U.S. v. Portillo-Quezada

• Citation: 469 F.3d 1345
• Decision Date: 29 November 2006
• Docket Number: No. 05-3102.,05-3102.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos PORTILLO-QUEZADA, also known as Luis Quezada, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

469 F.3d 1345

UNITED STATES of America, Plaintiff-Appellee, v. Carlos PORTILLO-QUEZADA, also known as Luis Quezada, Defendant-Appellant.

No. 05-3102.

United States Court of Appeals, Tenth Circuit.

November 29, 2006.

COPYRIGHT MATERIAL OMITTED

B. Kay Huff, Lawrence, Kansas, for Appellant.

Leon J. Patton, Assistant United States Attorney (Sheri McCracken, Assistant United States Attorney, on the brief) Office of the United States Attorney, Kansas City, Kansas, for Appellee.

Before McCONNELL, BALDOCK, and TYMKOVICH, Circuit Judges.

PER CURIAM.

Carlos Portillo-Quezada appeals his jury convictions arising from his leadership of a methamphetamine distribution ring in Kansas City, Kansas. Portillo-Quezada claims the trial court erred in (1) allowing him to appear at voir dire with two co-defendants who were wearing prison clothing; (2) failing to grant a mistrial when the prosecutor suggested at voir dire that his co-defendants looked like drug dealers; (3) allowing the government to present evidence of an uncharged murder on the grounds it was connected to the drug conspiracy; and (4) imposing an unreasonable sentence.

We disagree for the reasons discussed below and AFFIRM the district court.

I. Background

This case arose from a Kansas City police investigation into a large scale methamphetamine distribution ring. Police suspected the ring was organized and operated by three brothers: Portillo-Quezada and Eloy and Raul Portillo. The three brothers employed numerous other individuals as part of a drug conspiracy to (1) buy and sell drugs; (2) obtain rental properties to use for drug transactions; (3) deliver product; and (4) collect and enforce debts owed to the conspiracy.

As part of the police investigation, on April 10, 2003 an undercover police officer purchased 55 grams of methamphetamine from Portillo-Quezada in a controlled buy. The undercover officer paid for the drugs with $3,000 in marked bills. The transaction took place at an apartment rented by Carl Rieger, a co-conspirator of Portillo-Quezada, which was rented for the purpose of providing a "storefront" for methamphetamine distribution. At that time, police also suspected that members of the conspiracy were involved in the murder of Bruce Andrews, whose bullet-riddled body had been discovered on April 8.

Six hours after this transaction, Kansas City police executed a search warrant on Rieger's apartment. The officers executing the search found Portillo-Quezada hiding in a bedroom closet wearing body armor and holding a loaded 9-millimeter handgun. Methamphetamine was scattered about the apartment in plain view.

Portillo-Quezada was arrested and searched. Police found on him $1,390 cash, including $1,090 of the marked bills used by the undercover agent earlier that night. Portillo-Quezada's brother, Eloy Portillo, was also arrested at the apartment after he was found with drugs, $4,600 cash, and two receipts for the rental of a trailer later found to have been used by the conspiracy for distribution and storage. Several other individuals were arrested as a result of the raid, either at the apartment or elsewhere based on evidence found at the apartment.

Several days later, police questioned Noe Espino, whom police suspected was part of the drug ring. Espino was arrested after he confessed in a police interview that Portillo-Quezada paid him to locate Andrews, the murder victim, and assist in his killing. Espino disclosed that he lured Andrews into a car with the promise of methamphetamine and stolen wheel rims, took him to a vacant lot where Portillo-Quezada shot Andrews at least three times at point-blank range with an assault rifle. Espino told the police that he then assisted Portillo-Quezada in removing Andrews's body, cleaned the car's windshield, and then burned the car. He admitted Portillo-Quezada paid him $1,000 cash and one half-ounce of methamphetamine for these acts.

Portillo-Quezada and Espino were tried alongside a third co-defendant, Kenneth Waterbury. Waterbury's role in the conspiracy was to sell and deliver drugs. At trial, a key witness, Rieger, testified that Portillo-Quezada admitted paying Espino $4,000, half of which was in the form of wheel rims, to help kill Andrews. Rieger also testified that Portillo-Quezada told him that he believed Andrews was responsible for the arrest of his brother Raul Portillo on separate drug charges. Another witness, Stephen Ballard, testified to conversations with Portillo-Quezada in which Portillo-Quezada disclosed a desire to kill Andrews because he owed Portillo-Quezada money for drugs he had stolen. Ballard testified to another conversation in which Portillo-Quezada told him that he "killed that [] Bruce." Supp Vol. IV at 314.

