United States v. Arias

• Decision Date: 12 June 2001
• Docket Number: DEFENDANT-APPELLEE,No. 00-50318,PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,00-50357,PLAINTIFF-APPELLANT,00-50318
• Citation: 253 F.3d 453
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. CARLOS ERNESTO ARIAS, AKA CARLOS QUEIDA, UNITED STATES OF AMERICA,, v. CARLOS ERNESTO ARIAS, AKA CARLOS QUEIDA,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 453

253 F.3d 453 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. CARLOS ERNESTO ARIAS, AKA CARLOS QUEIDA, DEFENDANT-APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT, v. CARLOS ERNESTO ARIAS, AKA CARLOS QUEIDA, DEFENDANT-APPELLEE.

No. 00-50318, 00-50357

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 11, 2001

File June 12, 2001

Jack M. Earley, Costa Mesa, California, for the defendant-appellant-cross-appellee.

Elana S. Artson, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee-cross-appellant.

Appeals from the United States District Court for the Central District of California Robert M. Takasugi, District Judge, Presiding. D.C. No. CR-98-00007-RMT-02; D.C. No. CR-98-00007-RMT

Before: Pamela Ann Rymer, Michael Daly Hawkins and Ronald M. Gould, Circuit Judges.

Rymer, Circuit Judge

Carlos Arias was convicted of witness intimidation in violation of 18 U.S.C. § 1512(b), but acquitted of conspiracy to distribute and to possess with intent to distribute 5 kilograms of cocaine, possession with intent to distribute 4 kilograms of cocaine, and use of a handgun in relation to a drug trafficking crime. Arias appeals his conviction, which we affirm, and the government cross-appeals from sentence on the witness intimidation count.

When a defendant is convicted of tampering with a witness, the offense level for obstruction is driven by the offense level of the crime whose prosecution was obstructed. The Sentencing Guidelines accomplish this by a cross reference from USSG § 2J1.2, the obstruction guideline, to§ 2X3.1.¹ USSG § 2J1.2(c)(1) (1998). Section 2X3.1 must be applied when the resulting offense level is higher. The idea is for the penalty for obstruction to reflect the seriousness of the underlying crime being prosecuted. Here, the district court refused to apply the cross-reference because in its view, the underlying offense(s) had not been proved by at least a preponderance of the evidence. However, the cross reference applies without regard to whether the underlying offense is provable. In some cases, the court may have to determine the offense, or offenses, with respect to which the obstruction occurred. This determination is a factual one that the sentencing judge will resolve by a preponderance of the evidence. If, as may also sometimes happen, there is more than one offense with respect to which obstruction occurred, the most serious offense is to be used. USSG § 1B1.5, comment. (n.3). As the district court erred by disregarding altogether underlying offenses that had not been proved to its satisfaction, we vacate the sentence and remand for resentencing.

I.

Co-conspirators Elizabeth Trujillo and Alfred Lewis White were involved in a drug ring based in Orange County, California. Trujillo told the government that she assisted White in a sale of five kilograms of cocaine to a man named Frias. Roughly two kilograms were actually coffee, and when Frias sought to make good on the deal Trujillo turned to Arias, her boyfriend at the time, to help get cocaine. Trujillo, Arias and White arranged for two drug dealers, Daniel Garcia and Fernando Chino Ceballas, to bring two kilograms of cocaine to Arias's garage. The plan was to rob them of the drugs and then kill them. Trujillo told the government that Arias was the one who stabbed them to death. She called the dealers, directed them to the garage, and helped set fire to their car to dispose of the evidence.

Trujillo, Arias and White were all arrested. Trujillo decided to cooperate and pled guilty to conspiracy to distribute cocaine and to being an accessory after the fact to murder.

Meanwhile Trujillo and Arias were housed at the Metropolitan Detention Center (MDC) in Los Angeles pending trial. Prisoners on certain floors at MDC can speak to each other through air vents, and through the toilet pipes when the water is removed. The air vents are less private; the pipes allow private communication but only between prisoners sharing plumbing in a vertical line. MDC authorities are aware of this cell phone system.

There was a separation order between Arias and Trujillo, but it turned out that Trujillo was housed in the women's unit referred to as 9-North and Arias was housed in the Special Housing Unit (SHU) on 8-North, directly underneath Trujillo. On December 3, 1998, a male identifying himself as"Chuko" spoke to Trujillo through the air vent and told her to "Take the water out, or I'm going to put all this business on the vent." Trujillo understood that the speaker would talk about her being a cooperator on the more public vent system if she didn't enable the pipes. Fearing that other prisoners would target her if they learned this, she removed the water.

