160 F.3d 511 (9th Cir. 1998), 96-10574, United States v. Garcia-Guizar

Docket Nº:96-10574.
Citation:160 F.3d 511
Party Name:D.A.R. 11,051 UNITED STATES of America, Plaintiff-Appellee, v. Conrado GARCIA-GUIZAR, Defendant-Appellant.
Case Date:October 23, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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160 F.3d 511 (9th Cir. 1998)

D.A.R. 11,051

UNITED STATES of America, Plaintiff-Appellee,

v.

Conrado GARCIA-GUIZAR, Defendant-Appellant.

No. 96-10574.

United States Court of Appeals, Ninth Circuit

October 23, 1998

Argued and Submitted April 13, 1998.

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David M. Porter and Ann C. McClintock, Assistant Federal Public Defenders, Sacramento, CA, for defendant-appellant.

William S. Wong, Assistant United States Attorney, Sacramento, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; Garland E. Burrell, District Judge, Presiding. D.C. No. CR-95-00411-GEB.

Before: FLETCHER, D.W. NELSON and BEEZER, Circuit Judges.

Opinion by Judge FLETCHER; Partial Concurrence and Partial Dissent by Judge BEEZER.

FLETCHER, Circuit Judge:

Conrado Garcia-Guizar and a co-defendant were indicted for multiple drug offenses resulting from the co-defendant's sales of methamphetamine to an undercover agent. The co-defendant pleaded guilty, but Garcia went to trial and testified on his own behalf. On appeal, Garcia challenges four of his five convictions, his sentence, and his criminal forfeiture verdict. We affirm three of the four challenged convictions, reverse one, and vacate and remand the sentence and forfeiture verdict.

I.

Garcia's convictions derive from three undercover methamphetamine transactions between co-defendant Israel Cruz and Special Agent Lupe Castillo Baker, which took place on June 8, 1995, June 19, 1995, and July 27, 1995. Each of the methamphetamine sales occurred at the Crazy Taco Wagon eatery in Chico, California. Law enforcement officers conducted surveillance of each transaction, and Baker used pre-recorded government funds to purchase the methamphetamine.

Twenty minutes after first meeting with Baker on June 8, 1995, Cruz was seen walking across the street from the Crazy Taco Wagon to speak with Garcia, who was sitting in the driver's seat of a blue van. Garcia then drove the van to an auto body shop and

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back to an apartment complex near the Crazy Taco Wagon. Cruz soon returned to the Crazy Taco Wagon and sold Baker 1/4 pound of methamphetamine for $1800. During the transaction, Cruz again left Baker to speak with Garcia. Ten minutes after Cruz returned to Baker and completed the sale, Garcia left the scene and drove to a shopping mall. Garcia then drove from the mall to a mini-storage facility in Chico. He entered one of the lockers, emerged and drove to Cruz's home. Garcia went inside briefly and then departed.

Prior to Cruz's June 19, 1995, sale to Baker of 1/2 pound of methamphetamine for $3500, Garcia and Cruz were seen talking near a fence surrounding the back of an apartment complex near the Crazy Taco Wagon. Garcia had picked up Cruz in a BMW and driven to the far end of the apartment complex parking lot. Garcia then returned Cruz to his own car at the near side of the parking lot. A few minutes later, Baker was met by a woman at the Crazy Taco Wagon. The two walked to the fence, where Baker spoke briefly with Cruz. Baker then left the Crazy Taco Wagon. Garcia drove over to Cruz in the BMW and opened the trunk and the two looked in the trunk. Baker then returned to the Crazy Taco Wagon parking lot and concluded the drug transaction with Cruz.

Cruz sold Baker 1/4 pound of methamphetamine for $1800 at the Crazy Taco Wagon on July 27, 1995. However, no evidence in the record suggests that Garcia was present at or involved in this transaction.

About a month later, law enforcement officers executed search warrants at Garcia's home and at a storage locker that he rented. From Garcia's home the government seized a gun, a pager, a paper that the government describes as a "pay-owe" sheet, and keys to the storage locker. The subsequent search of the storage locker yielded sixteen packages of marijuana and $43,070 in cash, some of which was pre-recorded government funds from two of the methamphetamine sales, in a brown paper bag. Of the $1800 in pre-recorded government funds used for the June 8 transaction between Baker and Cruz, $1600 was found in the brown paper bag in Garcia's locker. Of the $3500 used for the June 19 transaction, $2700 was found in the paper bag. However, the record does not indicate that any of the pre-recorded funds used in the July 27 transaction were recovered from Garcia's storage locker.

