State v. Ayala-Leyva

• Decision Date: 05 August 2014
• Docket Number: No. A13–0401.,A13–0401.
• Citation: 848 N.W.2d 546
• Court: Minnesota Court of Appeals
• Parties: STATE of Minnesota, Respondent, v. Pedro AYALA–LEYVA, Appellant.

848 N.W.2d 546

STATE of Minnesota, Respondent,

v.Pedro AYALA–LEYVA, Appellant.

No. A13–0401.

Court of Appeals of Minnesota.

May 19, 2014.

Review Granted Aug. 5, 2014.

Syllabus by the Court

1. When defense counsel offers no proposed jury instruction and leaves the wording of the instruction to the district court's discretion, the court does not commit plain error when it refuses to instruct the jury that it must unanimously agree on which of many overt acts were committed in furtherance of a conspiracy to commit controlled substance crime.

2. A prosecutor commits misconduct when a subpoenaed defense witness is arrested prior to testifying at trial, in violation of Minn.Stat. § 634.08 (2012), but that misconduct is not prejudicial when the witness is immediately released, defense counsel is given an opportunity to interview the witness and decides to not call him at trial, and the witness's testimony would not have resulted in a more favorable verdict.

3. A greater-than-double durational sentencing departure must be supported by severe aggravating factors, and factual findings to support those factors must be found by a sentencing jury absent waiver of Blakely proceedings by a defendant.

Lori Swanson, Attorney General, St. Paul, MN; and Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, Minneapolis, MN, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijò, Assistant Public Defender, St. Paul, MN, for appellant.

Considered and decided by SCHELLHAS, Presiding Judge; CLEARY, Chief Judge; and KLAPHAKE, Judge.

OPINION

KLAPHAKE, Judge.^*

Appellant challenges his conviction of conspiracy to commit first-degree controlled substance crime (sale), while he or a co-conspirator possessed a firearm, and his 360–month sentence, which is an upward departure from the presumptive 86–month guidelines sentence. Because the district court did not commit plain error in its jury instructions on the unanimity requirement and because the prosecutor's misconduct was not so prejudicial as to require a new trial, we affirm appellant's conviction. But because the district court's decision to impose a sentence that represents greater than double the presumptive sentence was not supported by severe aggravating factors as found by the sentencing jury, we reverse appellant's sentence and remand for further proceedings.

FACTS

From July 2011 through March 2012, the Federal Bureau of Investigation (FBI) Safe Streets Task Force conducted an investigation of a large and well-organized methamphetamine (meth) trafficking network. Agents used confidential informants and undercover officers to conduct controlled buys of meth, electronic data monitoring, and wiretaps. The informationcollected led agents to believe that the network involved members of a Mexican drug cartel known as La Familia Michoacana (LFM) moving meth from California to the Twin Cities, where it was distributed to mid-level dealers in large quantities and then to smaller-scale dealers who ultimately sold it to end-users. Appellant was not arrested until near the end of the investigation, after police seized a vehicle connected to appellant and executed a search warrant at the residence where appellant lived.

Events leading to appellant's arrest

In its early stages, the investigation focused on Koua Yang. Yang, according to an informant's tip, was selling large amounts of meth in Brooklyn Park. Agents put Yang under surveillance and conducted at least four controlled buys of meth from Yang between December 2011 and February 2012.

Early in the investigation, agents learned that Yang had a partner named Jose Salgado. From a wiretap of one of Yang's cellphones, agents also learned that Yang and Salgado had two supply sources: “Short,” who was later identified as Felix Lopez Martinez, and “Peli,” later identified as appellant Pedro Ayala–Leyva. Agents also identified Daniel Samorano as a courier, and obtained a wiretap for a phone number associated with Samorano.

On January 20, 2012, acting on a tip, St. Paul police conducted a traffic stop of a vehicle as it left an apartment building on East Ivy Avenue. Passenger Obet Moreno Guerrero was searched, and police seized meth, about $2,500 in cash, a receipt for the purchase of acetone, and cell phones. The vehicle, which contained an empty, concealed compartment in the front passenger seat, was registered to Guerrero, but its previous owner was appellant's brother-in-law. A search of the Ivy Avenue apartment revealed a container holding about 10 ounces of meth soaking in acetone, $14,500 in cash, and identification for Guerrero.

