U.S.A v. Mejia, No. 08-3097.

• Decision Date: 30 March 2010
• Docket Number: No. 08-3097.
• Parties: UNITED STATES of America, Appellee v. Alvaro Augustin MEJIA, also known as Edwin Renee Sapon Ruiz, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

597 F.3d 1329

UNITED STATES of America, Appellee v. Alvaro Augustin MEJIA, also known as Edwin Renee Sapon Ruiz, Appellant.

No. 08-3097.

United States Court of Appeals,

District of Columbia Circuit.

Argued Feb. 19, 2010.

Decided March 30, 2010.

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Appeal from the United States District Court for the District of Columbia (No l:06-cr-00248-JDB-5).

Carmen D. Hernandez, appointed by the court, argued the cause for the appellant.

Stephan E. Oestreicher Jr., Attorney United States Department of Justice, argued the cause for the appellee. Lanny A Breuer, Assistant Attorney General, Gary G. Grindler, Deputy Assistant Attorney General, and Brian M. Tomney, Attorney were on brief. Teresa A. Wallbaum, Attorney, and Roy W. McLeese III, Assistant United States Attorney, entered appearances.

Before: HENDERSON and GARLAND, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON Circuit Judge:

Alvaro Augustin Mejia and four co-defendants were charged with a single count of conspiring to import five or more kilo grams of cocaine into the United States after a United States Drug Enforcement Administration (DEA) sting operation caught them on tape plotting to transport and safeguard a 1, 300 kilogram drug shipment through Guatemala. On appeal, Mejia challenges various aspects of his conviction and sentence. We affirm.

I.

In late 2005, the DEA initiated a Central American sting operation that ensnared Mejia and four fellow Guatemalan coconspirators: Jorge Ricardo BardalesBourdet (Bardales), Edgar Antonio Chiu Serrano (Serrano), Erik Donaire Constanza-Bran (Bran) and Juan Daniel Del Cid Morales (Morales). According to the evidence at trial, the DEA learned that Bardales was helping Colombian drug traffickers move cocaine through Guatemala with the help of corrupt Guatemalan law enforcement officials. In response, the DEA enlisted a pseudonymous confidential informant, "Augustine Cortez, " to pose as a cocaine supplier and meet with Bardales. At their first meeting (also attended by Serrano, who was introduced as a Guatemalan law-enforcement officer), Cortez asked Bardales to arrange for security to transport a container of cocaine through Guatemala en route to the United States. Bardales agreed and proposed to charge Cortez one million dollars to move 3, 000 kilograms. (Cortez surreptitiously recorded this and all subsequent meetings and telephone calls, transcripts of which were introduced by the government and described by Cortez at trial.)

In the weeks that followed the initial contact, Bran, who was Serrano's boss, followed up with Cortez numerous times to set up a meeting at which Bran planned to introduce Cortez to two Guatemalan law enforcement officials who would provide protection for the cocaine shipments: Me-jia and the fourth codefendant, Morales. Meeting at a restaurant in San Salvador, El Salvador in July 2006, the informant Cortez told the four men assembled (Bardales, Bran, Morales and Mejia) that he intended to transport 1, 300 "units" through their country. Meeting Tr\, July 19, 2006 at 20. Bardales assured Cortez that Morales and Mejia would take care of transportation and security. See id. at 13 (identifying Morales and Mejia as "the ones in charge of everything that has to be done"). Although Mejia spoke little, he presented false identification and posed as "Edwin Rene Sapon-Ruiz, " a high-level Guatemalan official with customs oversight authority. (Mejia was in fact a retired Guatemalan police officer.) Mejia said that Guatemalan law enforcement was "creating] a new unit, DIPA [Division de Protection de Puertos y Aeropuertos], " to handle narcotics and to "work[ ] ports and airports." Trial Tr., Feb. 27, 2008 (P.M.) at 61-62. Mejia suggested that he and Morales might be able to "control the commanders, the people who control[ ] DIPA." Id. at 62-63. At the end of the meeting, Cortez paid Morales $10,000 in advance.

Cortez met again with Bran, Morales and Mejia at the same restaurant in August 2006. (Bardales, who had been seriously injured in an automobile accident shortly before the meeting, did not attend.) According to Cortez, Bran had paperwork involving a "cover-up company" Bran controlled, and which could be used to stash the cocaine amidst legitimate cargo—specifically, Christmas decorations.¹ Trial Tr., Feb. 28, 2008 (A.M.) at 11. Bran explained to Cortez how to ship the drugs to prevent detection. Again, Mejia said little.

