U.S. v. Molina

• Citation: 934 F.2d 1440
• Decision Date: 10 June 1991
• Docket Number: No. 90-50129,90-50129
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hector Francisco MOLINA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1440

934 F.2d 1440

UNITED STATES of America, Plaintiff-Appellee, v. Hector Francisco MOLINA, Defendant-Appellant.

No. 90-50129.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 1991.

Decided June 10, 1991.

Michael D. Nasatir, Nasatir & Hirsch, Santa Monica, Cal., for defendant-appellant.

Charles L. Kreindler, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before ALARCON, NORRIS and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Hector Francisco Molina appeals his conviction and sentence after a jury trial on one count of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Following a guilty verdict, the district court denied Molina's motion for a new trial and entered judgment. The appellant was sentenced to a term of 200 months, followed by five years of supervised release. Molina argues that certain comments made by the prosecutor in closing argument constitute reversible error, that he was denied the effective assistance of counsel at trial, and that the judge erred in determining his sentence under the Sentencing Guidelines. We have jurisdiction to review the judgment under 28 U.S.C. Sec. 1291 and the sentence under 18 U.S.C. Sec. 3742. We affirm both the conviction and the sentence.

BACKGROUND

The events leading to the appellant's arrest and conviction began in December 1988, when Alvaro Siliezar Cordova ("Alvaro"), a paid DEA informant, purchased a used car at Atlantic Auto Sales, a used car dealership owned by the appellant and his partner, Richard Lopez. There is conflicting evidence as to who initiated the discussion of drug sales. The appellant and Lopez testified that Alvaro "asked them if they knew anyone who would sell him large quantities of cocaine," while Alvaro claimed that the appellant "began asking if Alvaro bought or sold cocaine." Alvaro returned to Atlantic Auto periodically to make payments on the car.

Alvaro completed payment on the car in February or March 1989, and requested that Molina give him the pink slip. The appellant told Alvaro that he could not get the pink slip because he was in serious debt to Carson Toyota, the car dealership that held it. Over the next several months, Alvaro visited Atlantic Auto at least three times each month to demand his pink slip, and on each occasion, Molina repeated that he could not get it because of his financial difficulties. The appellant testified that Alvaro continually asked the appellant to put him in touch with a source of cocaine, and Molina, Lopez and their secretary, Patricia Molina (unrelated) testified that Alvaro became increasingly upset over Molina's failure to deliver the slip, at times resulting in a shouting match between the two men.

The government's theory at trial was that Molina, his car dealership in financial trouble, decided to arrange a drug deal to earn enough money to pay off Carson Toyota. The government argued that Molina, having located Alvaro as a potential buyer, set about trying to find a source of cocaine. Molina would act as middleman, exacting a transaction fee sufficient to set his financial house in order.

Molina, by contrast, argued at trial that he had no intention of getting involved in drug trafficking. Rather, he contended that Alvaro, sensing an opportunity to earn informant fees, used the pink slip as leverage to induce him to cooperate in a deal that Alvaro set up. Molina claimed that he was fearful that Alvaro would report the nondelivery of the pink slip to the Department of Motor Vehicles. Molina's entrapment defense was based on the theory that the government was at both ends of the drug transaction, with Alvaro acting as the buyer, while simultaneously putting Molina, the would-be middleman, in contact with sources who could supply the cocaine.

The government argued at trial that the episode that ultimately led to Molina's arrest was in fact Molina's third attempt to arrange a cocaine transaction. The first attempt allegedly began on July 25, 1989, when the appellant told Alvaro that he was going to El Paso, Texas, his hometown. Molina claimed that he told Alvaro that he was going to visit his family in the hopes of borrowing sufficient money to pay off his debt, thereby enabling him to give Alvaro his pink slip. Alvaro, on the other hand, testified that the appellant told him that he was going to El Paso to pick up 25 kilos of cocaine. On July 26, 1989, before Molina left for El Paso, he met with Alvaro and Alvaro's "partner," who was in fact DEA Special Agent Arturo Reyes. Molina claimed that he agreed to meet Reyes only as a favor to Alvaro, while Alvaro maintained Alvaro told Molina that he was going to be out of the country, and that Molina should deal with Reyes in his absence. At the meeting, the appellant wrote his phone number in El Paso on his business card, and gave it to Reyes. Predictably, the parties dispute the substance of their meeting. Molina testified that he told Reyes and Alvaro that, while he had no intention of locating cocaine in El Paso, he would as a favor to Alvaro let Reyes know if he found anything. Reyes and Alvaro testified that Molina was knowledgeable about drug deals, and promised to bring 25 kilos back from El Paso. While Molina conceded that, upon his return from Texas in early August, he told Reyes that he was unable to get the cocaine because his source had been arrested, he testified that he said that only because Alvaro instructed him to do so.

that Molina willingly met with Reyes to discuss Molina's drug connection in El Paso.

