NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 4 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30012
Plaintiff-Appellee, D.C. No. 2:16-cr-00287-JLR-3 v.
BALTAZAR REYES GARCIA, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-30013
Plaintiff-Appellee, D.C. No. 2:16-cr-00287-JLR-9 v.
ANGEL SERRANO CARRENO,
UNITED STATES OF AMERICA, No. 18-30014
Plaintiff-Appellee, D.C. No. 2:16-cr-00287-JLR-4 v.
HECTOR CONTRERAS IBARRA,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-Appellant.
Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding
Argued and Submitted October 21, 2019 Seattle, Washington
Before: IKUTA and BENNETT, Circuit Judges, and DORSEY,** District Judge.
In these consolidated appeals, Baltazar Reyes-Garcia, Hector Contreras-
Ibarra, and Angel Serrano-Carreno (“Defendants”) appeal their jury convictions for
conspiracy to distribute controlled substances and other crimes. They claim that
evidentiary and procedural errors, individually and cumulatively, require reversal.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Because the facts are familiar to the parties, we do not recite them here
except as necessary.
1. The district court did not fail to protect Reyes-Garcia’s and Contreras-
Ibarra’s Confrontation Clause rights when it instructed the jury to disregard
portions of two police officers’ testimony in which they repeated statements made
to them by an informant (referred to as “CS3” in the record).
The district court’s instruction was clear, and “[w]e normally presume that a
** The Honorable Jennifer A. Dorsey, United States District Judge for the District of Nevada, sitting by designation.
2 jury will follow an instruction to disregard inadmissible evidence inadvertently
presented to it, unless there is an ‘overwhelming probability’ that the jury will be
unable to follow the court’s instructions, and a strong likelihood that the effect of
the evidence would be ‘devastating’ to the defendant.” Greer v. Miller, 483 U.S.
756, 766 n.8 (1987) (citation omitted). Here, the record does not show an
“overwhelming probability” that the jury was unable to follow the instruction, and
the testimony that the jury was instructed to disregard was not the strongest
evidence against Defendants.
And we are not persuaded by Reyes-Garcia’s and Contreras-Ibarra’s
argument that Bruton v. United States, 391 U.S. 123 (1968), applies. The
circumstances underlying the Court’s holding in Bruton are not present here. CS3
was not a codefendant who made a “powerfully incriminating” confession, and the
district court instructed the jury to disregard all of the testimony repeating CS3’s
statements to the officers. Cf. id. at 131, 135–36. Thus, Bruton is inapplicable.
We also conclude that the government, during closing, did not improperly
reference the testimony that the jury was instructed to disregard. Read in context,
the prosecutor’s challenged statement referred to portions of the officers’
testimony that the jury was not instructed to disregard. Therefore, the district court
did not err, let alone plainly err, by allowing the prosecution to reference the
December 2015 controlled buy.
3 2. We review de novo whether the district court properly found that evidence
was not “other crimes” evidence under Federal Rule of Evidence (“Rule”) 404(b).
See United States v. Soliman, 813 F.2d 277, 278 (9th Cir. 1987). Evidence that is
inextricably intertwined with the charged offense is not “other crimes” evidence.
See United States v. Loftis, 843 F.3d 1173, 1177 (9th Cir. 2016).
Contreras-Ibarra argues that the district court erred by admitting evidence of
an uncharged December 2015 drug transaction at a Yakima, Washington home.
The same Yakima home was also involved in one of the charged transactions. The
December 2015 transaction showed why the evidence related to the charged
transaction proved that the items loaded into a vehicle at the Yakima home and
later delivered to an undercover agent were illegal drugs. Thus, the district court
did not err by admitting evidence of the December 2015 drug transaction because
that evidence was inextricably intertwined with the charged offenses.
Contreras-Ibarra also argues that, under Rule 403, it was error to admit
evidence of the December 2015 transaction because it lacked any probative value.
His argument is unavailing because the evidence tended to prove that the items
loaded into the car at the Yakima home during the course of the charged
transaction were methamphetamines.
3. Assuming without deciding that the district court erred by allowing an
informant (referred to as “CS1” in the record) to testify about statements made by
4 coconspirators pursuant to Rule 801(d)(2)(E), any error was harmless. See United
States v. Foster, 711 F.2d 871, 880–81 (9th Cir. 1983). The evidence against
Reyes-Garcia was significant, and the challenged statements made by CS1 were
not the most compelling pieces of evidence offered by the government. Thus, we
conclude that any “error was more probably harmless than not.” United States v.
Freeman, 498 F.3d 893, 905 (9th Cir. 2007).
