479 F.3d 1229 (10th Cir. 2007), 04-4305, United States v. Ramirez

Docket Nº:04-4305, 05-4108, 05-4099, 05-4111, 05-4103.
Citation:479 F.3d 1229
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Dean RAMIREZ, also known as Dean Castillo Ramirez, also known as Dino; Jose Antonio Vazquez; Julio Cesar Lopez; and Eduardo Mozqueda-Ramirez, Defendants-Appellants.
Case Date:March 16, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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479 F.3d 1229 (10th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Dean RAMIREZ, also known as Dean Castillo Ramirez, also known as Dino; Jose Antonio Vazquez; Julio Cesar Lopez; and Eduardo Mozqueda-Ramirez, Defendants-Appellants.

Nos. 04-4305, 05-4108, 05-4099, 05-4111, 05-4103.

United States Court of Appeals, Tenth Circuit.

March 16, 2007

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Jessica Stengel (Loren E. Weiss, with her on the briefs) Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, UT, for Defendant-Appellant Dean Ramirez.

Hakeem Ishola of Ishola Law Firm, P.C., Salt Lake City, UT, for Defendant-Appellant Jose Antonio Vazquez.

Stephen R. McCaughey of Salt Lake City submitted a brief for Defendant-Appellant Julio Cesar Lopez; and Roy D. Cole of Law Office of Roy D. Cole, LLC, Ogden, UT, submitted a brief for Defendant-Appellant Eduardo Mozqueda-Ramirez.

Elizabethanne Claire Stevens, Assistant United States Attorney (Paul M. Warner, United States Attorney, with her on the joint brief for all defendants), Salt Lake City, UT, for Plaintiff-Appellee.

Before HENRY, Circuit Judge, McWILLIAMS, and SEYMOUR, Senior Circuit Judges.

SEYMOUR, Circuit Judge.

On May 1 and May 15, 2003, two separate grand juries returned multi-count indictments against Dean Ramirez, Julio Cesar Lopez, Jose Antonio Vasquez, Eduardo Mozqueda-Ramirez and others for a variety of crimes stemming from a drug trafficking enterprise. The two cases were consolidated for trial, and a jury found defendants guilty as follows: Mr. Ramirez, Mr. Vasquez, and Mr. Lopez on one count of conspiracy to distribute cocaine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 846; Mr. Lopez on one count of possession of 500 grams or

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more of a mixture or substance containing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); Mr. Ramirez on two counts of possession of a firearm by a restricted person in violation of 18 U.S.C. § 922(g) and one count of use of a communication facility in a drug trafficking crime in violation of 21 U.S.C. § 843(b); and Mr. Mozqueda-Ramirez on one count of conspiracy to distribute 50 grams or more of a mixture or substance containing methamphetamine in violation of 21 U.S.C. § 846, and two counts of possession of a firearm by a restricted person in violation of 18 § U.S.C. 922(g). The district court sentenced Mr. Ramirez to 30 years imprisonment, Mr. Vasquez to 10 years imprisonment, Mr. Lopez to 20 years imprisonment, and Mr. Mozqueda-Ramirez to 151 months imprisonment. All defendants appeal their convictions, and Mr. Ramirez and Mr. Mozqueda-Ramirez also appeal their sentences. We affirm.

I

The record reflects that law enforcement officials engaged in a long-term investigation of a suspected drug trafficking conspiracy in Ogden, Utah. In the course of its investigation, the government sought and was granted authorization to wiretap the phone of Jose Aparicio, a.k.a. "Guido," a suspected member of the conspiracy. The government subsequently filed an application with the district court seeking authorization to wiretap Mr. Ramirez's cellular phone. With its application, the government included an affidavit from Agent John Barrett of the F.B.I. describing the accumulated evidence of Mr. Ramirez's involvement in drug trafficking.

In his affidavit, Agent Barrett described the role of a confidential source in gathering evidence of Mr. Ramirez's involvement in drug trafficking. The confidential informant spoke directly to Mr. Ramirez and his associates concerning the drug trafficking enterprise and corroborated information from an anonymous tipster that hidden compartments were being installed in vehicles at Mr. Ramirez's auto repair shop for use in smuggling drugs. Under law enforcement supervision, the informant made a number of drug purchases in which Mr. Ramirez was the suspected supplier. On January 29, 2001, the confidential informant consummated a drug deal with Francisco Madrigal, an alleged co-conspirator of Mr. Ramirez, involving methamphetamine and cocaine that Mr. Ramirez was suspected of supplying. Pen register analysis of Mr. Madrigal's phone indicated Mr. Madrigal called Mr. Ramirez twice during the drug transaction.

