U.S. v. Nieto, 94-6243

• Decision Date: 10 July 1995
• Docket Number: No. 94-6243,94-6243
• Parties: 42 Fed. R. Evid. Serv. 990 UNITED STATES of America, Plaintiff-Appellee, v. Isidro NIETO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1464

60 F.3d 1464

42 Fed. R. Evid. Serv. 990

UNITED STATES of America, Plaintiff-Appellee, v. Isidro NIETO, Defendant-Appellant.

No. 94-6243.

United States Court of Appeals, Tenth Circuit.

July 10, 1995.

Philip L. Bohanon, Oklahoma City, OK, for defendant-appellant.

Frank Michael Ringer, Asst. U.S. Atty. (Rozia McKinney-Foster, U.S. Atty., with him on the brief), Oklahoma City, OK, for plaintiff-appellee.

Before SEYMOUR, Chief Judge, MOORE, Circuit Judge, and BROWN, ^* District Judge.

WESLEY E. BROWN, District Judge.

Defendant Isidro Nieto was convicted by a jury of conspiracy to transport marijuana, 21 U.S.C. Sec. 846. He contends that the district court erred by admitting hearsay statements of alleged coconspirators into evidence at trial, that the evidence was insufficient to support his conviction, that the court erred in estimating the amount of marijuana upon which the sentence was based, and that the court erred by refusing to find that he was a minimal or minor participant in the conspiracy. For the reasons expressed herein, we affirm.

Count One of a fifteen-count indictment alleged that between January, 1988 and July 20, 1993, eight individuals, including defendant Nieto, conspired to distribute marijuana. Mr. Nieto was tried jointly with another alleged conspirator, Ignacio Escareno. At trial, the government presented evidence that two men, Enrique Gonzales and Lorenzo Garcia, conspired with each other and with several others to import marijuana into the United States from Mexico and to distribute it in the Oklahoma City area. The evidence included wiretapped phone conversations suggesting that defendant Escareno was involved in the scheme. The government also presented the testimony of Lorenzo Garcia who, as part of a plea agreement, testified at trial and admitted his involvement in the scheme. Garcia testified that defendants Escareno and Nieto each participated in the conspiracy. Garcia testified that Nieto was hired on three occasions by Enrique Gonzales to drive a car loaded with marijuana to a stash house and to help package the marijuana. In addition, Mary Helen Gomez, another individual who admitted to being involved in the scheme, testified that on several occasions she went to El Paso for the purpose of driving trucks containing marijuana back to Oklahoma City. She testified that she had met Nieto with Lorenzo Garcia in El Paso a couple of times and that on one such occasion Nieto brought her the truck that she was supposed to drive to Oklahoma City and gave her $150 for expenses.

A. Coconspirator Hearsay. We first address defendant's contention that the trial court erred by admitting hearsay statements of an alleged coconspirator without finding that the government had shown the factual predicate for the "coconspirator exception." See Fed.R.Evid. 801(d)(2)(E). Statements that would otherwise be hearsay may be admitted under Rule 801(d)(2)(E) if a court determines that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made during the course and in furtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987). Defendant contends that much of Lorenzo Garcia's testimony was hearsay that should not have been admitted without a finding by the trial court that the testimony fell within the coconspirator exception. It is undisputed that the trial court made no such findings on the record. ¹ Despite the lack of findings, we conclude that the trial judge committed no reversible error in admitting the challenged statements.

1. Testimony admitted without objection. At the outset, we cannot fully agree with defendant's assertion that all of the testimony now challenged "was admitted over Nieto's objection." Aplt. Br. at 14, 16. The record shows that the defendant failed to raise a contemporaneous objection to most of the testimony in question. Generally, error may not be predicated on a ruling admitting evidence unless a timely objection was made. Fed.R.Evid. 103(a). Although we have recognized that an 801(d)(2)(E) issue may sometimes be preserved even as to testimony to which no specific objection was made, see United States v. Rascon, 8 F.3d 1537, 1538 (10th Cir.1993), the objections raised in this instance were not such as to preserve for review the entirety of the witness's testimony.

