U.S. v. Huerta-Orozco

• Citation: 272 F.3d 561
• Decision Date: 11 September 2001
• Docket Number: No. 01-1673,HUERTA-OROZCO,01-1673
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF/APPELLANT, v. ALFREDODEFENDANT/APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 561

272 F.3d 561 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF/APPELLANT, v. ALFREDO HUERTA-OROZCO DEFENDANT/APPELLEE.

No. 01-1673

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 11, 2001

Filed: November 19, 2001

Appeal from the United States District Court for the Northern District of Iowa

Before Morris S. Arnold and Bright, Circuit Judges, and Kyle, District Judge.¹

Kyle, District Judge

Alfredo Huerta-Orozco was convicted by a jury of possession with the intent to distribute methamphetamine. The jury returned verdicts of guilty under each of the two theories advanced by the government: (1) that Huerta-Orozco personally committed the offense, and (2) that he aided and abetted another in the commission of that offense. After the trial, Huerta-Orozco filed a motion for a judgment of acquittal or, in the alternative, a new trial. The district court² denied the motion for a judgment of acquittal, but granted a new trial. The United States appeals. For the reasons set forth below, we affirm.

I.

In late October 1999, Huerta-Orozco and Jose Ochoa-Heredia set out from California to Sioux City, Iowa. They traveled by bus from Sacramento, California, to Omaha, Nebraska. At about seven o'clock in the morning on October 31, 1999, Huerta-Orozco and Ochoa-Heredia hired a taxicab to take them from the Omaha bus station to Sioux City. (Trial Tr. at 58-59). The cost of the cab fare to Sioux City was approximately $175.00. (Id. at 59.) Ochoa-Heredia paid the driver $90.00 up front and told the driver that someone at the final destination in Sioux City would pay the rest of the fare. (Id. at 60, 65.)

At approximately 8:30 a.m., Iowa state trooper John Mathis stopped the taxicab in which Huerta-Orozco and Ochoa-Heredia were passengers. (Appellant's Addendum at 2, 9.) Trooper Mathis had observed that the cab was speeding and pulled it over about ten miles south of Sioux City. (Trial Tr. at 26-27, 68.) After issuing the driver a warning, Trooper Mathis returned to the taxicab and asked Huerta-Orozco and Ochoa-Heredia for identification.³ (Trial Tr. at 31-33.) In response to Trooper Mathis' questions, Ochoa-Heredia told him that they were coming from California. (Trial Tr. at 34.) Trooper Mathis asked them if they had any baggage in the trunk. Ochoa-Heredia replied in the affirmative; Huerta-Orozco did not respond. (Id. at 35-36.) Trooper Mathis then asked the men whether they had any weapons, contraband, or drugs - including marijuana - with them. (Id. at 36.) Ochoa-Heredia answered no to each question; Huerta-Orozco did not respond. (Id. at 37.)

Trooper Mathis asked if the men would mind opening their bags for him. Ochoa-Heredia agreed and got out of the cab. (Id.) Again, Huerta-Orozco did not respond. (Id.) The taxi driver opened the trunk, and Trooper Mathis saw three duffle bags -- one teal, one brown, and one blue.⁴ (Id. at 38.) Ochoa-Heredia told Trooper Mathis that the brown bag was his.⁵ (Id.) Ochoa-Heredia removed the teal bag from the trunk and opened it; Trooper Mathis asked for permission to check the contents of the bag, and Ochoa-Heredia consented. (Id.) Ochoa-Heredia next removed the brown bag from the trunk, opened it and consented to Trooper Mathis' search of the contents. The first two bags contained mostly clothing. (Id.)

Ochoa-Heredia then opened the blue bag and began to show Trooper Mathis the contents. (Id.) Trooper Mathis saw an object that looked like a twenty-ounce Gatorade bottle wrapped in duct tape and plastic wrap. (Id.) Trooper Mathis asked Ochoa-Heredia twice what the object was, and Ochoa-Heredia responded that he did not know. (Id.) Trooper Mathis asked Ochoa-Heredia several times if the blue bag belonged to him, and he said no. (Id.)

At that point, Trooper Mathis directed Huerta-Orozco to step out of the cab and asked if the blue duffle bag was his. (Id.) Huerta-Orozco denied owning the blue bag and stated that the teal bag was his.⁶ (Id. at 40.) Ochoa-Heredia stated that the brown bag was his. (Id.) At that point, both men denied any ownership or knowledge of the blue duffle bag.⁷ Trooper Mathis directed Huerta-Orozco to go back and sit in the taxicab; Trooper Mathis then examined the blue bag more closely. (Id. at 41.) He discovered six bottles wrapped in duct tape and plastic wrap and a seventh round object, about the size of a baseball, also wrapped in duct tape and plastic wrap. (Id.) Trooper Mathis then radioed for assistance. An officer from the canine unit of the Sioux City Police Department arrived with his dog; the dog reacted to all three bags in a way that indicated the presence of drugs. (Id. at 69-70.) The bottles in the blue bag all contained a liquid mixture which contained methamphetamine. (Appellant's Addendum at 10.)

