U.S. v. Reyes-Alvarado

• Decision Date: 15 June 1992
• Docket Number: REYES-ALVARAD,Nos. 91-50052,D,91-50219,GONZALEZ-RAMIRE,s. 91-50052
• Citation: 963 F.2d 1184
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Servandoefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Martinefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1184

963 F.2d 1184

UNITED STATES of America, Plaintiff-Appellee, v. Servando REYES-ALVARADO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Martin GONZALEZ-RAMIREZ, Defendant-Appellant.

Nos. 91-50052, 91-50219.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1992.

Decided April 29, 1992.

As Amended June 15, 1992.

Kerry C. Connor, San Diego, Cal., for defendant-appellant Reyes-Alvarado; Grant L. Eddy, Ramona, Cal., for defendant-appellant Gonzalez-Ramirez.

Gonzalo P. Curiel, Asst. U.S. Atty., argued, Bruce R. Castetter and Gonzalo P. Curiel, Asst. U.S. Attys., on the briefs, San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: POOLE, WIGGINS, and LEAVY, Circuit Judges.

WIGGINS, Circuit Judge:

Appellants Servando Reyes-Alvarado and Martin Gonzalez-Ramirez were convicted of involvement in the same conspiracy to manufacture and distribute methamphetamine. Reyes-Alvarado appeals his conviction for conspiracy to possess with the intent to distribute ten kilograms of methamphetamine, and aiding and abetting the possession of the same quantity of methamphetamine with the intent to distribute.

Gonzalez-Ramirez pled guilty to aiding and abetting the possession of methamphetamine with intent to distribute and possession with intent to distribute. He challenges his guilty plea as having an insufficient factual basis. Gonzalez-Ramirez also challenges his sentence. This court has jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm both appellants' convictions.

FACTS

During July of 1989, Abalardo Gamboa-Hernandez, a confidential informant, met Martin Gonzalez-Ramirez in a San Diego jail. They discussed the possibility of Gonzalez-Ramirez selling methamphetamine to Gamboa-Hernandez upon their release.

The two talked several times by phone between February 20 and February 27, 1990. They agreed that Gonzalez-Ramirez would deliver ten pounds of methamphetamine at $7,000 per pound. Delivery was to be at a McDonald's restaurant at 4 p.m. on February 27.

On February 27, appellant Reyes-Alvarado drove a white Oldsmobile into a McDonald's parking lot in San Ysidro, California. Appellant Martin Gonzalez-Ramirez was the passenger. The Oldsmobile was followed by a pickup truck driven by Lucas Tapia-Zaragosa. Florentino Barajas-Rangel was the passenger in the pick-up.

Gamboa-Hernandez, the informant, was waiting for Gonzalez-Ramirez's arrival. After the car parked, Gonzalez-Ramirez approached Gamboa-Hernandez. Appellant Reyes-Alvarado then gave the car keys to Gonzalez-Ramirez. When questioned by Gamboa-Hernandez as to Reyes-Alvarado's identity, Gonzalez-Ramirez replied that he was "just a companion."

Gonzalez-Ramirez then led Gamboa-Hernandez toward the truck window, where Tapia-Zaragosa was sitting. Reyes-Alvarado followed, but remained about two yards away. While Gonzalez-Ramirez, Tapia-Zaragosa and Gamboa-Hernandez talked, undercover agent Antonio Huertas approached the truck. Gonzalez-Ramirez told Huertas that Tapia-Zaragosa had made the merchandise and would be the one to show it to them. Tapia-Zaragosa then got out of the truck, and Gonzalez-Ramirez gave him the car keys.

Tapia-Zaragosa opened the trunk of the car and removed a box. He got into the back seat of the car with agent Huertas, where Huertas determined that the box contained methamphetamine. Huertas took a sample into the McDonald's restroom to test it. Next, Huertas walked toward his car and told Tapia-Zaragosa that he was getting the money. Shortly thereafter, Huertas gave the arrest signal and Tapia-Zaragosa, Barajas-Rangel, and appellants Reyes-Alvarado and Gonzalez-Ramirez were arrested.

On July 17, Tapia-Zaragosa, Barajas-Rangel and appellant Gonzalez-Ramirez all entered guilty pleas. Gonzalez-Ramirez pleaded guilty to aiding and abetting the possession of methamphetamine with intent to distribute and possession with intent to distribute. On the same day, the trial of appellant Reyes-Alvarado began.

At trial, Gonzalez-Ramirez testified for Reyes-Alvarado. Reyes-Alvarado's counsel also intended to call Tapia-Zaragosa and Barajas-Rangel, but their attorneys indicated to the court that their clients would assert the fifth amendment if called to the stand. Reyes-Alvarado's counsel therefore decided not to call them to the stand.

