U.S. v. Lopez-Gutierrez, LOPEZ-GUTIERRE

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore EBEL, LOGAN, and BRISCOE; EBEL
Citation83 F.3d 1235
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jesus J.efendant-Appellant.
Decision Date07 May 1996
Docket NumberLOPEZ-GUTIERRE,D,No. 94-3292

Page 1235

83 F.3d 1235
UNITED STATES of America, Plaintiff-Appellee,
v.
Jesus J. LOPEZ-GUTIERREZ, Defendant-Appellant.
No. 94-3292.
United States Court of Appeals,
Tenth Circuit.
May 7, 1996.

Page 1238

Daniel E. Monnat of Monnat & Spurrier, Wichita, Kansas, for Defendant/Appellant.

Randy M. Hendershot, Office of the United States Attorney, Topeka, Kansas (Randall K. Rathbun, United States Attorney, and D.

Page 1239

Blair Watson, Assistant United States Attorney, on the brief), for Plaintiff/Appellee.

Before EBEL, LOGAN, and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Jesus J. Lopez-Gutierrez ("Lopez-Gutierrez") was convicted of conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Lopez-Gutierrez appeals his conviction arguing: (1) the government presented insufficient evidence at trial; (2) the grand jury's independence was unconstitutionally usurped; (3) Federal Rule of Evidence 404(b) evidence was improperly admitted; (4) hearsay evidence was improperly admitted as coconspirator non-hearsay; (5) his sentence was improperly enhanced; and (6) the cumulative effect of the alleged errors at trial warrant reversal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and uphold Lopez-Gutierrez' conviction and sentence.

BACKGROUND

In early February, 1994, the Drug Enforcement Administration ("DEA") believed Jose Avila ("Avila") was distributing cocaine in the Wichita, Kansas area. As a result, the DEA began an investigation into Avila's activities and, through a confidential informant ("CI"), set up a number of monitored contacts with Avila which resulted in his arrest. Information revealed during these monitored contacts with Avila also led DEA agents to believe Lopez-Gutierrez was Avila's cocaine source.

During the series of monitored contacts between the CI and Avila, Avila revealed that his source resided in Garden City, Kansas, and that his source had the ability and willingness to provide ten to fifteen ounces of cocaine per week at $950 per ounce for resale. Avila also stated that the wife of his source was being treated at a Wichita hospital and that his source could bring a negotiated quantity of cocaine to Wichita when he came to visit his wife. During the last monitored contact between the CI and Avila, when the two were to consummate a previously negotiated cocaine deal, Avila stated that he had just returned from Garden City and was willing to "front" the CI the negotiated twenty ounces of cocaine. After providing the CI with twenty ounces of cocaine, Avila was arrested.

Avila identified Lopez-Gutierrez as his source and agreed to cooperate with the DEA agents by contacting Lopez-Gutierrez by telephone. Before placing the calls, Avila asked the agents to return to his residence in order to retrieve a business card containing the telephone number of his cocaine source. The card contained the name "Jesus" and a telephone number that Lopez-Gutierrez had listed as his home number at his place of employment.

Between the hours of 5:00 a.m. and 5:35 a.m. on February 12, 1994, the DEA agents placed two phone calls to Lopez-Gutierrez using the number found on the business card retrieved from Avila's home. 1 On both occasions Avila engaged in a conversation with an individual that Avila and the DEA agents believed to be Lopez-Gutierrez.

Prior to placing the first call, the DEA agents instructed Avila to tell Lopez-Gutierrez that he had a buyer for twenty ounces of cocaine, but that the buyer was only willing to pay $700 per ounce. Lopez-Gutierrez indicated that the amount was not enough, but nevertheless instructed Avila to travel to Garden City regardless of the outcome of the $700 an ounce deal. During the same conversation, Lopez-Gutierrez asked Avila if he would have "buyers."

