U.S. v. Lopez-Medina

• Decision Date: 19 February 2010
• Docket Number: No. 08-4055.,08-4055.
• Citation: 596 F.3d 716
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerardo LOPEZ-MEDINA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

596 F.3d 716

UNITED STATES of America, Plaintiff-Appellee, v. Gerardo LOPEZ-MEDINA, Defendant-Appellant.

No. 08-4055.

United States Court of Appeals, Tenth Circuit.

February 19, 2010.

Bel-Ami Jean de Montreux of Montreux Freres, P.C., Salt Lake City, UT, for Defendant-Appellant.

Stephen J. Sorenson, Assistant United States Attorney (Brett L. Tolman, United States Attorney with him on the briefs) Salt Lake City, UT, for Plaintiff-Appellee.

Before HENRY, Chief Circuit Judge, HARTZ and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

Gerardo Lopez-Medina was convicted by a jury of possession of methamphetamine with intent to distribute and sentenced to 235 months imprisonment. He contends: (1) his rights under the Confrontation Clause were violated by the admission of certain evidence, absent which there was insufficient evidence to support his conviction; (2) the court erred in ruling he could not question a government witness about the nature of the witness' recent conviction; and (3) the prosecution committed prosecutorial misconduct on multiple occasions. Finding only one harmless error, we affirm.

I. BACKGROUND

A. Factual History

In 2005, law enforcement agencies became suspicious of illegal drug distribution at a residence in Layton, Utah, a split-level home containing an upstairs and downstairs apartment. As part of their investigation, police officers performed three "trash runs" at the Layton residence.¹ The officers discovered several items associated with drug use or distribution: empty bottles of MSM,² plastic baggies of various size (some containing white residue), green Saran wrap, duct tape and a marijuana butt. A crystal shard from one of the baggies field-tested positive for methamphetamine. Subsequent testing revealed some of the baggies had contained methamphetamine and one had contained marijuana.

On July 29, 2005, police officers executed a search warrant at the Layton residence. Lopez-Medina was present in the upstairs apartment at the time of the search.³ Officers located various items in the upstairs apartment indicating drug use or distribution.

On August 4, 2005, Scott Cunningham, a handyman for an apartment complex in Clearfield, Utah, met Lopez-Medina and another Hispanic male at the complex to discuss their interest in renting an apartment. He spoke with Lopez-Medina, whom he recalled as having a "lazy eye." During the conversation, Lopez-Medina told Cunningham he was interested in renting Apartment E and pointed to a green pickup truck saying "that's my green truck over there" or "that's my truck." (R. Supp. Vol. I, Doc. 184 at 76, 79.)

That same day, Officer Aaron Johnson of the Ogden City Police Department met with a confidential informant. The informant told Johnson the police had missed some evidence during the search of the Layton residence. The informant said Lopez-Medina lived there and had "Gera" tattooed on his shoulder.⁴ According to the informant, Lopez-Medina was nervous because of the search and was in the process of moving to an apartment complex in Clearfield, Utah. The informant took Johnson to the Clearfield apartment and pointed out a green pickup truck. He said there would be fifteen pounds of methamphetamine in the truck's gas tank.

On August 5, 2005, Officer Johnson obtained a warrant to search the truck. There were approximately sixteen pieces of mail on the front seat, all addressed to the Layton residence. Behind the seat, officers located a package wrapped in brown and yellow tape containing a white crystalline substance which field-tested positive for methamphetamine. Inside the gas tank, the officers discovered a false wall creating two compartments — one held gasoline and the other contained eleven packages similar to the one found in the cab. The officers field-tested one of these packages; it tested positive for methamphetamine. All twelve packages were subsequently tested in a laboratory; all contained methamphetamine.

A crime scene investigator examined the truck and its contents for fingerprints. He found four fingerprints: Lopez-Medina's fingerprint on a cell phone bill found on the front seat; two of Rogelio Lopez-Ahumado's fingerprints just above the driver's side door handle; and a third-party's fingerprint on a bill of sale found in the glove compartment.

The next day officers obtained a search warrant for the Clearfield apartment. As officers assembled to execute the warrant, Lopez-Ahumado left the building. Lopez-Medina and Lopez-Ahumado are half-brothers and bear a strong resemblance to one another.⁵ The officers assumed Lopez-Ahumado knew Lopez-Medina because of their resemblance and began talking to Lopez-Ahumado. They learned he was Lopez-Medina's half-brother, lived in Apartment E, and had a set of keys to the green pickup truck. Officers confirmed the keys fit the truck. In Apartment E, they found a quarter-pound of methamphetamine, wrapped similarly to the drugs found in the truck.

