U.S. v. Leon-Reyes

• Citation: 177 F.3d 816
• Decision Date: 20 May 1999
• Docket Number: 97-10215,Nos. 97-10139,LEON-REYE,D,s. 97-10139
• Parties: 99 Cal. Daily Op. Serv. 3734, 1999 Daily Journal D.A.R. 4779 UNITED STATES of America, Plaintiff-Appellee, v. Franciscoefendant-Appellant. United States of America, Plaintiff-Appellant, v. Francisco Leon-Reyes, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 816

177 F.3d 816

99 Cal. Daily Op. Serv. 3734, 1999 Daily

Journal D.A.R. 4779

UNITED STATES of America, Plaintiff-Appellee, v. Francisco LEON-REYES, Defendant-Appellant.

United States of America, Plaintiff-Appellant, v. Francisco Leon-Reyes, Defendant-Appellee.

Nos. 97-10139, 97-10215.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 16, 1999.

Decided May 20, 1999.

Brenda Dabdoub-Caballero (Argued), and Clay Hernandez (On the Briefs), Tucson, Arizona, for the defendant-appellant-cross-appellee.

Robert L. Miskell (Argued), Assistant United States Attorney, and Jerry R. Albert (On the Briefs), Assistant United States Attorney, Tucson, Arizona, for the plaintiff-appellee-cross-appellant.

Appeals from the United States District Court for the District of Arizona John M. Roll, District Judge, Presiding. D.C. No. CR-95-00308-JMR.

Before: BEEZER and TROTT, Circuit Judges, and KING, District Judge. ¹

TROTT, Circuit Judge:

Francisco J. Leon-Reyes ("Leon-Reyes") appeals his conviction for seven counts of perjury in violation of 18 U.S.C. § 1623. His first claim is that the district court erred in admitting into evidence, under Rule 1006 of the Federal Rules of Evidence, summaries of testimony from a previous trial in which he allegedly testified falsely. The court restricted the jury's consideration of these summaries to the issue of whether Leon-Reyes's allegedly false testimony was material. Leon-Reyes also claims that the prosecutor's closing argument vouched for the prosecution's own integrity and was inflammatory and prejudicial in content.

The United States cross appeals claiming that the district court abused its discretion by calculating Leon-Reyes's sentence with respect to the money laundering activities only and not with respect to the drug trafficking charges. ² This court has jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm the district court in all respects.

BACKGROUND

Leon-Reyes was indicted on seven counts of perjury. This indictment stemmed from Leon-Reyes's testimony in United States v. Heriberto Garcia, CR 94-119-TUC-RMB (the "Garcia trial"), where Heriberto Garcia Sr. ("Garcia Sr.") and Heriberto Garcia Jr. ("Garcia Jr.") (collectively the "Garcias") were charged with drug trafficking, money laundering and money structuring. Leon-Reyes is an accountant who testified for the defense about the financial affairs of Garcia Sr. Leon-Reyes testified that (1) he filed a "notice of registration" for tax purposes in Mexico, giving notice that Garcia Sr. was initiating business activities in Mexico; (2) the "notice of registration" was officially stamped in his presence; (3) he prepared and personally filed an "informative declaration" ³ on behalf of Garcia Sr.; (4) he filed the "informative declaration" with Banamex, a bank in Mexico; (5) he had prepared and filed income tax returns in Mexico for Garcia Sr. for the years 1987-1993; (6) he paid the tax liabilities for 1987-1993; and (7) he received bank statements for Garcia Sr.'s account with Banamex Bank. Leon-Reyes was indicted for perjury based on this testimony.

At Leon-Reyes's trial, the district court admitted into evidence summaries of testimony given by numerous witnesses in the Garcia trial. The first group of summaries included the testimony of witnesses who testified that they had pled guilty to drug trafficking or money laundering, and that they had given or seen substantial sums of cash given to the Garcias in return for marijuana (the "drug trafficking summaries"). Other summaries included the testimony of witnesses who testified about various parts of the Garcias' money laundering activities including: (1) that the Garcias invested substantial sums of their own money into the Pantera Radio Station; (2) that the station was losing money; (3) that the money was given to them by the Garcias in cash; and (4) that they were instructed to take the cash and purchase money orders from numerous banks in amounts of $2,500 or $2,000 (the "money laundering summaries"). Two other summaries encompassed the testimony of two witnesses who had audited and testified about the financial affairs of the Garcias (the "accounting summaries").

The jury found Leon-Reyes guilty on all seven counts.

