U.S. v. Acosta–gallardo

• Decision Date: 30 August 2011
• Docket Number: No. 10–8075.,10–8075.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Cesar ACOSTA–GALLARDO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

656 F.3d 1109

UNITED STATES of America, Plaintiff–Appellee,

v.Cesar ACOSTA–GALLARDO, Defendant–Appellant.

No. 10–8075.

United States Court of Appeals, Tenth Circuit.

Aug. 30, 2011.

Chris T. Rasmussen, Rasmussen & Kang, Las Vegas, NV, for the Appellant.Stephanie I. Sprecher, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, and David A. Kubichek, Assistant United States Attorney, with her on the brief), Office of the United States Attorney for the District of Wyoming, for the Appellee.Before GORSUCH, HOLLOWAY and MATHESON, Circuit Judges.HOLLOWAY, Circuit Judge.

This appeal follows a jury conviction of defendant-appellant Cesar Acosta–Gallardo on one count of conspiracy to traffic in methamphetamine, in violation of Title 21, United States Code, Sections 846, 841(a)(1), and 841(b)(1)(A) (collectively, Count One), and on one count of using a telephone to facilitate a felony drug offense, in violation of Title 21, United States Code Section 843(b) (Count Eleven). Acosta–Gallardo appeals his conviction, alleging a variance, a Brady violation, improper venue, and that insufficient evidence was presented to sustain his Count One conviction for alleged trafficking in methamphetamine. Exercising jurisdiction of this appeal pursuant to Title 28, United States Code, Section 1291, we affirm.

I. Facts

Drug Distribution Activity

Much of the evidence against Acosta–Gallardo was introduced through the testimony of co-defendant Alvaro Alvarado–Sanabria (“Alvarado”). Alvarado was arrested on October 13, 2009, and as part of his plea agreement that followed, he agreed to provide information on people with whom he dealt in drugs.

At the time of his arrest, Alvarado had been involved in distributing methamphetamine for roughly three years. Alvarado testified that he was first exposed to dealing in methamphetamine through a man named Alfredo Garcia, who imported drugs from Mexico. Alvarado and Garcia first became acquainted in late 2006 or early 2007 when Garcia came to Alvarado's place of employment, looking for work. Alvarado helped Garcia find employment and also let him a room. As they became better acquainted, Alvarado agreed to lend Garcia money at a favorable interest rate. After loaning Garcia money three or four times, Alvarado found out that Garcia was using the money to purchase methamphetamine for distribution. R., Vol. 3 at 144–45. Alvarado testified that in the beginning, he was just loaning money to Garcia as an investment. Id. at 145–46.

Garcia returned to Mexico several times a year and Alvarado took over the methamphetamine distribution operation. Alvarado testified that he and Garcia were like “partners.” He became acquainted with Garcia's driver, who transported the methamphetamine to Utah. Alvarado also met Garcia's customers. Alvarado testified that he and Garcia had three sources for obtaining methamphetamine: (1) a source called “Police,” (2) Juvenal Garcia (a co-defendant), and (3) the defendant, Acosta–Gallardo.

In the beginning, Alvarado had only one buyer, Brahnson Arnell. Arnell lived in Lyman, Wyoming. Alvarado testified that his only reason for communicating with Arnell was to sell him methamphetamine. Alvarado sold methamphetamine to Arnell for approximately three years. Arnell introduced Alvarado to some of his customers in Wyoming so that Alvarado could deal directly with them. These customers included Alvarado's co-defendants, Robert Landry, Charles Thunehorst, Charles Jerabek, Jason Freeman, and Matthew Owens. Alvarado estimated that between 2007 and 2009, he sold two to four pounds of methamphetamine to Landry, five to eight pounds to Thunehorst, and roughly three to four pounds to Owens. In turn, some of these customers sold methamphetamine to their own customers. For example, Landry sold methamphetamine he received from Alvarado to Freeman, George Burkett, Tommy Burkett, Kevin Watson, and others.

Alvarado testified he would deliver methamphetamine to his Wyoming customers at one of several pre-arranged meeting places off of Interstate 80 between Salt Lake City, Utah, and Rock Springs, Wyoming. R., Vol. 5 Ex. 103; R., Vol. 3 at 336–40. Each location was assigned a code number, and the delivery location would be communicated by referencing the location's code number.

Alvarado and Defendant Cesar Acosta–Gallardo

During one of his stays in Utah, Garcia told Alvarado about Acosta–Gallardo, who was from his home town in Mexico and needed a place to live. Alvarado owned several condos and apartments at the time and let one of them to Acosta–Gallardo. Garcia informed Alvarado that Acosta–Gallardo “was someone really important in the drugs,” “that [Acosta–Gallardo] was able to get like big quantities [of drugs],” and that “[Acosta–Gallardo] was able to be a resource.” R., Vol. 3 at 152. Prior to this, Alvarado's main source of methamphetamine had been Juvenal Garcia. Alvarado testified, however, that Juvenal Garcia was unable to get the methamphetamine that Alvarado needed. Id. at 153–54. As a result, in the summer of 2007, Alvarado and Alfredo Garcia began acquiring their methamphetamine from Acosta–Gallardo.

