F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS February 9, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-2035 v. (D. New M exico)
AARO N TH OM AS GATES, (D.C. No. 05-CR-1079 RB)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Aaron Thomas Gates appeals his conviction for conspiracy to possess
m arijuana and actual possession of marijuana with intent to distribute. He
contends that the district court plainly erred in allowing Drug Enforcement
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Administration (“DEA”) Agent Tenille Kinsey to testify regarding a previous
conversation she had with M r. Gates’s codefendant in which the codefendant
implicated M r. Gates. Because M r. Gates cannot establish plain error, we affirm
his conviction.
I. BACKGROUND
A. The Checkpoint Stop
On February 16, 2005, Border Patrol Agent Daniel Romero was on duty at
the Interstate 25 checkpoint located north of Las Cruces, New M exico, when a
gray Honda Accord with Oklahoma plates drove through the checkpoint. Agent
Romero yelled at M r. Gates, the driver, to stop. M r. Gates was traveling from
Arizona with his friend Juan Yanez. After M r. Gates stopped the car, Border
Patrol Agent Florencio M ontellano’s drug-detecting canine alerted to the trunk of
the car.
Agent Romero asked M r. Gates if he was carrying anything in the trunk,
and M r. Gates replied he was not. M r. Gates consented to a search of the trunk.
W hen Agent M ontellano opened the trunk, he testified that a strong odor of
m arijuana w as present. A gent M ontellano found three bundles of marijuana, tw o
inside a duffel bag. The duffel bag was inscribed with “Gates, U.S.M .C., United
States M arine Corps.” Rec. vol. III, Tr. at 26-27. The agents also found a loaded
.357 magnum revolver in the trunk.
-2- At the time of his arrest, M r. Gates was a cadet in the University of
Oklahoma A rmy ROTC program. He had served in the United States M arine
Corps, was about to start on another military career as an officer in the Army.
Having completed the Reserve Officer Training Program, he was to start Officer
Training School on April 11, 2005. M r. Gates, who had been commissioned as a
second lieutenant in the A rmy on December 17, 2004, wore his military
camouflage uniform, although he was neither on military orders nor on the
Army’s payroll at the time of the arrest.
M r. Gates was employed part-time as a security guard. According to his
testimony, he was scheduled to stop that job and to go on active duty in the Army
on February 21, working as a campus recruiter.
B. M r. Gates’s Post-A rrest Statements
Agent M ontellano testified that, in a post-M iranda interview, M r. Gates
told him that he knew the marijuana was in the vehicle, but claimed that it did not
belong to him. According to Agent M ontellano, M r. Gates also admitted that he
let M r. Y anez load it into his car.
DEA Special Agent Kinsey testified that she responded to the call at the
checkpoint and interviewed M r. Gates and M r. Yanez. According to her
testimony, M r. Gates told Agent Kinsey that M r. Yanez asked him if he would
help drive the vehicle from Oklahoma to Tucson to pick up the marijuana in
exchange for $1,500. M r. Gates admitted that the revolver found in the vehicle
-3- belonged to him. M r. Gates also told Agent Kinsey that his wife had left three
weeks before and that they had financial problems.
During direct examination, Agent Kinsey was asked if she had submitted
the marijuana bundles for fingerprint analysis. Id. at 46. Agent Kinsey said that
she had not done so. When asked w hy not, Agent Kinsey responded: in“Because
I had tw o conversations. I knew who the dope— the marijuana belonged to. I
didn’t need to fingerprint it.” Id. The prosecution then asked “did M r. Gates or
M r. Yanez claim to loading the marijuana?” Agent Kinsey responded, “No. They
did not.” Id.
C. M r. Yanez’s Trial Testimony
M r. Yanez testified that about a week before the arrest, he made
arrangements with another friend to pick up a load of marijuana in Tucson.
