United States v. Ibarra-Diaz

• Decision Date: 09 November 2015
• Docket Number: No. 13–3130.,13–3130.
• Citation: 805 F.3d 908
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jesus IBARRA–DIAZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

805 F.3d 908

UNITED STATES of America, Plaintiff–Appellee

v.Jesus IBARRA–DIAZ, Defendant–Appellant.

No. 13–3130.

United States Court of Appeals, Tenth Circuit.

Nov. 9, 2015.

Rick E. Bailey of Conlee, Schmidt & Emerson, LLP, Wichita, KS (Laura B. Shaneyfelt of Ney, Adams & Shaneyfelt, Wichita, KS, on the brief), for Defendant–Appellant Jesus Ibarra–Diaz.

Alan G. Metzger, Assistant United States Attorney, Wichita, KS (Barry R. Grissom, United States Attorney, and James A. Brown, Assistant United States Attorney, Topeka, KS, on the brief), for Plaintiff–Appellee.

Before HARTZ, O'BRIEN, and HOLMES, Circuit Judges.

Opinion

HOLMES, Circuit Judge.

Jesus Ibarra–Diaz appeals from his conviction for possession with intent to distribute fifty grams or more of a mixture or substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(viii), and 18 U.S.C. § 2. Mr. Ibarra–Diaz asserts four claims of error on appeal: (1) the district court violated his Sixth Amendment confrontation rights by admitting various statements of testimonial hearsay at trial; (2) he was unfairly prejudiced by the admission of inflammatory testimony from the government's key witness; (3) he was deprived of a unanimous jury verdict by an allegedly duplicitous indictment; and (4) there was insufficient evidence produced at trial to support his conviction. Exercising jurisdiction under 28 U.S.C. § 1291, we reject these challenges and affirm Mr. Ibarra–Diaz's conviction.

I

In January 2013, an undercover detective with the Wichita Police Department was investigating drug-trafficking activity with the help of a confidential informant (“CI”). The CI called the detective and identified Mr. Ibarra–Diaz as a potential target for the investigation. The CI told the detective that Mr. Ibarra–Diaz had several pounds of methamphetamine for sale; he provided Mr. Ibarra–Diaz with the detective's phone number. Working through the CI, the detective arranged to buy one pound of methamphetamine for $18,000.

On January 8, 2013, the undercover detective received a phone call from Mr. Ibarra–Diaz's girlfriend and co-defendant, Ana Valeriano–Trejo. She began the conversation with a question: “Meet up with us somewhere?” R., Vol. 4, at 1 (Tr. of Gov't Ex. 35, dated Jan. 8, 2013). The undercover detective suggested that they meet at the Towne West shopping mall. Ms. Valeriano–Trejo agreed, and asked the detective, “Ok, yeah, he thinks you want to talk to him first or you want just get ready, get him, get him be ready?” Id. The detective replied, “Yeah, I want him to be ready.” Id. They agreed to meet at a specified location at the Towne West shopping mall in approximately thirty minutes. Ms. Valeriano–Trejo told the detective that she would be coming along, and indicated that they would be driving a gold Malibu. The detective testified that during the conversation he could hear a male voice in the background saying, “see if he wants to talk first.” R., Vol. 3, at 39 (Trial Tr., dated May 7–9, 2013).

After the phone call, the detective held a debriefing session with other officers to prepare for the planned drug purchase. The team planned to conduct a “buy/bust” operation, meaning in this instance that officers would move in and arrest the suspect as soon as the detective saw the drugs and gave a signal. The detective assigned a surveillance position to each member of the team. Then, wearing a body wire, he drove to the Towne West shopping mall and parked at the agreed-upon spot.

After approximately forty-five minutes, a blue Chevrolet Malibu arrived and parked, facing in the opposite direction, next to the detective's vehicle. Mr. Ibarra–Diaz was driving, and was accompanied by Ms. Valeriano–Trejo and an eight-month-old baby. The detective got out of his vehicle and into the back seat of the Malibu. Ms. Valeriano–Trejo engaged in small talk with the detective, and asked Mr. Ibarra–Diaz, “Where is Ricardo[?]” R., Vol. 4, at 8 (Tr. of Gov't Ex. 36).¹ Mr. Ibarra–Diaz told her, “In a little bit he will bring it,” and instructed her to “call him to come over here.” Id. Ms. Valeriano–Trejo explained to the detective that “Ricardo” was “just our friend.” Id.

Almost immediately thereafter, a brown Ford Explorer SUV arrived and parked on the opposite side of the detective's vehicle. The driver of the Explorer, Ricardo Estrada, got out of his vehicle and spoke with Mr. Ibarra–Diaz through the open driver's-side window of the Malibu. The detective was unable to fully hear Mr. Estrada's side of the conversation, but the body wire recorded Mr. Ibarra–Diaz telling Mr. Estrada, “Hey man, get it out and bring it in ... get it and bring it in.” Id. at 9. The detective testified that Mr. Estrada continued to talk to Mr. Ibarra–Diaz while looking at the detective “real hard.” R., Vol. 3, at 53. According to the detective, at that point he heard Mr. Estrada tell Mr. Ibarra–Diaz that the detective was a police officer. Although the detective did not immediately recognize Mr. Estrada, he later recalled that five weeks earlier he had interviewed Mr. Estrada as a potential CI.

