United States v. James Damaso

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2024
• Docket: 22-10191
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 19 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10191

Plaintiff-Appellee, D.C. No. 1:19-cr-00034-FMTG-1 v.

JAMES RUMBAUA DAMASO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Guam Frances Tydingco-Gatewood, Chief District Judge, Presiding

Argued and Submitted June 12, 2024 Honolulu, Hawai‘i

Before: CALLAHAN, HURWITZ, and H.A. THOMAS, Circuit Judges.

James Rumbaua Damaso appeals his conviction and sentence for possession

of fifty or more grams of methamphetamine hydrochloride with intent to distribute

in violation of 21 U.S.C. § 841(a)(1) and (b)(A)(viii). We assume the parties’

familiarity with the facts and do not restate them here except as necessary. We

have jurisdiction under 28 U.S.C. § 1291. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Damaso first challenges the denial of his motion to suppress the

evidence obtained during the traffic stop of his car. We review de novo the denial

of a motion to suppress, but review factual findings for clear error. United States

v. Zapien, 861 F.3d 971, 974 (9th Cir. 2017) (per curiam).

An investigative stop can be based on reasonable suspicion, or “a

particularized and objective basis for suspecting the particular person stopped of

criminal activity.” Navarette v. California, 572 U.S. 393, 396–97 (2014). Under

the totality of the circumstances, and considering the collective knowledge of the

agents involved, there was reasonable suspicion to stop Damaso’s car. See United

States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007). GPS data showed the

intercepted drug package had been taken inside a residence, which the agents

reasonably believed was a single-family dwelling, and opened. The agents stopped

a car leaving the residence driven by Jeffrey Baldonado, and found the package,

now containing only one of the four false drug packets that had been inserted into

the package during their investigation. Baldonado confirmed that he had delivered

the remaining contents to someone in the residence. When Damaso’s car was seen

leaving the residence, the nearby agents stopped the car, the only vehicle driving

away from the residence down the dead-end road. Accordingly, the district court

did not err in finding reasonable suspicion to stop the car.

2. Damaso argues the district court erred during voir dire by failing to

2 ask whether any jurors were biased in favor of law enforcement. Because Damaso

failed to object below or request any specific questions, we review for plain error.

Puckett v. United States, 556 U.S. 129, 134 (2009).

“Failure to ask jury venire members if they would be unduly influenced by

the testimony of law enforcement officers does not necessarily constitute reversible

error.” United States v. Powell, 932 F.2d 1337, 1340 (9th Cir. 1991). Damaso

does not cite a case, nor do we know of any, finding plain error in the failure of a

district court to ask venire members about bias in favor of law enforcement absent

a request to do so. C.f., United States v. Baldwin, 607 F.2d 1295, 1297 (9th Cir.

1979) (noting such a question “should be given if requested”); United States v.

Contreras-Castro, 825 F.2d 185, 187 (9th Cir. 1989) (finding failure to ask a

requested question was reversible error). There is no indication that the district

court limited counsel’s questioning during voir dire in any way. Additionally, the

district court asked repeatedly if venire members could be fair and impartial, and

posed questions proposed by the government evaluating venire members’ possible

biases towards law enforcement. There was no plain error.

3. Damaso argues that statements made by an agent during trial

constituted impermissible vouching. Because he did not object below, we again

review for plain error. Fed. R. Crim. P. 52(b).

Although a witness generally may not testify that another witness did or did

3 not lie, see United States v. Sanchez-Lima, 161 F.3d 545, 548 (9th Cir. 1998),

Damaso opened the door to the government’s questions on redirect by first asking

Agent Tracy during cross examination, over the government’s objection, about

Baldonado’s truthfulness. The government’s response to a topic initially raised by

Damaso did not constitute vouching. Moreover, any error in admitting the

testimony was harmless. The evidence at trial included the money, scales, and

baggies recovered from Damaso’s car, and agent testimony about the traffic stop

and the amount of methamphetamine in Damaso’s possession.. The verdict did not

“depend[] on the credibility of the bolstered witness.” Id.

4. The district court did not err in admitting testimony relating to

Baldonado’s pre-trial identification of Damaso. Damaso argues the identification

procedure was unduly suggestive and resulted in a violation of his due process

rights. Because this argument was raised for the first time on appeal, we review

for plain error. Fed. R. Crim. P. 52(b).

Baldonado’s identification was sufficiently reliable. See Walden v. Shinn,

990 F.3d 1183, 1198 (9th Cir. 2021) (“Reliability of the eyewitness identification

is the linchpin of [this] evaluation.”). Baldonado had the opportunity to view

Damaso both at the package delivery and during previous interactions. He

responded with certainty when asked by agents to identify the individual in the

photograph, and he had just seen Damaso a short time earlier. United States v.

4 Barrett, 703 F.2d 1076, 1085 (9th Cir. 1982) (listing factors considered as part of a

totality of the circumstances analysis to determine reliability of the identification).

To the extent Damaso argues that Baldonado was incentivized to lie to agents for

the sake of pointing to a scapegoat, the credibility of Baldonado’s testimony was

for the jury to weigh. United States v. Kessler, 692 F.2d 584, 587 (9th Cir. 1982)

(“Juries are not so susceptible that they cannot measure intelligently the weight of

identification testimony that has some questionable feature.”).

5. Damaso argues the district court erred by failing to consider in

sentencing mitigating aspects of his history and characteristics as required by 18

U.S.C. § 3553(a)(1). However, notwithstanding the district judge’s statement that

she was “denying” Damaso’s request to consider the mitigating factors he

identified, the district court did expressly consider those factors. The judge

referenced the mitigating factors raised by Damaso, such as his prior attempts at

treatment for addiction and mental health, his relatively advanced age, and his

family relationships. And when explaining the rationale for the sentence, the

district judge referred to the § 3553(a) factors. Although the court ultimately found

these factors unconvincing in light of the aggravating factors, it did engage with

Damaso’s arguments. In context, the district judge did not procedurally err.

Damaso’s conviction and sentence are AFFIRMED.