United States v. Garcia

• Decision Date: 11 July 2014
• Docket Number: No. 12–3009.,12–3009.
• Citation: 757 F.3d 315
• Parties: UNITED STATES of America, Appellee v. Ignacio Leal GARCIA, also Known as Camilo, also known as Tuerto, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

757 F.3d 315

UNITED STATES of America, Appellee

v.Ignacio Leal GARCIA, also Known as Camilo, also known as Tuerto, Appellant.

No. 12–3009.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 10, 2014.

Decided July 11, 2014.

Appeal from the United States District Court for the District of Columbia (No. 1:04–cr–00446–42).

Carmen D. Hernandez, appointed by the court, argued the cause and filed the brief for appellant.

Michael A. Levy, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Randall W. Jackson, Special Assistant U.S. Attorney.

Before: GRIFFITH, KAVANAUGH and SRINIVASAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

The Fuerzas Armadas Revolucionarias de Colombia (FARC) is a left-wing guerilla group that has waged a violent insurgency against Colombia's government for much of the last fifty years. FARC finances its operations largely through manufacturing and trafficking cocaine, which it exports throughout the world. Appellant Ignacio Leal Garcia was part of the regional leadership of FARC and was convicted by the district court of conspiring to import cocaine into the United States. Garcia challenges the fact of his conviction and the length of his sentence, but for the reasons set forth below we reject his arguments.

I

FARC acts through approximately seventy regional organizational units called “Fronts.” For at least ten years, until 2009, Garcia was part of the leadership of the Tenth Front, which operates in the Arauca region of Colombia. March 2006 a grand jury indicted Garcia and charged him with conspiring to smuggle into the United States five kilograms or more of cocaine in violation of 21 U.S.C. § 960(a). He was tried by a jury in 2011.

Although Garcia called no witnesses, his theory of the case was that he was involved only in FARC's political activities and had nothing to do with its drug trafficking operations. But the government offered extensive evidence of his drug-trafficking activities. For example, the government submitted a letter on FARC letterhead, signed by Garcia and written in handwriting that witnesses identified as his, which advised members of a rival guerilla organization not to disturb a group of FARC's coca farmers. The government also introduced photographs of Garcia in his FARC military uniform holding an assault rifle and a recording of radio intercepts of Garcia speaking with other FARC members about their weapons. A Colombian civilian testified that he had repeatedly transported cocaine, hidden in a compartment of his truck, at Garcia's command. Another individual, who had worked undercover at the direction of the Colombian Army, testified that he had repeatedly purchased large quantities of cocaine from Garcia. He also testified that Garcia had directed him to help arrange eighty-seven separate airplane flights, each carrying hundreds of kilograms of cocaine primarily destined for the United States. He further explained that on more than one occasion he had seen the planes returned filled with cash, often U.S. dollars, and had helped deliver that cash to Garcia. Finally, eight former members of FARC, now in the “ Reinsertado ” Colombian witness protection program, testified that Garcia had at times served as the Tenth Front's financial leader, managing the manufacture and export of cocaine to the United States, Europe, and Mexico.

The jury found Garcia guilty. Because of the quantity of drugs involved in the conspiracy, the district court determined that Garcia's crime carried a potential sentence of life imprisonment and a mandatory minimum of ten years. See21 U.S.C. § 960(b)(1). He was sentenced to 294 months' imprisonment.

We have jurisdiction to hear Garcia's appeal under 28 U.S.C. § 1291. We consider the appeal of his conviction in Part II and the appeal of his sentence in Part III.

II

The central difficulty Garcia faces in challenging his conviction is that the evidence of his guilt was overwhelming. That mountain of evidence against him renders his various arguments insignificant. Even if Garcia were right and the district court erred in the ways he asserts, none of the alleged errors—nor even all in combination—call the verdict into doubt. See United States v. Powell, 334 F.3d 42, 45 (D.C.Cir.2003) (setting forth the harmless error standards for constitutional and non-constitutional errors).