According to M r. Yanez, he had been friends with M r. Gates for three years and
that he trusted M r. Gates more than any of his other friends. M r. Yanez testified
that he decided to ask M r. G ates to drive him to Tucson to pick up the marijuana.
At the time, M r. Yanez did not have a vehicle or a driver’s license. M r. Yanez
told agents he was to be paid about $3,000, but at trial he testified he expected to
be paid $1,500 to transport the load of marijuana. He planned to split the money
with M r. G ates.
M r. Yanez testified that M r. Gates picked up M r. Yanez in Oklahoma City
on the afternoon of February 15, 2005. W hen they arrived in Tucson, M r. Gates
-4- and M r. Yanez took the vehicle to a shopping center where it was picked up and
loaded by a person named “Dinken.” Id. at 75-77. Neither M r. Yanez nor M r.
Gates were present when the vehicle was loaded.
D. The W ritten Statement Signed by M r. Yanez
During a court proceeding after their arrest, M r. Gates gave M r. Yanez a
written statement and asked him to sign it. The statement said that M r. Gates did
not know about the marijuana until they arrived at the checkpoint and that at no
time before the border stop did M r. Gates have any knowledge about the presence
of marijuana in his car. M r. Yanez testified that if he signed the statement, he
thought M r. Gates w ould take responsibility for the gun found in the car. M r.
Yanez signed the document, which was admitted at trial.
E. M r. Gates’s defense
In addition to cross-examining the government’s witnesses, defense counsel
presented evidence that M r. Gates drove his friend to Arizona because he thought
M r. Yanez was considering purchasing a vehicle there. M r. Gates testified he was
planning to visit his sister in Phoenix, and, on redirect, Agent Kinsey recalled
some mention of a sister there. M r. Gates also clarified that he did know about
the marijuana, but not before M r. Yanez told him about it at the checkpoint. M r.
Gates testified in his defense, as did his then-separated spouse, and both testified
about M r. Gates’s clean record and the unlikelihood that M r. Gates would be
-5- involved in the scheme, given the relatively small amount of money and the high
risk of tarnishing his record.
E. Procedural background
A federal grand jury indicted M r. Gates and M r. Yanez for conspiracy to
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS February 9, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-2035 v. (D. New M exico)
AARO N TH OM AS GATES, (D.C. No. 05-CR-1079 RB)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Aaron Thomas Gates appeals his conviction for conspiracy to possess
m arijuana and actual possession of marijuana with intent to distribute. He
contends that the district court plainly erred in allowing Drug Enforcement
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Administration (“DEA”) Agent Tenille Kinsey to testify regarding a previous
conversation she had with M r. Gates’s codefendant in which the codefendant
implicated M r. Gates. Because M r. Gates cannot establish plain error, we affirm
his conviction.
I. BACKGROUND
A. The Checkpoint Stop
On February 16, 2005, Border Patrol Agent Daniel Romero was on duty at
the Interstate 25 checkpoint located north of Las Cruces, New M exico, when a
gray Honda Accord with Oklahoma plates drove through the checkpoint. Agent
Romero yelled at M r. Gates, the driver, to stop. M r. Gates was traveling from
Arizona with his friend Juan Yanez. After M r. Gates stopped the car, Border
Patrol Agent Florencio M ontellano’s drug-detecting canine alerted to the trunk of
the car.
Agent Romero asked M r. Gates if he was carrying anything in the trunk,
and M r. Gates replied he was not. M r. Gates consented to a search of the trunk.
W hen Agent M ontellano opened the trunk, he testified that a strong odor of
m arijuana w as present. A gent M ontellano found three bundles of marijuana, tw o
inside a duffel bag. The duffel bag was inscribed with “Gates, U.S.M .C., United
States M arine Corps.” Rec. vol. III, Tr. at 26-27. The agents also found a loaded
.357 magnum revolver in the trunk.
-2- At the time of his arrest, M r. Gates was a cadet in the University of
Oklahoma A rmy ROTC program. He had served in the United States M arine
Corps, was about to start on another military career as an officer in the Army.