A jury convicted all three defendants for their role in the conspiracy. Portillo-Quezada was convicted of: (1) conspiracy to distribute in excess of 500 grams of methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii); (2) distribution of five or more grams of methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii); (3) possession with intent to distribute five or more grams of methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 842(b)(1)(B)(viii); and (4) possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A).

II. Analysis

Portillo-Quezada claims the district court erred at trial in two ways. First, he contends the court violated his due process rights when it allowed two co-defendants to appear before the jury pool in prison clothing. That error was compounded, he claims, by the prosecutor's later reference to the way "drug dealers" look, a thinly veiled comment on the appearance of Portillo-Quezada's co-defendants. Second, he argues the district court erred in admitting testimony connecting the murder of Bruce Andrews to the drug conspiracy. Portillo-Quezada also claims that the court erred by imposing an unconstitutional sentence or, in the alternative, a sentence unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

We address each argument in turn.

A. Voir Dire

1. Appearance in Prison Clothing

On the first day of trial, Portillo-Quezada's co-defendants, Espino and Waterbury, appeared in the court room in prison clothing apparently because friends or family had been unable to arrive in time with a clothing change. Portillo-Quezada wore street clothes. Before voir dire questioning began, the district court asked the defendants if they were prepared to proceed with voir dire given Espino's and Waterbury's appearance. Each of the three defendants agreed to proceed.¹ Sometime during a break in questioning later in the day, Espino changed into civilian clothes. Waterbury, however, remained in prison clothing throughout the voir dire. Before ending voir dire, the court also asked members of the jury pool whether the defendants' appearance in prison garb would prejudice them. The potential jurors assured the court they would be impartial at trial. Each of the defendants passed the jury for cause.

Since Portillo-Quezada did not object at voir dire, we review for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.2005). Plain error exists only when there is (1) error, (2) that was plain, (3) affecting substantial rights, and (4) going to the fairness, integrity or public reputation of the judicial proceedings. Id.

"The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment." Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). The Constitution therefore prohibits any courtroom procedure that "undermines the presumption of innocence and the related fairness of the factfinding process." Deck v. Missouri, 544 U.S. 622, 630, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). It is well-settled that defendants who are compelled to appear before the jury in handcuffs, shackles or prison attire suffer prejudice which unconstitutionally undermines the presumption of innocence. In Estelle, for example, the Supreme Court found due process was compromised by "the constant reminder of the accused's condition implicit in such distinctive, identifiable attire." 425 U.S. at 504-05, 96 S.Ct. 1691. Similarly, in Holbrook v. Flynn, 475 U.S. 560, 569, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), the Court found that "prison clothes are unmistakable indications of the need to separate a defendant from the community at large" and violate the right to a fair trial. Trial courts must avoid "the sort of inherently prejudicial practice[s]" that undermine the presumption of innocence by giving the jury the impression that the defendant is guilty. Id. at 560, 106 S.Ct. 1340.

Portillo-Quezada did not wear prison clothing at voir dire or anytime during trial. He contends, however, he was prejudiced by his association with the co-defendants who wore prison garb. We disagree.

First, even if there was error, it was invited by the defendants. The district court explicitly asked all three defendants if they wanted to proceed with voir dire despite Espino's and Waterbury's appearance. Each defendant acquiesced. A party cannot induce "action by a court and later seek[] reversal on the ground that the requested action was error." United States v. Edward J., 224 F.3d 1216, 1222 (10th Cir.2000). "`Having induced the court to rely ... a party ... may not at a later stage ... use the error to set aside the immediate consequences of the error.'" United States v. Deberry, 430 F.3d 1294, 1302 (10th Cir.2005) (quoting Fryman v. Fed. Crop Ins. Corp., 936 F.2d 244, 249 (6th Cir.1991)). Portillo-Quezada cannot now complain he was prejudiced by an error he invited from the court.

Second, the Supreme Court has been quite clear that a defendant's failure to object to trial proceedings conducted in prison garb "negate[s] the presence of compulsion...