United States v. Ramirez

Opinion

F I L E D United States Court of Appeals Tenth Circuit

March 16, 2007 PUBLISH Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. Nos. 05-4099, 05-4103, 05-4108, DEAN RAM IREZ, also known as 05-4111, & 04-4305 Dean Castillo Ramirez, also known as Dino; JOSE ANTO NIO V AZQ UEZ; JULIO CESA R LOPEZ; and EDU AR DO M OZQ UED A-RA M IREZ,

Defendants-Appellants.

Appeal from the United States District Court for the District of Utah (D .C . Nos. 1:03-CR-62-TC & 1:03-CR-69-TC)

Jessica Stengel (Loren E. W eiss, with her on the briefs) Van Cott, Bagley, Cornwall & M cCarthy, Salt Lake City, Utah, for Defendant-Appellant Dean Ramirez.

Hakeem Ishola of Ishola Law Firm, P.C., Salt Lake City, Utah, for D efendant- Appellant Jose Antonio Vazquez.

Stephen R. M cCaughey of Salt Lake City submitted a brief for D efendant- Appellant Julio Cesar Lopez; and Roy D. Cole of Law Office of Roy D. Cole, LLC, Ogden, Utah, submitted a brief for Defendant-Appellant Eduardo M ozqueda-Ramirez.

Elizabethanne Claire Stevens, Assistant United States A ttorney (Paul M . W arner, United States Attorney, with her on the joint brief for all defendants), Salt Lake City, Utah, for Plaintiff-Appellee.

Before H EN RY, Circuit Judge, M cW ILLIAM S, and SEYM OUR, Senior Circuit Judges.

SE YM O UR, Circuit Judge.

On M ay 1 and M ay 15, 2003, two separate grand juries returned multi-

count indictments against D ean Ramirez, Julio Cesar Lopez, Jose Antonio

Vasquez, Eduardo M ozqueda-Ramirez and others for a variety of crimes

stemm ing from a drug trafficking enterprise. The two cases were consolidated for

trial, and a jury found defendants guilty as follows: M r. Ramirez, M r. Vasquez,

and M r. Lopez on one count of conspiracy to distribute cocaine and 500 grams or

more of a mixture or substance containing a detectable amount of

methamphetamine in violation of 21 U.S.C. § 846; M r. Lopez on one count of

possession of 500 grams or more of a mixture or substance containing

methamphetamine w ith intent to distribute in violation of 21 U.S.C. § 841(a)(1);

M r. Ramirez on two counts of possession of a firearm by a restricted person in

violation of 18 U.S.C. § 922(g) and one count of use of a communication facility

in a drug trafficking crime in violation of 21 U.S.C. § 843(b); and M r. M ozqueda-

Ramirez on one count of conspiracy to distribute 50 grams or more of a mixture

or substance containing methamphetamine in violation of 21 U.S.C. § 846, and

-2- two counts of possession of a firearm by a restricted person in violation of 18 §

U.S.C. 922(g). The district court sentenced M r. Ramirez to 30 years

imprisonment, M r. Vasquez to 10 years imprisonment, M r. Lopez to 20 years

imprisonment, and M r. M ozqueda-Ramirez to 151 months imprisonment. All

defendants appeal their convictions, and M r. Ramirez and M r. M ozqueda-Ramirez

also appeal their sentences. W e affirm.

I

The record reflects that law enforcement officials engaged in a long-term

investigation of a suspected drug trafficking conspiracy in Ogden, Utah. In the

course of its investigation, the government sought and was granted authorization

to wiretap the phone of Jose Aparicio, a.k.a. “Guido,” a suspected member of the

conspiracy. The government subsequently filed an application with the district

court seeking authorization to wiretap M r. Ramirez’s cellular phone. W ith its

application, the government included an affidavit from Agent John Barrett of the

F.B.I. describing the accumulated evidence of M r. Ramirez’s involvement in drug

trafficking.

In his affidavit, Agent Barrett described the role of a confidential source in

gathering evidence of M r. Ramirez’s involvement in drug trafficking. The

confidential informant spoke directly to M r. Ramirez and his associates

concerning the drug trafficking enterprise and corroborated information from an

-3- anonymous tipster that hidden compartments were being installed in vehicles at

M r. Ramirez’s auto repair shop for use in smuggling drugs. Under law

enforcement supervision, the informant made a number of drug purchases in

which M r. Ramirez was the suspected supplier. On January 29, 2001, the

confidential informant consummated a drug deal with Francisco M adrigal, an

alleged co-conspirator of M r. Ramirez, involving methamphetamine and cocaine

that M r. Ramirez was suspected of supplying. Pen register analysis of M r.

M adrigal’s phone indicated M r. M adrigal called M r. Ramirez twice during the

drug transaction.

Agent Barrett recounted in his affidavit the stop of M r. Ramirez for a

traffic violation following his visit to M r. M adrigal’s house. The suspected

purpose of the visit was to supply M r. M adrigal with drugs for an upcoming sale

to the confidential informant. The particulars of the stop of M r. Ramirez are

described in greater detail below in the context of a motion to suppress. At this

point, w e note only M r. M adrigal’s statements in a nearly concurrent traffic stop.

During that stop, M r. M adrigal identified M r. Ramirez as the source of cocaine

and methamphetamine discovered in the search of his vehicle.

In further support of its application for a wiretap, the government relied

upon conversations between M r. Ramirez and M r. Aparicio overheard on M r.

Aparicio’s wiretapped phone. During those conversations, M r. Aparicio told M r.

Ramirez that he “has a dude that wants to buy some iron,” and that it sells for

-4- $100.00 to $150.00.” See W iretap Aff. ¶ 46. M r. Aparicio and M ateo Garcia,

a.k.a. “Nene,” then drove to and entered M r. Ramirez’s shop, where closed circuit

television surveillance recorded M r. Garcia exiting the shop with a small object. 1

A subsequent traffic stop for a moving violation turned up a firearm and a box of

amm unition matching the description of the removed object. On February 27,

2003, M r. Aparicio had another conversation with M r. Ramirez in which he said

“Nene wants the gun,” and asked if M r. Ramirez will “take the gun to the shop.”

Id. ¶ 52. M r. Ramirez agreed to send someone to retrieve the gun. Other calls

included statements by M r. Aparicio that he “had the stuff” and was on his way,

id. ¶ 73, and requests by M r. Ramirez for an “8,” a term believed to refer to a 1/8

ounce of cocaine. Id. ¶ 75. In total, M r. Aparicio had 542 contacts over his

wiretapped line with M r. Ramirez’s cellular phone between October 2002 and

M arch 2003.

On M arch 24, 2003, the district court issued an order authorizing the

wiretap of M r. Ramirez’s cellular phone. Numerous conversations were

subsequently monitored and recorded pursuant to the order. Prior to trial, several

defendants filed motions to suppress the evidence obtained from the Ramirez

wiretap, arguing the government failed to make the necessary showings to obtain

1 From September 2002 through M arch 2003 FBI agents physically surveilled M r. Ramirez and his associates. In addition, law enforcement observed the entrances of M r. Ramirez’s home and auto repair business with closed circuit television cameras.

-5- the order and failed to adequately minimize the interception of non-pertinent

conversations. The district court found that two prerequisites for the

authorization of a wiretap order – probable cause and necessity – were met. The

issue of adequate minimization was deferred for further proceedings.