Alvarado and Garcia would obtain pounds of methamphetamine from Acosta–Gallardo and resell it to their customers in smaller amounts. Alvarado testified that he purchased methamphetamine from Acosta–Gallardo once every one to two months. Id. at 163. Most of the time, Defendant Acosta–Gallardo would advance Alvarado the methamphetamine on credit and Alvarado would pay him for it later. Id. at 164.

Alvarado testified that after he ordered methamphetamine from Acosta–Gallardo, Acosta–Gallardo would contact him a few days later and would then either deliver the methamphetamine himself or send his driver. Alvarado would sometimes help retrieve the methamphetamine from the delivery vehicle, where it was usually concealed in the engine compartment between the windshield and the engine. Alvarado testified that in 2007 and 2008, when he lived in Park City, Utah, his apartment complex had an underground garage where he and Acosta–Gallardo could retrieve the drugs from the vehicle without being seen from the outside.

Alvarado stored the methamphetamine he received from Acosta–Gallardo in a brown suitcase that was kept in a closet in his (Alvarado's) residence. Id. at 176–78. Alvarado stored different purchases of methamphetamine in separate containers. Id. at 178–80. At trial, Alvarado was shown a photograph of the contents of the suitcase seized from his apartment. R., Vol. 5, Ex. 115. In the photograph, Alvarado identified three different packages of methamphetamine that he had received from Acosta–Gallardo. R., Vol. 3 at 181–82. Alvarado testified that Acosta–Gallardo had seen the suitcase many times, and that Acosta–Gallardo was aware that Alvarado kept methamphetamine in that suitcase. Id. at 184–85.

Phone Exchanges Between Alvarado and Acosta–Gallardo

Alvarado testified that he kept two cell phones. One phone was for personal use. The other phone was his “business phone,” R. Vol. 3 at 188, which he changed every four to six weeks to avoid tracking by law enforcement. Id. at 185. Acosta–Gallardo's contact information was kept in Alvarado's business phone. Alvarado testified that between 2007 and 2009, he changed phones approximately fifteen to twenty times. He purchased his business phones from Wal–Mart. The phones were never registered in Alvarado's name. In order to be assigned a phone number, Alvarado would provide a zip code from Idaho, Colorado, or Wyoming so that his assigned phone number would correspond to that zip code. Alvarado never provided the zip code of the city where he actually lived.

At trial, the government introduced the transcript of a text message that Alvarado received from Acosta–Gallardo on September 11, 2009. R., Vol. 3 at 192–93; R., Vol. 5 Ex. 123. The message, translated into English from Spanish, stated, “Dude, there is a [Female] friend that is 18 years old if you want to meet her.” R., Vol. 5, Ex. 123. Alvarado testified that “amiga,” or “female [friend],” meant that Acosta–Gallardo had one pound of methamphetamine. R., Vol. 3 at 192. The reference to “18” meant “18,000.” Id. Thus, Alvarado testified that Acosta–Gallardo's message communicated the idea that he had “a pound of meth for $18,000, and he want[ed] to know if I wanna, I wanna [sic] buy that from him.” Id.

Transcripts of several phone conversations that took place on September 12, 2009 were next introduced at trial. R., Vol. 5 at Exs. 124, 125, 126. The transcripts reflected both the conversations, all of which took place in Spanish, and their English translations. R., Vol. 3 at 189. The first phone conversation is dated September 12, 2009, and time-stamped “17:34:47 MDT–17:36:02 MDT.” R., Vol. 5 Ex. 124. Alvarado testified that in this conversation, he and Acosta–Gallardo were coordinating the delivery of drugs mentioned in the September 11, 2009 text message. Alvarado testified that in this phone conversation, he was communicating to Acosta–Gallardo that he (Alvarado) was not yet at home. R., Vol. 3 at 194–95.

The second phone conversation is also dated September 12, 2009, and is time- stamped “19:39:22 NDT–19:39:58 MDT.” R., Vol. 5 Ex. 125. During this phone conversation, Alvarado contacted Acosta–Gallardo to tell him that he had just arrived home. R., Vol. 3 at 196. Acosta–Gallardo's response, as explained by Alvarado, indicated that Acosta–Gallardo was on his way to meet Alvarado. Id.

The third phone call was similarly dated September 12, 2009, and time-stamped “20:07:58 MDT–20:08:36 MDT.” R., Vol. 5 Ex. 126. Alvarado explained that this phone conversation took place a few minutes before Acosta–Gallardo arrived at Alvarado's home. R., Vol. 3 at 197–98. Alvarado explained that Acosta–Gallardo asked where to park, and Alvarado directed Acosta–Gallardo to the parking lot behind his apartment. Id. at 198.

Alvarado testified that after these three phone...