US v. Chavez, 99-2200

• Citation: 229 F.3d 946
• Decision Date: 01 September 2000
• Docket Number: No. 99-2200,99-2200
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SANDRA CHAVEZ, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 946

229 F.3d 946 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SANDRA CHAVEZ, Defendant-Appellant.

No. 99-2200

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 1, 2000

Appeal from the United States District Court for the District of New Mexico. (D.C. No. CR-98-240-BB) [Copyrighted Material Omitted] Fred J. Federici (Robert J. Gorence, Acting United States Attorney, with him on the brief), Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Stephen C.M. Long (Ron Koch on the briefs), Albuquerque, New Mexico, for Defendant-Appellant.

Before BRORBY, ANDERSON and HENRY, Circuit Judges.

BRORBY, Circuit Judge.

Sandra Chavez appeals her conviction of conspiracy to distribute a controlled substance (less than fifty kilograms of marijuana a Schedule I controlled substance 21 U.S.C. 841(a)(1) and 841(b)(1)(D)) and aiding and abetting, contrary to 21 U.S.C. 846 and 18 U.S.C. 2. Ms. Chavez also appeals her sentence. We exercise jurisdiction under 28 U.S.C. 1291 and affirm.

I. BACKGROUND

The United States Border Patrol stopped Lorenzo Maldonado at a checkpoint about twenty-five miles from the United States border with Mexico. After questioning Mr. Maldonado and observing his action and the unusual appearance of his truck, the agent on duty became suspicious Mr. Maldonado was transporting drugs in his truck, and asked Mr. Maldonado for his permission to allow a drug-sniffing dog to check the truck. Mr. Maldonado agreed, and the dog alerted to the gas tank. Mr. Maldonado admitted the truck contained marijuana and expressed a desire to cooperate with the authorities by delivering the truck to its destination. The agent called United States Customs Service Special Agent Dan Lane, who arrived shortly thereafter.

Mr. Maldonado told Special Agent Lane "he had been hired by somebody down in Juarez to transport [the] pickup truck containing marijuana to Albuquerque, where he was supposed to arrange for delivery to somebody there." Mr. Maldonado referred to the person who hired him as "Alonso." According to Special Agent Lane, Mr. Maldonado stated "he was to be paid $1,000. He was given a slip of paper with instructions as to what to say when he called the person, who would be a woman, at a telephone number which was written on th[e] scrap of paper." Mr. Maldonado told Special Agent Lane "his instructions were to call the telephone number ... at the top of the [scrap of paper], 505-239-6648, and to tell the woman who answered that he was de parte de Alonso, on behalf of Alonso." Mr. Maldonado explained he did not know the people Alonso instructed him to call. Whoever answered the telephone "was supposed to pay him his $1,000 for transporting the marijuana."

After discussing the planned transaction with Mr. Maldonado, Special Agent Lane spent a couple of hours obtaining the authorization and the equipment needed to execute the controlled delivery. Special Agent Lane then started the drive to Albuquerque with Mr. Maldonado as his passenger in the pickup truck Mr. Maldonado originally drove. Other agents accompanied them to Albuquerque in their vehicles. They arrived in Albuquerque at about 12:30 at night and Mr. Maldonado agreed to make a monitored call to the telephone number on the scrap paper. After discussing what Mr. Maldonado should tell the person who answered the phone, Special Agent Lane dialed the number at about 1:10 a.m.¹

At trial, Ms. Chavez admitted she answered the phone and spoke to Mr. Maldonado. The conversation took place in Spanish, but was translated into English, transcribed and admitted into evidence at the trial. According to the transcript of the conversation, Mr. Maldonado first explained he was at a Taco Cabana restaurant and asked Ms. Chavez if she knew where it was located. Ms. Chavez responded she did. Mr. Maldonado then stated, "I'm here ... I got here a little late because ... the gasoline ... I was very low on gasoline." Ms. Chavez responded, "Listen ... I was going to [ask] if you could bring it all the way over here." Mr. Maldonado replied he ran out of gasoline and "need[ed] a can for the gasoline." After confirming Mr. Maldonado was at the restaurant, Ms. Chavez responded, "Well ... then we'll leave right now." Mr. Maldonado then reminded Ms. Chavez not to forget "the money that I'm going to take to Alonso." Ms. Chavez responded, "OK." Mr. Maldonado then reminded her to bring the money she was to pay him as well. Ms. Chavez responded affirmatively, and told Mr. Maldonado she would meet him in "[a]bout half an hour". The conversation terminated at that point.