The government thereafter submitted a memorandum, including an affidavit

by Agent Barrett, in opposition to suppression of the wiretap evidence on

minimization grounds. In his affidavit, Agent Barrett described the V oiceBox III

computer program used to collect and store w iretap data and the w ritten procedure

for the minimization of non-pertinent calls. 2 Defendants expressed the following

concerns w ith particular sets of calls: forty-one calls on the R amirez line w here

the computerized monitoring program failed to disclose the time counts for

minimizations; sixteen calls over two minutes which may or may not have been

minimized and which were allegedly not pertinent and should have been

minimized; twelve non-minimized calls over two minutes that were allegedly non-

pertinent; and nineteen calls over two minutes for w hich there is no audio

2 See Ramirez Rec., vol. III, doc. 110 at 3 (“If you terminate the interception because the conversation is not pertinent, you may spot-monitor the conversation to see if its character changes. After a thirty (30) second interval, the equipment may be activated for approximately thirty (30) seconds to determine if the conversation continues to be not pertinent. The speakers and/or the nature of the conversation may change. This procedure of spot-monitoring may be continued throughout the conversation, but should be kept to the minimum necessary to ascertain whether the conversation has changes. If during the spot-monitoring, the conversation is determined to be pertinent, full interception of the conversation is then appropriate so long as the conversation remains pertinent.”).

-6- recording or synopsis. The government responded directly to each of these

assertions by way of A gent Barrett’s affidavit. The district court concluded: “it’s

very clear from the affidavit of A gent Barrett that the general minimization effort

certainly satisfied the statute . . . [and] it appears to me quite clear that the

wiretap statute requirements were complete as far as minimization.” Vasquez

Rec., vol. IV at 15-16. Accordingly, the district court held the wiretap recordings

admissible.

The wiretap of M r. Ramirez’s phone recorded a number of incriminating

conversations. The conversations were peppered with terms whose common

meanings are entirely innocuous. At trial, however, the government presented

evidence of alternate definitions for these terms as they are used in the drug trade.

In all, the recorded calls from the Ramirez and Aparicio wiretaps produced

several hundreds pages of transcribed dialogue, which we describe in the context

of the relevant claims.

In addition to the wiretap evidence, M r. Ramirez sought suppression of the

fruits of two unrelated traffic stops. The first stop on February 16, 2001, was

rooted in an arranged drug deal between the government’s confidential informant

and M r. M adrigal. M r. M adrigal told the informant the drugs would be delivered

to his house prior to the sale, and law enforcement established surveillance of M r.

M adrigal’s house in anticipation of the supplier’s arrival. The surveilling officers

observed a white pick-up truck containing two Hispanic males arrive at the

-7- residence. The driver entered the house and, a short time later, exited and drove

aw ay. An officer positioned nearby stopped the truck shortly thereafter for a

traffic violation. The driver was identified as Dean Ramirez. The officer, after

returning M r. Ramirez’s relevant documentation, asked if he could search the

vehicle. M r. Ramirez consented, and the officer found $5,060.00 hidden in the

gearshift boot on the floor of the truck. M r. Ramirez denied ownership of the

money and speculated the cash belonged to a mechanic who had recently worked

on the vehicle.

On M ay 15, 2002, Agent Troy Burnett observed a white truck, different

from the one involved in the February 2001 stop, driving above the speed limit.

W hen Agent Burnett caught up with the vehicle, it was parked at the house of a

known drug user and alleged drug distributor. From the vantage point of his

police cruiser, Agent Burnett observed an individual entering the driver’s side of

the truck. Agent Burnett concluded that the truck could not have been parked for

“more than a minute or so” before the driver w as seen entering it. Id. Agent

Burnett pulled up behind the truck before it could drive away and engaged his

police lights. He exited his vehicle, and M r. Ramirez exited the white truck.

Agent Burnett and M r. Ramirez recognized each other from prior encounters and

addressed each other by name. The agent obtained M r. Ramirez’s driver’s

license, vehicle registration, and proof of insurance.

Near the outset of the stop, Agent Burnett requested the assistance of a

-8- canine unit. Before the dog arrived, the agent sought and was denied consent

from M r. Ramirez to search the truck. He then questioned both M r. Ramirez and

the resident of the house. M r. Ramirez told the officer he had gone to the home

to obtain auto parts. The resident of the house said M r. Ramirez had come to

borrow a magazine. During these interactions Agent Burnett gauged M r.

Ramirez’s demeanor to be more anxious than in their prior encounters. After the

arrival of the canine unit, the dog performed a sniff of the exterior of the truck. It

scratched and barked at the driver’s side door, the signal indicating the presence

of drug odors, and the officers and the dog began an interior search of the truck.

Agent Burnett discovered $30,020 in the vehicle.

Prior to trial, M r. Ramirez challenged the legality of both stops and sought

to suppress the money retrieved from the searches. After a hearing, the district

court concluded that M r. Ramirez had voluntarily consented to the February 2001

vehicle search, and that the M ay 2002 detention was justified by reasonable

suspicion and the interior search was supported by probable cause. Although the

evidence obtained in both searches was deemed admissible on Fourth Amendment

grounds, the money discovered in the February 2001 stop was not admitted at trial

after the district court concluded its prejudicial effect outweighed its probative

value. The court determined the money found in the M ay 2002 search was

admissible, and the government presented that evidence at trial.

Also prior to trial, M r. M ozqueda-Ramirez’s counsel, Roy. D. Cole,

-9- petitioned the court for leave to w ithdraw as counsel. Less than two weeks before

the start of trial, a hearing was held before a magistrate judge to examine the

merits of the petition. At the hearing, M r. M ozqueda-Ramirez’s counsel stated

that the “change we’ve had” is that “M r. M ozqueda-Ramirez does not want me on

this case anymore.” Ramirez Rec., supp. vol. VII at 4. The magistrate judge

denied the petition, noting the district court would not delay the sw iftly

approaching consolidated trial and M r. M ozqueda-Ramirez had a lawyer who was

up to speed on the evidence and had personally discussed the evidence with M r.

M ozqueda-Ramirez.

In addition to the contested traffic stops, there were a number of searches

of defendants and their associates that produced relevant evidence. On January 8,

2003, Agent Aaron Johnson of the Ogden City police department visited several

apartments at 1095 16th Street in response to an anonymous complaint of drug

activity at that address. The agent initially knocked on the door of apartment

four, but was told by the residents of the unit that the prior occupants had moved

to apartment five. He then knocked on the door of apartment five. At the time of

the search, M ichael Hurst owned unit five and had lived there when M r. Lopez

and a man known as Javier lived in apartment four. M r. Hurst testified that while

he lived in apartment five, M r. Lopez, known to him as Emilio Felix, had on at

least one occasion supplied him with a small amount of methamphetamine.

W hen M r. Hurst vacated apartment five, he left behind a step exercise

-10- machine. In early November, M r. Lopez and Javier moved in and began paying

rent to M r. Hurst. By mid-November, M r. Lopez had “faded away,” Ramirez

Rec., vol. XIII at 168, and was living with his wife “somewhere out north.”

Ramirez Rec., vol. XIV at 7. By mid-December, both of the original occupants

had vacated the apartment and it was occupied by Raul Gaitan-Dominguez and

Jesus Solis-Gaona. Javier paid D ecember’s rent for the apartment. M r. Hurst

contacted the apartment’s residents after the January rent was late and asked to

speak with M r. Lopez. One of the then-current occupants called M r. Lopez, and

after a short conversation between M r. Hurst and M r. Lopez, one of the new

residents paid M r. Hurst the January rent.

On the day of the search, M r. Gaitan-Dominguez consented to Agent

Johnson’s search of apartment five. During the search, Agent Johnson noticed

numerous rolls of packing tape and plastic wrap products in a closet just off the

living room. Further investigation of the closet uncovered methamphetamine in a

“ball about the size of a softball” stored in a plastic grocery bag. Ramirez Rec.,

vol. XIII at 92. M ore methamphetamine was found in the kitchen packaged in

one pound bricks. 3 The methamphetamine bricks were individually packed inside

a ziploc style bag, wrapped in plastic wrap sprayed with what Agent Johnson

described as a “cleaning agent” that “smelled like Lysol,” then wrapped again

3 The two bricks weighed between 437 and 443 grams and were between 95 and 96 percent pure. See Ramirez Rec., vol. XIII at 95.

