United States v. Anaya

• Decision Date: 16 August 2013
• Docket Number: No. 12–3010.,12–3010.
• Citation: 727 F.3d 1043
• Parties: UNITED STATES OF AMERICA, Plaintiff–Appellee, v. Alfred ANAYA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

727 F.3d 1043

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v.Alfred ANAYA, Defendant–Appellant.

No. 12–3010.

United States Court of Appeals, Tenth Circuit.

Aug. 16, 2013.

Branden A. Bell, Olathe, KS, appearing for Appellant.

Sheri McCracken, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with her on the brief), Office of the United States Attorney for the District of Kansas, Kansas City, KS, appearing for Appellee.

Before TYMKOVICH, EBEL, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Alfred Anaya was indicted on one count of conspiracy to distribute and possess with intent to distribute cocaine, methamphetamine (“meth”), and marijuana; and on two counts of intimidation of federal witnesses. A jury convicted him on the conspiracy charges related to cocaine and meth and on both counts of intimidation. The district court sentenced him to 292 months in prison for the conspiracy count and 240 months for the intimidation counts, to run concurrently.

Mr. Anaya argues on appeal (1) insufficiency of the evidence on conspiracy, (2) prosecutorial misconduct, (3) an erroneous willful blindness instruction, and (4) cumulative error. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I. BACKGROUND ¹

Count One of the indictment charged Mr. Anaya with conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine, more than 50 grams of meth, and marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II), (b)(1)(A)(viii) and (b)(1)(D). Count One also charged him with aiding and abetting the conspiracy under 18 U.S.C. § 2. Counts Five and Six ² charged him with intimidation of federal witnesses in violation of 18 U.S.C. § 1512(b)(1) and (3).

Evidence at trial revealed an extensive drug trafficking organization (“DTO”) that bought marijuana, cocaine, and meth in California and transported the drugs for sale in Kansas. Californians Esteban Magallon–Maldanado and Cesar Bonilla–Montiel headed the DTO, which included around twenty individuals. Curtis Crow ran the DTO operations in Kansas. The evidence included intercepted calls and records of hotel, airline, and car rental costs incurred by the DTO for drug transportation. The DTO used several vehicles that had been modified to include hidden compartments to transport drugs. Mr. Anaya built the hidden compartments. He lived in California during this time.

A. Mr. Anaya's Business with the DTO

Mr. Bonilla–Montiel learned from a friend that Mr. Anaya installed compartments in cars that were difficult for police to discover and open. The DTO employed Mr. Anaya to build compartments in their vehicles. Mr. Bonilla–Montiel credited Mr. Anaya with enabling the DTO's drug loads to travel without detection from California to Kansas.

In late 2008, a secret compartment that Mr. Anaya had installed in the DTO's Ford F150 truck jammed after being stuffed with $800,000. Mr. Bonilla–Montiel and Mr. Magallon–Maldanado testified that they took the vehicle to Mr. Anaya's residence in California, where he worked on cars. Mr. Bonilla–Montiel also brought the DTO's Honda Ridgeline truck to determinewhether Mr. Anaya could install a compartment in it.

Mr. Anaya could not open the compartment in the F150 using the series of buttons that he had programmed to open it, so he took it apart. When the compartment opened and Mr. Anaya could see large amounts of money inside, he said, “I don't want to see this; I don't want any problems.” ROA, Vol. II at 682. He immediately got out of the car. He accepted $1,500 as payment for opening and repairing the F150 compartment. He continued to build compartments for the DTO, including the compartment in the Ridgeline.

Mr. Bonilla–Montiel asked Mr. Anaya to install a compartment in the Ridgeline that was large enough to hold “at least 10 kilos” and showed him a red brick to indicate the approximate size of a kilo. Id. at 711. While Mr. Anaya was building the compartment in the Ridgeline, the DTO used the compartment he installed in the F150 to transport six kilos of cocaine and five pounds of meth. Police stopped the F150 during this time as it was travelling with drugs from California to Kansas, but they could not find or open Mr. Anaya's compartment and released the F150 and its drivers. Mr. Crow sold the drugs from the F150 to two of the DTO's top distributors for approximately $70,000–$80,000.

In 2009, officers began surveillance of DTO operations, including a wiretap that intercepted calls to and from Mr. Anaya between January 30, 2009, and November 29, 2009. During this time, the officers witnessed DTO members dropping off and picking up many vehicles from Mr. Anaya's residence and Mr. Anaya meeting with known drug dealers.

