U.S. v. Cardinas Garcia

• Decision Date: 23 February 2010
• Docket Number: No. 08-5090.,08-5090.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis Alberto CARDINAS GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

596 F.3d 788

UNITED STATES of America, Plaintiff-Appellee, v. Luis Alberto CARDINAS GARCIA, Defendant-Appellant.

No. 08-5090.

United States Court of Appeals, Tenth Circuit.

February 23, 2010.

Bill Zuhdi, Bill Zuhdi Attorney at Law, P.C., Oklahoma City, OK, for Appellant.

Leena Alam, Assistant United States Attorney (David E. O'Meilia, United States Attorney, with her on the brief), Office of the United States Attorney, Northern District of Oklahoma, Tulsa, OK, for Appellee.

Before TACHA, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and TYMKOVICH, Circuit Judge.

TYMKOVICH, Circuit Judge.

A federal jury convicted Luis Alberto Cardinas Garcia (Cardinas)¹ of one count of possessing 500 grams or more of a mixture containing methamphetamine with intent to distribute, a violation of 21 U.S.C. § 841. He was sentenced to 151 months' imprisonment.

On appeal, Cardinas raises three issues. First, he claims the evidence presented at trial was insufficient to convict him. To support this claim, he argues we should ignore two key pieces of evidence presented by the prosecution: (1) the testimony of a government witness, which he asserts was inherently incredible; and (2) testimony from a police officer who saw Cardinas sell methamphetamine and cocaine to a confidential informant a month before committing the present offense. Second, Cardinas claims the jury verdict form used at his trial improperly led the jurors to believe he was required to prove his innocence beyond a reasonable doubt. He asserts this was prejudicial error because the jury reached an impasse after its first deliberation session and did not return a guilty verdict until the following day. Third, he claims cumulative error warrants reversal.

We conclude that sufficient evidence supports the conviction and that any imperfection in the jury verdict form did not prejudice Cardinas. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm his conviction.

I. Background

A. The May Drug Sale and the Suspected Stash House

In May 2007, as part of an investigation of drug-related activity in Tulsa, Oklahoma, a special investigator from the Tulsa Police Department observed Cardinas sell a package containing methamphetamine and cocaine to a confidential informant. After Cardinas left the site of the drug sale in his Ford Explorer, another Tulsa police officer stopped him for speeding. The officer used a drug-sniffing dog to search Cardinas's car, but found nothing and let Cardinas go with a ticket for driving without a license. Because the investigation was ongoing, the special investigator decided not to pursue charges against Cardinas for the drug sale and instead had the drugs destroyed.

Cardinas remained a target. He frequently visited a suspected "stash house"—a location where a drug dealer stores his drugs—that was under surveillance by the Tulsa police. The particular stash house was an apartment rented by Cardinas's friend Isaias Gonzales.

During Cardinas's visits, he would repeatedly exit Gonzales's apartment, meet various people in the parking lot, then return to the apartment. This regular pattern of behavior suggested to the investigator that Cardinas was dealing drugs.

B. The June Drug Bust

On the night of June 12, 2007, a Tulsa police sergeant and an agent from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), conducted a surveillance operation at Gonzales's apartment, suspecting it was being used to facilitate drug dealing. Their investigation was separate from that of the Tulsa special investigator's, and they were apparently unaware of Cardinas's May drug sale and frequent visits to the apartment.

During the surveillance, the police sergeant and ATF agent observed "short-term foot traffic": three or four people separately entered Gonzales's apartment, stayed for a brief time, then left. R. Vol. 2 at 17, 26-27. This foot traffic corroborated the sergeant and agent's suspicions of drug activity, and they decided to confront the occupants of the apartment.

When the sergeant and ATF agent approached the apartment, they encountered Cardinas as he was leaving. They asked him whether the apartment was his; he answered no, and they patted him down for drugs and weapons. Finding nothing, the sergeant and agent proceeded to knock on Gonzales's door and obtain permission to enter and search his apartment. Cardinas remained at the scene while the officers conducted their search.

During their search, the sergeant and ATF agent found nearly two pounds of methamphetamine packaged in numerous plastic bags, as well as a set of digital scales commonly used to weigh quantities of drugs. Upon finding this evidence, they arrested Gonzales, and he proceeded to tell the sergeant and ATF agent he received the drugs and scales from a man named Tony. Gonzales claimed he had planned to sell the drugs and pay Tony with the proceeds. Based on this information, the sergeant and ATF agent allowed Cardinas and several other men who were present in the apartment to leave. At the time, the sergeant and ATF agent did not suspect Cardinas played a role in the possession or distribution of the seized methamphetamine.

