
airplane flights, each carrying hundreds of kilograms of
cocaine primarily destined for the United States. He further
explained that on more than one occasion he had seen the
planes returned filled with cash, often U.S. dollars, and had
helped deliver that cash to Garcia. Finally, eight former
members of FARC, now in the “Reinsertado” Colombian
witness protection program, testified that Garcia had at times
served as the Tenth Front’s financial leader, managing the
manufacture and export of cocaine to the United States,
Europe, and Mexico.
The jury found Garcia guilty. Because of the quantity of
drugs involved in the conspiracy, the district court determined
that Garcia’s crime carried a potential sentence of life
imprisonment and a mandatory minimum of ten years. See 21
U.S.C. § 960(b)(1). He was sentenced to 294 months’
imprisonment.
We have jurisdiction to hear Garcia’s appeal under 28
U.S.C. § 1291. We consider the appeal of his conviction in
Part II and the appeal of his sentence in Part III.
II
The central difficulty Garcia faces in challenging his
conviction is that the evidence of his guilt was overwhelming.

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That mountain of evidence against him renders his various
arguments insignificant. Even if Garcia were right and the
district court erred in the ways he asserts, none of the alleged
errors—nor even all in combination—call the verdict into
doubt. See United States v. Powell, 334 F.3d 42, 45 (D.C. Cir.
2003) (setting forth the harmless error standards for
constitutional and non-constitutional errors).
A
At trial, Garcia tried to impeach the Reinsertado witnesses
with reports made by the Colombian military summarizing
what the witnesses had told authorities in interviews
conducted just after their defections from FARC. None of the
reports made any mention of Garcia as a financial leader, a
fact he tried to use to show that the testimony of the
Reinsertado witnesses describing his extensive involvement
in FARC’s drug trafficking was false.
Garcia contends that the district court refused to allow
him to use the reports to impeach the Reinsertado witnesses in
violation of the Confrontation Clause of the Sixth
Amendment, which “secure[s] for the opponent the
opportunity of cross-examination.” Delaware v. Van Arsdall,
475 U.S. 673, 678 (1986) (internal quotation marks and
emphasis omitted). We are baffled by Garcia’s argument on
this point because it is clear from the trial record that the
district court did allow Garcia to use the reports as a basis for
cross-examination by asking witnesses whether they had
mentioned Garcia during their intake interviews. If a witness
could not remember, the court allowed Garcia to use the
reports to refresh the witness’s memory. Beyond making a
general assertion that he was denied the ability to confront the
Reinsertado witnesses with these reports, Garcia utterly fails

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to specify which of the court’s rulings were unreasonable and
how, if the court had ruled differently, he would have been
able to further undermine the credibility of the Reinsertado
witnesses.
But even had the court misstepped in restricting Garcia’s
use of the reports, its error would have been harmless. See id.
at 684 (applying harmless error analysis to Confrontation
Clause claim). The reports offer weak proof, if any, of
inconsistency or omission by the Reinsertado witnesses
because there are ample reasons why the reports would not
mention Garcia. In the first place, the reports are only
summaries of interviews and contain but a small portion of
what the witnesses told the military about their time in FARC.
Furthermore, the person conducting the interviews may not
have asked any questions that required the witness to mention
Garcia’s name or his role and, if a witness did refer to Garcia,
there may not have been a reason to include that detail in the
report. And most importantly, there was overwhelming
evidence of Garcia’s leadership role in FARC other than the
testimony of the Reinsertado witnesses. Even if Garcia had
somehow been able to use the reports to show that all eight of
the Reinsertado witnesses were lying during trial, the
testimony from other witnesses, the photographs, the
handwritten letter by Garcia, and the radio intercept clearly
established Garcia’s role in FARC’s drug trafficking. See
Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003) (per curiam)
(“A constitutional error is harmless when it appears beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.” (internal quotation marks
omitted)); see also United States v. Wilson, 605 F.3d 985,
1014 (D.C. Cir. 2010) (per curiam).

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B
Garcia sees a violation of Brady v. Maryland, 373 U.S.
83 (1963), which forbids the “suppression by the prosecution
of evidence favorable to an accused,” id. at 87, in the
government’s disclosure of the Reinsertado reports only two
weeks before trial. But Garcia fails to tell us when the
government first learned of the reports, what efforts were
made to gain them from the Colombian government, or how
long after obtaining the reports the government disclosed
them. In fact nothing in the record suggests anything other
than that the government disclosed the reports to Garcia as
soon as it obtained them from the Colombian authorities.
Moreover, the timing of the disclosure in and of itself
cannot make out a Brady violation. To establish a Brady
violation, Garcia “must show a reasonable probability that an
earlier disclosure would have changed the trial’s result.”
United States v. Andrews, 532 F.3d 900, 907 (D.C. Cir. 2008)
(internal quotation marks omitted); see United States v.
Johnson, 519 F.3d 478, 488 (D.C. Cir. 2008) (“The defendant
bears the burden of showing a reasonable probability of a
different outcome.”). Garcia’s brief fails to address, in even
the most cursory fashion, how earlier disclosure of the
Reinsertado reports would have changed the outcome at trial.
Although Garcia suggested for the first time at oral argument
that earlier disclosure might have allowed him to find a
witness who could lay an adequate foundation for the
admission of the reports as business records, he made no
showing at all that it was the government’s delay that
hampered his efforts. In the two weeks before trial that Garcia
had the reports, he neither sent for a Colombian witness nor
asked for a continuance to allow more time to do so. And
even assuming Garcia had found such a witness, we have

