United States v. Archuleta

• Decision Date: 17 December 2013
• Docket Number: No. 12–2026.,12–2026.
• Citation: 737 F.3d 1287
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Nathan ARCHULETA, a/k/a “Enemy”, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

737 F.3d 1287

UNITED STATES of America, Plaintiff–Appellee,

v.Nathan ARCHULETA, a/k/a “Enemy”, Defendant–Appellant.

No. 12–2026.

United States Court of Appeals,

Tenth Circuit.

Dec. 17, 2013.

Jill M. Wichlens, Assistant Federal Public Defender, (Warren R. Williamson, Federal Public Defender, Interim, with her on the briefs), Denver, CO, for Defendant–Appellant. Mark D'Antonio, Attorney at Law, Las Cruces, NM, filed the initial brief for the Defendant–Appellant.

David N. Williams, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, with him on the briefs), Albuquerque, NM, for Plaintiff–Appellee.

Before BRISCOE, Chief Judge, HOLLOWAY and HOLMES, Circuit Judges.

BRISCOE, Chief Judge.

A jury convicted Defendant Nathan Archuleta of possession of methamphetamine, possession of methamphetamine with intent to distribute, conspiracy to possess methamphetamine with intent to distribute, and being a felon in possession of a firearm. On appeal, Archuleta contends that admission of a gang expert's testimony violated Federal Rules of Evidence 403, 702, and 704(b). Of the three evidentiary rules now cited, only Rule 403 was raised by Archuleta before the district court. As a result, our review of his arguments pertaining to Rule 702 and Rule 704(b) is limited to plain error review. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

IFactual Background

Archuleta was a leader of the Tortilla Flats gang in Farmington, New Mexico. The Tortilla Flats are an affiliate of the Sureños, a group of gangs with ties to the Mexican Mafia gang. In June 2009, Archuleta orchestrated a plan to smuggle methamphetamine from Mexico into the United States using two female accomplicesas mules. The two females were Christine Roberts and Candi Ramirez. Also involved was Candi's brother, Adam Ramirez, a friend and lower-ranking “colleague” of Archuleta in the Tortilla Flats.

On July 2, 2009, the group put the plan into action. They drove from Albuquerque to Las Cruces, New Mexico, where they met with Daniel Muñoz, a leader of a Las Cruces Sureño gang. In Muñoz's apartment, Archuleta, Adam Ramirez, and Muñoz discussed their drug-smuggling scheme. Roberts and Candi Ramirez were then dispatched to Mexico, along with their guide, Jose de la Luz Verdugo. They drove Adam Ramirez's car across the border and picked up the drugs. But on their way back, border patrol officers discovered the drugs and arrested the three of them. Later, Adam Ramirez was arrested. And after a few months on the lam, Archuleta, too, was arrested. Three of Archuleta's coconspirators—Adam, Candi, and Christine Roberts—had turned on him, implicating him in the drug-smuggling scheme.

Procedural Background

On July 22, 2010, a grand jury issued an eight-count superseding indictment charging Archuleta and Muñoz. Archuleta was charged with these six of the eight counts: (Count 1) conspiracy to possess 50 grams and more of methamphetamine with intent to distribute on July 2 and 3, 2009, in violation of 21 U.S.C. § 846; (Count 2) possession of 50 grams and more of methamphetamine with intent to distribute on July 2, 2009, in violation of 21 U.S.C. § 841; (Count 4) conspiracy to possess methamphetamine with intent to distribute from June 1, 2009, to November 5, 2009, in violation of 21 U.S.C. § 846; (Count 5) felon in possession of a firearm on November 5, 2009, in violation of 18 U.S.C. §§ 922, 924; (Count 6) carrying a firearm during the commission of count 4 conspiracy to possess, in violation of 18 U.S.C. § 924; and, (Count 7) possession of methamphetamine on November 5, 2009, in violation of 21 U.S.C. § 844(a).

Before trial, Archuleta filed a motion in limine seeking to exclude gang-affiliation expert testimony. He argued that any expert testimony based on hearsay violated Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), but conceded that “[t]he Government is free to seek to establish gang membership by non-hearsay evidence such as graffiti or tattoos.” R. Vol. 1, at 20–21. Archuleta's motion also argued that gang experts generally had “no reliable data” on which to base their opinions. Id. at 22. He was careful to note, however, that he was not challenging “any part of the expert's opinion that may be based on the expert's own investigation or information from other law enforcement sources.” Id. at 21 n. 1.