The second transaction that Molina allegedly attempted to arrange began when the parties next spoke on August 25, 1989. Reyes testified that he answered Molina's page, and that Molina told him that he had located some Mexicans who had 400 kilograms of cocaine for sale. Molina, by contrast, testified that he was contacted by a man named Rafael, who claimed to be a friend of Alvaro. Molina contended that Rafael arranged for Alvaro, Rafael, and another man named Joaquin to meet with Molina at Atlantic Auto. The four men did meet at the car dealership, and Molina testified that Alvaro told him that they needed him to act as the middleman in a transaction with the Mexicans. Molina testified that he refused to do so, but agreed to meet again after Alvaro reminded him about the pink slip and said that it was his only hope to escape his financial predicament.

The parties agreed to meet on August 29, 1989 in the parking lot of a Denny's Restaurant to exchange 50 kilograms of cocaine for $13,500 per kilo. Apparently, Joaquin was supposed to arrive in one car with the cocaine, Alvaro in another with the money, and the appellant was supposed to effect the transfer. When Joaquin showed up without the cocaine, claiming that he would go get it after the money was transferred to Molina, the deal fell through.

The appellant testified that Alvaro was very upset that the transaction was not completed, and again mentioned the pink slip. Molina testified that, after telling Alvaro that the DMV was "after him for the titles," Alvaro threatened to tell the DMV that he had not received his pink slip, and to tell the DMV to shut the dealership down. ¹ Molina claimed that Alvaro said he would give him a few more days to arrange a successful drug deal.

The third episode, the one that led ultimately to Molina's arrest, began on September 13, 1989, when the appellant contacted Alvaro and told him that an individual named Tino would deliver 50 kilograms of cocaine to the parking lot of Atlantic Auto the next day. Molina testified that he ran into Tino, a person he had met previously, at a restaurant where he was supposed to meet Alvaro. Molina maintained that it was Alvaro's idea to go to this particular restaurant to "see if they could find anyone to supply him with cocaine," and that Alvaro never showed up. Furthermore, Molina contended that Tino called him over to have drinks with him, at which time Molina learned that Tino would be able to supply 50 kilos of cocaine. Alvaro, on the other hand, testified that he never had plans to meet Molina at the restaurant, and that the appellant located Tino, the cocaine source, on his own.

In any case, Alvaro told Reyes about the planned delivery on September 14, and Reyes arranged for surveillance of the lot at Atlantic Auto. When the cocaine did not arrive after several hours of waiting, Alvaro left, and told Molina to page him when he had seen the cocaine. The next day At trial, the government called as witnesses Agent Reyes, Alvaro, and Agent Leppla, each of whom was thoroughly cross-examined by Molina's attorney. The defense called the following witnesses: Patricia Molina, to testify about Alvaro's visits to Atlantic Auto regarding the pink slip; Richard Lopez, to establish that Alvaro, and not the appellant, initiated the discussion of drug trafficking; Bill Santiago, to testify about the pink slip complaint the DMV received from Alvaro's girlfriend; Molina himself, to give his version of the entire scenario; and finally four character witnesses to bolster the defense's contention that Molina was not predisposed to commit such a crime. The jury, after being instructed on the entrapment defense, found the appellant guilty.

                Molina sent the prearranged message to Alvaro through his pager, and Reyes instructed Alvaro to proceed to the lot.  When Alvaro arrived, Molina gave him the key to the trunk of the car. 2   After opening the trunk, Alvaro tested the white substance he found in a cardboard box, and, determining that it was cocaine, sent a message to Reyes through his pager.  At that point, the surveilling agents and policemen moved onto the lot and arrested the appellant.  The trunk was open at the time of the arrest, and it contained both the partially opened box and a closed blue suitcase.  The arresting officer,

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