U.S. v. Ruiz-Castro
| Decision Date | 12 August 1996 |
| Docket Number | 95-8044,Nos. 95-8039,RAMIREZ-PARA,RUIZ-CASTR,D,95-8040,s. 95-8039 |
| Citation | 92 F.3d 1519 |
| Parties | , 45 Fed. R. Evid. Serv. 691 UNITED STATES of America, Plaintiff-Appellee, v. Arnoldo Alfredoefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Genaroefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rosario Onecimoaka "Lone Ramirez," Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Daniel G. Blythe, of Rogers, Blythe & Lewis, Cheyenne, WY, for Defendant-Appellant Arnoldo Alfredo Ruiz-Castro.
Timothy C. Kingston, of Graves & Associates, P.C., Cheyenne, WY, for Defendant-Appellant Genaro Ruiz-Castro.
James H. Barrett, Assistant Federal Public Defender, Cheyenne, WY, for Defendant-Appellant Rosario Onecimo Ramirez-Para.
David A. Kubichek, Assistant United States Attorney, Casper, WY (David D. Freudenthal, United States Attorney, Wyoming, with him on the brief), for Plaintiff-Appellee.
Before EBEL, KELLY, and LUCERO, Circuit Judges.
Defendants each were convicted of multiple charges arising out of a conspiracy to transport cocaine to, and distribute cocaine in, the Rock Springs, Wyoming area. On appeal, Defendants Arnoldo and Genaro Ruiz-Castro together raise a number of challenges to their convictions, including the alleged denial of their Sixth Amendment right to a jury venire representing a fair cross-section of the community, to confront the witnesses against them, and to testify at trial. Genaro also argues that there was insufficient evidence at trial to convict him of the charges against him, and his brother Arnoldo argues that the court abused its discretion by denying him the opportunity to take the deposition of his father who lives in Mexico. Furthermore, all three Defendants challenge various elements of their sentence. All three argue, and the government agrees, that the court impermissibly included in calculating their base offense level a quantity of cocaine which was unsubstantiated at trial. In addition, Arnoldo argues that the court improperly enhanced his sentence based on a prior conviction without affording him the opportunity for a colloquy as provided by 21 U.S.C. § 851(b); Genaro argues that the court unlawfully ordered him deported as a condition of supervised release; and Defendant Rosario Ramirez-Para argues that the court impermissibly included as relevant conduct for sentencing purposes certain transactions occurring before the commencement of the conspiracy, as well as a quantity of drugs with which he had no physical contact.
For the reasons stated below, we affirm the convictions of Genaro and Arnoldo. Regarding the sentencing issues, we agree that the court erred in estimating that the two brothers brought five ounces of cocaine to Wyoming in early or mid-June when the only witness testifying to this amount stated that he did not remember how much cocaine was involved in this transaction. Accordingly, we remand Genaro's and Arnoldo's sentences on this ground. Although the court made this same error in calculating Ramirez's drug quantity, we need not remand his sentence because subtracting the five ounces does not change his offense level and because he was sentenced at the low end of the sentencing range for his offense level. We also agree with Genaro that the court erred in not engaging in the statutorily-prescribed colloquy before enhancing his sentence based on a prior offense and thus we remand Genaro's sentence on this ground as well. Regarding Arnoldo's and Ramirez's remaining sentencing issues, we affirm for the reasons stated below.
In April of 1994, Juan Garcia agreed to work as an undercover informant with respect to illegal drug distribution activities occurring in Sweetwater, Wyoming. An investigation of Garcia's criminal history background did not reveal any prior criminal history, either in the United States or in Mexico. However, the investigation did reveal that Garcia was illegally in the United States and was in possession of false and fraudulent social security and immigration documents. Nonetheless, Robert Mizel, a Sweetwater County Sheriff's Officer, enlisted Garcia as an informant for the Wyoming Division of Criminal Investigation.
One of the subjects of the investigations conducted through Garcia was Ramirez, whom Garcia befriended in May 1994. At the end of May 1994, Garcia approached Ramirez seeking to purchase cocaine from him, to which Ramirez agreed. On May 31, Garcia went to Ramirez's house after being provided with $1,500 in "buy funds" and a wireless transmitter from the police. Ramirez was not home at the time Garcia arrived, but Ramirez's wife invited Garcia inside to wait for Ramirez. While waiting for Ramirez, one of Ramirez's customers, Becky Stroud, arrived at the house and waited with Garcia for Ramirez to return. Ramirez later returned home, accompanied by Arnoldo. Stroud and Ramirez went into another room in the house, at which point Ramirez delivered an eighth ounce of cocaine to her in exchange for $200.