4. We review the district court’s admission of the two challenged wiretap
conversations for plain error because Reyes-Garcia did not object to their
admission. The wiretap conversation about threats that Reyes-Garcia made to a
coconspirator related to a debt owed to Reyes-Garcia was properly admitted
because it was made in furtherance of the conspiracy. See Fed. R. Evid.
801(d)(2)(E); see also United States v. Yarbrough, 852 F.2d 1522, 1536 (9th Cir.
1988). As for the second wiretap conversation, even if we viewed it as an attempt
to thwart Reyes-Garcia’s collection efforts and assumed that it was improperly
admitted because it did not further the conspiracy, Reyes-Garcia fails to show that
the error was prejudicial. See United States v. Olano, 507 U.S. 725, 734–35
(1993). Thus, the district court did not plainly err by admitting the second wiretap
conversation.
5. Reyes-Garcia argues that several statements made by Agent Weathers were
inadmissible hearsay. He made a hearsay objection to only one statement—that
5 the FBI received information from the DEA that Reyes-Garcia was working with
another drug trafficker. We review the admission of that statement for abuse of
discretion. See United States v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 4 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30012
Plaintiff-Appellee, D.C. No. 2:16-cr-00287-JLR-3 v.
BALTAZAR REYES GARCIA, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-30013
Plaintiff-Appellee, D.C. No. 2:16-cr-00287-JLR-9 v.
ANGEL SERRANO CARRENO,
UNITED STATES OF AMERICA, No. 18-30014
Plaintiff-Appellee, D.C. No. 2:16-cr-00287-JLR-4 v.
HECTOR CONTRERAS IBARRA,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-Appellant.
Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding
Argued and Submitted October 21, 2019 Seattle, Washington
Before: IKUTA and BENNETT, Circuit Judges, and DORSEY,** District Judge.
In these consolidated appeals, Baltazar Reyes-Garcia, Hector Contreras-
Ibarra, and Angel Serrano-Carreno (“Defendants”) appeal their jury convictions for
conspiracy to distribute controlled substances and other crimes. They claim that
evidentiary and procedural errors, individually and cumulatively, require reversal.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Because the facts are familiar to the parties, we do not recite them here
except as necessary.
1. The district court did not fail to protect Reyes-Garcia’s and Contreras-
Ibarra’s Confrontation Clause rights when it instructed the jury to disregard
portions of two police officers’ testimony in which they repeated statements made
to them by an informant (referred to as “CS3” in the record).
The district court’s instruction was clear, and “[w]e normally presume that a
** The Honorable Jennifer A. Dorsey, United States District Judge for the District of Nevada, sitting by designation.
2 jury will follow an instruction to disregard inadmissible evidence inadvertently
presented to it, unless there is an ‘overwhelming probability’ that the jury will be
unable to follow the court’s instructions, and a strong likelihood that the effect of
the evidence would be ‘devastating’ to the defendant.” Greer v. Miller, 483 U.S.
756, 766 n.8 (1987) (citation omitted). Here, the record does not show an
“overwhelming probability” that the jury was unable to follow the instruction, and
the testimony that the jury was instructed to disregard was not the strongest
evidence against Defendants.
And we are not persuaded by Reyes-Garcia’s and Contreras-Ibarra’s
argument that Bruton v. United States, 391 U.S. 123 (1968), applies. The
circumstances underlying the Court’s holding in Bruton are not present here. CS3
was not a codefendant who made a “powerfully incriminating” confession, and the
district court instructed the jury to disregard all of the testimony repeating CS3’s
statements to the officers. Cf. id. at 131, 135–36. Thus, Bruton is inapplicable.
We also conclude that the government, during closing, did not improperly
reference the testimony that the jury was instructed to disregard. Read in context,
the prosecutor’s challenged statement referred to portions of the officers’
testimony that the jury was not instructed to disregard. Therefore, the district court
did not err, let alone plainly err, by allowing the prosecution to reference the
December 2015 controlled buy.
3 2. We review de novo whether the district court properly found that evidence
was not “other crimes” evidence under Federal Rule of Evidence (“Rule”) 404(b).
See United States v. Soliman, 813 F.2d 277, 278 (9th Cir. 1987). Evidence that is
inextricably intertwined with the charged offense is not “other crimes” evidence.
See United States v. Loftis, 843 F.3d 1173, 1177 (9th Cir. 2016).
Contreras-Ibarra argues that the district court erred by admitting evidence of
an uncharged December 2015 drug transaction at a Yakima, Washington home.
The same Yakima home was also involved in one of the charged transactions. The
December 2015 transaction showed why the evidence related to the charged
transaction proved that the items loaded into a vehicle at the Yakima home and
later delivered to an undercover agent were illegal drugs. Thus, the district court
did not err by admitting evidence of the December 2015 drug transaction because
that evidence was inextricably intertwined with the charged offenses.
