United States v. Cesareo-Ayala

576 F.3d 1120, 2009 U.S. App. LEXIS 18704, 2009 WL 2450288
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 12, 2009
Docket08-3201
StatusPublished
Cited by15 cases

This text of 576 F.3d 1120 (United States v. Cesareo-Ayala) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Cesareo-Ayala, 576 F.3d 1120, 2009 U.S. App. LEXIS 18704, 2009 WL 2450288 (10th Cir. 2009).

Opinions

HARTZ, Circuit Judge.

Alejo Cesareo-Ayala appeals from jury convictions of three drug offenses. He challenges his conviction of possession of cocaine on the ground that there was insufficient evidence to sustain the verdict. Alternatively, he argues that the district court erred in denying him a new trial on the charge because “the evidence preponderate^] heavily against the verdict.” United States v. Evans, 42 F.3d 586, 593 (10th Cir.1994) (internal quotation marks omitted). Although not challenging the sufficiency of the evidence to support his convictions on the two other charges— conspiracy to distribute cocaine and distribution of marijuana — he contends that the district court should have granted a new trial on those charges also. In addition, Mr. Cesareo-Ayala challenges the admission into evidence of statements made to him by an associate who had just been apprehended and was cooperating with the police. He argues that because the district court never determined that the statements were made in furtherance of a conspiracy, they were inadmissible hearsay and their use at trial violated the Confrontation Clause.

We have jurisdiction under 28 U.S.C. § 1291 and affirm. We reject the challenges to the sufficiency and weight of the evidence. And we agree with the government that the statements made by Mr. Cesareo-Ayala’s associate were not offered [1123]*1123into evidence for the truth of the matter asserted, so they were not hearsay and did not implicate the Confrontation Clause.

I. BACKGROUND

The key witness against Mr. CesareoAyala was Charles Klepac. To repay a debt that he owed Edward Mendez, Klepac agreed to connect Mendez with cocaine buyers. In late 2006 and early 2007 he arranged kilogram transactions with two buyers: Raphael Hogan (who testified for the government at trial) and Bill Pridey.

There were six transactions with Pridey. Mendez drove Klepac to Pridey’s house for each transaction. Mr. Cesareo-Ayala, whom Klepac had not known previously, accompanied them four times. On those occasions when Mr. Cesareo-Ayala was present, he took the cocaine from his jacket and handed it to Mendez, who passed it to Klepac. Klepac then went alone into Pridey’s house. When Klepac returned to the car, he counted the money and handed it to Mendez, who gave most of it to Mr. Cesareo-Ayala.

Klepac and Hogan did not agree at trial about how many deals involved Hogan, but it was between seven and fourteen. They took place at Klepae’s house. Mendez always participated, but Mr. Cesareo-Ayala was present for only three or four of these transactions, typically when the quantity of cocaine sold to Hogan was two or more kilograms. On the first occasion, Mr. Cesareo-Ayala observed intently, though without saying anything. On the other occasions he sat on Klepac’s couch in another room, waiting for the deal to close. When Klepac spoke to Mr. Cesareo-Ayala, he appeared not to understand. (He and Mendez conversed only in Spanish in Klepac’s presence; Klepac does not speak Spanish.) Although Mendez never explained to Klepac what his relationship was with Mr. Cesareo-Ayala, he referred to Mr. Cesareo-Ayala as his uncle. Klepac thought it obvious that Mr. CesareoAyala was Mendez’s superior and was “in control of the cocaine.” R. Vol. 2 at 219. And Hogan likewise believed that Mr. Cesareo-Ayala was supplying the cocaine.

During this period Klepac also brokered a smaller cocaine transaction between Mendez and a third buyer, Ronald Steward. Steward asked for four ounces; but when Mendez arrived with that amount, Steward bought only one, which annoyed Mendez. On another occasion Klepac attempted to set up a one-kilogram deal with Steward. Steward, however, assumed that he was buying only an ounce of cocaine. When he arrived at Klepac’s house he did not have the money for the kilogram that Mendez and Mr. Cesareo-Ayala brought. He nonetheless tried to raise the necessary funds, placing phone calls while Mendez and Mr. Cesareo-Ayala waited. The two men left before Steward could raise the money.

On March 8, 2007, Steward was arrested on drug charges. He contacted Officer Shane Wright of the Kansas City Police Department’s narcotics unit, for whom he had been an informant, and offered to provide his suppliers. Steward directed Wright and other officers to Klepac’s house and identified Klepac as his source. At their instruction Steward telephoned Klepac to arrange a sale of a kilogram of cocaine. Klepac, who was intoxicated, said to try again the next day. On March 9 the two agreed to meet at Klepac’s house for the deal. When the time for the meeting arrived, officers instructed Steward to call Klepac to say that he was en route but delayed. Eventually, Mendez arrived at Klepac’s house with a kilogram of cocaine, although the usual practice had been for Klepac to have the buyer present and his money counted before summoning Mendez. Klepac, who suspected that something was amiss, called Steward and told [1124]*1124him that the deal was off and that he was sending the supplier away. Officers stationed outside the house arrested Mendez with the kilogram of cocaine in his waistband as he walked back to his vehicle.

Once in custody Mendez agreed to cooperate with the police to set up another cocaine delivery and bust. About an hour later Mr. Cesareo-Ayala called Mendez to ask whether he had Mr. Cesareo-Ayala’s “stuff.” Supp. R. at 1. Officer Raymond Nunez could hear the conversation and wrote down an English translation (the mobile phone was in walkie-talkie mode, which created pauses of about three seconds after each person spoke):

[Mendez]: What’s going on, Primo?
[Mr. Cesareo-Ayala]: What happened?, Are you ready?
[Mendez]: Nothing, I had trouble at the gas station[.]
[Mr. Cesareo-Ayala]: Do you have my stuff?
[Mendez]: Yes. I’ve got your money.
[Mendez]: Do you want to meet at 7th and Central? I need two more.
[Mr. Cesareo-Ayala]: Two more. Alright.
[Mendez]: Yeah, two more of the Stuff. I’ll give you your stuff and you give me two more.
[Mr. Cesareo-Ayala]: I don’t like 7th and Central.
[Mendez]: Well, you tell me where. I’ll meet you where ever. You tell me and I’ll be there.
[Mr. Cesareo-Ayala]: Remember where we played billiards? There..
[Mendez]: Okay. How much time?
[Mr. Cesareo-Ayala]: 15 minutes.
[Mendez]: Okay.

Id. (internal quotation marks omitted). The officers immediately set out for a bar that Mendez identified for them. They brought Mendez along to point out Mr. Cesareo-Ayala, whom they planned to arrest upon this identification.

While they were en route, Mr. CesareoAyala again called Mendez to confirm that he was on his way. Nunez committed the conversation to memory and wrote out an English translation of the exchange about 30 minutes later.

[Mendez]: What’s going on?
[Mr. Cesareo-Ayala]: Where are you?
[Mendez]: I’m almost there; I am at the gas station.

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Cite This Page — Counsel Stack

Bluebook (online)
576 F.3d 1120, 2009 U.S. App. LEXIS 18704, 2009 WL 2450288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cesareo-ayala-ca10-2009.