A

At trial, Garcia tried to impeach the Reinsertado witnesses with reports made by the Colombian military summarizing what the witnesses had told authorities in interviews conducted just after their defections from FARC. None of the reports made any mention of Garcia as a financial leader, a fact he tried to use to show that the testimony of the Reinsertado witnesses describing his extensive involvement in FARC's drug trafficking was false.

Garcia contends that the district court refused to allow him to use the reports to impeach the Reinsertado witnesses in violation of the Confrontation Clause of the Sixth Amendment, which “secure[s] for the opponent the opportunity of cross-examination.” Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (internal quotation marks and emphasis omitted). We are baffled by Garcia's argument on this point because it is clear from the trial record that the district court did allow Garcia to use the reports as a basis for cross-examination by asking witnesses whether they had mentioned Garcia during their intake interviews. If a witness could not remember, the court allowed Garcia to use the reports to refresh the witness's memory. Beyond making a general assertion that he was denied the ability to confront the Reinsertado witnesses with these reports, Garcia utterly fails to specify which of the court's rulings were unreasonable and how, if the court had ruled differently, he would have been able to further undermine the credibility of the Reinsertado witnesses.

But even had the court misstepped in restricting Garcia's use of the reports, its error would have been harmless. See id. at 684, 106 S.Ct. 1431 (applying harmless error analysis to Confrontation Clause claim). The reports offer weak proof, if any, of inconsistency or omission by the Reinsertado witnesses because there are ample reasons why the reports would not mention Garcia. In the first place, the reports are only summaries of interviews and contain but a small portion of what the witnesses told the military about their time in FARC. Furthermore, the person conducting the interviews may not have asked any questions that required the witness to mention Garcia's name or his role and, if a witness did refer to Garcia, there may not have been a reason to include that detail in the report. And most importantly, there was overwhelming evidence of Garcia's leadership role in FARC other than the testimony of the Reinsertado witnesses. Even if Garcia had somehow been able to use the reports to show that all eight of the Reinsertado witnesses were lying during trial, the testimony from other witnesses, the photographs, the handwritten letter by Garcia, and the radio intercept clearly established Garcia's role in FARC's drug trafficking. See Mitchell v. Esparza, 540 U.S. 12, 17–18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) (“A constitutional error is harmless when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (internal quotation marks omitted)); see also United States v. Wilson, 605 F.3d 985, 1014 (D.C.Cir.2010) (per curiam).

B

Garcia sees a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which forbids the “suppression by the prosecution of evidence favorable to an accused,” id. at 87, 83 S.Ct. 1194, in the government's disclosure of the Reinsertado reports only two weeks before trial. But Garcia fails to tell us when the government first learned of the reports, what efforts were made to gain them from the Colombian government, or how long after obtaining the reports the government disclosed them. In fact nothing in the record suggests anything other than that the government disclosed the reports to Garcia as soon as it obtained them from the Colombian authorities.

Moreover, the timing of the disclosure in and of itself cannot make out a Brady violation. To establish a Brady violation, Garcia “must show a reasonable probability that an earlier disclosure would have changed the trial's result.” United States v. Andrews, 532 F.3d 900, 907 (D.C.Cir.2008) (internal quotation marks omitted); see United States v. Johnson, 519 F.3d 478, 488 (D.C.Cir.2008) (“The defendant bears the burden of showing a reasonable probability of a different outcome.”). Garcia's brief fails to address, in even the most cursory fashion, how earlier disclosure of the Reinsertado reports would have changed the outcome at trial. Although Garcia suggested for the first time at oral argument that earlier disclosure might have allowed him to find a witness who could lay an adequate foundation for the admission of the reports as business records, he made no showing at all that it was the government's delay that hampered his efforts. In the two weeks before trial that Garcia had the reports, he neither sent for a Colombian witness nor asked for a continuance to allow more time to do so. And even assuming Garcia had found such a witness, we have already explained why he has failed to show that admitting the reports was likely to have changed the trial's outcome.

C

Garcia faults the district court for admitting into evidence two exhibits for which he claims the prosecution had failed to establish an adequate chain of custody. “Chain of custody” evidence typically “entail[s] testimony that traces the [possession] of the item from the moment it was found to its appearance in the courtroom.” 2 McCormick On Evidence § 213, at 14 (7th ed.20...