Contreras-Ibarra also argues that, under Rule 403, it was error to admit
evidence of the December 2015 transaction because it lacked any probative value.
His argument is unavailing because the evidence tended to prove that the items
loaded into the car at the Yakima home during the course of the charged
transaction were methamphetamines.
3. Assuming without deciding that the district court erred by allowing an
informant (referred to as “CS1” in the record) to testify about statements made by
4 coconspirators pursuant to Rule 801(d)(2)(E), any error was harmless. See United
States v. Foster, 711 F.2d 871, 880–81 (9th Cir. 1983). The evidence against
Reyes-Garcia was significant, and the challenged statements made by CS1 were
not the most compelling pieces of evidence offered by the government. Thus, we
conclude that any “error was more probably harmless than not.” United States v.
Freeman, 498 F.3d 893, 905 (9th Cir. 2007).
4. We review the district court’s admission of the two challenged wiretap
conversations for plain error because Reyes-Garcia did not object to their
admission. The wiretap conversation about threats that Reyes-Garcia made to a
coconspirator related to a debt owed to Reyes-Garcia was properly admitted
because it was made in furtherance of the conspiracy. See Fed. R. Evid.
801(d)(2)(E); see also United States v. Yarbrough, 852 F.2d 1522, 1536 (9th Cir.
1988). As for the second wiretap conversation, even if we viewed it as an attempt
to thwart Reyes-Garcia’s collection efforts and assumed that it was improperly
admitted because it did not further the conspiracy, Reyes-Garcia fails to show that
the error was prejudicial. See United States v. Olano, 507 U.S. 725, 734–35
(1993). Thus, the district court did not plainly err by admitting the second wiretap
conversation.
5. Reyes-Garcia argues that several statements made by Agent Weathers were
inadmissible hearsay. He made a hearsay objection to only one statement—that
5 the FBI received information from the DEA that Reyes-Garcia was working with
another drug trafficker. We review the admission of that statement for abuse of
discretion. See United States v. Dean, 980 F.2d 1286, 1288 (9th Cir. 1992). If the
statement was inadmissible hearsay, then “the government must show that the
prejudice resulting from the error was more probably harmless than not.”
Freeman, 498 F.3d at 905. We review the admission of Agent Weathers’s other
alleged hearsay statements for plain error.
Assuming without deciding that the district court erred by admitting Agent
Weathers’s statement that the FBI received information from the DEA that Reyes-
Garcia was working with another drug trafficker, the error was more probably
harmless than not. There was significant other evidence showing that Reyes-
Garcia was working with the drug trafficker.
As for the three remaining alleged hearsay statements, Reyes-Garcia fails to
show that the district court plainly erred by admitting them because he fails to
explain how he was prejudiced by their admission. See Olano, 507 U.S. at 734.
6. The district court did not plainly err by admitting Agent Weathers’s
testimony about Reyes-Garcia’s prior use of false identification. Reyes-Garcia
concedes that the error (assuming there was one) does not rise to the level of plain
error.
7. The district court did not err, let alone plainly err, by allowing officers to
6 offer lay testimony describing Reyes-Garcia’s conduct as counter-surveillance
activities. The vast majority of the officers’ testimony was about the suspicious
behavior that they observed. And the officers opined, in cursory fashion, that the
behavior was consistent with counter-surveillance activities. Thus, the district
court did not err by treating the testimony as lay testimony.
And the cases that Reyes-Garcia cites do not show that the court erred in
admitting the challenged statements, given the context in which they were made.
Because the district court did not err, Reyes-Garcia’s other arguments, which rest
on the premise that the district court should have treated the testimony as expert
testimony—that the district court should have given a dual role instruction at the
time of the testimony and that the testimony lacked the proper foundation for
expert testimony—necessarily fail.
8. Serrano-Carreno argues that the district court failed to properly consider
whether evidence about his prior drug related activity was unfairly prejudicial or
needlessly cumulative under Rule 403. We review the district court’s application
of Rule 403 for abuse of discretion. United States v. Curtin, 489 F.3d 935, 943
(9th Cir. 2007). If the district court abused its discretion, we then consider
“whether the government successfully bore its burden of proof that the error in
admitting the evidence was harmless.” United States v. McElmurry, 776 F.3d
1061, 1070 (9th Cir. 2015).
7 Assuming without deciding that the district court erred by failing to conduct
a proper Rule 403 balancing analysis, any error was harmless. The evidence
against Serrano-Carreno was overwhelming.