-11- with plastic wrap, and finally covered by tape. Id. at 94. Agent Johnson located

a number of other items in the apartment, including M r. Gaitan-Dominguez’s

M exican passport; a vehicle title in M r. Lopez’ name w ith the apartment five

address; a letter to M r. Lopez from a collection agency for past due gas payments

at the apartment five address; a phone bill addressed to M r. Lopez at the

apartment five address; and a number of photographs picturing M r. Lopez and M r.

Gatain-Dominguez, among others.

M r. Gaitan-Dominguez and M r. Solis-Gaona were arrested in connection

with the discovery of methamphetamine in apartment five. After their arrest, the

two men placed phone calls from prison that were recorded by the prison phone

system. On January 14, 2003, M r. Gaitan-Dominguez called Diana M urillo, w ith

M r. Lopez allegedly listening on M s. M urillo’s end, see Gov’t Ex. 1R-T1 at 2

(“Hey! Jul . . . he’s going to talk ”), and told M r. Lopez to “get those things out,

as soon as you can and hurry up.” Id. M r. Solis-Gaona called M s. M urillo on the

same day and had further discussions about “tak[ing] the things out of the house.”

Gov’t Ex. 1R-T3 at 2. On January 24, M r. Gaitan-Dominguez called M r. Lopez

from prison to ask that M r. Lopez “move it, man, before they make this into a

bigger deal.” Gov’t Ex. IR-T3 at 3.

On April 18, 2003, Agents Burnett and Johnson conducted a consent search

of the residence of M r. Galaz-Feliz, a suspected member of the conspiracy. The

officers recovered a firearm, $26,175 in cash, and what were interpreted to be

-12- drug accounting ledgers or pay/owe sheets. 4 During the search, a drug dog alerted

to a slashed tire in the basement of the house. The officers reported M r. Galaz-

Feliz was talking on the phone during the search and was overheard requesting

the other party get a hold of D inosaurio. 5 On the evening of the search of M r.

Galaz-Feliz’s residence, the Ramirez wiretap captured a number of conversations

about the search.

On April 28, 2003, Agent Johnson searched a storage unit in Ogden

pursuant to a search warrant. According to storage business records, that unit

was leased to Emilio Felix, an alias used by M r. Lopez. In the unit, Agent

Johnson discovered a photograph of M r. Lopez; an insurance policy for Emilio

Felix at 1095 16th Street, Apartment Four; a box of sandwich bags; a digital

scale; plastic wrap with a “lysol type smell . . . exactly alike . . . to the stuff that

the methamphetamine was packaged in apartment number five;” and

methamphetamine residue in the packaging as confirmed by chemical analysis.

Ramirez Rec., vol. XIII at 123.

Finally, law enforcement officials seized two cellular phone receipts from

M r. Vasquez when he w as arrested. At the time of his arrest, he did not possess

4 Agent Barrett testified at length about the contents of the documents and his conclusion that the papers were used as drug ledgers. See Ramirez Rec., vol. XIV at 102-136. 5 The government alleged throughout the trial that Dinosauri and Dino were nicknames for D ean Ramirez. See Ramirez Rec., vol. XIII at 80 (Agent Johnson testified “D ean Ramirez uses the name D inosaurio also.”)

-13- drug related materials, firearms, or large sums of cash. See Ramirez Rec., vol.

XVII at 60; Ramirez Rec., vol. XVI at 20. M r. Vasquez unsuccessfully argued

against the admission of the receipts as hearsay evidence before the district court.

II

For ease of analysis, we have divided the claims from the four separate

appeals into four thematically related subgroups: admissibility of evidence,

sufficiency of the evidence, issues with counsel, and sentencing. The first group,

contentions that particular pieces of evidence were wrongly admitted, includes the

conversations recorded by the R amirez wiretap; the fruits of M r. Ramirez’s tw o

traffic stops; the cell phone receipts found on M r. Vasquez upon his arrest; and

co-conspirator statements challenged by M r. Vasquez. The second group includes

M r. Lopez’s argument that there was insufficient evidence to convict him for

possession with intent to distribute methamphetamine, and M r. Lopez, M r.

M ozqueda-Ramirez, and M r. Vasquez’s claims that there was insufficient

evidence to support their respective conspiracy convictions. The third category

consists of M r. M ozqueda-Ramirez’s claim of ineffective assistance of counsel

and his appeal of the district court’s denial of his counsel’s motion to withdraw

prior to trial. The final section focuses on M r. M ozqueda-Ramirez’s challenge to

the application of mandatory minimums in light of Booker, and M r. Ramirez’s

arguments about the constitutionality of sentencing factors in relation to his

-14- sentence and the vagueness of his underlying charge.

A D M ISSIBILITY OF EVIDENCE

1. Ramirez W iretap

M r. Lopez , M r. Ramirez, and M r. Vasquez argue the district court erred in

authorizing the Ramirez wiretap and, as a result, the evidence obtained via the

wiretap should be suppressed. They variously attack the wiretap order on the

grounds that the government failed to demonstrate probable cause, necessity, and

proper minimization. W e address each of the three issues below and conclude the

district court properly authorized the wiretap and admitted the recorded

conversations as evidence at trial.

a. Probable Cause

Title III of the Omnibus Crime Control and Safe Streets Act of 1968

requires the government to demonstrate “probable cause for belief that an

individual is committing, has committed, or is about to comm it” a specified

criminal offense as a prerequisite for the authorization of a valid wiretap. 18

U.S.C. § 2518(3)(a). Defendants argue this requirement was not met with respect

to the wiretap of M r. Ramirez’s cellular phone. W e review the district court's

finding of probable cause “to determine whether the facts and circumstances

within the officer's knowledge based on reasonably trustworthy information are

sufficient to warrant a person of reasonable caution to believe that an offense has

-15- or is being committed.” United States v. Arm endariz, 922 F.2d 602, 608 (10th

Cir. 1990).

In evaluating the presence of probable cause, we look primarily to the

government’s wiretap application and Agent Barrett’s attached affidavit. The

agent described a number of specific conversations implicating M r. Ramirez in

the distribution of contraband. Among those were a pen register analysis showing

two phone calls placed to M r. Ramirez by M r. M adrigal during a drug deal with a

confidential source, see W iretap Aff. ¶ 23, and a series of recorded phone calls

between M r. Ramirez and M r. Aparicio 6 in which the two parties discussed the

sale of guns and drugs either explicitly or in code. See W iretap Aff. ¶ 52 (“[M r.

Aparicio] then asked Ramirez, if he’ll ‘take the gun to the shop.’”); Id. at ¶ 62

(Ramirez asked M r. Aparicio “for more cold one,” allegedly in reference to

methamphetamine); id. ¶ 73 (M r. Aparicio told M r. Ramirez he “had the stuff”);

id. ¶ 75 (M r. Ramirez asked M r. Aparicio for an “8,” an alleged reference to an

1/8 ounce of cocaine, and stated he had the money). In light of this information,

we conclude a person of reasonable caution could believe a crime had been

comm itted. Thus, the order authorizing the wiretap of M r. Ramirez’s phone was

supported by probable cause.

6 Those conversations were recorded by the authorized wiretap of M r. Aparicio’s phone. The validity of that wiretap w as not challenged by defendants.

-16- b. Necessity

Defendants assert the government failed to adequately demonstrate the

necessity of wiretapping M r. Ramirez’s phone. W e review a district court's

determination that a wiretap was necessary for an abuse of discretion. United

States v. Ramirez-Encarnacion, 291 F.3d 1219, 1222 (10th Cir. 2002). If

defendants “succeed[] in showing that the necessity requirement was not met,

evidence seized pursuant to the wiretap must be suppressed.” United States v.

