UNITED STATES of America, Plaintiff-Appellee, v. Mariano Serratos BELTRAN, Defendant-Appellant

165 F.3d 1266
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 26, 1999
Docket97-30348
StatusPublished
Cited by20 cases

This text of 165 F.3d 1266 (UNITED STATES of America, Plaintiff-Appellee, v. Mariano Serratos BELTRAN, Defendant-Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
UNITED STATES of America, Plaintiff-Appellee, v. Mariano Serratos BELTRAN, Defendant-Appellant, 165 F.3d 1266 (9th Cir. 1999).

Opinions

Opinion by Judge EZRA; Concurrence by Judge KOZINSKI.

. EZRA, District Judge:

Appellant Mariano Serratos-Beltran (“Appellant”) appeals his jury conviction and sentence for possession with intent to distribute more than 100 grams of heroin, possession with intent to distribute methamphetamine, and use of a person under 18 years of age in violation of 21 U.S.C. §§ 841(a)(1) and 861(a)(2). This court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

On December 12, 1996, a federal grand jury returned an indictment charging Appellant with possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). On January 15, 1997, a superseding indictment was returned charging Appellant with possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), and with using a person under 18 years of age to distribute heroin in violation of 21 U.S.C. § 861(a)(2), in addition to the earlier charge. On July 7, 1997, Appellant was found guilty by jury verdict of all counts in the superseding indictment. He was sentenced to serve a 235 month term of imprisonment.

The facts surrounding charges in the superseding indictment occurred on December 9, 1996. On that date, an informant working with Detective Bloom of the Lane County Interagency Narcotics Enforcement Team (“INET”), arranged to purchase eight ounces of heroin from Appellant through Donald Huglen (“Huglen”). James Johnson (“Johnson”) drove Appellant and his girlfriend, Maxima Cano Rodriguez (“Rodriguez”), to Huglen’s home in Appellant’s vehicle. Johnson and Appellant entered Huglen’s home. At that time Huglen ordered heroin, however, for some reason there was a misunderstanding, and Appellant told Rodriguez that Huglen had ordered methamphetamine.

On the way to pick up the methamphetamine, Johnson dropped Appellant off at a Mexican restaurant, and then drove Rodriguez to Appellant’s residence. Once at the residence, Rodriguez instructed her eleven-year-old child to tell Johnson to park his car in the back of the residence. Rodriguez then told the child1 to have Johnson open the hood of the vehicle. Thereafter, Rodriguez placed a plastic wrapped package containing methamphetamine in the battery compart[1269]*1269ment of the vehicle. Rodriguez, Johnson and the child got in the car and Johnson drove to pick up Appellant, and then drove to Hu-glen’s residence. Once they reached Hu-glen’s residence, Huglen informed them that he wanted heroin and not methamphetamine.

Johnson, Rodriguez, the child, and Appellant left Huglen’s residence, and went to the house of an individual named Chaparro. At Chaparro’s residence they obtained eight ounces of heroin, and Chaparro and another individual named David Maldenado, joined them as they went to meet Huglen in a Safeway parking lot. Appellant, Johnson and Rodriguez met with Huglen in the parking lot, and waited for Huglen’s customer to bring the money. Appellant then became concerned that the police were in the neighborhood, and told Johnson to get back in the car and drive them away.

The transaction was being observed by INET detectives, and at this point a patrol officer was requested to stop Appellant’s car. As the car was being stopped, Appellant handed the heroin to the child and told him to place it in his pocket. Appellant gave permission to search the vehicle, and the INET agents found 221.9 grams of methamphetamine in the engine compartment, and 173.2 grams of heroin and 2.8 grams of methamphetamine inside the child’s jacket. A search of Appellant’s home also revealed gram quantities of heroin in the kitchen, bathroom and living room.

After conviction, the district court determined that the base offense level was 30 pursuant to §§ 2D1.1 and 2D1.2 of the Sentencing Guidelines. The district court aggregated the weight of the drugs found in the vehicle and on the child with that found in the residence to determine the base offense level. The district court added two levels for conduct involving a minor pursuant to § 2D1.2(a)(l) of the Sentencing Guidelines. Moreover, the district court included a two-level increase based upon his finding that Appellant had supervised the activities of at least two other individuals pursuant to § 3B1.1 of the Sentencing Guidelines. Thus, the total offense level was determined to be 34. Appellant’s criminal history category was calculated at III resulting in a guideline range of 188 to 235. The district court sentenced Appellant to 235 months. Appellant objected to the two-level enhancement for use of an underage individual, and the two-level enhancement for a supervisory role.

I. Did the District Court Err in Finding That the Child’s Consistent Statements Were Not Hearsay?

Appellant insists that the district court erred in admitting testimony regarding the child’s consistent statements. At trial, the child testified that after Johnson, Appellant, Rodriguez, and he got back into the car in the Safeway parking lot, Johnson gave the heroin to Appellant. E.R. at 82. The child also explained that after they noticed the police, and the police lights were on, Appellant handed the heroin to him and told him to put it in his pocket. Id. Subsequent to the child taking the stand, the Government, using Detective Bloom and Detective Thoming, offered the child’s prior consistent statements, the statements that the child had made to them at the time Appellant’s vehicle was stopped by the police. The district court allowed the testimony over Appellant’s objection.

Evidentiary rulings are reviewed for an abuse of discretion, and should not be reversed absent some prejudice. EEOC v. Pape Lift, Inc., 115 F.3d 676, 680 (9th Cir.1997). Even if this court finds error, it should not reverse “if it is more probable than not that the prejudice resulting from the error did not materially affect the verdict.” United States v. Lui, 941 F.2d 844, 848 (9th Cir.1991). The relevant evidentiary issue here is whether the prior consistent statements were properly admitted. Federal Rule of Evidence 801(d)(1)(B) provides that prior consistent statements are not hearsay if they are offered “to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” In order to be considered non-hearsay under Rule 801(d)(1)(B),

(1) the declarant must testify at trial and be subject to cross-examination; (2) there must be an express or implied charge of recent fabrication or improper influence or [1270]

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165 F.3d 1266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-plaintiff-appellee-v-mariano-serratos-beltran-ca9-1999.