9. Defendants fail to show that the district court abused its discretion when it
determined that no further inquiry was necessary after it received a note from a
juror inquiring who had knowledge about the juror’s information. Defendants
argue that, under United States v. Simtob, 485 F.3d 1058 (9th Cir. 2007), the
district court was required to conduct an inquiry because the note raised a concern
about potential bias. Simtob is not applicable because the note here, unlike the
circumstances in Simtob, did not present a “colorable claim of juror bias” based on
a report of indirect coercive contact towards the juror. Id. at 1064 (quoting Dyer v.
Calderon, 151 F.3d 970, 974 (9th Cir. 1998)).
10. The district court did not plainly err by allowing the prosecution to make
certain statements about “toxic” drugs being “pour[ed]” into the “community.” In
context, it was not obvious that the statements asked the jury to convict Defendants
in order to protect the community from drugs. Rather, it would have been
reasonable for the district court to interpret the statements as asking the jury to
make reasonable inferences based on the evidence. See United States v. Atcheson,
94 F.3d 1237, 1244–45 (9th Cir. 1996). Indeed, defense counsel elicited testimony
from an expert in which the expert stated that “every ingredient in
8 methamphetamine is toxic to the human body.”
Defendants also argue that they were denied their right to a fair trial because
the prosecution improperly disparaged defense counsel. We review this claim for
abuse of discretion and harmless error because Defendants made this objection
below. See United States v. Tam, 240 F.3d 797, 802 (9th Cir. 2001); United States
v. Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013). “Under harmless error review,
claims of prosecutorial misconduct are ‘viewed in the entire context of the trial,’
and reversal ‘is justified only if it appears more probable than not that prosecutorial
misconduct materially affected the fairness of the trial.’” Ruiz, 710 F.3d at 1082
(quoting United States v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005)).
Assuming without deciding that it was error to allow the prosecution to
make the statements referencing defense counsel, any error was harmless. Given
the substantial evidence against Defendants, we conclude that they have failed to
show that the prosecutor’s statements referencing defense counsel more probably
than not materially affected the fairness of the trial.
11. Defendants argue that the district court erred by identifying certain exhibit
numbers for the jury without informing the jury to not give the exhibits undue
weight. We review this claim for plain error because Defendants did not make this
specific objection below. See United States v. Stinson, 647 F.3d 1196, 1217 (9th
Cir. 2011).
9 None of the cases that Defendants rely on clearly establish that a court errs
by identifying specific exhibit numbers for the jury without informing the jury to
not give the exhibits undue weight. Thus, we conclude that Defendants have failed
to show that the district court committed plain error.
12. All Defendants assert a cumulative error claim. “In reviewing for
cumulative error, the court must review all errors preserved for appeal and all plain
errors.” United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993). Our
cumulative error analysis also considers errors not rising to the level of plain error.
United States v. Fernandez, 388 F.3d 1199, 1256–57 (9th Cir. 2004). We affirm if
“it is more probable than not that, taken together,” the cumulative effect of the
errors “did not materially affect the verdict.” Id. at 1257.
In light of our conclusions above, we consider these possible errors in our
cumulative error analysis for Reyes-Garcia: (1) the admission of CS1’s testimony
about statements made by coconspirators; (2) the admission of one challenged
wiretap conversation; (3) the admission of Agent Weathers’s four statements that
Reyes-Garcia challenges as inadmissible hearsay; (4) the admission of Agent
Weathers’s testimony about Reyes-Garcia’s prior use of false identification; (5) the
admission of the prosecution’s statements regarding toxic drugs and defense
counsel; and (6) the district court’s decision to identify exhibit numbers for the jury
without informing the jury to not give the exhibits undue weight. Given the
10 significant amount of evidence against Reyes-Garcia, we conclude that it is more
probable than not that the cumulative effect of these claimed errors did not
materially affect the verdict.
We consider these possible errors in our cumulative error analysis for
Contreras-Ibarra: (1) the admission of the prosecution’s statements regarding toxic
drugs and defense counsel; and (2) the district court’s decision to identify exhibit
numbers for the jury without informing the jury to not give the exhibits undue
weight. Given the significant amount of evidence against Contreras-Ibarra, we
conclude that it is more probable than not that the cumulative effect of these
claimed errors did not materially affect the verdict.
Finally, we consider these possible errors in our cumulative error analysis
for Serrano-Carreno: (1) the district court’s failure to conduct a proper Rule 403
balancing analysis about his prior drug related activity; (2) the admission of the
prosecution’s statements regarding toxic drugs and defense counsel; and (3) the
district court’s decision to identify exhibit numbers for the jury without informing
the jury to not give the exhibits undue weight. Given the overwhelming evidence
against Serrano-Carreno, we conclude that it is more probable than not that the
cumulative effect of these claimed errors did not materially affect the verdict.
AFFIRMED.