United States v. Piper, 011019 FED5, 17-10913

Docket Nº:17-10913
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. DAVID PIPER, JR., also known as 'D'; CARLOS CORTINAS, Defendants - Appellants
Judge Panel:Before JOLLY, DENNIS, and HIGGINSON, Circuit Judges.
Case Date:January 10, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

DAVID PIPER, JR., also known as "D"; CARLOS CORTINAS, Defendants - Appellants

No. 17-10913

United States Court of Appeals, Fifth Circuit

January 10, 2019

Appeals from the United States District Court for the Northern District of Texas

Before JOLLY, DENNIS, and HIGGINSON, Circuit Judges.

PER CURIAM

David Piper, Jr. and Carlos Cortinas were convicted by a jury of conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B) from approximately March 2015 through January 2016. The district court sentenced Piper to 235 months of imprisonment and five years of supervised release and Cortinas to 168 months of imprisonment and five years of supervised release. On appeal, Piper challenges multiple aspects of his conviction and sentence. Both he and Cortinas also contend that the district court erred in instructing the jury. We AFFIRM.

I. Factual and Procedural Background

In 2015, the Drug Enforcement Administration (DEA) initiated an investigation into the drug distribution activities of Robert Rosales in and around the Dallas/Fort Worth area in Texas. The investigation revealed that Rosales obtained methamphetamine from Mexico for further distribution. Jose Albino Garza, Rosales's friend, often assisted Rosales with his drug-trafficking activities, including driving Rosales to conduct drug transactions. In 2013 or 2014, Rosales began distributing methamphetamine to Cortinas, his childhood friend. Cortinas purchased methamphetamine by the pound to be distributed to at least three individuals in Missouri, including Piper.

In August 2015, Piper traveled to Fort Worth to purchase three pounds of methamphetamine from Rosales through Cortinas. In September 2015, Cortinas, Rosales, and Garza traveled to Bolivar, Missouri, to deliver three pounds of methamphetamine to Piper. After receiving the methamphetamine, Piper called Cortinas to complain about the quality of the drugs, and Rosales agreed to exchange the methamphetamine and directed Garza and Chadwick Hernandez to bring Piper another three pounds. On September 8, 2015, while returning to Fort Worth after exchanging the methamphetamine with Piper, Garza and Hernandez were pulled over, discovered with approximately 2.85 pounds of methamphetamine, and arrested.

While Garza was detained, Piper obtained more methamphetamine directly from Rosales. On three occasions, Piper traveled to Arlington, Texas, each time obtaining three additional pounds of methamphetamine. When Garza was released from custody, he delivered methamphetamine to Piper in Missouri on three more occasions, again selling him three pounds of methamphetamine each time, for a total of nine additional pounds. On another occasion, Piper traveled to Arlington, Texas, to meet Garza and bought three additional pounds of methamphetamine.

Rosales and Garza were arrested in January 2016, the same day Garza was scheduled to deliver three more pounds of methamphetamine to Piper in Missouri. Piper attempted to contact Rosales and Garza by text message after their arrest. In September 2016, a federal arrest warrant issued for Piper, who was eventually arrested in November. Piper was shown a photograph of Cortinas and stated that Cortinas "looked familiar," but he did not know his name or have a relationship with him. Cortinas was arrested on January 5, 2017. Cortinas admitted that he had known Rosales a long time and that he knew Piper but stated that he had not spoken to Piper in over a year and did not put Rosales in contact with Piper.

Piper and Cortinas were originally indicted for conspiracy to possess with intent to distribute 50 grams or more of a mixture of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). By subsequent superseding indictment, they were charged instead with conspiracy to possess with intent to distribute 500 grams or more of a mixture of methamphetamine in violation of 21 U.S.C. § 846 and § 841(a)(1) and (b)(1)(A). In separate proceedings, Rosales and Garza pleaded guilty to other related charges and agreed to cooperate with the Government against Piper and Cortinas.