Cline, 349 F.3d 1276, 1280 (10th Cir. 2003). Once a wiretap has been authorized,

defendants bear the burden of proving it w as invalid. Id.

“Title III contains a ‘necessity’ requirement . . .which must be satisfied

before a wiretap order may be lawfully issued.” United States v. Castillo-Garcia,

117 F.3d 1179, 1185 (10th Cir. 1997) (overruled on other grounds). W hen

requesting a wiretap, the government must provide the court with “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.” 18 U.S.C. § 2518(1)(c). The court must then be convinced

“normal investigative procedures have been tried and have failed or reasonably

appear to be unlikely to succeed if tried or to be too dangerous” before

authorizing the requested wiretap. 18 U.S.C. § 2518(3)(c). This precondition for

the issuance of a wiretap order ensures “the relatively intrusive device of

wiretapping is not resorted to in situations where traditional investigative

-17- techniques would suffice to expose the crime.” United States v. Edwards, 69 F.3d

419, 429 (10th Cir. 1995) (internal quotation marks omitted).

In a wiretap application, the government must explain how normal

investigative techniques have been used in its attempts to gather evidence against

the target of the wiretap, or in the alternative, why “untried techniques would be

either unsuccessful or too dangerous” in serving that purpose. Castillo-Garcia,

117 F.3d at 1187. Normal investigative procedures include:

1) standard visual and aural surveillance; (2) questioning and interrogation of witnesses or participants (including the use of grand juries and the grant of immunity if necessary); (3) use of search warrants; and (4) infiltration of conspiratorial groups by undercover agents or informants. In addition, if other normal investigative techniques such as pen registers or trap and trace devices have not been tried, a similar explanation must be offered as to w hy they also would be unsuccessful or too dangerous.

Id. at 1187. The “necessity” requirement does not require that law enforcement

officials exhaust all of the above procedures prior to the issuance of a wiretap

warrant. The statutory requirement can be met if the government demonstrates

either normal investigatory techniques have been tried and failed or that they

“reasonably appear to be unlikely to succeed if tried, or to be too dangerous to

try.” Id.

M r. Lopez asserts the wiretap affidavit “did not illustrate, w ith

particularity, the necessity for the wiretap.” Lopez Br. at 19. M r. Lopez cites

Castillo-Garcia extensively in an attempt to analogize that case’s invalidated

-18- wiretap to the wiretap of M r. Ramirez’s phone. The wiretap application in

Castillo-Garcia, however, was supported by “wholly conclusory language”

without the benefit of a particularized discussion of how normal investigative

techniques were used, or w hy they were not used, against the target. Castillo-

Garcia, 117 F.3d at 1194. As is evident from our discussion below, the Ramirez

wiretap does not suffer from the same infirmity.

Looking at each investigative technique in turn, we first consider the prior

use of visual and aural surveillance. As described in the affidavit, law

enforcement officials recorded the comings and goings of individuals into and out

of M r. Ramirez’s auto repair shop and home via closed circuit television

cameras. 7 Furthermore, FBI agents physically surveilled M r. Ramirez from

September 2002 to M arch 2003. According to the government, this video

monitoring and physical surveillance did not reveal “w hich individuals w ith

whom Dean Ramirez associated, if any, were criminal members or customers of

his drug enterprise.” W iretap Aff. ¶ 107. Thus, the government demonstrated it

had tried physical and visual surveillance and adequately explained its failure,

namely, the inability of physical and visual surveillance to distinguish between

legitimate customers of M r. Ramirez’s auto business and those associates engaged

7 Law enforcement officials primarily relied upon video monitoring and not physical surveillance because M r. Ramirez home and business were “located in residential neighborhoods, making static physical surveillance difficult.” Barrett W iretap Aff. ¶ 103.

-19- in drug trafficking.

Second, Agent Barrett demonstrated that the government had utilized a

confidential informant with significant connections to M r. Ramirez and his

associates. The informant “spoke[] directly to Dean Ramirez and his associates

concerning the drug trafficking activities of Dean Ramirez,” made supervised

drug buys, and spent a “considerable amount of time meeting with [an associate

of M r. Ramirez] in a social setting.” Id. ¶ 9. Investigators, however, found that

even this well-connected confidential source was “unable to gather detailed

information about Ramirez’s Organization or its suppliers.” Id. ¶ 97. They did

not utilize confidential sources from related investigations because those

informants did not have sufficiently strong ties to M r. Ramirez, id. ¶ 101, and

they did not attempt to insert an undercover agent because they believed an

unfamiliar agent would have been less likely to succeed than an informant already

in the confidences of the conspirators. See Castillo-Garcia, 117 F.3d at 1189.

W e are persuaded the government demonstrated it used a confidential informant

to limited avail, and adequately explained why an undercover agent or additional

informant would have been unlikely to succeed.

Third, Agent Barrrett explained why interrogation of the participants or use

of a grand jury coupled w ith grants of immunity was not tried. In prior cases, w e

have found “the risk that witnesses would . . . claim their Fifth Amendment

privilege, or inform principal suspects of the investigation outweighed modest

-20- potential evidentiary gains.” United States v. VanM eter, 278 F.3d 1156, 1164

(10th Cir. 2002). See also Castillo-Garcia, 117 F.3d at 1192. Similar fears were

articulated in the Ramirez affidavit because many of the “possible witnesses

[we]re conspirators themselves.” W iretap Aff. ¶ 109. Additionally, it was

reasonable to assume that police questioning could compromise the safety of

witnesses and the investigation of M r. Ramirez’s enterprise in light of what

investigators knew about the target. See id. ¶ 118 (confidential informant “was

advised . . . that Ramirez had considered killing M adrigal for speaking to the

police”). Thus, it would appear interrogation or use of a grand jury would have

been both unlikely to succeed and potentially dangerous.

And finally, the use and failure of the remaining methods of normal

surveillance were also well explained. As to search warrants, the affidavit stated

“search w arrants, consent to search investigations, and searches incident to arrest

. . . executed against [individuals] and residences associated with Ramirez have

failed to identify the full scope criminal enterprise.” Id. ¶ 120. Pen registers

were applied to M r. Ramirez’s phones, but the registers did not identify the actual

participants in the phone calls or provide sufficient evidence of criminal activity.

In sum, the record clearly demonstrates how each investigatory technique

was tried and why it failed, or why any unutilized method was likely to be

ineffective. These techniques w ere described not with broad generalities but with

particularity to the ongoing investigation of M r. Ramirez. Consequently, the

-21- district court did not abuse its discretion by concluding the wiretap was

necessary.

c. M inim ization

Defendants assert law enforcement officials failed to “minimize the

interception of communications not otherwise subject to interception” as required

by 18 U.S.C. § 2518(5). In reviewing whether the statutory minimization

requirement is met, we examine “the reasonableness of the agents' efforts to

refrain from monitoring conversations deemed nonpertinent to the investigation.”

United States v. Willis, 890 F.2d 1099, 1101 (10th Cir. 1989).

W e read defendants’ briefs to allege minimization problems with three

specific sets of calls. W hen these same concerns w ere raised to the district court,

the government submitted a detailed affidavit from Agent Barrett explaining the

general minimization protocol and directly responding to defendants’ questions

about particular calls. The first allegedly troubled set of calls are those where the

line sheets generated by the listening software did “not disclose the time counts

for minimization.” Lopez Br. at 23. However, as was noted in his affidavit,

Agent Barrett manually retrieved that information and provided the data to

defendants. Ramirez Rec., vol. III, doc. 110, att. A ¶ 18. Second, M r. Lopez

contends a number of calls from the Ramirez wiretap were non-pertinent and

should have been minimized, see Lopez Br. at 23, but the government printed the

screen image for each contested call and explained how each call w as evaluated.

