U.S. v. Zuno-Arce

• Decision Date: 13 February 1995
• Docket Number: D,No. 93-50311,ZUNO-ARC,93-50311
• Citation: 44 F.3d 1420
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rubenefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1420

44 F.3d 1420

UNITED STATES of America, Plaintiff-Appellee, v. Ruben ZUNO-ARCE, Defendant-Appellant.

No. 93-50311.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 9, 1994.

Decided Jan. 11, 1995.

As Amended Feb. 13, 1995.

Edward M. Medvene, Mitchell, Silberberg & Knupp, Los Angeles, CA, for defendant-appellant.

John L. Carlton, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: WALLACE, FARRIS and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

Zuno-Arce was convicted of conspiring to kidnap, torture, interrogate and murder DEA Agent Enrique Camarena-Salazar, and related crimes. His appeal raises numerous questions of criminal law, procedure and evidence.

According to the counts of the indictment for which Zuno-Arce was convicted, he was part of an international narcotics enterprise based in Guadalajara, Jalisco, Mexico. The indictment calls it the Guadalajara Narcotics Cartel. Enrique Camarena-Salazar, an agent of the United States Drug Enforcement Agency, was, according to the government's evidence at trial, tremendously successful during 1984-85 in the performance of his duties. Billions of dollars worth of marijuana were seized in a single raid at "El Bufalo," a ranch owned by another of the cartel's members, Rafael Caro-Quintero. The cartel struck back violently. Agent Camarena was kidnapped in February 1985, taken to Caro-Quintero's house at 881 Lope de Vega in Guadalajara, and interrogated and tortured for two days. The interrogation was directed at finding out what information Camarena had about the cartel. After getting the information, the criminals murdered Agent Camarena and buried him.

1. Prosecutorial Misconduct

Zuno-Arce claims that the prosecutor knowingly put on false evidence, so the indictment against Zuno-Arce must be dismissed with prejudice, or at the least, he must be given a new trial. Zuno-Arce did not raise the issue of prosecutorial misconduct below. He moved only for a new trial because the verdict was against the weight of the evidence. Therefore, we review it for plain error only. United States v. Dischner, 974 F.2d 1502, 1515 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1290, 122 L.Ed.2d 682 (1993).

Zuno-Arce was tried twice. He was convicted the first time, but the district court granted him a new trial because the prosecutor made an inappropriate reference in closing argument. In the first trial, the main witness connecting Zuno-Arce to the conspiracy was a man named Cervantes. In the second trial, the government did not use Cervantes. Its main witnesses were Godoy and Lopez. In each case, the government's evidence established that Zuno-Arce attended and spoke at several meetings at which the cartel planned the kidnapping and murder. The issue arises from discrepancies about when and where the meetings occurred. With regard to these details, Godoy and Lopez put the meetings at different times and places from Cervantes, with different people present.

The district court did not abuse its discretion in denying a new trial based on this conflicting testimony. If the jury believed Godoy and Lopez, the evidence sufficed to establish that Zuno-Arce attended and participated in the meetings as they said. As for whether they lied, or erred in their perceptions or recollections, the judge properly left these questions to the jury. Swan v. Peterson, 6 F.3d 1373, 1382 (9th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 479, 130 L.Ed.2d 393 (1994). Zuno-Arce's attorneys cross-examined Godoy and Lopez thoroughly and well on the discrepancies in their recollections, and the recency of some of their recollections. The district court was not obligated to decide the credibility question and strike their testimony, because the determination of credibility is for the jury. United States v. Candoli, 870 F.2d 496, 506 (9th Cir.1989).

The prosecutorial misconduct claim presents a slightly different question. In some cases, a prosecutor might knowingly put on false evidence entitling a defendant to a new trial or dismissal. Thomas v. Cardwell, 626 F.2d 1375, 1381 (9th Cir.1980), cert. denied, 449 U.S. 1089, 101 S.Ct. 881, 66 L.Ed.2d 816 (1981). In this case, though, Zuno-Arce presents no argument or evidence for his proposition that the prosecutor knowingly put on false evidence, except for the contradictions between Cervantes at the first trial and Godoy and Lopez at the second. This evidence does not conclusively prove that the prosecutor knew that the Lopez and Godoy testimony was false.