Later that night, the police sergeant communicated with the Tulsa special investigator who had previously surveilled Cardinas. The sergeant found out for the first time that the special investigator had already obtained a warrant to search Cardinas's own apartment based on information the special investigator had gathered over the previous two months. The sergeant informed the special investigator of Gonzales's arrest and Cardinas's presence at the stash house that evening, and the Tulsa police executed the search warrant early the next morning, on June 13, 2007.

The police did not find any drugs or drug paraphernalia at Cardinas's apartment. They did, however, find a large amount of cash.² Cardinas was later charged with possession, with intent to distribute, the drugs found at Gonzales's apartment.

C. Gonzales's Plea Agreement

When Gonzales was initially arrested, he erroneously believed he would not be sent to jail for possessing the methamphetamine found at his apartment. Instead, he was under the impression he would be deported to Mexico. Later, upon learning he could be sentenced to significant jail time, Gonzales changed his story about the origin of the drugs.

At a conference to discuss the possibility of a plea agreement, Gonzales admitted to prosecutors he had lied about receiving the methamphetamine from Tony. He stated he had fabricated the name Tony and had actually received the drugs from Cardinas. He claimed Cardinas was planning to sell the drugs and had promised to pay Gonzales $2,000 to hold them. After agreeing to testify truthfully regarding Cardinas's ownership of the drugs, Gonzales executed a plea agreement, pursuant to which the government promised to recommend a lighter sentence to Gonzales's sentencing judge.

D. Cardinas's Trial

Shortly before Cardinas's trial, the government filed a notice pursuant to Federal Rule of Evidence 404(b) announcing its intention to introduce testimony regarding Cardinas's May 2007 drug sale. The government asserted the testimony would establish Cardinas's "motive, opportunity, intent, preparation, plan, knowledge, identity, ... absence of mistake or accident and his consciousness of guilt." R. Vol. 1, Doc. 28 at 3. In response, Cardinas's counsel filed a motion in limine to exclude the testimony, arguing it would cause a distracting "minitrial," would be "burdensome and a confusion of the issues[,] ... and [would] result in unfair prejudice." R. Vol. 1, Doc. 29 at 5. The district court denied the motion in limine and the case proceeded to trial.

At trial, the government offered testimony from various witnesses including the ATF agent, Gonzales, the special investigator who had surveilled Cardinas during the May drug sale, and a forensic scientist who testified that the drugs seized at Gonzales's apartment were indeed methamphetamine. Cardinas's counsel reasserted his Rule 404(b) objection to the special investigator's testimony, but the court overruled the objection and admitted the testimony with a limiting instruction.

During the government's case-in-chief, Cardinas's counsel thoroughly cross-examined Gonzales. The cross-examination emphasized that Gonzales had initially lied to police regarding the origin of the methamphetamine. Gonzales also admitted he had sold some of the methamphetamine to pay his rent. Finally, Gonzales admitted he decided to testify against Cardinas only after learning he could be sentenced to a significant jail term for possessing methamphetamine and only after executing a plea agreement with the government.

During the defense's rebuttal, Cardinas took the stand to describe his relationship with Gonzales and rebut Gonzales's testimony. Cardinas testified that he and Gonzales are Mexican citizens and came to the United States illegally. They grew up in the same hometown in Mexico and became friends in Tulsa because of their shared history. Cardinas claimed he helped Gonzales move into the apartment where the methamphetamine was found, had sold Gonzales some furniture and a sound system, and visited Gonzales's apartment once or twice a week merely to trade movies.

With respect to the May 2007 drug sale, Cardinas explained he did not actually sell the drugs to the confidential informant but was merely a one-time middleman. Cardinas explained that over the course of a month, the confidential informant (who was Cardinas's work colleague) had asked every day for help in obtaining drugs and kept "insisting and insisting" that Cardinas help him. R. Vol. 2 at 191-2. Cardinas testified he finally relented, obtained the drugs, and delivered the drugs to his friend while under surveillance by the Tulsa special investigator. Cardinas claimed he had never sold, or helped anyone obtain, drugs before that day.

As for the June drug bust, Cardinas...