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already explained why he has failed to show that admitting
the reports was likely to have changed the trial’s outcome.
C
Garcia faults the district court for admitting into evidence
two exhibits for which he claims the prosecution had failed to
establish an adequate chain of custody. “Chain of custody”
evidence typically “entail[s] testimony that traces the
[possession] of the item from the moment it was found to its
appearance in the courtroom.” 2 MCCORMICK ON EVIDENCE
§ 213, at 14 (7th ed. 2013). In order for evidence to be
admissible, however, a “complete chain of custody need not
always be proved. The standard of proof requires only
evidence from which the trier could reasonably believe that an
item still is what the proponent claims it to be.” Id. at 15-16
(footnote omitted); see also FED. R. EVID. 901(a). The
proponent of the evidence must only “demonstrate that, as a
matter of reasonable probability, possibilities of
misidentification and adulteration have been eliminated.”
United States v. Mejia, 597 F.3d 1329, 1335-36 (D.C. Cir.
2010) (internal quotation marks omitted). Once the evidence
is admitted, gaps in the chain of custody affect only the
weight it is given by the trier of fact. Id.
Through the testimony of Reinsertado witness Francisco
Novoa, the government introduced a video seized by the
Colombian military during a raid of the Tenth Front in 2006.
The video appeared to be a training video made by FARC that
showed its members practicing with weapons and explosives.
The video also contained some still images, including a
photograph of Garcia. To establish the needed chain of
custody, Novoa testified that he was present during the
military raid and watched the video a few days later. Novoa

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confirmed that the video introduced into evidence was the
same as the one he viewed just after the raid. The district
court admitted the video over Garcia’s objection, ruling that
there was no evidence to suggest that the video was anything
other than what it appeared to be. Garcia argues now that the
district court erred because no official testified regarding the
location of the video between the time it was recovered in the
raid and the viewing by Novoa days later. The court should
not have admitted the video, he argues, because this gap in the
chain of custody creates the distinct possibility that the photo
of Garcia was added to the video after its seizure.
Through the testimony of Colombian prosecutor Carlos
Munoz, the prosecution also introduced into evidence a
printout of the documents from a computer seized during a
raid of FARC in 2002. According to Munoz, he received the
printouts within a few days of the raid. Although he had since
lost track of the seized computer and the printouts, Munoz
testified that the printouts in the courtroom were a copy of the
ones he had viewed in 2002. Another witness corroborated
Munoz’s statement by testifying that he recognized some of
the printouts as FARC rules. He explained that he had created
the rules at Garcia’s direction, implicating Garcia as a FARC
leader. Garcia objected, pointing to the nearly ten-year gap in
the chain of custody, but the court let the printouts into
evidence, finding that they were what the government claimed
them to be. Garcia now renews that objection on appeal.
Like other evidentiary rulings, a district court’s decision
to admit evidence over a chain-of-custody objection is subject
to harmless error review. See Mejia, 597 F.3d at 1337. We
need not determine here whether Garcia’s objections have
merit because neither the video nor the printouts was needed
to show that Garcia was involved with FARC’s drug

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trafficking. Numerous witnesses and much physical evidence
firmly established that he was. Because we can “say with fair
assurance” that the admission of the video and printouts “did
not substantially affect the jury’s verdict,” any error in
admitting them was harmless. United States v. Hampton, 718
F.3d 978, 984 (D.C. Cir. 2013) (internal quotation marks
omitted) (addressing non-constitutional errors).
III
Federal law prohibits the knowing and intentional
importation of a controlled substance into the United States,
or the manufacture of the substance knowing or intending that
it will be imported into the United States. 21 U.S.C.
§ 960(a)(1), (3). The base penalty for a cocaine-related
violation of § 960(a) is a sentence of not more than twenty
years, see id. § 960(b)(3), but if the violation “involv[es]” five
kilograms or more, the range shifts upward to a minimum of
ten years and a maximum of life, see id. § 960(b)(1)(B).
Garcia was charged under § 963 with conspiring to commit a
violation of § 960(a) that involved five kilograms or more of
cocaine. Although the jury found that the conspiracy involved
five or more kilograms, it made no finding that Garcia should
have foreseen that the conspiracy would involve this amount.
Garcia argues that applying the higher sentencing range
without such a jury finding violated the Sixth Amendment.
See Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013)
(“[A]ny fact that increases the mandatory minimum is an
‘element’ that must be submitted to the jury.”); Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000).
Garcia is correct that the trial judge did not instruct the
jury to make a finding as to the quantity of drugs involved in
the conspiracy that was reasonably foreseeable to him. But