Prior to making the second call, the DEA agents instructed Avila to tell Lopez-Gutierrez that the buyer would agree to pay $850 an ounce for the twenty ounces of cocaine. During the conversation Avila requested that the cocaine be delivered to Greensburg, Kansas. Greensburg is approximately halfway between Wichita and Garden City. Lopez-Gutierrez stated that he could not go to Greensburg and that Avila should meet him

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outside his job at approximately 11:00 a.m. that morning. Avila then asked, "20 huh?," and Lopez-Gutierrez said, "Yes."

Based upon these conversations, the DEA agents and Avila traveled to the Monfort Meat Packing Company in Garden City, Kansas, where they believed Lopez-Gutierrez worked. 2 Lopez-Gutierrez did not arrive until approximately 5:30 p.m. At that time he was driving a Jeep and was accompanied by two other individuals. Avila walked over to the Jeep and engaged in a brief conversation with Lopez-Gutierrez. 3 Lopez-Gutierrez then drove away. He was later arrested by DEA agents in downtown Garden City. No drugs were found on Lopez-Gutierrez or his passenger at the time of his arrest, nor were any found in his vehicle.

Lopez-Gutierrez was charged with one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and one count of unlawful distribution of twenty ounces of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. After a four day jury trial, the jury returned a guilty verdict as to Count I, conspiracy to distribute cocaine, and a verdict of not guilty as to Count II, distribution of cocaine. Counsel for Lopez-Gutierrez filed a Motion For Judgment Of Acquittal, Or In The Alternative, For New Trial. The district court denied this motion and sentenced Lopez-Gutierrez to one hundred twenty months imprisonment followed by eight years of supervised release. 4

Lopez-Gutierrez now appeals his conviction for conspiracy to distribute cocaine, arguing insufficient evidence was presented at trial, as well as other errors which, as discussed below, he contends warrant the reversal of his conviction and sentence.

ANALYSIS

I. EVIDENCE AT TRIAL

A.

Rule 404(b) Evidence

Lopez-Gutierrez contends that the district court improperly allowed the government to present Rule 404(b) evidence of a previous uncharged marijuana distribution which it did not reveal to defense counsel until after the start of trial. He argues that the late disclosure impaired his ability to object to the admission of the evidence and to cross-examine the relevant witness at trial. We review the district court's decision to admit Rule 404(b) evidence under an abuse of discretion standard. United States v. Massey, 48 F.3d 1560, 1571 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2628, 132 L.Ed.2d 868 (1995).

Fed.R.Evid. 404(b) renders inadmissible evidence of prior bad acts to prove the character of a person in order to show action in conformity therewith. This evidence, however, is admissible for other purposes, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In 1991, the rule was amended to include a reasonable notice requirement in criminal cases. The rule now permits evidence of prior bad acts to be admitted

provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Fed.R.Evid. 404(b).

The trial in this case began on May 17, 1994. Lopez-Gutierrez filed a motion for

Page 1241

discovery of Rule 404(b) evidence on April 15, 1994, and the government responded on April 22, 1994. The government indicated in its response that it intended to offer evidence of Lopez-Gutierrez' prior Kansas state felony convictions for drug violations. Later, however, during a pretrial motions hearing held on May 2, 1994, the government informed Lopez-Gutierrez that it was investigating two uncharged drug distributions made by him. After further investigation, on May 12, 1994, the government notified Lopez-Gutierrez and the district court of its intent to offer evidence that a Terry Vasquez ("Vasquez"), who had been arrested in November of 1993 and charged with the sale of marijuana and cocaine in two separate transactions, claimed his cocaine source was Lopez-Gutierrez. In a subsequent pretrial Rule 404(b) hearing, the district court ruled that the evidence concerning the November cocaine distribution was admissible. Lopez-Gutierrez does not challenge this ruling on appeal.

On the first day of trial, however, after the jury had been selected, the government informed the court and Lopez-Gutierrez of its desire to offer further evidence that Vasquez claimed Lopez-Gutierrez was also his marijuana source. The government first learned of this information the day before trial. Lopez-Gutierrez objected that the evidence should not be admitted because the government failed to provide pretrial notice under Rule 404(b). The district court overruled the objection and ruled that the evidence was admissible. On appeal, Lopez-Gutierrez argues that the evidence should not have been admitted because he was not given "reasonable notice" of the evidence before trial. He further argues that the late disclosure impaired his ability to object to the evidence and to cross-examine Vasquez at trial.