At sentencing, the government argued that Leon-Reyes's perjury affected the Garcias' drug trafficking charges as well as the money laundering and money structuring charges. The district court rejected this argument, held that Leon-Reyes's testimony did not relate to the drug trafficking offenses, and sentenced Leon-Reyes to 57 months. This appeal and cross-appeal followed.

DISCUSSION

I. Summaries of Prior Testimony

Leon-Reyes argues that the district court erred in admitting the drug trafficking summaries into evidence. We review a district court's decision to admit or exclude evidence for an abuse of discretion. United States v. Hernandez, 109 F.3d 1450, 1452 (9th Cir.1997).

Summaries of voluminous writings, recordings or photographs are admissible under Rule 1006 of the Federal Rules of Evidence. However, the use of summaries of testimony given by witnesses in prior trials has not been addressed by this court, and the guidelines for the use of such summaries have not been established. ⁴

In a perjury case, the government must prove that the statement made by the defendant in the prior tribunal and alleged to be false was material. In order to do that, the prosecution must offer evidence from the prior trial to show that the defendant's statements were material; simply offering the allegedly false statement itself is not enough. See United States v. Dipp, 581 F.2d 1323, 1328 (9th Cir.1978); see also United States v. Damato, 554 F.2d 1371, 1373 (5th Cir.1977) (holding that the judge did not have sufficient basis to determine materiality where the entire transcript of the prior proceeding was not received by the court). ⁵ Previously, we have allowed the prosecution to prove materiality of a statement by introducing the complete transcript of the prior proceeding, see Dipp, 581 F.2d at 1328, by presenting testimony from persons who witnessed the proceedings, see Damato, 554 F.2d at 1373, or by presenting testimony from a member of the grand jury or jury, see United States v. Ostertag, 671 F.2d 262, 265 (8th Cir.1982). We are unaware of any case where the court admitted summaries of the type in this case to prove materiality in a perjury trial. However, we can find no reason to exclude such summaries. Indeed, we believe admission of summaries like the ones from this case offer numerous advantages to district courts. Rather than admitting the potentially voluminous transcript or subpoenaing witnesses from the prior trial to repeat their testimony, the prior testimony can be reduced to short summaries tending to prove materiality. Additionally, the district court is better able to monitor and exclude unduly prejudicial material from short summaries than the entire transcript. The portions of the prior trial relevant to the determination of materiality are easily extracted and placed before the jury in a clear and coherent manner.

We do recognize, however, that summaries of oral testimony have inherent risks. Summaries are normally prepared by an interested party and therefore may not be completely accurate or may be tainted with the preparing party's bias. Additionally, juries may be misled by the summaries and conclude that the defendant was involved in the crimes which were the subjects of the prior trial. Summaries, therefore, must be scrutinized by the trial court to ensure that they are accurate, complete, not unduly prejudicial, limited to the relevant issues, and confined by appropriate jury instructions.

Applying these guidelines to this case, we hold that the district court did not abuse its discretion in admitting the summaries. The district court reviewed the written summaries before trial and removed irrelevant and unduly prejudicial material. Defense counsel was given a copy of the summaries prior to trial and could have objected to the form and content of each summary, but did not. Nor does Leon-Reyes contend that the summaries were inaccurate or incomplete. Moreover, the district court instructed the jury each time a group of summaries were presented that the summaries were to be considered only on the issue of materiality and not on the issue of whether the statements were false.

Leon-Reyes argues that the summaries were irrelevant. We disagree. The government was required to prove that Leon-Reyes's statements were material to the Garcia trial. See 18 U.S.C. § 1623; Johnson, 520 U.S. at 465. A statement is material if "it has a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed." United States v. Clark, 918 F.2d 843, 846 (9th Cir.1990) (internal quotation omitted), overruled on other grounds by United States v. Keys, 133 F.3d 1282, 1285 (9th Cir.1998). The money laundering summaries and the accounting summaries were clearly relevant, as Leon-Reyes had been called by the defense to rebut government testimony and to explain the large amounts of money the Garcias invested in Radio Pantera. The drug trafficking summaries were also relevant to show the materiality of Leon-Reyes's testimony as a defense to the claim that the funds were from an illegitimate source. In order to prove the Garcias were guilty of money laundering, the government had to prove that the Garcias' funds were from an illegitimate source. The drug summaries show the government's alleged illegitimate source that Leon-Reyes was called to refute.

Leon-Reyes also argues that the drug trafficking summaries were unduly prejudicial because they implicated him in the drug trade. We review a district court's decision balancing the probative value of evidence against its prejudicial effect for an abuse of discretion. United States v. Cordoba, ...