In response to Trooper Mathis' call for assistance, Department of Narcotics Enforcement Agent Kerry Northway also arrived at the traffic stop. (See Trial Tr. at 83.) Trooper Mathis had observed a cellular phone on Huerta-Orozco's person when he had stepped out of the cab. (Id. at 45-46.) Agent Northway seized the cell phone from Huerta-Orozco and, by hitting the last number redial button, determined that the last number called was (712) 899-2155.⁸ (Id. at 133.) That telephone number was also hand-written on a business card taken from Huerta-Orozco's wallet. (Id. at 134.)

The United States indicted Ochoa-Heredia and Huerta-Orozco on charges of possessing with the intent to distribute more than 500 grams of a mixture containing methamphetamine and aiding and abetting in that offense. Ochoa-Heredia subsequently pled guilty to possessing the methamphetamine with the intent to distribute it.⁹ The case proceeded to trial against Huerta-Orozco.

At trial, the United States called five witnesses: three law enforcement officers who were involved in the traffic stop, the cab driver, and a criminologist who analyzed the contents of the bottles. Huerta-Orozco called Ochoa-Heredia as his only witness. Ochoa-Heredia testified that the blue duffle bag belonged to him and that Huerta-Orozco had no idea what was in the blue bag or that Ochoa-Heredia was transporting drugs. (Trial Tr. at 172.)

On cross-examination, Ochoa-Heredia stated that he had an agreement with a person named "Topo" to transport drugs from California to Sioux City in exchange for $2,500.00. (Id. at 181.) Ochoa-Heredia and Topo had agreed that Ochoa-Heredia would call Topo from a motel in Sioux City. (Id. at 182.) On their bus trip to Omaha, Ochoa-Heredia used Huerta-Orozco's cell phone to call Topo from Salt Lake City; at that time, Ochoa-Heredia gave Topo the number for Huerta-Orozco's cell phone. (Id. at 183.) Ochoa-Heredia kept Huerta-Orozco's cell phone with him for the rest of the trip to Omaha; after calling Topo in Salt Lake City, Ochoa-Heredia made no further calls and received no incoming calls. (Id. at 184.) In Omaha, Ochoa- Heredia returned the cell phone to Huerta-Orozco; during the taxi ride from Omaha to Sioux City, Ochoa-Heredia did not hear the cell phone ring or see Huerta-Orozco use the phone. (Id. at 184-85.) Ochoa-Heredia testified that Huerta-Orozco did not know who Ochoa-Heredia was going to meet in Sioux City. (Id. at 192.)

On November 2, 2000, the jury returned its verdict against Huerta-Orozco, finding him guilty of possession with the intent to distribute methamphetamine as both a principal and as an aider and abettor. Huerta-Orozco brought a timely motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and, in the alternative, moved for a new trial pursuant to Federal Rule of Criminal Procedure 33. The district court denied the motion for a judgment of acquittal, determining that the evidence, viewed in the light most favorable to the government, was sufficient to support the jury's verdict.¹⁰ The district court granted, however, the motion for a new trial.

II.

The district court may grant a motion for a new trial "if the interests of justice so require." Fed. R. Crim. P. 33. Where a defendant moves for a new trial on the grounds that the verdict is contrary to the weight of the evidence, the district court should grant the motion if

... the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.... In making this determination, the court need not view the evidence in the light most favorable to the government, but may instead weigh the evidence and evaluate for itself the credibility of the witnesses.

United States v. Lacey, 219 F.3d 779, 783-84 (8th Cir. 2000); see also United States v. Brown, 956 F.2d 782, 786 (8th Cir. 1992); United States v. Lanier, 838 F.2d 281, 285 (8th Cir. 1988). If, "despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, [the district court] may set aside the verdict, grant a new trial, and submit the issues for determination by another jury." United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980).

We will reverse a district court's decision to grant a motion for a new trial if the district court abused its discretion. United States v. Robbins, 21 F.3d 297, 299 (8th Cir. 1994); United States v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988).

An abuse of discretion occurs when a relevant factor that should have been given significant weight is not considered, when an irrelevant or improper factor is considered and given significant weight, or when all proper and no improper factors are considered, but the court in weighing those factors commits a clear error of judgment.

United States v. West, 28 F.3d 748, 750 (8th Cir. 1994) (quoting United States v. Kramer, 827 F.2d 1174, 1179 (8th Cir. 1987)) (quotation marks omitted). While the authority to set aside a jury verdict and grant a new trial "should be exercised sparingly and with caution," the trial court "has wide discretion...