-22- See Ramirez Rec., vol. III, doc. 110, att. A ¶ 20. Lastly, M r. Lopez asserts audio

recordings and synopses w ere not provided for nineteen calls. Agent Barrett

concluded six of the calls were “hookflash” 8 and ten were neither monitored nor

recorded by law enforcement. Id. att. A ¶ 21. In light of these explanations, and

because we review minimization for the reasonableness of the efforts of law

enforcement officials and not the perfection of their results, we conclude the

Ramirez wiretap was properly minimized.

2. Constitutionality of Stops and Searches of M r. Ramirez

M r. Ramirez argues the district court erroneously admitted evidence seized

during two allegedly unlawful traffic stops. On February 16, 2001, an Ogden

police officer stopped M r. Ramirez for failing to signal while he was driving a

white truck. The stop resulted in the discovery of $5,060 in cash hidden in the

gearshift boot. On M ay 15, 2002, Agent Burnett stopped M r. Ramirez’s truck

outside the house of a known drug user and suspected drug dealer after observing

M r. Ramirez speeding. An alert from a dog sniff on the exterior of M r. Ramirez’s

truck led to an interior search that uncovered $30,020 in cash.

Because the government did not introduce the $5,060 found in the first

search as evidence at trial, the issue of the law fulness of the February search is

8 See Lopez Rec., vol. II, doc. 223, Att. C (defining hookflash as “[m]omentarily depressing the hookswitch (up to 0.8 of a second) [which] can signal various services such as calling the attendant, conferencing or transferring calls.”)

-23- moot. See United States v. Arias-Villanueva, 998 F.2d 1491, 1502 (9th Cir. 1993)

(impliedly overruled on other grounds). W ith respect to the M ay 15, 2002 traffic

stop, we accept the district court’s factual findings unless they are clearly

erroneous and view the evidence in the light most favorable to the government.

See United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). The

ultimate determination of reasonableness under the Fourth A mendment is a

question of law we review de novo. United States v. Zabalza, 346 F.3d 1255,

1258 (10th Cir. 2003).

The Fourth Amendment protects the “right of the people to be secure in

their persons, houses, and effects, against unreasonable searches and seizures.”

U.S. C ONST . amend. IV. A routine traffic stop is a “seizure” within the meaning

of the Fourth Amendment, see Delaware v. Prouse, 440 U.S. 648, 653 (1979),

examined according to the principles outlined in Terry v. Ohio, 392 U.S. 1, 19-20

(1968). See U nited States v. Williams, 403 F.3d 1203, 1206 (10th Cir. 2005).

“To determine the reasonableness of an investigative detention, we make a dual

inquiry, asking first ‘whether the officer's action was justified at its inception,’

and second ‘whether it was reasonably related in scope to the circumstances

which justified the interference in the first place.’” United States v. Bradford,

423 F.3d 1149, 1156 (10th Cir. 2005) (quoting Terry, 392 U.S. at 20).

The first inquiry under Terry is w hether the stop was justified at its

inception. Id. “[A] traffic stop is valid under the Fourth Amendment if the stop

-24- is based on an observed traffic violation or if the police officer has reasonable

articulable suspicion that a traffic or equipment violation has occurred or is

occurring.” United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995)

(en banc). M r. Ramirez does not dispute the validity of the initial stop for

speeding, and he limits his challenge to the length and scope of his detention after

Agent Burnett initiated the stop. Our analysis is similarly limited.

M r. Ramirez argues, in accord with the second inquiry of Terry, that the

investigative stop “exceeded the reasonable scope and duration of a traffic stop.”

Ramirez Br. at 32. If we were to look only to the original justification for the

stop, as M r. Ramirez seems to suggest, he would be correct. After a validly

initiated traffic stop, however, an “officer may detain a motorist for questioning

unrelated to the initial traffic stop if he has an objectively reasonable and

articulable suspicion that illegal activity has occurred, or the driver voluntarily

consents to further questioning.” Williams, 403 F.3d at 1206. In this instance,

there is no indication that the initial stop developed into a consensual encounter.

Agent Burnett, however, had reasonable suspicion that criminal activity (other

than the traffic violation) had occurred, thus justifying temporarily detaining and

questioning M r. Ramirez while awaiting the arrival of the canine unit.

W hen evaluating the existence of reasonable suspicion, we look to the

“totality of circumstances” to see whether the detaining officer had a

“particularized and objective basis for suspecting legal wrongdoing.” United

-25- States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation marks omitted).

Factors, which when taken separately may be perfectly innocent behavior, can support a finding of reasonable suspicion when taken together. Conversely, although the nature of the totality of the circumstances makes it possible for individually innocuous factors to add up to reasonable suspicion, it is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation. In analyzing the factors that may amount to reasonable suspicion, we must be careful to judge the officer's conduct in light of common sense and ordinary human experience but also to grant deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances.

United States v. Wallace, 429 F.3d 969, 975-76 (10th Cir. 2005) (citations,

brackets, and quotation marks omitted). The district court discussed the

following factors in holding that Agent Burnett had reasonable suspicion to

believe a crime had occurred or was occurring: (1) the truck was seen parked

outside a residence Agent Burnett knew to be associated with drug-dealing; (2) he

saw the driver enter his vehicle after a stop of extremely short duration; (3) he

had personal knowledge of M r. Ramirez’s participation in drug-trafficking; (4)

M r. Ramirez and the resident of the house gave different reasons for the visit; and

(5) M r. Ramirez’s nervous behavior was inconsistent with his demeanor during

previous interactions with the police.

W ith respect to the location of the truck, the Supreme Court has instructed

that “officers are not required to ignore the relevant characteristics of a location

in determining whether the circumstances are sufficiently suspicious to warrant

-26- further investigation.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). M oreover,

Officer Burnett testified “visits of extremely short duration” like M r. Ramirez’s

“are a key indicator of drug activity.” Ramirez Rec., vol. II, doc. 288 at 10. See

also Ramirez Rec., vol. VII at 18. W e have previously recognized a “trained

officer’s ability to distinguish between innocent and suspicious circumstances”

even where the conduct has an otherw ise innocuous veneer. See United States v.

W illiam s, 271 F.3d 1262, 1269 (10th Cir. 2001). Thus, although a short stop at

the residence of a known drug user and suspected narcotics dealer might have an

innocent explanation, we accord deference to a trained “law enforcement officer's

ability to distinguish between innocent and suspicious actions.” United States v.

Wood, 106 F.3d 942, 946 (10th Cir. 1997).

At the time of the stop, Officer Burnett was participating in the ongoing

investigation of M r. Ramirez for drug trafficking. “[K]nowledge of a person's

prior criminal involvement . . . can . . . be a factor, along w ith other factors,

giving rise to an articulable suspicion.” United States v. M cRae, 81 F.3d 1528,

1535 n.5 (10th Cir. 1996). See Ramirez Rec., vol. II, doc. 288 at 2. In addition,

Agent Burnett noticed that M r. Ramirez seemed “very nervous” and “evasive,” a

manner of behavior that was “distinct[ly] differen[t]” than in previous police

encounters. Ramirez Rec., vol. VII at 51. Although we are typically chary of

affording evidentiary weight to a defendant’s nervousness in light of the

comm only unnerving nature of police stops, Agent Burnett’s observations

-27- recognized behavior relative to an individualized baseline and was not making

simply another “generic claim[] that a Defendant was nervous or exhibited

nervous behavior after being confronted by law enforcement officials.” United

States v. Hall, 978 F.2d 616, 621 n.4 (10th Cir. 1992). Compare id. at 621

(“neither officer had any prior contact with Defendant with which to compare her

behavior, thereby making Defendant's nervous appearance to the officers merely a

hunch.”). C onsidering, as we must, all of these facts in their totality, see

W illiam s, 403 F.3d at 1207, we conclude A gent Burnett had the necessary

“particularized and objective basis for suspecting legal wrongdoing” to continue

the stop. United States v. Arvizu, 534 U.S. at 273 (internal quotation marks

omitted).