A couple months later, the government filed notice that it would proffer Paul Lujan as an expert on gangs. Lujan was an officer with the gang unit of the Las Cruces, New Mexico Police Department, and the government stated that he would testify regarding the background, structure, and identifying tattoos of the Sureños. More generally, the government asserted that his testimony would assist the jury in understanding the relationships of the parties and in determining the existence of a conspiracy.

The district court held the first of two expert witness hearings on August 3, 2010, during which Lujan testified as to his credentials. The court was satisfied that Lujan had specialized knowledge of the Sureños, and concluded sufficient foundation had been laid to permit him to testify as an expert. But the court was uncertain whether the danger of unfair prejudice from Lujan's testimony substantially outweighedits probative value. And so the government was ordered to produce additional material for the court's review.

The second hearing was held two days later. After reviewing additional evidence on the connection between the Sureños and the charged crimes, the district court concluded that the “Sureño affiliation, association, is significant in terms of the ... conspiracy,” because witnesses would testify that Archuleta was a “high-ranking member[ ] of the gang.” R. Vol. 3, pt. 13, at 2001–02. Accordingly, the court ruled that Lujan could testify “about the Sureños, the significance of the tattoos, the Tortilla Flats thing, all of that, as it relates to the July 2[ ] incident.” Id. at 2002. Archuleta objected to Lujan's testimony as irrelevant and prejudicial, and the court overruled his objection.

At trial, Archuleta again objected, insisting that Lujan did not qualify as a gang expert and that gang testimony was irrelevant. Again, the district court overruled the objection. Lujan proceeded to testify about the Sureños' history, colors, tattoos, structure, activities, and affiliation with the Mexican Mafia. When shown photographs of Archuleta's tattoos, Lujan testified that those tattoos identified the person in the photographs as a member of the Tortilla Flats Sureño gang.

On August 16, 2010, after a six-day trial, the jury found Archuleta guilty of counts 1, 2, 5, and 7, and not guilty of counts 4 and 6. On January 12, 2012, the court sentenced Archuleta to 360 months' imprisonment on counts 1 and 2, 120 months' imprisonment on count 5, and 12 months' imprisonment on count 7. All sentences were to be served concurrently.

II

On appeal, Archuleta contends that admission of Lujan's testimony violated Federal Rules of Evidence 403, 702, and 704(b).

Rule 403

Archuleta argues that Lujan's testimony was needlessly cumulative, confusing, misleading, and unfairly prejudicial. Generally, relevant evidence is admissible at trial. Fed.R.Evid. 402. Rule 403, however, permits a court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. We review for abuse of discretion a properly-preserved Rule 403 objection to the district court's decision to admit evidence. United States v. McGlothin, 705 F.3d 1254, 1260 (10th Cir.2013). “Our abuse of discretion review affords the district court considerable discretion in performing the Rule 403 balancing test because district court judges have front-row seats during trial and extensive experience ruling on evidentiary issues.” United States v. MacKay, 715 F.3d 807, 839 (10th Cir.2013) (internal quotation marks omitted).

First, Archuleta argues that Lujan's testimony was needlessly cumulative because Adam Ramirez's testimony covered the same information. During his testimony, Adam Ramirez described the Sureños' tattoos, structure, and purpose, as well as Archuleta's involvement in the Tortilla Flats. To be sure, Lujan covered some of the same ground. But not only did Lujan provide more detail than Adam Ramirez did on several subjects, Lujan also testified about subjects Adam Ramirez never mentioned, like the Sureños' origins and history. Simply put, Lujan's testimony was not a total repeat of Adam Ramirez's testimony, and Archuleta does not explain how its admission was an abuse of discretion on this ground. See United States v. Edwards, 540 F.3d 1156, 1162–63 (10th Cir.2008) (holding that five recordings of emergency 911 calls were not cumulative evidence). Thus, we conclude that the district court did not abuse its discretion in refusing to exclude Lujan's testimony as cumulative.

Second, Archuleta insists that Lujan's testimony was confusing and misleading. According to him, the history of the Sureños had “little or nothing to do” with his charges, and that the testimony “suggest[ed] to the jury that the drug-smuggling scheme was somehow in fact linked to the Mexican Mafia.” Aplt. Br. at 26–27. We disagree. As we explain in more detail below, Archuleta was in a Sureño gang, therefore testimony concerning the Sureños' origins and activities was relevant in explaining Archuleta's activities as a member and, indeed, as a leader. And there was a low risk that such straightforward testimony would mislead the jury into thinking that Archuleta acted on behalf of the Mexican Mafia. This risk did not substantially outweigh the testimony's probative value, and thus, the district court did not abuse its discretion in rejecting Archuleta's assertion that Lujan's testimony...