United States v. Balderas

237 F. App'x 921
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 25, 2007
Docket05-11240
StatusUnpublished

This text of 237 F. App'x 921 (United States v. Balderas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Balderas, 237 F. App'x 921 (5th Cir. 2007).

Opinion

PER CURIAM: *

Richard Chung and Antonio Balderas were involved in two separate drug rings in the Dallas, Texas area. Both were convicted of drug and money laundering conspiracies in a single trial and now appeal on multiple grounds. We affirm.

Balderas first contests the sufficiency of the evidence to support the conspiracy and money laundering convictions. In reviewing a challenge to the sufficiency of the evidence where the defendant properly moved for a judgment of acquittal, this court views all evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt. United States v. Carrion-Caliz, 944 F.2d 220, 222 (5th Cir.1991). In conducting this review, we accept all credibility choices and reasonable inferences made by the jury, and the standard remains the same whether the evidence is direct or circumstantial. United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.1987).

The testimony of a co-conspirator — that he saw Balderas open a hidden compartment and remove cocaine — alone is enough to sustain Balderas’s conviction for the drug conspiracy. The government introduced additional evidence of phone calls between Balderas and two other co-conspirators that also establishes guilt. A rational jury could have found Balderas’s guilt beyond a reasonable doubt.

As to the money laundering count, Balderas relies on United States v. Cuellar, 441 F.3d 329 (5th Cir.2006), rev’d en banc, 478 F.3d 282 (5th Cir.2007), as his brief was submitted before the court released its en banc decision. As the government correctly points out, the en banc court’s decision in Cuellar supports Bald-eras’s conviction for money laundering. The evidence was sufficient to support the jury’s guilty verdict on both counts.

Next, Balderas argues that the district court erred in admitting transcripts of phone conversations. These conversations were in Spanish, and the government also introduced English translations in transcript form. These translations not only included what was said but also identified each speaker. This court reviews a district court’s evidentiary rulings for abuse of discretion. United States v. Gutierrez-Farias, 294 F.3d 657, 662 (5th Cir.2002).

First, Balderas argues that a proper foundation was not laid for the admission of the English translation of conversations that took place in Spanish because the actual translator did not testify to their accuracy. While some testimony is necessary to establish the accuracy of the translation, Ignacio Arandas, even though he did not personally translate the recordings, testified to listening to every conversation and checking the accuracy of the translations. This satisfies the government’s burden of producing evidence that is “sufficient to support a finding that the matter in question is what its proponent claims.” *924 Fed.R.Evid. 901(a). The district court was within its discretion to accept Arandas’s testimony as a proper foundation for admitting the transcripts and translations.

Second, Balderas argues that the district court improperly admitted expert testimony on voice identification. A voice exemplar was made of Balderas during the investigation, and Arandas testified that after listening to the voice exemplar, he could identify the person on the recordings of phone conversations as Balderas. This is not expert testimony and does not require any special foundation beyond establishing that the person is familiar with the voice they are identifying. Fed.R.Evid. 901(b)(5). The district court’s evidentiary rulings were not in error.

Next, Balderas argues that his joint trial with Chung was unfair because much of the evidence presented at trial had nothing to do with Balderas. Balder-as’s attorney did not move for severance. If a defendant fails to move for severance at trial, the issue is considered waived. United States v. Mann, 161 F.3d 840, 862 (5th Cir.1998).

Alternatively, Balderas argues that his trial counsel was ineffective for failing to move for severance at trial and/or to request a limiting instruction be given to the jury. “[IJneffective assistance claims cannot be resolved on direct appeal unless adequately raised in the district court.” United States v. Fierro, 38 F.3d 761, 774 n. 6 (5th Cir.1994) (citing United States v. McCaskey, 9 F.3d 368, 380 (5th Cir.1993)). While this rule may sometimes be waived “when the record [provides] substantial details about the attorney’s conduct,” United States v. Bounds, 943 F.2d 541, 544 (5th Cir.1991), there was no such record development in this case, rendering the claim premature.

Finally, Balderas argues that the prosecution was allowed free rein in questioning Jose Rico, a co-conspirator who cooperated with the government and testified against Balderas. The district court allowed the government to ask leading questions after Rico testified to being unable to remember certain details or to identify voices on a tape recording. Bald-eras argues that this questioning also communicated the prosecution’s theory of the case to the jury during questioning. Some leading questions are permissible when a witness is hostile. United States v. Sutherland, 463 F.2d 641, 650 (5th Cir.1972). “Some reasonable latitude must be allowed the prosecuting attorney in refreshing a witness’ recollection, particularly in dealing with a reluctant, if not necessarily hostile, witness.” Gill v. United States, 285 F.2d 711, 713 (5th Cir.1961). We find no error here where the government was questioning a reluctant witness.

Chung asserts three arguments on appeal. First, Chung argues that his trial violated both the Speedy Trial Act and the Sixth Amendment. Three hundred fifty-four days passed between the unsealing of the indictment and the beginning of trial, more than the seventy days allowed by the Speedy Trial Act. See 18 U.S.C. §

Related

United States v. Gutierrez-Farias
294 F.3d 657 (Fifth Circuit, 2002)
United States v. Cuellar
478 F.3d 282 (Fifth Circuit, 2007)
Bobby Ray Gill v. United States
285 F.2d 711 (Fifth Circuit, 1961)
United States v. Ben Herbert Sutherland
463 F.2d 641 (Fifth Circuit, 1972)
United States v. Walter L. Nixon, Jr.
816 F.2d 1022 (Fifth Circuit, 1987)
United States v. Donny Joel Harvey
897 F.2d 1300 (Fifth Circuit, 1990)
United States v. Joe Allen Bounds
943 F.2d 541 (Fifth Circuit, 1991)
United States v. Ramiro Carrion-Caliz
944 F.2d 220 (Fifth Circuit, 1991)
United States v. Paul Douglas Tannehill
49 F.3d 1049 (Fifth Circuit, 1995)
United States v. Paul Henry Fells
78 F.3d 168 (Fifth Circuit, 1996)
State v. Fairey
646 S.E.2d 445 (Court of Appeals of South Carolina, 2007)
United States v. Cuellar
441 F.3d 329 (Fifth Circuit, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
237 F. App'x 921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-balderas-ca5-2007.