A few days before the trial was set to begin, Piper filed applications for writs of habeas corpus ad testificandum for two potential defense witnesses: Spencer Glen Ely1 and Kiriakis Castle.2 The next day, the district court ordered the Government to issue an Attorney Special Request (ASR) to produce Ely and Castle. Castle indicated through counsel that he would invoke his Fifth Amendment right against self-incrimination. Additionally, the Government notified the court that Ely was undergoing an examination to determine whether he was competent to stand trial and could not be produced until the study was complete, or unless the judge who ordered the study communicated directly with Ely's physician and ordered Ely released. Piper filed an opposed motion to continue the trial until Ely was available to testify, which the district court denied.

Piper's and Cortinas's joint trial was held on March 20, 2017. Both Garza and Rosales testified and identified Piper in court as the person that bought methamphetamine from them in Missouri, and Rosales also identified Cortinas. Garza testified that he sold three pounds of methamphetamine to Piper on multiple occasions and authenticated cell phone and GPS evidence submitted into the record connecting Piper to the drug transactions. Rosales then testified that he met Piper through Cortinas; that Piper originally bought methamphetamine from Cortinas but eventually cut Cortinas out and bought directly from Rosales; that Rosales traveled to Piper's home in Missouri with Garza and Cortinas to deliver methamphetamine; that Rosales agreed to send Garza to exchange three pounds of methamphetamine after Piper complained about its quality; that, after Garza was arrested, Piper bought methamphetamine directly from Rosales in Arlington, Texas; that Garza resumed selling methamphetamine to Piper after he was released from custody four more times; and that, on the day Rosales and Garza were arrested in January 2016, Garza was supposed to go to Missouri to sell Piper methamphetamine. Both Garza and Rosales testified that they hoped to receive a lesser sentence in exchange for cooperating with the Government. Additionally, the defense called Castle to the witness stand, but he was dismissed after he invoked his Fifth Amendment right against self-incrimination.

The jury found Piper and Cortinas guilty as to "Count One of the Indictment." Piper then filed an opposed motion for a new trial, which the district court denied. At sentencing, the district court adopted the factual findings and calculations in the presentence report (PSR). Piper's resulting total offense level was 38, his criminal history was I, and his Guidelines range was calculated at 235 to 293 months. Piper was sentenced to 235 months in prison, five years of supervised release, and a $100 special assessment. Cortinas was sentenced to 168 months of imprisonment, five years of supervised release, and ordered to pay a special assessment of $100. Piper and Cortinas appealed.

II. Standard of Review

We generally "review violations of the compulsory process clause de novo." United States v. Tuma, 738 F.3d 681, 688 (5th Cir. 2013). But when a defendant does not raise a compulsory-process objection in the district court, we review for plain error. See United States v. Gonzales, 436 F.3d 560, 577 (5th Cir. 2006). A district court's denial of a continuance is reviewed for abuse of discretion. See United States v. Mesquiti, 854 F.3d 267, 275 (5th Cir. 2017); see also United States v. Garcia-Pagan, 804 F.3d 121, 124 (1st Cir. 2015) (reviewing continuance ruling for abuse of discretion even when defendant asserts a compulsory-process claim). We also review a district court's denial of a motion for a new trial for abuse of discretion. See Olibas v. Barclay, 838 F.3d 442, 448 (5th Cir. 2016). A district court's factual determination regarding the quantity of drugs used to establish a base offense level for sentencing purposes is reviewed for clear error. See Turner, 319 F.3d at 724. Factual findings are "not clearly erroneous if they are plausible in light of the record as a whole." Id. (citation omitted). Generally, we review jury instructions, including the verdict form, "for abuse of discretion, examining whether the court's charge, as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of the law applicable to the factual issues confronting them." See United States v. Spalding, 894 F.3d 173, 187 (5th Cir. 2018) (citation omitted).

III. Discussion

A. Piper's Claims

1. Fifth and Sixth Amendments

Piper argues that he was...

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