Having completed the Reserve Officer Training Program, he was to start Officer
Training School on April 11, 2005. M r. Gates, who had been commissioned as a
second lieutenant in the A rmy on December 17, 2004, wore his military
camouflage uniform, although he was neither on military orders nor on the
Army’s payroll at the time of the arrest.
M r. Gates was employed part-time as a security guard. According to his
testimony, he was scheduled to stop that job and to go on active duty in the Army
on February 21, working as a campus recruiter.
B. M r. Gates’s Post-A rrest Statements
Agent M ontellano testified that, in a post-M iranda interview, M r. Gates
told him that he knew the marijuana was in the vehicle, but claimed that it did not
belong to him. According to Agent M ontellano, M r. Gates also admitted that he
let M r. Y anez load it into his car.
DEA Special Agent Kinsey testified that she responded to the call at the
checkpoint and interviewed M r. Gates and M r. Yanez. According to her
testimony, M r. Gates told Agent Kinsey that M r. Yanez asked him if he would
help drive the vehicle from Oklahoma to Tucson to pick up the marijuana in
exchange for $1,500. M r. Gates admitted that the revolver found in the vehicle
-3- belonged to him. M r. Gates also told Agent Kinsey that his wife had left three
weeks before and that they had financial problems.
During direct examination, Agent Kinsey was asked if she had submitted
the marijuana bundles for fingerprint analysis. Id. at 46. Agent Kinsey said that
she had not done so. When asked w hy not, Agent Kinsey responded: in“Because
I had tw o conversations. I knew who the dope— the marijuana belonged to. I
didn’t need to fingerprint it.” Id. The prosecution then asked “did M r. Gates or
M r. Yanez claim to loading the marijuana?” Agent Kinsey responded, “No. They
did not.” Id.
C. M r. Yanez’s Trial Testimony
M r. Yanez testified that about a week before the arrest, he made
arrangements with another friend to pick up a load of marijuana in Tucson.
According to M r. Yanez, he had been friends with M r. Gates for three years and
that he trusted M r. Gates more than any of his other friends. M r. Yanez testified
that he decided to ask M r. G ates to drive him to Tucson to pick up the marijuana.
At the time, M r. Yanez did not have a vehicle or a driver’s license. M r. Yanez
told agents he was to be paid about $3,000, but at trial he testified he expected to
be paid $1,500 to transport the load of marijuana. He planned to split the money
with M r. G ates.
M r. Yanez testified that M r. Gates picked up M r. Yanez in Oklahoma City
on the afternoon of February 15, 2005. W hen they arrived in Tucson, M r. Gates
-4- and M r. Yanez took the vehicle to a shopping center where it was picked up and
loaded by a person named “Dinken.” Id. at 75-77. Neither M r. Yanez nor M r.
Gates were present when the vehicle was loaded.
D. The W ritten Statement Signed by M r. Yanez
During a court proceeding after their arrest, M r. Gates gave M r. Yanez a
written statement and asked him to sign it. The statement said that M r. Gates did
not know about the marijuana until they arrived at the checkpoint and that at no
time before the border stop did M r. Gates have any knowledge about the presence
of marijuana in his car. M r. Yanez testified that if he signed the statement, he
thought M r. Gates w ould take responsibility for the gun found in the car. M r.
Yanez signed the document, which was admitted at trial.
E. M r. Gates’s defense
In addition to cross-examining the government’s witnesses, defense counsel
presented evidence that M r. Gates drove his friend to Arizona because he thought
M r. Yanez was considering purchasing a vehicle there. M r. Gates testified he was
planning to visit his sister in Phoenix, and, on redirect, Agent Kinsey recalled
some mention of a sister there. M r. Gates also clarified that he did know about
the marijuana, but not before M r. Yanez told him about it at the checkpoint. M r.