At trial, the prosecution called Agent Huertas. On cross-examination, Reyes-Alvarado's counsel elicited statements made by Barajas-Rangel after his arrest. When questioned specifically as to what Barajas-Rangel said, Huertas testified that Barajas-Rangel said he did not know where the laboratory was located but that the agents should ask Reyes-Alvarado, who was the right-hand man of Tapia-Zaragosa.

Appellant Reyes-Alvarado testified that he did not hear anything about methamphetamine or other words indicating methamphetamine while in the parking lot. The prosecution argued that Reyes-Alvarado was the lookout man, scanning the area where the transaction took place to make sure no police officers were around. Reyes-Alvarado testified that he was looking around because he was curious, he had never been in a McDonald's parking lot and he was unfamiliar with the surrounding stores.

Reyes-Alvarado was convicted on July 19, and on July 30 he moved for a new trial. At the hearing, counsel told the court that Tapia-Zaragosa and Barajas-Rangel both had wanted to testify on behalf of Reyes-Alvarado at trial and both were still willing to do so. The court denied the motion without an evidentiary hearing.

I. Admission of Codefendant's Post-arrest Statement

Generally, a codefendant's post-arrest statement is not admissible against a defendant. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Allegations of Bruton errors are reviewed de novo. Herd v. Kincheloe, 800 F.2d 1526, 1529 (9th Cir.1986). But, "[a]ppellants may not seek reversal on the basis of their own evidentiary errors." United States v. Miller, 771 F.2d 1219, 1234 (9th Cir.1985) (appellants objected to testimony which had been elicited by defense counsel on cross-examination). See also Burgess v. Premier Corp., 727 F.2d 826, 834 (9th Cir.1984) (attorney may waive client's right to raise error on appeal by eliciting inadmissible evidence himself). The doctrine of invited error prevents a defendant from complaining of an error that was his own fault. See, e.g., United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir.1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2184, 53 L.Ed.2d 229 (1977).

In this case the statement was elicited by the defendant's own attorney. Defense counsel asked Agent Huertas if Reyes-Alvarado had made any statements when arrested. When Huertas answered negatively, the attorney asked if any of the others arrested made statements. Huertas answered affirmatively, and defense counsel asked who made statements. When Huertas responded that Barajas-Rangel had made a statement, counsel pursued his line of questioning and asked what Barajas-Rangel said. Huertas told him.

This exchange clearly indicates that appellant's counsel solicited the testimony which he now claims should have been excluded. In fact, counsel did not seek to strike this testimony at the time it was given. Instead, he continued asking the agent about what Barajas-Rangel said. From the transcript, it appears that counsel thought his pursuit of this line of questioning might benefit his client. His tactics backfired, and his client was convicted. Now appellate counsel attempts to complain of the defense-induced error. A defendant cannot have it both ways. This was invited error and therefore not grounds for reversal. We find that a defendant who elicits a statement that may be violative of Bruton may not later claim error based on the admission of that statement.

II. Sufficiency of Evidence to Convict Reyes-Alvarado

As a preliminary matter, this panel must determine whether Reyes-Alvarado may raise a sufficiency of evidence claim. He failed to object to the sufficiency of the evidence at the trial level. The Ninth Circuit has said that it will not review such a claim if the defendant failed to preserve the issue on appeal by raising it at the district court level. United States v. Smith, 924 F.2d 889, 893 (9th Cir.1991). There are some exceptions, one of which appellant maintains is applicable here. This exception, the Smith court said, is when a review will "prevent a 'manifest miscarriage of justice.' " Id. at 893-94 (citation and internal quotation omitted). This is not such a case. The evidence against Reyes-Alvarado is sufficient to sustain his conviction and there is no likelihood of a "manifest miscarriage of justice." Reyes-Alvarado's failure to raise the sufficiency of the evidence claim at the district court level precludes him from raising it on appeal.

Even were we to grant a review of the sufficiency of the evidence, Reyes-Alvarado would not prevail. There is sufficient evidence to support a conviction if, reviewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988) (citations and internal quotation omitted). Moreover, circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction. See United States v. Hernandez, 876 F.2d 774, 780 (9th Cir.) (circumstantial evidence and inferences drawn from it sufficient to support possession conviction), cert. denied, 493 U.S. 863, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989).

The prosecution established that Reyes-Alvarado was seen looking around, possibly in a counter-surveillance position. He drove the vehicle with the drugs. He was present when the drug buy took place. And, he was indicted by the statement made by Barajas-Rangel to Huertas.

There is sufficient...