The government indicted Cruz and Garcia, charging them with multiple drug offenses. Garcia entered pleas of not guilty on all counts. Following pre-trial motions from both defendants regarding discovery, Cruz entered into a plea bargain with the government and ultimately received a sentence of 120 months in prison. The grand jury then handed up a superseding six-count indictment charging Garcia with conspiring to distribute methamphetamine (count 1), distributing and aiding and abetting the distribution of methamphetamine on June 8, June 19 and July 27 (counts 2-4), and possessing marijuana with the intent to distribute (count 5), in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 846. The superseding indictment also charged criminal forfeiture of the $43,070 found in Garcia's locker pursuant to 21 U.S.C. § 853(a)(1) (count 6). Garcia again pleaded not guilty to all counts.

At trial, Garcia admitted that he possessed the marijuana found in the storage locker and that he sold marijuana. However, he estimated that at least 80 percent of the $43,070 he kept in the storage locker came from legitimate, non-drug related business. He testified that he earned a living by gardening work, farm work, and by fixing up and reselling cars. Garcia denied having any involvement with methamphetamine trafficking.

Among the government's witnesses was Louise Hill, who worked at the storage facility where Garcia rented a locker. Hill testified that Garcia rented the locker under the false name of "Carlos Guizar." Co-defendant Cruz testified for the defense. Cruz admitted that he had pled guilty in connection with the methamphetamine sales but testified that Garcia had nothing to do with buying or selling methamphetamine. On cross-examination, Cruz testified that his source for the undercover sales was a man named Gilberto Cisneros.

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The jury found Garcia guilty of counts one through five. The jury also returned a verdict that the $43,070 described in count six was subject to forfeiture. Prior to sentencing, Garcia objected to the presentence report which recommended a sentencing range of 135 to 168 months, including upward adjustments for "organizer, leader or supervisor" pursuant to U.S.S.G. § 3B1.1(c) (2 points) and for obstruction of justice pursuant to U.S.S.G. § 3C1.1 (2 points). Garcia argued that the evidence did not show that he was Cruz's methamphetamine supplier as suggested by the probation officer, and that he did not obstruct justice since he candidly admitted ownership of the marijuana and money found in the storage locker.

The district court adopted the recommended sentencing enhancements, finding that Garcia gave false testimony on a material matter with willful intent when he "testified that a portion of the $43,000 he kept in a mini storage rental unit was stored there for his relatives, since it was proceeds of property sold for them." The district court also found that the criminal history score did not overrepresent Garcia's own criminal history. Nevertheless, the court sentenced Garcia at the low end of the guideline range, imposing 135 months for counts one though four, 60 months for count five to be served concurrently, and 60 months of supervised release.

On appeal, Garcia challenges his convictions, his sentence and his criminal forfeiture verdict. Specifically, Garcia argues that there was insufficient evidence to support either his convictions or the criminal forfeiture verdict. In addition, Garcia argues that the prosecutor committed misconduct during closing argument by impermissible vouching, by attempting to shift the burden of proof, and by commenting on the co-defendant's guilty plea. Garcia also argues that the district court's jury instructions were erroneous. Finally, Garcia argues that the district court erred in applying the two-level increase in his sentence for obstruction of justice.

II.

Garcia's failure to raise most of his issues before the district court limits our review of those claims to plain error. See United States v. Amlani, 111 F.3d 705, 714 (9th Cir.1997). We invoke plain error in our discretion to prevent a miscarriage of justice or to preserve the integrity and the reputation of the judicial process. See United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The four factors of the plain error test were most recently outlined in United States v. Plunk, 153 F.3d 1011 (9th Cir.1998).

According to the Supreme Court's most recent articulation of the plain error standard, before an appellate court may address and correct an error not raised at trial, several conditions must be satisfied: "[T]here must be (1) 'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial rights.' " If all conditions are met, an appellate court may then exercise its discretions to notice a forfeited error, but only if (4) the error "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (citations and internal quotation marks omitted).

Id. at 153 F.3d 1011, 1018, 1998

WL 544515, at * 5; see also United States v. Burt, 143 F.3d...

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