If the government does not comply with the notice requirement of Rule 404(b) after a request by the accused, the offered evidence is inadmissible. See Fed.R.Evid. 404 advisory committee's note ("[T]he notice requirement serves as condition precedent to admissibility of 404(b) evidence."). However, where Rule 404(b) evidence is offered during trial, as it was in the instant case, the district court may excuse pretrial notice and admit such evidence on good cause shown. See Fed.R.Evid. 404(b). This is what the district court did. The district court held that because the evidence was not made available to the government until the night before trial during an interview with Vasquez, there...

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96 practice notes
  • United States v. Deleon, No. CR 15–4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 7 Marzo 2018
    ...statements themselves, as well as independent evidence, to determine whether the conspiracy existed. See United States v. Lopez–Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996) ("In making its preliminary factual determination as to whether a conspiracy exists, the court may consider the......
  • United States v. DeLeon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 23 Abril 2019
    ...statements themselves, as well as independent evidence, to determine whether the conspiracy existed. See United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996) ("In making its preliminary factual determination as to whether a conspiracy exists, the court may consider the......
  • Rodriguez-Rivera v. United States, Civil 12–1486CCC.
    • United States
    • U.S. District Court — District of Puerto Rico
    • 13 Julio 2015
    ...Rule of Evidence 801(d)(2)(E). See United States v. Mangual–Garcia, 505 F.3d 1, 7–8 (1st Cir.2007) ; United States v. Lopez–Gutierrez, 83 F.3d 1235, 1241 (10th Cir.1996) ; Campuzano v. United States, 976 F.Supp.2d at 108. The court inevitably made a finding at the appropriate time during th......
  • United States v. Deleon, No. CR 15-4268 JB
    • United States
    • U.S. District Court — District of New Mexico
    • 1 Enero 2020
    ...requirement of Rule 404(b) after a request by the accused, the offered evidence is inadmissible." United States v. Lopez-Gutierrez, 83 F.3d 1235, 1241 (10th Cir. 1996). Rule 404(b)(2)(B) directs the United States to "do so before trial -- or during trial if the court, for good cau......
  • Request a trial to view additional results
96 cases
  • United States v. Deleon, No. CR 15–4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 7 Marzo 2018
    ...statements themselves, as well as independent evidence, to determine whether the conspiracy existed. See United States v. Lopez–Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996) ("In making its preliminary factual determination as to whether a conspiracy exists, the court may consider the......
  • United States v. DeLeon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 23 Abril 2019
    ...statements themselves, as well as independent evidence, to determine whether the conspiracy existed. See United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996) ("In making its preliminary factual determination as to whether a conspiracy exists, the court may consider the......
  • Rodriguez-Rivera v. United States, Civil 12–1486CCC.
    • United States
    • U.S. District Court — District of Puerto Rico
    • 13 Julio 2015
    ...Rule of Evidence 801(d)(2)(E). See United States v. Mangual–Garcia, 505 F.3d 1, 7–8 (1st Cir.2007) ; United States v. Lopez–Gutierrez, 83 F.3d 1235, 1241 (10th Cir.1996) ; Campuzano v. United States, 976 F.Supp.2d at 108. The court inevitably made a finding at the appropriate time during th......
  • United States v. Deleon, No. CR 15-4268 JB
    • United States
    • U.S. District Court — District of New Mexico
    • 1 Enero 2020
    ...requirement of Rule 404(b) after a request by the accused, the offered evidence is inadmissible." United States v. Lopez-Gutierrez, 83 F.3d 1235, 1241 (10th Cir. 1996). Rule 404(b)(2)(B) directs the United States to "do so before trial -- or during trial if the court, for good cau......
  • Request a trial to view additional results

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