408 F.3d 672 (10th Cir. 2005), 04-8021, United States v. Magallanez

Docket Nº:04-8021.
Citation:408 F.3d 672
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Pete MAGALLANEZ, Defendant-Appellant.
Case Date:May 17, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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408 F.3d 672 (10th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


Pete MAGALLANEZ, Defendant-Appellant.

No. 04-8021.

United States Court of Appeals, Tenth Circuit

May 17, 2005

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Daniel G. Blythe, Cheyenne, WY, for Defendant-Appellant.

Kelly H. Rankin, Assistant United States Attorney, (Matthew H. Mead, United States Attorney, with her on the brief) Casper, WY, for Plaintiff-Appellee.

Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

This case presents yet another factual variation in the stream of Booker-related cases coming to this Court on plain error review. The defendant, Pete Magallanez, was convicted by a jury for conspiracy to possess with intent to distribute, and to distribute, methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1). On special interrogatory, the jury attributed 50-500 grams of methamphetamine to him. At sentencing, however, the district court found 1200 grams of methamphetamine attributable to him and increased his sentence pursuant to the United States Sentencing Guidelines. Unlike our recent en banc decision in United States v. Gonzalez-Huerta, "Huerta, 403 F.3d 727 (10th Cir.2005) ,

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this case involves constitutional (Sixth Amendment) error, which lowers the hurdle for demonstrating plain error. But unlike our recent panel decision in United States v. Dazey, 403 F.3d 1147 (10th Cir.2005), the district judge in this case expressed the view that the evidence in support of the sentencing enhancements was sufficiently powerful--he said it was proven "beyond any doubt"--that we conclude any remand for resentencing would be futile.

Before we reach the sentencing issues in this case, however, we must first address the defendant's challenges to his conviction, which are predicated on certain alleged evidentiary errors and the insufficiency of the evidence.


Law enforcement agents began investigating the "Moreno" drug ring in early 1999. The investigation included more than 100 interviews and the collection of numerous documents. These interviews and documents led the agents to believe that Mr. Magallanez was involved in the conspiracy. Mr. Magallanez was charged with one count of conspiracy to possess with intent to distribute, and to distribute, methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1). He received a jury trial.

During trial, the government called Kurt Dobbs, the Director of the Wyoming Division of Criminal Investigations, to testify about the general nature and scope of the investigation and about the developments that led to the arrest of Mr. Magallanez. The government also called DEA Special Agent Steve Woodson, who testified about his involvement in the investigation. Agent Woodson also testified as an expert with specialized knowledge on drug quantities and their prices in Wyoming. Several participants in the drug ring testified on behalf of the government and offered evidence that incriminated Mr. Magallanez. These latter witnesses had agreed to testify as part of plea agreements. The jury convicted Mr. Magallanez.


Mr. Magallanez raises four issues on appeal of his conviction.


First, Mr. Magallanez challenges admission of certain testimony by Agents Dobbs and Woodson. Agent Dobbs testified that information obtained from members of the Moreno drug ring, corroborated by documentation such as phone records and money transfers, led to the indictment of Mr. Magallanez. Agent Dobbs characterized the investigation as a typical conspiracy investigation. He explained that the investigation entailed obtaining evidence in "several different ways. One of the main ways is interviewing people ... and try[ing] to corroborate what they say through ... other people's ... interviews [or] paper[s]...." Id.

Agent Woodson testified as to the street prices of methamphetamine, and explained the meaning of slang phrases that are commonly used by participants in a drug ring, but might not be familiar to those not participating. Agent Woodson also explained the value of phone records, motel records, and wire transfers in corroborating information obtained from witnesses.

Mr. Magallanez argues that the testimony of Agents Dobbs and Woodson was irrelevant, violated the Confrontation Clause of the Sixth Amendment, and amounted to improper vouching for the credibility of the government's witnesses. He objects in particular to Agent Dobbs's testimony that "[t]he [evidence] that would

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relate to the defendant is the documentation that corroborates or adds to the credibility of some of the people that gave us information about the defendant and the defendant's involvement in the trafficking of methamphetamine." R. Vol. 4 at 567. Although Mr. Magallanez does not cite any single statement of Agent Woodson as especially egregious, he argues that Agent Woodson testified in summary that the witnesses in this case were telling the truth.

Mr. Mallaganez did not challenge this testimony before the district court. We therefore review the admission of the evidence for plain error. United States v. Walser, 275 F.3d 981, 985 (10th Cir.2001). To establish plain error, Mr. Magallanez must demonstrate that the district court (1) committed error, (2) that the error was plain, and (3) that the plain error affected his substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). If all these conditions are met, a court reviewing the error may exercise discretion to correct it if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 631-32, 122 S.Ct. 1781.

Mr. Magallanez contends that the drug agents' testimony regarding the historical background of the investigation that ultimately led to him was irrelevant to the charges against him. However, "a defendant cannot complain of error which he has invited upon himself." United States v. Cutler, 948 F.2d 691, 697 (10th Cir.1991) (internal quotations omitted). During his opening statement, Mr. Magallanez's attorney asserted that nothing in the documents produced by the investigation would implicate his client. Referring to a large stack of discovery documents, he said, "None of that stuff is going to say that Pete Magallanez is involved in this drug conspiracy...." R. Vol. 2 at 160 (trial transcript). Additionally, the defendant's attorney referred to the documents during his cross-examination of one of the drug enforcement agents and said, "I didn't find anything that seems to relate to Pete." R. Vol. 3 at 554. These assertions invited the government to address the relevance of the discovery documents. "It is widely recognized that a party who raises a subject in an opening statement 'opens the door' to admission of evidence on that same subject by the opposing party." United States v. Chavez, 229 F.3d 946, 952 (10th Cir.2000). Mr. Magallanez cannot seek to exclude as irrelevant the agents' testimony regarding the background of the investigation after opening the door for the government to explain why "that stuff" related to him.

Mr. Magallanez argues that, even if the evidence is relevant, it is unfairly prejudicial. Federal Rule of Evidence 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." "The trial court has broad discretion to determine whether prejudice inherent in otherwise relevant evidence outweighs its probative value." United States v. Youts, 229 F.3d 1312, 1319 (10th Cir.2000). Mr. Magallanez offers little to show that he was unfairly prejudiced, let alone that such prejudice substantially outweighed the probative value of the evidence. The evidence was probative in several different ways: (1) it explained how the direct evidence was obtained, (2) it helped to corroborate the witnesses who testified regarding times and locations of events, and (3) it helped the jury understand when the investigation began and how long it lasted. Exclusion of evidence under Rule 403 "is an extraordinary remedy and should be used sparingly." United States v. Rodriguez, 192 F.3d 946, 949 (10th Cir.1999). We cannot

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say that the district court made an "obvious" or "substantial" error in determining that the evidence regarding preparation and development of the drug investigation was relevant and not unfairly prejudicial.

Mr. Magallanez argues that the agents' reliance on documents and interviews which were not introduced at trial negated his ability to confront his accusers and thus violated the Confrontation Clause of the Sixth Amendment. Specifically, Mr. Magallanez alleges that Agent Woodson testified in summary that "many other witnesses that were not called had said that the defendant was guilty and they were believable and he as an expert believed [them]." Appellant's Br. at 17. Mr. Magallanez relies on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), to support his argument. In Crawford, the Supreme Court held that the Confrontation Clause bars the admission of out-of-court statements of a testimonial nature, except where the witness is...

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