Officers spoke with Cunningham, asking if he could identify the owner of the green pickup truck. Cunningham said it was the two Hispanics who had rented Apartment E and "one of them told me that the green truck was his." (R. Supp. Vol. I, Doc. 184 at 82.) Cunningham was not comfortable identifying the truck's owner in person so an officer showed Cunningham a picture of Lopez-Medina on his cell phone. Cunningham identified Lopez-Medina as the person with whom he had spoken.

B. Procedural History

Lopez-Medina and Lopez-Ahumado were charged with possession with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting the same based on the drugs found in the pickup truck (Count I). Lopez-Ahumado was also charged with possession with intent to distribute 50 grams or more of methamphetamine, also in violation of 21 U.S.C. § 841(a)(1), based on the drugs discovered in the Clearfield apartment (Count II).

Lopez-Ahumado pled guilty to Count I. In a statement submitted to the court in advance of his guilty plea, Lopez-Ahumado stated:

I stipulate and agree that the following facts accurately describe my conduct. They provide a basis for the Court to accept my guilty plea and for calculating the sentence in my case:

On August 5, 2005, I, Rogelio Lopez-Ahumado, knowingly aided & abetted Gerardo Lopez-Medina in jointly possessing, with intent to distribute, 4.833 kilograms of mixture and substance containing methamphetamine (4.63 kilograms actual methamphetamine) which was located in Lopez-Medina's vehicle parked near 607 South 1000 East, Clearfield, Utah.

On August 5, 2005, I also knowingly possessed, with intent to distribute, 444.4 grams of mixture and substance containing methamphetamine (426.6 grams actual methamphetamine) that was located in my apartment at 607 South 1000 East, Apartment E, Clearfield, Utah.

(R. Vol. I, Doc. 44 at 4.) Lopez-Ahumado admitted to these facts at his change of plea hearing. In his plea agreement, the government agreed to request a downward departure at sentencing if Lopez-Ahumado provided substantial assistance to the government "in the prosecution of others involved in Controlled Substance Offenses." (Id. at 5.) Lopez-Ahumado did not assist the government and was sentenced to 262 months imprisonment.⁶ Lopez-Medina proceeded to trial.

1. Pre-Trial Proceedings

Prior to trial, the government filed a motion in limine informing the court defense counsel had represented to the government that Lopez-Medina's defense would be that the government had already convicted the guilty individual, Lopez-Ahumado, and Lopez-Medina was merely an innocent bystander. The government stated it did not plan to call Lopez-Ahumado as a witness in its case-in-chief due to his refusal to answer questions. The government asked the court to prohibit Lopez-Medina from introducing the fact of Lopez-Ahumado's conviction through other witness' testimony on the grounds it was irrelevant and inadmissible hearsay. The government argued if "the Court allow[ed] [Lopez-Ahumado's] conviction to come in as an exception to the hearsay rule, the government should be allowed under the rule of completeness to put in [Lopez-Ahumado's] factual statement in support of his guilty plea" to prevent the jury from assuming Lopez-Ahumado admitted sole responsibility for the crime. (R. Vol. I, Doc. 109 at 2.)

At the pretrial conference, both parties said they did not intend to call Lopez-Ahumado as a witness. The government repeated its objection to the admission of testimony relating to Lopez-Ahumado's conviction but stated if defense counsel "wants to put in the conviction ... as long as the government is allowed to give the rest of the story, that he has admitted to aiding and assisting [Lopez-Medina] in distributing meth, we have no problem." (R. Supp. Vol. I, Doc. 186 at 16.) The court responded: "I will let [defense counsel bring out Lopez-Ahumado's plea and conviction], but then I'm going to let the government point out that this guy also said ... that he knowingly aided and abetted [Lopez-Medina]." (Id. at 17.) After further discussion, the following exchange took place:

THE COURT: Let's see how it develops. My preliminary notion is that if the conviction comes in, that the government is probably entitled to introduce the rest of the-the important part of the plea agreement, but let's see how it develops. All right?

....

[DEFENSE COUNSEL]: Are you saying they are entitled to bring the plea agreement where they then will say my client aided and abetted him?

THE COURT: If we spend much time on the co-defendant's conviction, yes.

[DEFENSE COUNSEL]: All right. I understand that.

(Id. at 20-21.)

The government filed pre-trial notices of intent to introduce the testimony of Troy Fowers and Terry Kiesz pursuant to Rule 404(b) of the Federal Rules of Evidence. The government anticipated Fowers would testify about his drug deals with Lopez-Medina in 2005, Lopez-Medina's unique methods of concealing...