United States v. Hinojosa Gonzalez

68 F. App'x 918
CourtCourt of Appeals for the Tenth Circuit
DecidedJune 25, 2003
Docket01-1425, 01-1439 and 01-1453
StatusUnpublished
Cited by5 cases

This text of 68 F. App'x 918 (United States v. Hinojosa Gonzalez) 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. Hinojosa Gonzalez, 68 F. App'x 918 (10th Cir. 2003).

Opinion

ORDER AND JUDGMENT *

HENRY, Circuit Judge.

The three appellants, Raul Atadye, Manuel Guillermo Carrillo, and Hector Hinojosa Gonzalez, were part of a Denver-area gang that operated a large-scale illegal narcotics distribution system. Each was convicted by a federal court jury of multipie counts of conspiracy to distribute and possess with intent to distribute cocaine, cocaine base, and methamphetamine in violation of 21 U.S.C. § 841. We have consolidated their appeals for the purpose of this disposition. Together, they raise ten issues of alleged error by the district court, attacking both the guilt and sentencing phases of the trial. For the reasons detailed below, we affirm.

I. BACKGROUND

The background of this case is well-known to both parties and is laid out in the district court’s fifty page Memorandum Opinion and Order, see United States v. Carrillo, et al., 123 F.Supp.2d 1223 (D.Colo.2000), and in the transcripts of the proceedings before the district court attached by the appellants as brief exhibits. We summarize the facts here and discuss certain facts in further detail in our subsequent analysis.

In January 1997, through a joint investigation by the Federal Bureau of Investigation and the Denver, Colorado Police Department led by Jamie Aikens, acting in dual capacities as a Denver Police Officer and an F.B.I. Special Agent, the police learned that Mr. Carrillo, a/k/a “Psycho,” was the founder and leader of a gang known as the “Mexican Criminal Mafia Sureño 13.” The police further learned that Mr. Carrillo engaged in violent crimes, including armed robberies to obtain drugs and drug proceeds, and that Mr. Carrillo obtained his cocaine from Texas and distributed the drugs in Colorado, Kansas, and Utah. During the course of the investigation, the police learned that *921 among Mr. Carrillo’s gang associates in the Sureño 13 gang were Mr. Atadye and Mr. Gonzalez. An undercover officer later purchased methamphetamine from Mr. Atadye, and learned that Mr. Gonzalez supplied illegal drugs to Mr. Carrillo.

In April 1999, upon the government’s motion, United States District Court for the District of Colorado Judge Zita L. Weinshienk issued two orders authorizing the interception of wire and electronic wire communications on a cellular telephone and digital display paging device used by Mr. Atadye. In May 1999, Judge Weinshienk issued an additional order authorizing the interception of wire communications on a cellular phone used by Mr. Carrillo. The investigation leading up to the two orders was chronicled in the supporting affidavits of Officer Aikens, which included factual recitations detailing the use of numerous confidential informants to gather information concerning the Sureño 13 gang. Based on information obtained in the over two and a half year investigation, the government, in September 1999, filed a 35-count indictment against fourteen defendants connected to Mr. Carrillo’s organization, including Mr. Carrillo, Mr. Atadye, and Mr. Gonzalez.

Mr. Carrillo, Mr. Atadye, and Mr. Gonzalez were eventually scheduled for a joint trial before United States District Court for the District of Colorado Judge Daniel B. Sparr and a federal court jury. Prior to trial, the three defendants moved to suppress the government’s evidence derived from the court-ordered wiretaps. The district court denied the suppression motions. The case went to trial.

Following the trial, the jury convicted Mr. Carrillo, Mr. Atadye, and Mr. Gonzalez of (1) conspiracy to distribute cocaine and cocaine base and methamphetamine in violation of 21 U.S.C. § 846; (2) distribution and possession with intent to distribute one or more controlled substances in violation of 21 U.S.C. § 846; and (3) the use of a communications facility to facilitate commission of drug offenses in violation of 21 U.S.C. § 843(b). Each of the three defendants was sentenced to a prison term in excess of three hundred months; the three defendants now appeal.

II. DISCUSSION

The consolidated appeals combine to raise ten issues of alleged error, arguing that Judge Sparr erred by: (1) denying the motions to suppress because the government faded to satisfy the necessity requirements of 18 U.S.C. § 2518(l)(c) and (3)(c); (2) denying Mr. Atadye’s motion to dismiss the indictment for outrageous conduct in violation of his due process rights; (3) refusing to conduct additional wiretap hearings; (4) admitting evidence that Mr. Gonzalez threatened a trial witness; (5) admitting certain testimony at trial by a Police Officer Ramirez; (6) denying Mr. Carrillo’s request for a continuance; (7) permitting the trial to continue after the prosecutor suggested at closing argument that certain, specified, individual jurors examine transcripts of wiretapped conversations; (8) permitting Mr. Carrillo to be convicted and sentenced on what are termed by Mr. Carrillo’s counsel as “unfounded allegations” of which Mr. Carrillo was allegedly unaware; (9) permitting a government witness with a history of mental health illness to testify against the defendants; and (10) by permitting a conviction and sentence in part based on testimony by a witness who worked with Mr. Carrillo that the witness was a “bounty hunter,” which allegedly violated Mr. Carrillo’s due process rights. We address each contention in turn.

1. Motion to Suppress

The appellants argue that the affidavits supporting the applications for the *922 three wiretaps failed to satisfy the “necessity” requirements set forth in 18 U.S.C. § 2518(l)(c) and (3)(e), under which the supporting affidavits must have had “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” Id. “[W]e review for an abuse 'of discretion a district court’s determination that a wiretap was necessary.” United States v. Ramirez-Encarnacion, 291 F.3d 1219, 1222 n. 1 (10th Cir.2002). “[W]e review de novo whether a ‘full and complete statement’ was submitted meeting section 2518(l)(c)’s requirements.” Id. (internal quotation marks omitted). “A defendant bears the burden of proving that a wiretap is invalid once it has been authorized.” Id. Applying these standards, we have reviewed the district court’s order and the several hundred pages of underlying affidavits and, for substantially the same reasons as those set forth at pages 15-45 of

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Carrillo
389 F. App'x 861 (Tenth Circuit, 2010)
United States v. Atayde
151 F. App'x 726 (Tenth Circuit, 2005)
Hinojosa Gonzalez v. United States
540 U.S. 1066 (Supreme Court, 2003)
Carrillo v. United States
540 U.S. 932 (Supreme Court, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
68 F. App'x 918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hinojosa-gonzalez-ca10-2003.