Lawyers in criminal cases, for prosecution and defense, sometimes swim in a sea of lies, and must necessarily trust the jury to determine what is true, or whether reasonable doubt remains about what is true. Rarely will a retrial produce exactly the same evidence as the first trial, yet appellant's argument suggests invalidity of the verdict in the second trial whenever the testimony varies. Discrepancies in the testimony about the details of 1984 meetings during trials in 1990 and 1992 could as easily flow from errors in recollection as from lies. It is hard to see how the prosecutor could know who was at which meetings, or when and where they occurred, except for what people who said they were there told him. Zuno-Arce has offered no evidence whatsoever for prosecutorial misconduct except for the inference from discrepancies. That inference is too weak to vacate the district judge's exercise of discretion in denying a new trial. A fortiori, no sufficient showing of prosecutorial misconduct was made, since such actions will only lead to a new trial if "the prosecutor's conduct 'materially affected the fairness of the trial.' " United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir.1986) (quoting United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir.1985)). This is especially true when we review under our plain error standard of review, applicable because this was not raised below.

2. RICO Sufficiency

Two of Zuno-Arce's convictions are RICO violations. He argues that the government presented no evidence from which a jury could infer that he was a member of the cartel, or that he acted with a purpose of maintaining his position in the cartel. Here is the relevant statutory language:

Sec. 1959. Violent crimes in aid of racketeering activity

(a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished--

18 U.S.C. Sec. 1959. (emphasis added). Zuno-Arce's argument is that several witnesses, including the DEA resident agent in charge of the Guadalajara office, had no knowledge that he was involved with any of the cartel activities. Zuno-Arce also points out that the person who ran a radio network for communications between cartel leaders Caro-Quintero and Ernesto Fonseca testified that, despite continual monitoring of radio traffic, he did not recognize Zuno-Arce's voice or hear his name.

The government put on testimony by Godoy that meetings of the cartel members were held to discuss what to do about Camarena and the DEA. Zuno-Arce attended, spoke, and personally suggested that the criminals kidnap and kill Agent Camarena:

A: ... And then Ruben Zuno-Arce said that if the D.E.A. agent didn't want to take anything or didn't want any deal then it was time to drop him.

Q: Excuse me, Mr. Godoy. What did you understand that to mean?

A: That would be to kidnap him and to kill him.

Zuno-Arce urged at another meeting as well that the criminals kidnap Agent Camarena:

Q: Did you hear anything else?

A: I heard Ruben Zuno say, "That [f__ing] gringo. What is he doing here in Mexico? It's not his [f__ing] country. We have to pick him up."

There was also direct evidence that Zuno-Arce referred to the cartel as "us."

Q: What was it you heard?

A: Rafael Caro-Quintero asked Enrique Alvarez del Castillo whether they already had all the information about the D.E.A. And Alvarez del Castillo answered, "I already have my people working."

Caro-Quintero got angry. He got very angry and said, "Give me all the information about these people very soon so I can resolve this problem with these D.E.A. people."

And the governor seemed to be affected and Rafael continued to pressure him, asking for all the data.

And Mr. Zuno said, "Calm down, Rafael. Can't you see that the governor is already getting us all the information. This operation has to be done properly and calm, and it has to be properly planned so that everything works out properly."

From this evidence, a jury could reasonably infer that the cartel was a group and Zuno-Arce was a member. Zuno-Arce, they could infer, had sufficient standing in the criminal cartel to be able to speak sharply to one of its leaders and get him to react more reasonably. He tells the leader to "calm down," and says "the governor is already getting us all of the information."

Reviewing this evidence in a light most favorable to the prosecution, as we must, we find that a rational jury could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Bishop, 959 F.2d 820, 829 (9th Cir.1992). Zuno-Arce argues that certain witnesses' failure to mention him, and the radio operator's inability to specifically recognize Zuno-Arce's voice on the Caro-Quintero/Fonseca radio network,...