Mr. Ibarra–Diaz told the detective, “Go up to the car.” R., Vol. 4, at 9. The detective got out of the Malibu and confronted Mr. Estrada, saying, “You think I am a cop.” Id. At that point, Mr. Ibarra–Diaz drove away, telling Mr. Estrada, “I am going over there.” Id. at 10. Officers intercepted the Malibu, and took Mr. Ibarra–Diaz and Ms. Valeriano–Trejo into custody. The detective arrested Mr. Estrada and another officer searched the Explorer. Over the vehicle's right wheel well was a plastic Walmart bag containing suspected methamphetamine.

Once inside a patrol vehicle, Mr. Estrada voluntarily informed the detective that over a pound of methamphetamine could be found at the residence that he shared with Mr. Ibarra–Diaz and Ms. Valeriano–Trejo. Officers obtained a warrant to search the residence. They uncovered a number of pertinent items, including methamphetamine. Specifically, officers recovered documents with Mr. Ibarra–Diaz's name and picture on them. In one of the bedrooms, they found men's clothing, women's clothing, and a diaper bag containing a plastic watch box with $1440 inside. The bedroom believed to be Mr. Estrada's contained a methamphetamine pipe. In the kitchen area, Officers found Saran Wrap, which they surmised was used to package drugs. Notably, the officers also found a five-gallon tub of tile adhesive in a utility area connected to the kitchen. Inside the tub, they discovered another plastic Walmart bag—like the one previously discovered in the vehicle's wheel well—that contained roughly one pound of suspected methamphetamine.

A forensic chemist analyzed samples taken from the two plastic Walmart bags and confirmed that both held substances containing methamphetamine. Laboratory tests revealed that the bag taken from the Explorer contained 447.8 grams of a substance that was 72% pure methamphetamine (i.e., 322.41 grams of actual methamphetamine) and the bag taken from the residence held 432.1 grams of a substance that was 79% pure methamphetamine (i.e., 341.35 grams of actual methamphetamine).

A federal grand jury sitting in the United States District Court for the District of Kansas returned an indictment charging Mr. Ibarra–Diaz, Ms. Valeriano–Trejo, and Mr. Estrada with one count of possession with intent to distribute fifty grams or more of a mixture or substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(viii), and 18 U.S.C. § 2. Mr. Ibarra–Diaz exercised his right to a jury trial. At the close of the government's case-in-chief, he moved for a judgment of acquittal. See Fed.R.Crim.P. 29(a). Citing the “overwhelming evidence” in support of the government's case, the district court denied the motion. R., Vol. 3, at 190. At that point, Mr. Ibarra–Diaz rested his case without testifying or presenting any evidence of his own. After deliberating, the jury pronounced him guilty.

A Presentence Investigation Report (“PSR”) prepared by the U.S. Probation Office found that Mr. Ibarra–Diaz was responsible for possession with intent to distribute 663.76 grams of actual methamphetamine —the sum of the amounts contained in the two Walmart bags. Under the U.S. Sentencing Guidelines Manual (“U.S.S.G.”),² this drug quantity yielded a base offense level of thirty-six. See U.S.S.G. § 2D1.1(c)(2) (setting base offense level at thirty-six for at least 500 grams but less than 1.5 kilograms of actual methamphetamine). Applying a base offense level of thirty-six to a criminal history category of I, the PSR calculated an advisory Guidelines imprisonment range of 188 to 235 months, with a statutory minimum of five years. The court imposed a sentence of 188 months' imprisonment—the bottom of Mr. Ibarra–Diaz's Guidelines range—followed by four years of supervised release.

II

Mr. Ibarra–Diaz challenges his conviction on four grounds. First, he argues that the district court erroneously admitted a number of statements in violation of his rights under the Confrontation Clause. Second, he claims that the district court allowed the detective to present irrelevant and inflammatory testimony, and he consequently was denied a fair trial. Third, he contends that certain evidence that the district court admitted into evidence rendered the indictment duplicitous and deprived him of a unanimous jury verdict. Fourth, and finally, he argues that there was insufficient evidence to support his conviction; thus, the district court's judgment is fatally infirm. We address and reject each of these arguments in turn.

As an initial matter, Mr. Ibarra–Diaz raises all but his sufficiency-of-the-evidence challenge for the first time on appeal. We generally review an asserted ground for reversal that a party fails to present in the district court under the “rigorous plain-error standard.” United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir.2011). To obtain relief under this standard, a defendant:

must

...