While Ramirez and Stroud were in the other room, Arnoldo told Garcia that he lived in Phoenix, Arizona, discussed drugs with Garcia, and told Garcia that he was involved in cocaine trafficking and that he could get Garcia certain prices for cocaine in Phoenix. Following Stroud's departure, Ramirez, Arnoldo and Garcia went into Ramirez's bedroom. Ramirez took out a bag containing approximately a quarter kilogram of cocaine from the floor, took it into a closet area, and weighed out an ounce for Garcia. 1 Ramirez delivered the cocaine to Garcia, and Garcia paid the money to Ramirez. Arnoldo and Garcia talked further about Arnoldo obtaining more drugs in Phoenix, and Arnoldo promised to call Garcia with further information.
The following day, Ramirez came to Garcia's house to enlist Garcia's assistance in sending money to Arnoldo in Phoenix. Ramirez and Garcia went to a Western Union office, where Ramirez filled out the "send to" paperwork necessary to wire $2,300 to Phoenix. The name on the "send to" form, as well as the actual recipient of the money, was Genaro, who is Arnoldo's brother. The money itself consisted of drug proceeds Garcia earlier had assisted Ramirez in collecting from Ramirez's customers. Garcia also was present when Ramirez later made two additional Western Union wire transfers of further drug proceeds to Genaro, both of which were sent to and picked up by Genaro.
In addition to assisting Ramirez to send drug proceeds to Arnoldo via Genaro, Garcia had several telephone conversations with Arnoldo between June 1, 1994, and June 20, 1994. During the conversations, Garcia told Arnoldo that when Garcia came back from Phoenix, Ramirez wanted a quarter kilogram of cocaine and Garcia wanted a half kilogram of cocaine. Garcia testified that he knew Ramirez wanted a quarter kilogram of cocaine because he had previously talked to Ramirez about the amount.
In early or mid-June of 1994, Garcia went to Ramirez's house, where he again saw Arnoldo and was introduced to Genaro. During this meeting, Arnoldo indicated that he and Genaro had brought additional drugs to Rock Springs from Phoenix. 2 Arnoldo stated that he had to return to Phoenix, but that Genaro would stay in Rock Springs to collect money for the drugs as they were sold because the drugs brought on this trip belonged to Genaro.
The following day, Genaro and Ramirez visited Garcia at Garcia's residence. Ramirez told Garcia that he and Genaro were going out to collect proceeds from the sale of the drugs Arnoldo and Genaro had just brought from Phoenix. After Arnoldo left to return to Phoenix, Genaro returned to Garcia's house alone to get a set of digital scales belonging to Ramirez, and Garcia accompanied Genaro to another house where the scales actually were located.
When Arnoldo returned to Rock Springs, he stayed with Genaro at the residence of Jose Alberta Villa-Lopez beginning June 19, 1994. On June 20, Arnoldo brought a paper bag containing cocaine into Villa-Lopez's trailer home. Also on the morning of June 20, Garcia visited Villa-Lopez's trailer in connection with a separate investigation of VillaLopez's heroin dealing that Garcia was working with Agent Mizel. In the presence of Genaro and Villa-Lopez, Arnoldo advised Garcia that he had brought another quarter kilogram of cocaine to Rock Springs. Garcia then left and returned around noon that day.
When Garcia returned around noon, Garcia, Arnoldo, Genaro and Villa-Lopez went into the back bathroom of the trailer, where Villa-Lopez measured the heroin which Garcia had come to buy. Arnoldo then retrieved some cocaine and brought it into the bathroom. The cocaine was packaged in small plastic bags contained in a larger bag and looked, to Garcia, to be about the size of a grapefruit. Arnoldo asked Garcia if he would purchase some of the cocaine, to which Garcia responded that he had to sell the heroin first. Garcia nevertheless requested a sample of the cocaine, and Arnoldo provided him with a sample in a small sandwich bag. Garcia paid Villa-Lopez $4,500 of buy money that Agent Mizel had given Garcia to pay for the heroin, a portion of which Villa-Lopez gave to his wife, and the rest of which he gave to Genaro.
Later that day, Arnoldo, Genaro, Ramirez and Villa-Lopez all were arrested, and a search warrant was executed at Villa-Lopez's trailer. At the time of his arrest, Genaro was found to be in possession of $2,500 in buy funds used by Garcia to purchase heroin from Villa-Lopez. During the search of the trailer home, approximately 217 grams of cocaine were discovered above a kitchen cabinet, packaged in separate one-ounce quantities. Agents also found $1,000 of "buy money" that Garcia had given to Villa-Lopez for the heroin. Villa-Lopez's wife went to the police station on June 21 and delivered to Agent Mizel a package of cocaine which she had found that day in a waste...
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