A few minutes later, Special Agent Lane placed another call to Ms. Chavez because Mr. Maldonado failed to determine who would be coming and what type of vehicle they would be driving. Special Agent Lane felt this information was critical to arranging the controlled delivery. In the second recorded conversation, Mr. Maldonado described himself as having a thick mustache. He also asked Ms. Chavez who was "going to come to pick up the truck." Ms. Chavez said she would come in a blue Blazer with her mother-in-law, Ms. Dominguez. Mr. Maldonado reminded her not to forget the gasoline can.

Ms. Chavez and Ms. Dominguez subsequently arrived at the restaurant parking lot, and Ms. Chavez briefly spoke with Mr. Maldonado. Their taped conversation revealed further incriminating statements by Ms. Chavez.² The agents then arrested Ms. Chavez

At trial, Special Agent Lane testified, without objection, regarding Mr. Maldonado's post-arrest out-of-court statements. Mr. Maldonado did not testify at trial. The trial court allowed the government to enter into evidence the scrap of paper bearing Mr. Maldonado's Albuquerque contact's phone number. Ms. Chavez's attorney objected to the introduction of the piece of paper on the grounds of hearsay, but the district court overruled her objection, concluding it was not offered for the truth of the matters asserted, but to provide a link between the conspirators.

Ms. Chavez testified at trial she did not know with whom she was speaking when Mr. Maldonado called her. Ms. Chavez claimed she was not expecting anyone to call and had no prior knowledge of the purpose of the call. Ms. Chavez claimed she rushed to the Taco Cabana in her pajamas in the middle of the night to take gasoline to the caller as a favor. She assumed the caller was referring to her friend Alonso, even though Alonso is a common name. She never tried to verify that the Alonso the caller mentioned was in fact her friend Alonso. Ms. Chavez testified she took Ms. Dominguez with her to the Taco Cabana in order to see if she could recognize the caller. Ms. Chavez denied she intended to pick up the truck. She also testified she thought Mr. Maldonado's admonitions to her to not forget the money regarded the money for the gasoline. When they arrived at the Taco Cabana, Ms. Chavez claimed she never spoke to Mr. Maldonado, and instead, Ms. Dominguez spoke with Mr. Maldonado and made the incriminating taped remarks. She also denied knowing the truck contained marijuana.

The jury convicted Ms. Chavez. Following the probation officer's recommendation in the presentence report, the district court increased Ms. Chavez's sentence two levels for obstruction of justice concluding she committed perjury. The district court refused Ms. Chavez's request to reduce her sentence two levels, concluding she failed to show she acted as a minor participant in the transaction. The district court sentenced Ms. Chavez to 41 months imprisonment.

II. DISCUSSION

A. Hearsay Statements

Ms. Chavez contends the trial court admitted hearsay statements in violation of her Sixth Amendment right to confrontation by allowing Special Agent Lane to testify concerning Mr. Maldonado's out-of-court statements, and by admitting the piece of paper bearing the phone number of Mr. Maldonado's contact. In general, we review the admission of evidence at trial for abuse of discretion.³ United States v. McHorse, 179 F.3d 889, 901 (10th Cir.), cert. denied, 120 S. Ct. 358 (1999). "Because hearsay determinations are particularly fact and case specific," our review of those decisions is especially deferential. United States v. Trujillo, 136 F.3d 1388, 1395 (10th Cir.), cert. denied, 525 U.S. 833 (1998).⁴ Even if the admission of a hearsay statement violated the rules of evidence, it does not violate the Sixth Amendment Confrontation Clause "'if it bears adequate indicia of reliability.'" Paxton v. Ward, 199 F.3d 1197, 1207 (10th Cir. 1999) (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)). Whether hearsay statements are reliable is a mixed question of law and fact which we review de novo. United States v. Gomez, 191 F.3d 1214, 1222 (10th Cir. 1999).

1. Special Agent Lane's Testimony

Ms. Chavez contends the court erred by allowing Special Agent Lane to testify as to Mr. Maldonado's statements, particularly that: 1) a man named Alonso in Juarez hired Mr. Maldonado to deliver the marijuana to people in Albuquerque who Mr. Maldonado did not know, and who were to pay him $1,000 on delivery; and 2) Alonso instructed Mr. Maldonado to dial a number written on a slip of paper and to tell the woman who answered he was calling "de parte de Alonso," or "on Alonso's behalf." Ms. Chavez contends this evidence constituted hearsay within hearsay, and, even though her counsel failed to object at trial to the out-of-court statements, we should determine the trial court committed plain error when it allowed the testimony.

Because Ms. Chavez did not object to Special Agent Lane's testimony at trial, we review the admission of this evidence for plain error to determine whether it violated Ms. Chavez's Sixth Amendment right to confrontation. See United States v. Cass, 127 F.3d 1218, 1225 (10th Cir. 1997) (holding that absent an objection asserting the hearsay evidence violated the defendant's Constitutional rights under the Confrontation Clause,...