U.S. v. Aleman

• Decision Date: 08 December 2008
• Docket Number: No. 08-1079.,No. 08-1173.,No. 08-2115.,08-1079.,08-1173.,08-2115.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Federico Villanueva ALEMAN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Hector Martinez-Menera, formerly known as Hector Martinez Manera, formerly known as Hector Manera Martinez, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jack Marvin Yanka, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

548 F.3d 1158

UNITED STATES of America, Plaintiff-Appellee, v. Federico Villanueva ALEMAN, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Hector Martinez-Menera, formerly known as Hector Martinez Manera, formerly known as Hector Manera Martinez, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Jack Marvin Yanka, Defendant-Appellant.

No. 08-1079.

No. 08-1173.

No. 08-2115.

United States Court of Appeals, Eighth Circuit.

Submitted: October 14, 2008.

Filed: December 8, 2008.

Arthur Ray Martinez, argued, Minneapolis, MN, for appellant Aleman in 08-1079.

Rick E. Mattox, argued, Prior Lake, MN, for appellant Martinez-Menera in 08-1173.

Frederick J. Goetz, argued, Minneapolis, MN, for appellant Yanka in 08-2115.

David P. Steinkamp, AUSA, argued, Lisa D. Kirkpatrick, AUSA, on the brief, Minneapolis, MN, for appellee.

Before LOKEN, Chief Judge, JOHN R. GIBSON and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Federico Aleman, Hector Martinez, and Jack Yanka were indicted for conspiring to distribute methamphetamine. Aleman and Yanka pled guilty. Martinez went to trial and was convicted by a jury. On their appeals, Aleman and Yanka raise sentencing issues. On his appeal, Martinez claims that his statement to the police should have been suppressed, that the district court¹ erred by denying a continuance and giving a willful blindness instruction, and that the government failed to turn over materials due him and made prejudicial statements before the jury. We remand Yanka's case for resentencing but otherwise affirm.

I.

Through a wiretap on the telephone of a suspected methamphetamine dealer, Michael Cook, St. Paul police traced calls to a phone number used by Federico Aleman and Hector Martinez. Police began to watch the building they believed was associated with the phone number and in which Martinez had a duplex apartment. Officers saw Martinez and Aleman go in and out of the building several times on December 29, 2006. The next day the police intercepted a phone call between Cook and a man the police believed to be Aleman and heard them arrange for Cook to receive six ounces of methamphetamine. Immediately thereafter Aleman and Martinez left the apartment building in a truck driven by Martinez. The police stopped the truck and found approximately six ounces of methamphetamine on Aleman and over $6000 in cash on Martinez. A subsequent search of Martinez's apartment revealed drug packaging materials, approximately 224 grams of a substance containing methamphetamine, cutting agents, a scale, and another $1900 in cash. On the day after his arrest Aleman told police that Martinez had given him the methamphetamine he had when arrested, and this statement was included in the affidavit supporting the criminal complaint charging the two men.

The grand jury indicted Aleman and Martinez on charges of conspiracy to distribute and possess with intent to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) & 846 (Count 1); and aiding and abetting possession with intent to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), & 18 U.S.C. § 2 (Count 2). Jack Marvin Yanka, a distributor for Michael Cook, was also indicted in the conspiracy count.

Aleman pled guilty to Count 2. Based on its finding that Aleman committed perjury at Martinez's trial, the district court imposed a two level enhancement for obstruction of justice and denied a reduction for acceptance of responsibility, resulting in an advisory guideline range of 151-188 months. Aleman was then sentenced to 154 months. Aleman appeals his sentence, arguing that the district court erred in finding that he committed perjury and in its application of the sentencing guidelines.

Yanka pled guilty to the conspiracy count. The district court determined that Yanka was a career offender but varied downward from the advisory guideline range of 235-262 months to impose a sentence of 120 months. Yanka appeals his sentence, arguing that he should not have been classified as a career offender because his prior predicate offense of Minnesota auto theft was not a crime of violence under U.S.S.G. § 4B1.2.

Martinez went to trial and a jury convicted him on both counts. He challenges his conviction on several grounds. He contends that the district court erred in denying his motion to suppress a statement he made to police following his arrest. He also claims that the government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by not providing him with Aleman's post arrest statement prior to trial. He argues that the district court erred by not continuing the trial so a transcript of Aleman's statement could be produced, and that the district court improperly instructed the jury on willful blindness. He also alleges that the government violated its discovery obligations by not providing him with a statement made by his landlord prior to the pretrial hearing, and that the prosecutor and a government witness made prejudicial statements undermining the fairness of his trial.