Gates testified in his defense, as did his then-separated spouse, and both testified
about M r. Gates’s clean record and the unlikelihood that M r. Gates would be
-5- involved in the scheme, given the relatively small amount of money and the high
risk of tarnishing his record.
E. Procedural background
A federal grand jury indicted M r. Gates and M r. Yanez for conspiracy to
possess with intent to distribute less than 50 kilograms of marijuana, in violation
of 21 U.S.C. § 846, and for possession with intent to distribute less than 50
kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. §
841(b)(1)(D). The grand jury also indicted M r. Gates for carrying a firearm
during and in relation to a drug trafficking offense, in violation of 18 U.S.C. §
924(c)(1)(A)(I). M r. Yanez pleaded guilty to the charges.
Before the case w as submitted to the jury, the district court granted M r.
Gates’s motion for judgment of acquittal on the firearm charge. The jury
convicted M r. Gates on both the drug charges. The district court sentenced Gates
to 21 months’ imprisonment, a sentence six-months below the low end of the
guideline range. M r. Gates now timely appeals.
II. DISCUSSION
M r. Gates raises one contention on direct appeal: that Agent Kinsey’s
testimony improperly referred to a prior consistent statement made by M r. Y anez.
Because M r. Gates failed to raise this argument at trial, we review for plain error.
“Plain error occurs w hen there is (1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the fairness, integrity, or public
-6- reputation of judicial proceedings.” United States v. Bowen, 437 F.3d 1009, 1021
(10th Cir. 2006) (internal quotation marks omitted).
Tom e v. United States, 513 U.S. 150, 155-166 (1995), provides that prior
consistent statements offered to rebut a charge against the declarant of recent
fabrication are only admissible under Federal Rule of Evidence Rule 801(d)(1)(B)
if the declarant made the statements before the alleged motive to fabricate arose.
W e agree with M r. Gates that it may be possible to infer the nature and substance
of Agent Kinsey’s previous conversation with M r. Yanez. However, we need not
decide whether the previous conversation violated Fed. R. Evid. 801(d)(1)(B)
because M r. Gates cannot establish that any error affected his substantial rights.
For this reason, we hold that even assuming arguendo that M r. Gates could
meet the first two prongs of plain error analysis, he has failed to show that the
impact of the district court’s alleged error affected his substantial rights. As the
Supreme Court noted in United States v. Olano, in most cases the determination
that an error has affected substantial rights “means that the error must have been
prejudicial: It must have affected the outcome of the District Court proceedings.”
507 U.S. 725, 734 (1993). “It is the defendant rather than the Government who
bears the burden of persuasion with respect to prejudice.” Id.
M r. Gates has failed to show that Agent Kinsey’s testimony regarding a
previous conversation affected the jury’s verdict. Not only did Agent Kinsey
testify that M r. Gates told her he knew of the presence of the marijuana, but also
-7- Border Patrol Agent M ontellano testified that, while he w as processing M r. Gates,
M r. Gates told him that he knew about the presence of marijuana. In addition,
M r. Yanez testified as to M r. Gates’s involvement in the conspiracy and of his
knowledge of the presence of marijuana that was in M r. G ates’s own duffel bag.
There was more than sufficient evidence supporting his conviction.
Furthermore, M r. Gates’s counsel had every opportunity to cross-examine
the prosecution’s witnesses, and indeed, thoroughly did so. In particular, defense
counsel cross-examined M r. Yanez regarding his signed statement accepting
responsibility for the marijuana, and stressed that M r. Gates’s only knowledge of
the marijuana w as after M r. Yanez told him it was in the car.
The jury considered all of the above evidence, credited the prosecution’s
witnesses, and found M r. Gates guilty. Given the amount of evidence against
him, M r. Gates cannot establish that any error affected his substantial rights.
III. CONCLUSION
Accordingly, we AFFIRM M r. Gates’s conviction.
Entered for the Court,
Robert H. Henry Circuit Judge
-8-