On February 5, 2012, police observed Salgado in a BMW parked outside a store in Brooklyn Park. The BMW was approached by an Audi driven by appellant. Salgado and appellant talked, walked into the store, and remained inside for about two minutes before leaving in their respective cars. Police watched the store video and did not see the two men make any exchange, but Salgado later testified at trial that he gave appellant money that he owed him for a drug debt during that meeting.

On February 11, 2012, agents learned that Samorano was leaving Minnesota in a red Subaru Outback and began to track his phone by GPS. Samorano reached Los Angeles on February 12, and left on February 16. Based on the wiretapped calls from Samorano's phone, agents believed that he had picked up a shipment of meth in California for delivery in Minnesota.

On February 18, the Minnesota State Patrol stopped and cited Samorano outside Lakeville, Minnesota, for driving with a revoked license. When the Subaru was impounded and towed, Samorano was picked up by a minivan driven by Mario Castro with appellant as a passenger. The group unsuccessfully attempted to reclaim the impounded Subaru. During a later search of the Subaru, a concealed compartment was found in the backseat containing seven packages totaling almost 10 pounds of meth.

Based in part on that discovery, on February 20, police executed a search warrant at a residence on Xerxes Court North in Brooklyn Park. As police were preparing to execute the warrant, they stopped a minivan leaving the residence. Inside were three men: appellant, Mario Castro, and Rene Tirado.

Samorano was inside the residence. During the search, police found identification linking a basement bedroom to Samorano, a basement sleeping area to Castro, and an upstairs bedroom to Tirado. In another upstairs bedroom, police found identification for appellant and a notebook inside a dresser drawer that contained names and numbers described by police as “drug notes.” In the same drawer, police found six Wells Fargo Bank deposit receipts inside a pouch.

On the same date, police executed a search warrant of a nearly empty Cottage Grove residence occupied by Felix Lopez Martinez, Yang and Salgado's other supply source. There, police found another apparent drug notebook, a semi-automatic 9–mm handgun, and a “food saver” appliance used to package drugs. A white Toyota Avalon parked at the residence was registered to Samorano and had empty concealed seat compartments. A Nissan Frontier pickup found at the residence had two concealed compartments containing meth, a gun case and gun, and $18,500 in cash.

The total weight of the meth seized by police during this portion of the investigation was 7308.4 grams, or 16 pounds, 2 ounces, with a street value of between $208,000 and $468,000, depending on whether it was sold by the pound or ounce. Appellant and his co-conspirators were arrested and charged with conspiracy to commit first-degree controlled substance crime.

Appellant's case proceeded to a jury trial. In addition to other aspects of the conspiracy, evidence was presented regarding the high number of phone calls made between cell phones associated with appellant and cell phones associated with the co-conspirators. Photos were admitted showing various co-conspirators making cash deposits into appellant's Wells Fargo Bank accounts. An analysis of the notebook found in appellant's bedroom at the Xerxes Court residence suggested that the organization had generated approximately one-half million dollars in revenue in the four-month period preceding appellant's arrest.

Trial testimony of six co-conspirators

Yang testified that he obtained drugs from appellant without having to provide immediate payment, and that Guerrero would usually collect payments from Yang. Yang estimated that he sold between one and six pounds of meth per week.

Salgado testified that he connected Yang with his suppliers, one of whom was appellant. Salgado testified that appellant once gave him a pound of meth taken from his vehicle, and that Guerrero later collected payment for the meth. Salgado testified that he gave appellant money at a store on February 5, 2012, to pay a drug debt, and that later that day he received a half-pound of meth.

Guerrero testified that he was a courier for appellant. Guerrero claimed that appellant helped him find the Ivy Avenue apartment and paid the $650 monthly rent. Guerrero described a delivery he and Castro made in December 2011 to Yang and Salgado, and testified that the meth was supplied by appellant. Guerrero testified that when he was stopped by police on January 20, he was delivering meth for appellant. Guerrero also testified that the meth soaking in acetone found in the Ivy Avenue apartment was appellant's.

Castro testified that he delivered drugs with Guerrero. He stated that he worked for appellant, delivering drugs and collecting money that he gave to appellant or to Rene Tirado. Castro also testified that he and an unidentified person drove the red Subaru from Minnesota to California in January 2012, and that he and Samorano drove the car back to Minnesota, with drugs concealed in the backseat. After returning from California, Castro lived at the residence on Xerxes Court.

Victor Hernandez Sanchez testified that when he came to...