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did the jury need to make such a finding? If Garcia had been
charged with a count of importation directly under § 960,
rather than a conspiracy count under § 963, the answer
presumably would be no. In United States v. Branham, 515
F.3d 1268, 1275-76 (D.C. Cir. 2008), this court held that
under 21 U.S.C. § 841, which is structurally and textually
analogous to § 960, a defendant’s knowledge of the drug type
or quantity is not an element of the offense. Thus, a drug mule
who believed he was smuggling only one kilogram of
marijuana across the border, but was actually carrying ten
kilograms of cocaine, would be subject to the higher
sentencing range so long as the jury found that the offense
“involv[ed]” five kilograms of cocaine or more. On this point,
all twelve regional circuit courts of appeal are in agreement.
See id. at 1275 n.3 (collecting cases); see also United States v.
Carranza, 289 F.3d 634, 644 (9th Cir. 2002) (same principle
applies to both § 841 and § 960).
There is some disagreement, however, about what
knowledge is required to convict a defendant of conspiracy.
The majority view is that the defendant’s knowledge of the
drug type and quantity involved remains irrelevant. On this
view, once the jury finds the defendant guilty of joining the
conspiracy, his statutory penalty range is established by the
jury’s determination of the type and quantity of drugs
attributable to the entire conspiracy, regardless of whether the
individual defendant should have foreseen the amount used.
See, e.g., United States v. Robinson, 547 F.3d 632, 639-40
(6th Cir. 2008) (collecting cases). On the majority view, the
type and amount of drugs foreseeable to a particular
defendant remain relevant only to determining his sentence
within the statutory range. See, e.g., United States v. Knight,
342 F.3d 697, 710 (7th Cir. 2003) (“[O]nce the jury has
determined that the conspiracy involved a type and quantity

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of drugs sufficient to justify a sentence above the default
statutory maximum and has found a particular defendant
guilty of participation in the conspiracy, the judge may
lawfully determine the drug quantity attributable to that
defendant and sentence him accordingly. . . .” (internal
quotation marks omitted)).
But several circuits have held that the law requires a jury
to determine the type and quantity of drugs the defendant
should have reasonably foreseen the conspiracy would
involve. See, e.g., United States v. Collins, 415 F.3d 304, 31114 (4th Cir. 2005); United States v. Banuelos, 322 F.3d 700,
704 (9th Cir. 2003). As Garcia notes, our opinion in United
States v. Law, 528 F.3d 888 (D.C. Cir. 2008), appears to
support this minority view. See id. at 906 (“[A] defendant
convicted of conspiracy to deal drugs . . . must be
sentenced . . . for the quantity of drugs the jury attributes to
him as a reasonably foreseeable part of the conspiracy.”). But
Law did not directly confront the Apprendi argument Garcia
raises. And in the most recent case where this issue was
squarely raised, we did not reach the matter. See United States
v. Lopesierra-Gutierrez, 708 F.3d 193, 208 (D.C. Cir. 2013),
cert. denied, 134 S. Ct. 330 (2013) (“According to Lopesierra,
Apprendi required the jury to find the quantity of drugs
attributable to Lopesierra individually—as opposed to the
quantity attributable to the conspiracy as a whole. But we
need not resolve this issue, for even assuming Apprendi error,
such error was harmless.”).
Nor need we do so here. We review the district court’s
decision for plain error because Garcia failed to argue below
that the district court should have asked the jury to find the
quantity of cocaine attributable to him. See United States v.
Fields, 251 F.3d 1041, 1044-45 (D.C. Cir. 2001). The

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Supreme Court has held that there is no plain error when, in a
case where the jury does not make a required finding relating
to drug quantity, the evidence of the higher drug quantity is
“overwhelming.” United States v. Cotton, 535 U.S. 625, 633
(2002); see also United States v. Mouling, 557 F.3d 658, 666
(D.C. Cir. 2009), abrogated on other grounds by Henderson
v. United States, 133 S. Ct. 1121 (2013); United States v.
Johnson, 331 F.3d 962, 968 (D.C. Cir. 2003). Here there can
be no doubt that it was reasonably foreseeable to Garcia that
the massive drug trafficking operation he managed involved
at least five kilograms of cocaine. The evidence was
overwhelming. Indeed, the district court concluded that, based
on all the evidence presented at trial, Garcia was personally
involved in the manufacture and import of more than 7,000
kilograms. And this, said the district court, was “a
conservative figure.” Garcia offers us no reason to think the
district court’s estimate was flawed in any way. We conclude
that any Apprendi error is not reversible.
IV
We have given full consideration to the various
additional arguments that Garcia raises, but find none
convincing or worthy of discussion. We therefore affirm his
conviction and sentence.

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