Preliminary to a determination of whether the challenged statements fell within the 801(d)(2)(E) exception was the question of whether the statements were hearsay at all. Lorenzo Garcia, if his testimony was to be believed, had been present with Mr. Nieto on more than one occasion and had personally observed certain aspects of Nieto's participation in the scheme to distribute marijuana. Clearly, Mr. Garcia's testimony recounting those observations would not be hearsay. On the other hand, testimony about statements made to him by Enrique Gonzales might be hearsay. The district court quite properly recognized this distinction when the defendant initially raised a hearsay objection to Garcia's testimony relating to Gonzales hiring Nieto. ² After this objection was overruled, the prosecutor attempted to have Garcia focus on events personally observed. It is clear from that record that much of Garcia's subsequent testimony was based on personal observations. Garcia testified that he and Gonzales had received a load of marijuana from Mexico, that they didn't have anyone to drive the car from El Paso to the stash house in Horizon City, that he was present when Gonzales called Nieto on the phone, that he and Gonzales thereafter picked up Nieto and took him to a parking lot in El Paso where the loaded car was located, that the car was given to Nieto, that he saw Nieto drive the car and that he subsequently learned that the car had been delivered to the stash house, that he and Gonzales paid Nieto $300 for his help after the marijuana had been sold, that this same process was repeated on two other occasions, and that on the last such occasion Mr. Nieto helped he and Gonzales package the marijuana at the stash house. It is true the record also shows that at times Garcia interjected matters he had been told by Gonzales. For example, at one point Garcia testified that he knew Nieto had been hired because Gonzales told him so, to which the defendant objected on hearsay grounds. The trial court sustained this objection and ordered the jury to disregard the answer. Tr. Vol. III at 252. At another point, when defense counsel raised a challenge to a particular answer, the trial court questioned the witness to make certain that the answers were based on personal knowledge. See id. at 252; 254.

It is clear to us that the trial court took an item-by-item approach to Garcia's testimony, distinguishing between the witness's personal observations and matters that the witness "knew" only because he had been told by Gonzales. Under these circumstances, the defendant's hearsay objections to portions of Garcia's testimony are not sufficient to preserve a challenge to other portions to which no contemporaneous objection was made. That being the case, we review the admission of the latter testimony only to determine if it constituted "plain error." See Fed.R.Evid. 103(d). "Plain error" is error that affects the fundamental right of a defendant to a fair and impartial trial. United States v. Ellzey, 936 F.2d 492, 500 (10th Cir.), cert. denied, 502 U.S. 950, 112 S.Ct. 400, 116 L.Ed.2d 350 (1991). It must be both "obvious and substantial." United States v. Torres, 53 F.3d 1129 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2599, 132 L.Ed.2d 845 (1995).

Having examined the record, ³ we conclude that admission of the testimony to which no objection was made did not constitute plain error. It is not "obvious" that any of Garcia's testimony in fact constituted hearsay. See Aplt. Br. at 15-16. For example, Garcia testified that he heard Gonzales tell defendant Nieto "to take the car." Such testimony is not hearsay because it was not offered to prove the truth of anything asserted by the declarant. See Fed.R.Evid. 801(c). Rather, it was properly admitted to show the effect the statement had on Nieto. See Boren v. Sable, 887 F.2d 1032, 1035 (10th Cir.1989) (Statement offered to show that the defendant heard and understood the statement, rather than to prove the truth of what was asserted, was offered for a non-hearsay purpose.) See also United States v. Cruz, 805 F.2d 1464, 1478 (11th Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987) (A statement in the nature of an order or a request was not capable of being true or false; it was properly admitted to show its effect upon the person who heard it.) For the same reasons, Garcia's testimony that he heard Gonzales tell Nieto to make the marijuana into "squares" and to load it into another car was admissible for a non-hearsay purpose--namely, to show the effect of the statement on the defendant. Garcia's testimony indicated that the marijuana was in fact loaded into the other car as Gonzales had instructed. Tr. Vol. III at 255-56. Aside from such statements, we recognize that some of Garcia's answers failed to disclose the means by which he had knowledge of facts to which he testified. To the extent a lack of foundation in some answers makes it unclear whether certain testimony was based on personal knowledge or hearsay, we conclude that admitting such evidence in the absence of an objection did not constitute plain error.

2. Testimony admitted over objection. In addition to the testimony previously discussed, defendant's brief cites three instances where he contends hearsay was admitted over his objection. The first of these was Garcia's testimony that Gonzales hired the defendant. We find no error in the admission of this testimony because, aside from what Garcia had been told by Gonzales, Garcia's conclusion that Nieto had been hired was...