Once she removed the water, the first thing the speaker said was that he was sorry her mother had recently died. At that point, she recognized the speaker to be Carlos Arias. Arias then asked her if she knew who he was. She replied"Yeah, it's Carlos," and he laughed. Arias then said"I don't even know why I want to talk to you. You got me in here and you ruined my life." She kept quiet. Arias told her:"I want you to tell them it's a lie. I want you to call my attorney and tell him that you lied." He then suddenly said "So who lives in Riverside? Who lives in Anaheim?"

That scared Trujillo, because her children live in Riverside and Anaheim. Arias told her that she was stupid, they didn't have anything on her, and that she had opened her mouth and let it all out. She told him that the government had already found the blood in the garage, and he told her it would have matched any Hispanic male. Although Trujillo characterized this conversation as "very friendly," she explained that he wasn't friendly when he referred to her children. The conversation ended when Trujillo, worried that approaching officers would hear them talking, ended the conversation by flushing the toilet.

The two had another conversation the next day. Arias told Trujillo she should call Arias's attorney and tell him that she lied. Arias told her that she should not testify, that she should change her plea to not guilty and they didn't have anything on her. At some point in this conversation she told Arias that she was considering killing herself before testifying, and he told her not to do that, but just to tell them that she lied. Arias became suspicious she was recording him, so he flushed the toilet and ended the conversation. Trujillo characterized this conversation as not friendly; Arias was yelling at her.

For some reason Arias was moved out of SHU but on December 9, asked Lieutenant Douglas Bell, a correctional supervisor at MDC, to be moved back. During their conversation, Arias explained that he wanted back in SHU because of a woman on 9-North. Arias referred to her as "the bitch" and said "that he was charged with these two homicides and that if he could get up there to talk to her that basically this inmate that he referred to as Elizabeth was the only thing that could convict him, that her testimony was all the U.S. Attorney had." Arias also indicated that this was one of the reasons why he had to go to 8-North, to convince her not to testify, and that "if she did testify, . . . he said I'll have her kids, no more kids."²

Arias was originally indicted on drug and gun charges; a second superceding indictment added a charge of witness intimidation with intent to prevent testimony in an official proceeding in violation of 18 U.S.C. § 1512(b)(1). He and White were tried together. The jury convicted Arias on the witness tampering charge, but was unable to reach a verdict on the remaining counts. He was retried, and acquitted, on the drug and weapons charges.

At sentencing, the district court arrived at an offense level of 20 by applying USSG § 2J1.2 (obstruction of justice).³ It denied both the government's request for an upward departure and Arias's request for downward departures. The court refused to follow the Presentence Report's recommendation to apply the cross reference in § 2J1.2(c)(1) to § 2X3.1 (accessory after the fact), because the government had not proved the underlying offenses by a preponderance of the evidence. Based on a category III criminal history and an offense level of 20, the guideline range was 41-51 months. The court sentenced Arias to 41 months in custody and three years' supervised release.

Both parties appealed.

II.

Turning first to Arias's appeal, Arias argues that there was insufficient evidence to convict him of threatening Trujillo. He maintains that he merely told Trujillo to tell the truth,⁴ that he could not have been threatening her because he lacked the ability to carry anything out while at MDC, and that he did not seek both to influence and prevent her testimony as the indictment charged. Further, Arias points out that he told Trujillo not to commit suicide, which he suggests he would not have done had he been trying to prevent her from testifying.

We disagree that no rational juror could have found Arias guilty beyond a reasonable doubt. Viewing the evidence in the light most favorable to the government, as we must⁵: Arias threatened harm to Trujillo's children. Even though the discussion was "friendly," Trujillo was frightened. Whether or not credible in other respects, her testimony with respect to the threat is corroborated by Bell's testimony about Arias's conversation with him. The jury could discredit evidence that Arias told Trujillo to tell the truth given the fact that he also told her to say that she had lied before. Likewise, it could discount evidence that Arias discouraged Trujillo from suicide; the jury could reasonably conclude that his comment failed to overcome his threats against her children, and that recantation was Arias's primary objective. Nor is there incongruity between Trujillo's perception of a threat and Arias's inability to act on it; he could have had...