U.S. v. Rangel
| Decision Date | 26 March 2008 |
| Docket Number | No. 06-2161.,06-2161. |
| Citation | 519 F.3d 1258 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gerardo de la Campa RANGEL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Norman Cairns, Office of the United States Attorney, David N. Williams, Assistant U.S. Attorney, Albuquerque, NM, for Plaintiff-Appellee.
John T. Carlson, Lynn Hartfield, Office of the Federal Public Defender, Denver, CO, for Defendant-Appellant.
Before HARTZ, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HOLMES, Circuit Judge.
Gerardo De La Campa Rangel was convicted by a jury in the United States District Court for the District of New Mexico on a charge of possession with intent to distribute more than 5 kilograms of cocaine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A). After filing a timely notice of appeal, he presented three challenges to his conviction in his opening brief in this court. We then granted him leave to file a supplemental brief seeking a remand to the district court for a hearing regarding whether the government knowingly relied on perjured testimony by the case agent, who was the chief law-enforcement witness at trial. The argument in the supplemental brief, which had not been raised in district court, was based on testimony and documents available to Mr. Rangel at trial. Troubled by the matters presented by Mr. Rangel, we abate this appeal to permit Mr. Rangel to proceed with a motion under 28 U.S.C. § 2255 in district court.
The government alleged that on May 1, 2005, Mr. Rangel possessed 12.6 kilograms of cocaine on a bus operated by Guadalajara Tours. The bus was en route from El Paso, Texas, to Denver, Colorado, when it stopped in Albuquerque at about 11:00 P.M. and was boarded by Drug Enforcement Administration (DEA) Agent Jarrell Perry and DEA Task Force Officer Greg Rees. The officers discovered the cocaine in a black bag underneath the seat next to where Mr. Rangel had been sitting. After a brief investigation they arrested him.
The issue of perjury arises because of contradictions between various sworn statements by Agent Perry, and between those statements and testimony by the bus driver and a passenger, relating to who, if anyone, saw Mr. Rangel remove the bag containing the cocaine from a larger bag that he carried onto the bus in El Paso. (The smaller bag and its contents were not dusted for fingerprints.) We summarize the relevant statements and testimony.
On May 2, 2005, the government filed a criminal complaint against Mr. Rangel. In an affidavit attached to the complaint, Perry stated that "[a] witness on the bus observed DE LA CAMPA RANGEL remove the small black bag [which contained the cocaine] from the red/black duffle bag, then place the small black bag underneath of the seat beside DE LA CAMPA RANGEL's seat." R. Vol. I, Doc. 1, Attach. at 1.
Perry gave the same account at the preliminary hearing on May 3, 2005. When asked on direct examination whether he had "receive[d] information at some point from a witness or witnesses that tied Mr. Rangel to the bag," R. Vol. III at 7, he responded, "Yes, there was a witness who was on the bus, who informed me that they observed Mr. Rangel remove that small black bag that was inside of the red and black duffel bag that he claimed to be his, he removed it from that bag and placed it underneath the seat that was directly beside him." Id. at 7-8.
Defense counsel cross-examined Perry regarding the alleged witness:
. . . . .
. . . . .
Id. at 12-14. In short, Perry testified at the preliminary hearing that he had talked with a person who had observed Mr. Rangel's reported actions on the bus, a person with whom he had had verbal contact "hundreds of times." Id. at 13.
Perry provided a detailed account of his investigation in a DEA-6 report. Although it appears that he prepared the report on the same day as the preliminary hearing, the report contradicts his testimony regarding the tip he had received. It states that he had received the tip, not from an eyewitness on the bus, but from a source who relayed the information from the bus driver about four hours before the bus arrived in Albuquerque. According to the report, the bus driver had seen, through his rearview mirror, Mr. Rangel remove the small bag from the bag he had carried onto the bus. The report states:
1. On May 1, 2005, at approximately 7:10 p.m., S/A Perry received a telephone call from a Source of Information, hereafter referred to as SOI, who informed S/A Perry of the following information. The SOI said that the bus driver for the Guadalajara Tours Bus informed the SOI that there was a suspicious passenger on the bus traveling to Denver, Colorado. The bus driver informed the SOI that he was seated in the driver's seat when a passenger, identity unknown at this time, walked onto the bus carrying a large sized red/black duffle bag, to his respective seat and sat the bag down in the floor area beneath his feet.
2. The bus driver approached the passenger and observed that the passengers red/black bag was partially lying in the aisle way. The bus driver attempted to move that bag with his foot and observed that it was very hard to move because of the weight of the bag. The bus driver informed the passenger that his red/black bag was too large to have on the top passenger compartment of the bus and that it needed to be placed underneath of the bus with the luggage. The bus driver picked up the red/black bag and observed that it was very heavy. The passenger immediately removed his red/black bag from the hands of the bus driver and informed the bus driver that he did not want his bag placed underneath of the bus. The passenger placed the red/black bag in the empty window seat beside him and placed a blanket/clothing on top of the bag, thus covering it up. The bus driver informed the passenger that the red/black bag was very heavy and asked the passenger what was inside of the bag. The passenger informed the bus driver that his bag contained blankets and tools.
3. The bus driver returned to his driver's seat and positioned the rearview mirror in a position to watch the passenger. The bus driver observed the passenger remove a small black colored bag from the red/black bag and place the black bag underneath of the seat beside him. The bus driver observed the passenger place his red/black bag in the overhead luggage compartment directly above the passenger's seat.
Two witnesses at trial had been on the bus with Mr. Rangel. One was the driver, Antonio Padilla; the other was a passenger, Armando Palacios. According to their testimony, it was Palacios, not the driver, who saw Mr. Rangel remove the small bag from the larger bag, and that observation was made shortly before the bus's arrival in Albuquerque, which was hours after Perry had allegedly received the tip from his "source of information." Both Padilla and Palacios had testified at an earlier trial of Mr. Rangel, but the district court had declared a mistrial because the government had not disclosed Mr. Palacios's observations to defense counsel. The testimony of the two witnesses at the first trial was essentially the same as at the second trial. If their testimony was true, then either the source of information (who, it turns out, was the bus-station manager in El Paso) concocted a story about what had been observed in El Paso (although parts of the story—in particular, Mr. Rangel's removal of the small bag from the larger bag—uncannily conformed to events several hours later), or Perry concocted a story about what the station manager had told him. We begin with the bus driver's testimony.
As we describe in detail below, Mr. Padilla testified that he spoke briefly with Mr. Rangel outside the bus, but their interaction was limited to the usual ticketing and baggage-storing activities...
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