This conclusion represents only the first of two Terry inquiries. Having

determ ined the drug investigation was supported by reasonable suspicion, we

must still assess whether the stop was reasonably related in scope to the

circumstances justifying the interference. Bradford, 423 F.3d at 1156. W e first

note that the dog sniff of the exterior of M r. Ramirez’s vehicle did not require

additional cause or suspicion, see Illinois v. Caballes, 543 U.S. 405, 408-09

(2005), and that Agent Burnett’s reasonable suspicion was sufficient to justify a

short detention to await the arrival of a drug sniffing dog. United States v.

M endoza, 468 F.3d 1256, 1261 (10th Cir. 2006). M r. Ramirez argues the length

of detention was improper, but we have previously held a delay of thirty-eight

-28- minutes awaiting the arrival of a canine unit, United States v. Villa-Chaparro, 115

F.3d 797, 802-03 (10th Cir. 1997), and a 50-minute total detention while engaging

in a canine search, United States v. Cervine, 347 F.3d 865, 872-73 (10th Cir.

2003), were both proper detentions for reasonable suspicion. M r. Ramirez has

pointed to nothing in the record that would indicate he was detained for a longer

period of time, 9 and we conclude the scope and duration were reasonably related

to the purpose of the detention. Furthermore, once the dog alerted to the driver’s

side door, O fficer Burnett had probable cause to search the interior of the truck.

See United States v. Rosborough, 366 F.3d 1145, 1153 (10th Cir. 2004). Given

that Agent Burnett had reasonable suspicion, that the scope and duration of the

subsequent detention were reasonable, and that he had probable cause to search

the inside of the vehicle, the detention and search did not violate M r. Ramirez’s

Fourth A mendment rights.

3. Admissibility of Cellular Phone R eceipts

At trial, the government sought to offer two cellular phone receipts

possessed by M r. Vasquez at the time of his arrest as evidence of his involvement

in the conspiracy. The district court admitted the receipts over M r. Vasquez’s

hearsay objection, which he renew s on appeal. “Evidentiary rulings are

9 M r. Ramirez seeks to establish the extreme length of his detention by discussing the apparently dead battery his vehicle suffered during the stop. See Ramirez Br. at 32. But he also acknowledges the “government estimates the traffic stop lasted about thirty minutes,” w ithout directly contesting this conclusion. See id.

-29- committed to the discretion of the trial court, and we review them only for abuse

of discretion. Our review is even more deferential where the evidentiary ruling

concerns the admissibility of what is claimed to be hearsay evidence.” United

States v. Cestnik, 36 F.3d 904, 906-07 (10th Cir. 1994) (citation omitted).

Hearsay evidence, defined as a “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted,” Fed. R. Evid. 801(c), is generally inadmissible

unless the statement is explicitly defined as not hearsay, see Fed. R. Evid. 801(d),

or falls under an exception to the hearsay rule, see Fed. R. Evid. 802. In United

States v. Jefferson, 925 F.2d 1242, 1252 (10th Cir. 1991), we held a pager bill

used to prove the truth of the matter asserted, namely that the defendant

purchased the pager, constituted hearsay. See also United States v. M arkopoulos,

848 F.2d 1036, 1039 (10th Cir. 1988) (receipts are improperly admitted hearsay

evidence). By contrast, in United States v. Pulido-Jacobo, 377 F.3d 1124 (10th

Cir. 2004), we held a two month-old receipt for a set of speakers was not hearsay

because it represented an adoptive admission under Federal Rule of Evidence

801(d)(2)(B). Rule 801(d)(2)(B) provides that where a “statement is offered

against a party and is . . . a statement of which the party has manifested an

adoption or belief in its truth,” it is not hearsay. F ED . R. E VID . 801(d)(2)(B). The

question here is whether the phone receipts obtained from M r. Vasquez are an

adoptive admission, as in Pulido-Jacobo, and thus are admissible non-hearsay, or

-30- are simply inadmissible hearsay as in Jefferson.

In Jefferson, we classified the pager bill as hearsay and broadly rejected the

application of adoptive admissions to bills due to the frequent “inaccuracies

contained” within them. Jefferson, 925 F.2d at 1253 n.13. Reexamining the

application of the adoptive admission rule to bills in Pulido-Jacobo, we

determined Jefferson’s pager bill was not an adoptive admission because “[o]ther

than [M r. Jefferson’s] name on the bill, no evidence existed that the defendant

manifested a belief in the truth of the bill’s contents.” Pulido-Jacobo, 377 F.3d at

1132. Turning to the facts of the case then at hand in Pulido-Jacobo, we

concluded the speaker receipt at issue represented an adoptive admission. W e

distinguished the two documents on two grounds: that M r Pulido-Jacobo “kept his

receipt for over two months after the speaker purchase,” and that “the officers

found speakers in the trunk of the car matching those described in the receipt.”

W e concluded that these “surrounding circumstances tie[d M r. Pulido-Jacobo] and

the document together in some meaningful way” not present in Jefferson. Id.

(quotation marks omitted).

After reviewing the record in this case, we are persuaded the context of M r.

Vasquez’s cellular receipt more closely mirrors those of the pager bill in Jefferson

than the receipt in Pulido-Jacobo. M r. Vasquez’s receipts were dated April 21,

2003, and he w as arrested in possession of the receipts on April 28, 2003. Thus,

he possessed the receipts for only a single week, far less than the two months that

-31- carried the day in Pulido-Jacobo. The facts of this case further differ from those

in Pulido-Jacobo in that the government did not demonstrate M r. Vasquez

possessed the two cellular telephones. The discovery of the speakers, the subject

of M r. Pulido-Jacobo’s receipt, in the trunk of a car in which he was riding

confirmed his connection to the item and the documentation of its purchase. In

this case, not only were the phones not in the possession of M r. Vasquez, but his

name w as not on the bill and the registrants of the phones and the individuals who

paid the bills were never identified. Even in Jefferson, the bearer of the

document’s name w as inscribed on the bill. Because the facts fail to tie M r.

Vasquez to the receipts other than by possession, we conclude he did not adopt

their contents and the district court erred by admitting the receipts into evidence.

The question remains whether the error was harmless. As previously noted,

M r. Vasquez objected to the admission of the receipts upon Rule 801 grounds,

and not as a violation of his Sixth Amendment rights. “[W]here a Confrontation

Clause objection is not explicitly made below we will not address the

constitutional issue in the absence of a conclusion that it was plain error for the

district court to fail to raise the constitutional issue sua sponte.” United States v.

Perez, 989 F.2d 1574, 1582 (10th Cir.1993) (en banc). “To constitute plain error

under the Confrontation Clause, the constitutional error must be (1) obvious, and

(2) affect substantial rights” in a manner that “had an unfair prejudicial impact on

the jury’s deliberations.” Id. at 1583(emphasis in the original). If w e find there

-32- is no plain error, we review the Rule 801 hearsay objection “under the

nonconstitutional harmless error standard.” United States v. LaH ue, 261 F.3d

993, 1009 (10th Cir. 2001). “W e will, however, apply the plain error rule less

rigidly when reviewing a potential constitutional error. Furthermore, a closer

scrutiny may also be appropriate when the failure to preserve the precise grounds

for error is mitigated by an objection on related grounds.” Jefferson, 925 F.2d at

1254 (quotation marks and citations omitted).

W e first consider the nature of the receipts because it is relevant to

Confrontation Clause analysis. The Supreme Court held in Crawford v.