On February 19, 2009, officers saw a white Toyota Sequoia arrive at Mr. Anaya's home. Mr. Bonilla–Montiel testified that he and Mr. Magallon–Maldanado drove the Sequoia to Mr. Anaya's home to pick up the Ridgeline. After Mr. Anaya showed them how to work the Ridgeline's hidden compartment, they paid him $5,000 in $10 and $20 bills and took the Ridgeline. Mr. Crow and other DTO members loaded the Ridgeline's compartment with 100 pounds of marijuana. Another DTO member, Jaime Rodriguez, drove it from California to Kansas. Mr. Crow then left the Ridgeline, still loaded with marijuana, at DTO member Noah Adams's house in Kansas for safekeeping.

On another occasion, Mr. Rodriguez transported cocaine and meth in the Ridgeline's compartment from California to Kansas. On that trip, Mr. Rodriguez was pulled over and given a speeding ticket, but no drugs were detected. After the trip, Mr. Crow kept the Ridgeline at his house in Kansas and used it as a safe for drugs and money. Mr. Rodriguez also made later trips in the Ridgeline to transport marijuana.

Mr. Bonilla–Montiel, Mr. Magallon–Maldanado, and Mr. Crow arranged for Mr. Anaya to install a hidden compartment between the back seats of the Toyota Sequoia for “4 kilos or to store money.” ROA, Vol. II at 711. Mr. Anaya charged them $4,500 for the work on the Sequoia. Mr. Anaya warned Mr. Crow not to show anyone how to open the compartment or where it was located because the police had apprehended previous cars with his compartments. Mr. Crow later unloaded cocaine from the compartment in the Sequoia. Mr. Bonilla–Montiel and other DTO members transported cocaine and proceeds from marijuana sales between California and Kansas in the Sequoia.

On March 30, 2009, Mr. Bonilla–Montiel went to Mr. Anaya's house to pick up the Sequoia and drop off a Toyota Camry so that Mr. Anaya could figure out where to put a compartment. Mr. Bonilla–Montiel testified that the compartment in the Camry was to hold drugs or money, and that it was Mr. Crow's car at the time.

On April 5, 2009, police officers stopped several DTO members during a return trip to California. Officers found $106,000 in heat-sealed packets in the Sequoia's hidden compartment and noted that someone had insulated the “sophisticated” compartment to mask the smell of drugs. ROA, Vol. II at 899.

On April 4–6, 2009, officers intercepted calls between Mr. Bonilla–Montiel and Mr. Anaya, during which Mr. Anaya said that he could put “three speakers” in the Camry for $2,500. Id. at 1046–47. Mr. Bonilla–Montiel testified “three speakers” was their code term for three kilos or three pounds of meth. Id. at 752–53. Once Mr. Anaya completed the compartment in the Camry, DTO members used the car to transport two pounds of meth from California to Kansas in the hidden compartment.

On April 24, 2009, officers stopped the Camry and found the two pounds of meth concealed in the compartment. Mr. Crow and Mr. Bonilla–Montiel then began to fear that Mr. Anaya was involved with the police. They traded the Ridgeline for an Altima and did no further business with Mr. Anaya.

On November 18, 2009, police executed a search warrant at Mr. Anaya's home and shop. Officers found more than 15 removed airbags, insulation, electrical devices required to build the hidden compartments, rifles, shotguns, pistols, bulletproof vests, and various ammunition. They found stereo wires but no speakers. Mr. Anaya confessed that he had built hidden compartments in cars for more than ten years.

B. Witness Intimidation

Mr. Bonilla–Montiel testified that, while they were both held in Community Corrections of America (“CCA”), a private detention center, Mr. Anaya asked him to sign a letter that relieved Mr. Anaya of responsibility in the case. Mr. Anaya asked him to sign in the presence of another prisoner who was known for fighting with prisoners who did not go along. He testified that he “knew if [he] didn't sign it, there was going to be trouble” and that he felt like he did not have a choice. Id. at 875. After he signed the letter, “there was not any more trouble ... everything was calm and quiet.” Id. at 880.

DTO member Jose Villanueva–Coyaso testified that Mr. Anaya asked him and another DTO member when all three were in CCA to sign papers saying they did not know Mr. Anaya. When Mr. Villanueva–Coyaso said he wanted to show the letter to his lawyer, Mr. Anaya became “very aggressive” and insulted him. Id. at 2596–97. Mr. Villanueva–Coyaso testified that Mr. Anaya said, “If you guys fall down the stairs, don't ask me for anything. I'm dead to you guys.” Id. at 2597. No one in the pod would talk to them after they refused to sign. Id. at 2597–98. After Mr. Villanueva–Coyaso signed the letters, “[e]verything went back to normal.” Id. at 2608.

C. Conviction and Sentencing

After the Government presented its case, Mr. Anaya moved for a judgment of acquittal under Rule 29. The district court denied the motion, finding there was sufficient evidence for a reasonable jury to find him guilty. The jury found Mr. Anaya guilty of the single count of conspiracy and the two counts of witness intimidation. But using a special verdict form, the jury found him responsible for conspiring to distribute and...