The group met for a third and final time in September 2006. A few minutes into the meeting, Salvadoran police officers ar rested all three men. Lead DEA Agent Stephen Fraga, who did not witness the arrest, arrived at the scene about ten minutes later. He testified that: one of the Salvadoran policemen handed him a bag of seized evidence for each of the arrested men and each bag contained a wallet; Mejia's wallet contained a folded piece of paper with a handwritten list of names and the word "DEA" handwritten on the side; both Mejia's and Morales's wallets contained semiautomatic handgun permits; and two handguns were seized from Bran's driver, who was not charged as a co-conspirator.

Mejia, Morales and Bran were handed over to DEA Agents Fraga and Jason Sandoval about ninety minutes after the arrest and were promptly taken aboard a DEA airplane bound for the United States. During the flight, Mejia signed a written waiver of rights and spoke to the DEA agents, who took notes but did not record the interview. According to the agents' testimony, Mejia confessed that he and Morales had been asked by Bran "to act as police officers... to facilitate a cocaine transaction [by Cortez, who]... obtained a container filled with cocaine in Colombia and was seeking protection for that cocaine once it arrived in Guatemala"; "he specifically represented himself as a different police officer to make money"; he "was aware that the container was to contain cocaine... [and] was destined for the United States"; "he was knowledgeable of the topic of the stolen cocaine, and the prices of the stolen cocaine"; and "he had given thought to stealing the cocaine and reselling the cocaine in Guatemala for $4500 per kilogram." Trial Tr., Mar. 3, 2008 (P.M.) at 9-10, 97-101.

On September 20, 2007, Mejia and his four co-defendants were charged in a one-count superseding indictment with conspiring to import five or more kilograms of cocaine into the United States in violation of 21 U.S.C. §§ 952, 959, 960 and 963. Mejia, Morales and Bran all pleaded not guilty and the district court severed their cases for separate trials. (Serrano remains at large and Bardales eventually died from his auto accident injuries.) After Bran's trial resulted in a hung jury, he pleaded guilty and was sentenced to 144 months' imprisonment. In February 2008, shortly before Mejia's trial, the government offered Morales and him a wired Rule 11(c)(1)(C) nine-year plea agreement, which they rejected. Morales was convicted by a jury and sentenced to 220 months' imprisonment.² On March 8, 2008, after an eight-day trial, Mejia was also convicted. Because the conspiracy involved more than 150 kilograms of cocaine, Mejia's offense level was calculated at 38. Combined with his criminal history category of I, the advisory range of imprisonment was 235 to 293 months under the United States Sentencing Guidelines (Guidelines). See U.S.S.G. Ch. 5, Pt. A (sentencing table). The government recommended a belowGuidelines sentence of 210 months. Mejia asked for 60 months (one-half the 120month statutory mandatory minimum), seeking an adjustment for his minor role in the offense, see U.S.S.G. § 3B1.2, as well as various discretionary departures, see id. § 5H1.4 (physical condition), id. § 5H1.5 (employment record), id. § 5H1.6 (family responsibilities), id. § 5H1.11 (mili tary, civic, charitable and public service, employment-related contributions and record of good works), and id. § 5K2.20 (aberrant behavior). The district court found Mejia's account of the facts implausible ³ and declined to adjust his sentence based on his purportedly minor role; it then sentenced Mejia to 208 months' imprisonment. Mejia's sentence—slightly over seventeen years—was nearly twice as long as the sentence proposed in the Rule 11(c)(1)(C) plea offer he rejected but more than two years fewer than the advisory range of 235 to 293 months.

II.

Mejia now appeals, asking the court to vacate his conviction or, in the alternative to remand for resentencing. He contends that the court made a series of errors that, alone or together, entitle him to a new trial and sentence. His objections fall within four categories that we address in turn: the court's admissibility rulings, its jury instructions, the government's closing argument and the sentence imposed.

A.

Mejia contends that the district court erred in admitting various items and testimony into evidence. We review admissibility rulings for abuse of discretion. See United States v. Coumaris, 399 F.3d 343 347 (D.C.Cir.2005).

The "DEA Note." We begin with Mejia's chain-of-custody objection. Citing Novak v. District of Columbia, 160 F.2d 588, 588-89 (D.C.Cir.1947), which reversed a conviction because of a gap in the chain of custody of certain physical evidence (the defendant's urine sample), Mejia contends that a similar gap as to evidence admitted against him likewise entitles him to a new trial.

The handwritten note with "DEA" and several names on it was admitted despite an undisputed break in the chain of custody. As noted earlier, shortly after Mejia (along with Morales, Bran and the informant Cortez) arrived at his third and final meeting, several Salvadoran police officers entered the restaurant where the three coconspirators and Cortez were meeting and arrested them. DEA Agent Fraga did not witness the arrest because at the time he was in an automobile parked several blocks away from the scene. He...