II.

The day after his arrest, Aleman told police that Martinez had given him the drugs he possessed at the time of his arrest. At Martinez's trial, however, Aleman testified that he had obtained the drugs from someone else and that Martinez knew nothing about the drug trafficking. When confronted on cross examination with his prior statement, Aleman said that he had lied to police during his post arrest interview in order to pin the blame on Martinez.

At Aleman's sentencing hearing, the district court found that he had committed perjury at the trial and applied a two level obstruction of justice enhancement. A district court makes factual findings underlying an obstruction of justice enhancement by a preponderance of the evidence, United States v. Guel-Contreras, 468 F.3d 517, 522 (8th Cir.2006), and we review those findings for clear error, United States v. Vickers, 528 F.3d 1116, 1120 (8th Cir.2008). We review de novo its application of the guidelines to those facts. Id. An obstruction of justice enhancement is proper if the defendant has testified falsely under oath, but the false testimony must relate to a material matter and be done willfully rather than out of confusion or mistake. Id. at 1122; U.S.S.G. § 3C1.1 cmt. n. 4(b) (2007). The district court determined that Aleman had lied at trial from his demeanor and the "patently incredible nature of some of [his] testimony" in light of other evidence about the trafficking operations and his association with Martinez. The district court also found that Aleman's perjury was knowing and willful and that it was material to the issue of Martinez's guilt. After our review of the record, we conclude that the district court did not err in imposing the obstruction of justice enhancement.

Aleman also argues that he was entitled to a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) because he entered a timely guilty plea and testified truthfully. The defendant bears the burden of showing that he accepted responsibility. United States v. Canania, 532 F.3d 764, 772 (8th Cir.2008). We review for clear error a district court's denial of a reduction under § 3E1.1. Id.; see also U.S.S.G. § 3E1.1 cmt. n. 5. An obstruction of justice enhancement under § 3C1.1 "ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct" as required for a § 3E1.1 reduction. See U.S.S.G. § 3E1.1 cmt. n. 4; Guel-Contreras, 468 F.3d at 523. There may be "extraordinary cases" in which a defendant could still be eligible for an acceptance of responsibility reduction, however. See U.S.S.G. § 3E1.1 cmt. n. 4; United States v. Perez, 270 F.3d 737, 739 (8th Cir.2001). To determine whether a case is extraordinary, a district court should consider "the totality of the circumstances, including the nature of the [defendant's] obstructive conduct and the degree of [defendant's] acceptance of responsibility." United States v. Honken, 184 F.3d 961, 968 (8th Cir.1999). We see no grounds for departing from the rule in this case where Aleman obstructed the prosecution of a related case by giving false testimony. See United States v. Brown, 539 F.3d 835, 841 (8th Cir.2008). We conclude that the district court did not err in denying Aleman a reduction for acceptance of responsibility.

Aleman makes a cursory argument that his sentence was unreasonable because the district court did not accept the recommendation in the plea agreement and did not "follow" the sentencing factors listed in 18 U.S.C. § 3553(a). We review the reasonableness of a sentence under an abuse of discretion standard. United States v. Roberson, 517 F.3d 990, 993 (8th Cir.2008). The district court imposed a sentence within the advisory guideline range, which is presumptively reasonable. United States v. Denton, 434 F.3d 1104, 1113 (8th Cir.2006). It did so after a thorough discussion of the § 3553(a) factors. The recommended sentence in Aleman's plea agreement was conditional on his testifying truthfully at trial and continuing to accept responsibility. Based on the district court's findings that Aleman had not fulfilled these conditions, it was not unreasonable to reject the agreement's recommended sentence. We conclude that the sentence imposed was not unreasonable.

III.

Martinez appeals his conviction. Two of his claims relate to the post arrest statement of Federico Aleman in which he told the police that Martinez was the source of his drugs. Martinez knew about this statement because it was referred to in the criminal complaint, but he did not have access to a recording or transcript of the statement before trial. Martinez subpoenaed Aleman to testify at trial, and after the close of the government's case Aleman decided to waive his Fifth Amendment rights and testify. At that point the prosecutor gave Martinez the recording of Aleman's statement. Martinez contends that he should have...