Agent Barrett recounted in his affidavit the stop of Mr. Ramirez for a traffic violation following his visit to Mr. Madrigal's house. The suspected purpose of the visit was to supply Mr. Madrigal with drugs for an upcoming sale to the confidential informant. The particulars of the stop of Mr. Ramirez are described in greater detail below in the context of a motion to suppress. At this point, we note only Mr. Madrigal's statements in a nearly concurrent traffic stop. During that stop, Mr. Madrigal identified Mr. Ramirez as the source of cocaine and methamphetamine discovered in the search of his vehicle.

In further support of its application for a wiretap, the government relied upon conversations between Mr. Ramirez and Mr. Aparicio overheard on Mr. Aparicio's wiretapped phone. During those conversations, Mr. Aparicio told Mr. Ramirez that he "has a dude that wants to buy some iron," and that it sells for $100.00 to $150.00. See Wiretap Aff. ¶ 46. Mr. Aparicio and Mateo Garcia, a.k.a. "Nene," then drove to and entered Mr. Ramirez's shop, where closed circuit television surveillance recorded Mr. Garcia exiting the

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shop with a small object.1 A subsequent traffic stop for a moving violation turned up a firearm and a box of ammunition matching the description of the removed object. On February 27, 2003, Mr. Aparicio had another conversation with Mr. Ramirez in which he said "Nene wants the gun," and asked if Mr. Ramirez will "take the gun to the shop." Id. ¶ 52. Mr. Ramirez agreed to send someone to retrieve the gun. Other calls included statements by Mr. Aparicio that he "had the stuff" and was on his way, id. ¶ 73, and requests by Mr. Ramirez for an "8," a term believed to refer to a 1/8 ounce of cocaine. Id. ¶ 75. In total, Mr. Aparicio had 542 contacts over his wiretapped line with Mr. Ramirez's cellular phone between October 2002 and March 2003.

On March 24, 2003, the district court issued an order authorizing the wiretap of Mr. Ramirez's cellular phone. Numerous conversations were subsequently monitored and recorded pursuant to the order. Prior to trial, several defendants filed motions to suppress the evidence obtained from the Ramirez wiretap, arguing the government failed to make the necessary showings to obtain the order and failed to adequately minimize the interception of non-pertinent conversations. The district court found that two prerequisites for the authorization of a wiretap order--probable cause and necessity--were met. The issue of adequate minimization was deferred for further proceedings.

The government thereafter submitted a memorandum, including an affidavit by Agent Barrett, in opposition to suppression of the wiretap evidence on minimization grounds. In his affidavit, Agent Barrett described the VoiceBox III computer program used to collect and store wiretap data and the written procedure for the minimization of non-pertinent calls.2 Defendants expressed the following concerns with particular sets of calls: forty-one calls on the Ramirez line where the computerized monitoring program failed to disclose the time counts for minimizations; sixteen calls over two minutes which may or may not have been minimized and which were allegedly not pertinent and should have been minimized; twelve non-minimized calls over two minutes that were allegedly non-pertinent; and nineteen calls over two minutes for which there is no audio recording or synopsis. The government responded directly to each of these assertions by way of Agent Barrett's affidavit. The district court concluded: "it's very clear from the affidavit of Agent Barrett that the general minimization effort certainly satisfied the statute ... [and] it appears to me quite clear that the wiretap statute requirements were complete as far as minimization." Vasquez Rec., vol. IV at 15-16. Accordingly, the district court held the wiretap recordings admissible.

The wiretap of Mr. Ramirez's phone recorded a number of incriminating conversations.

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The conversations were peppered with terms whose common meanings are entirely innocuous. At trial, however, the government presented evidence of alternate definitions for these terms as they are used in the drug trade. In all, the recorded calls from the Ramirez and Aparicio wiretaps produced several hundreds pages of transcribed dialogue, which we describe in the context of the relevant claims.

In addition to the wiretap evidence, Mr. Ramirez sought suppression of the fruits of two unrelated traffic stops. The first stop on February 16, 2001, was rooted in an arranged drug deal between the government's confidential informant and Mr. Madrigal. Mr. Madrigal told the informant the drugs would be delivered to his house prior to the sale, and law enforcement established surveillance of Mr. Madrigal's house in anticipation of the supplier's arrival. The surveilling officers observed a white pick-up truck containing two Hispanic males arrive at the residence. The driver entered the house and, a short time later, exited and drove away. An officer positioned nearby stopped the truck shortly thereafter for a traffic violation. The driver was identified as Dean Ramirez. The officer, after returning Mr. Ramirez's relevant documentation, asked if he could search the vehicle. Mr. Ramirez consented, and the officer found $5,060.00 hidden in the gearshift boot on the floor...

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