Washington, 541 U.S. 36 (2004), that the Confrontation Clause bars admission of

testimonial out of court statements unless the witness is unavailable and the

defendant had a prior opportunity for cross-examination. See id. at 68. Although

the Court did not precisely define “testimonial” in Crawford, we are certain that

receipts from a private business transaction were not what the Court had in mind.

See id. at 68 (“W hatever else the term covers, it applies at a minimum to prior

testimony at a preliminary hearing, before a grand jury, or at a former trial; and to

police interrogations.”).

W e are therefore left to analyze nontestimonial statements, the receipts, to

determine w hether their admission violated the confrontation rights of M r.

Vasquez. W e analyze such statements under the pre-Crawford rubric of Ohio v.

Roberts, 448 U.S. 56, 66 (1980), which requires “a showing of particularized

-33- guarantees of trustworthiness.” See United States v. Saget, 377 F.3d 223, 227

(2d. Cir. 2004) (“Crawford leaves the Roberts approach untouched with respect to

nontestimonial statements”); United States v. Franklin, 415 F.3d 537, 546 (6th

Cir. 2005) (same). In evaluating the trustw orthiness of the receipts, we return to

our analysis from Jefferson, where we said:

The authenticity of the pager bill was not disputed. It was a bill from an established company that, on its face, gave every indicia of having been issued in the ordinary course of business. There was no indication that [M r. Jefferson], who knew its contents, disputed the bill in any way. W e need not, and do not, decide whether these factors establish the requisite “particularized guarantees of trustw orthiness.” H owever, we do hold that they are sufficient to prevent a conclusion that it was patently obvious that the introduction of the pager bill violated [M r. Jefferson’s] confrontation rights. . . Thus, it was not clear error for the district court to fail to exclude such evidence under the Confrontation Clause.

Jefferson, 925 F.2d at 1254-55. W e find these conclusions persuasive in light of

the facts in this case and conclude the constitutional error here was not obvious.

W e therefore review the violation of the hearsay rules in this case for

nonconstitutional harmless error. An error is not harmless if “it has a substantial

influence on the outcome or leaves one in grave doubt as to whether it had such

an effect.” United States v. Wacker, 72 F.3d 1453, 1473 (10th Cir. 1995)

(quotation marks omitted). The phone receipts were one among several pieces of

evidence linking M r. Vasquez to the conspiracy. M r. Vasquez’s phone

conversations, the phone conversations of others regarding M r. Vasquez’s

involvement, and the financial accounting sheets naming M r. Vasquez in relation

-34- to particular quantities of money and drugs paint a vivid picture of his

involvement in drug trafficking w ithout reliance on the phone receipts. Because

of the abundance of other evidence, we are convinced the error was harmless.

4. Admissibility of Co-conspirator Statements

M r. Vasquez contends the district court further erred by admitting recorded

conversations into evidence as “co-conspirator statements” under Federal Rule of

Evidence 801(d)(2)(E). He asserts the admission of this evidence impinged upon

his Sixth Amendment confrontation rights as defined in Bruton v. United States,

391 U.S. 123 (1968), and Crawford.

As we have previously pointed out, “where a Confrontation Clause

objection is not explicitly made below we will not address the constitutional issue

in the absence of a conclusion that it was plain error for the district court to fail to

raise the constitutional issue sua sponte.” United States v. Solomon, 399 F.3d

1231,1237-38 (10th Cir. 2005) (quoting United States v. Perez, 989 F.2d at 1582).

At the pre-trial Jam es hearing, M r. Vasquez’s counsel objected to the court’s

conclusion that the recorded statements were in furtherance of the conspiracy.

See Ramirez Rec., supp vol. VI at 176-81. But M r. Vasquez cites to no place in

the record where he specifically asserted his confrontation rights or “repeatedly

emphasiz[ed] his inability to cross examine” the declarants. See United States v.

Summers, 414 F.3d 1287, 1297-98 n.7 (10th Cir. 2005). Consequently, we review

the constitutional claim for plain error.

-35- First, M r. Vasquez argues the admission of transcribed phone conversations

between co-conspirators ran afoul of the Supreme Court’s holding in Bruton.

Specifically, he disputes the admissibility of calls between M r. Ramirez and M r.

Galaz-Felix while the later was incarcerated, in which the two parties appear to be

discussing the debts due from M r. Vasquez. 10 M r. Vasquez’s Bruton argument is

unpersuasive, however, because “[e]vidence which is admissible under the

conspiracy exception to the hearsay rule does not violate the right to confront and

cross-examine guaranteed by the Sixth Amendment. The Bruton doctrine does

not rule situations . . . in which the evidence is admissible under a well

recognized exception to the hearsay rule.” United States v. Cox, 449 F.2d 679,

688-89 (10th Cir. 1971). See also Bourjaily v. United States, 483 U.S. 171, 183-

84 (1987). M r. Vazquez does not dispute on appeal the admission of the phone

conversations under Federal Rule of Evidence 801(d)(2)(E). 11 Ramirez Rec.,

10 See Gov’t Ex. 1R-T86 (M r. Galaz-Felix says, “Y ou have Chilango’s number, right? . . . Tell him that the old stuff . . . Tell him he owes for the old stuff . . . and the yellowish kind . . . he was going take off the phone expenses and stuff.”); Gov’t Ex. 1R-T75 (M r. G alaz-Felix says “I told Chilango that . . . two out of those four. Two for the thirteen point five and two for twelve and a half. I mean, and two for thirteen and five hundred . . . Because he owed the part for five hundred and . . . Two for thirteen and the other one for twelve.”). 11 “In order for statements to be admissible under Rule 801(d)(2)(E), the proponent of the evidence must establish, by a preponderance of the evidence, that: (1) a conspiracy existed; (2) the declarant and the defendant were both members of the conspiracy; and (3) the statements were made during the course of, and in furtherance of, the conspiracy.” United States v. Lahue, 261 F.3d at 1008 (quoting United States v. Williamson, 53 F.3d 1500, 1517-18 (10th Cir. (continued...)

-36- supp. vol. VI at 178.

Second, M r. Vasquez contends the co-conspirator statements satisfy the

analytical scheme developed in Crawford, which bars testimonial out-of-court

statements unless the witness is unavailable and the defendant had a prior

opportunity to cross-examine. 541 U.S. at 68. In Crawford, the Court interpreted

the primary concern of the Confrontation Clause as limiting the admission of

“testimonial” hearsay. See id. at 51-53. M r. Vasquez argues “the extra-judicial

statements made by the co-defendants here . . . clearly qualifies [sic] as

‘testimonial’ and . . . are inadmissible against M r. Vasquez under Crawford.”

Vasquez Br. at 18 n.17. W e do not agree. Although the Supreme Court declined

to precisely define “testimonial,” see Crawford, 541 U.S. at 68, the C ourt

explicitly noted that, historically, “statements in furtherance of a conspiracy”

present an “example” of “statements that by their nature [a]re not testimonial.” 12

Id. at 56. M oreover, the Court in Crawford cited Bourjaily with approval as one

of several recent cases that “hew closely to the traditional line.” Crawford, 541

11 (...continued) 1995)). 12 In United States v. Faulkner, 439 F.3d 1221, 1225 (10th Cir. 2006), we said the district court’s conclusion that co-conspirator statements were not testimonial was “well-supported by Crawford.” Id. Other circuits agree. See United States v. Hansen, 434 F.3d 92, 100 (1st Cir. 2006); United States v. M artinez, 430 F.3d 317, 329 (6th Cir. 2005); United States v. Robinson, 367 F.3d 278, 292 n. 20 (5th Cir. 2004); United States v. Reyes, 362 F.3d 536, 540 n.4 (8th Cir. 2004).

-37- U.S. at 58. In Bourjaily, the C ourt held the Confrontation Clause did not require

an independent inquiry into the reliability of statements properly admitted under

Rule 801(d)(2)(E). Bourjaily, 483 U.S. at 183. Because Crawford did not

overturn Bourjaily, the latter continues to control our application of the

Confrontation Clause to Rule 801 co-conspirator statements.

In sum, the statements M r. Vasquez asserts w ere wrongly admitted in this

case were not testimonial, and thus do not present Confrontation Clause problems

under Crawford. The statements at issue were admitted pursuant to Rule

801(d)(2)(E), and the district court did not violate M r. Vasquez’s right to

confrontation by admitting the recorded phone conversations.

SUFFICIENCY O F TH E EVIDENCE CLAIM S

1. M r. Lopez’s Conviction for Possession w ith Intent to D istribute

M r. Lopez contends the evidence presented at trial was insufficient to

support his conviction for possession of the methamphetamine discovered at 1095

16th Street, Apartment Five. To sustain a conviction for possession with intent to

distribute, the government must prove that “(1) the defendant possessed the

controlled substance; (2) knew that he had it; and (3) possessed it with the intent

to distribute it.” United States v. Pulido-Jacobo, 377 F.3d at 1131 (quoting

United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000)). M r. Lopez disputes

the sufficiency of the evidence demonstrating his knowing possession of the

-38- methamphetamine. In evaluating whether the evidence is sufficient to support the

jury's verdict, we “review the record de novo and ask only whether, taking the

evidence-both direct and circumstantial, together with the reasonable inferences

to be drawn therefrom-in the light most favorable to the government, a reasonable

jury could find [Defendant] guilty beyond a reasonable doubt.” United States v.

Jenkins, 175 F.3d 1208, 1215 (10th Cir. 1999) (quoting United States v. Voss, 82

F.3d 1521, 1524-25 (10th Cir.)). W e “evaluate the sufficiency of the evidence by

considering the collective inferences to be drawn from the evidence as a whole.”

United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997) (brackets and

quotations marks omitted).

The government did not prove M r. Lopez actually possessed the

methamphetamine during or prior to the drug seizure. His conviction was

founded instead on a demonstration of constructive possession. See United States

v. Carter, 130 F.3d 1432, 1441 (10th Cir. 1997) (“Possession may be actual or

constructive.”). “[C]onstructive possession exists where the defendant has the

power to exercise control or dominion over the item,” United States v. Lopez, 372

F.3d 1207, 1212 (10th Cir. 2004), and “may be established by circumstantial

evidence.” United States v. M cKissick, 204 F.3d 1282, 1291 (10th Cir. 2000).

“W ith regard to narcotics, we have defined constructive possession as ‘an

appreciable ability to guide the destiny of the drug.’” United States v. Culpepper,

834 F.2d 879, 881 (10th Cir. 1987) (quotation marks omitted). Constructive

-39- possession does not require exclusivity and may apply to multiple individuals. Id.

at 882.

On appeal, M r. Lopez focuses his insufficiency claim on the dearth of

evidence connecting him to apartment five as of the date of the search. Having

reviewed the record, we agree that the evidence presented at trial does not

demonstrate M r. Lopez was then a resident or had continuing broad dominion

over the apartment. 13 However, the legally determinative relationship is not the

one connecting M r. Lopez to the apartment, but the relationship linking M r.

Lopez to the seized methamphetamine. As we recently declared, the “bedrock of

constructive possession . . . is the ability to control the object,” United States v.

Al-Rekabi, 454 F3d 1113, 1120 (10th Cir. 2006), and not the relationship of the

13 M r. Lopez was only tenuously connected to apartment five at the time the police discovered the drugs. He had not resided there for at least a month and a half prior to the discovery of the drugs. See Ramirez Rec., vol. XIII at 168 (M r. Hurst stated [M r. Lopez] “faded away . . . in the middle of November. . . [and] wasn’t living [at the apartment]”); Ramirez Rec., vol. XIV at 7 (M r. Lopez informed M r H urst he was living with his wife “somewhere out north.”). Although a search of the apartment unearthed two bills addressed to M r. Lopez at that address, one was a collection matter, and the other w as for overdue charges. The search turned up three photographs of M r. Lopez as w ell as a vehicle title in his name registered to the address. Two of the three photographs included M r. Gaitan-D ominguez, the succeeding resident of the apartment. Although both bills demonstrate M r. Lopez was previously a named bill-payer for the apartment, a fact neither party contests, neither bill provides evidence of his inhabitation at the time the drugs were discovered because they are for past services rendered. The other items found in the apartment only weakly, if at all, demonstrate M r. Lopez’s control over the apartment in January, as they may simply represent comm on detritus left behind upon his exit.

-40- accused to the location where the object was discovered. 14 See Lopez, 372 F.3d at

1212 (“[C]onstructive possession exists w here the defendant has the power to

exercise control or dominion over the item. Control or dominion over the

premises where the item is found is therefore a factor, but not a requirement, for

finding constructive possession of the item itself.”) (internal citations omitted).

Based on the evidence described below, we conclude M r. Lopez had sufficient

control over the drugs to demonstrate constructive possession.

Phone calls made by M r. Solis-Gaona and M r. Gaitan-Dominguez following

their arrests provide compelling evidence that M r. Lopez exercised control over

the drugs found in the apartment. See Gov’t Ex. 1R-T1-3. After his arrest, M r.

Gaitan-Dominguez telephoned M s. M urillo, with M r. Lopez apparently listening

in the background, see id., on a recorded prison telephone line. M r. Gaitan-

Dominguez said “Hey, dude! It’s just so [sic] can get those things out, as soon as

you can and hurry up, do it fast, in every way. Don’t stop for any reason.” G ov’t

Ex. 1R-T1. M s. M urillo, the speaker on M r. Lopez’ end, responded, impliedly in

reference to M r. Lopez, “He says that he agrees. He agrees, he says.” Id. The

prison phone system also recorded a conversation between M r. Solis-Gaona and

M s. M urillo discussing the presence of drugs in the exercise machine at apartment

14 Jury instructions explained constructive possession as “the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons.” Ramirez Rec., vol. II, doc. 346, Jury Instruction 37, 54.

-41- five and the need for the “guy . . . to take the things out of the house.” G ov’t

Ex.1R-T2 at 2. 15 In a third prison call involving M r. Lopez, M r. Gaitan-

Dominguez, and M s. M urillo, M r. Gaitan-Dominguez told M r. Lopez, “W ell,

move it, man, before they make this into a bigger deal,” and M r. Lopez responded

“I know, man.” Gov’t Ex.1R-T3 at 3.

Although M r. Gaitan-Dominguez and M r. Solis-Gaona speak in vague

phrases, “this guy,” “the things,” “some stuff,” a jury could reasonably infer that

in these calls M r. Lopez committed to orchestrating the removal of drugs from

apartment five. The callers discuss “some stuff” hidden in the “walking thing,”

and the need to “take them out from there.” G ov’t Ex. 1R-T2 at 2. This

discussion refers euphemistically, but quite specifically, to the drugs hidden in the

exercise machine in apartment five. Furthermore, statements like “get those

things out as soon as you can,” “he’s going to send someone there [to take the

15 The call transcript reads: [M r. Solis-Gaona]: Tell this guy that’s over here, to . . . to take the things out of the house. [M s. M urillo]: Yeah, I already . . . I already told him. He’s going to send someone there. .... [M r. Solis-Gaona]: Did you tell him about . . . about the walking thing? [M s. M urillo]: No. [M r. Solis-Gaona]: Didn’t he tell you?. [M s. M urillo]: uh-uh [M r. Solis-Gaona]: But that guy already knows about . . . On that walking thing there’s . . . down there, there’s some stuff there, have him take them out from there . . . . Gov’t. Ex. 1R-T2.

-42- things out of the house],” and “move it, man,” among others, demonstrate M r.

Lopez’s ability to collect and then transfer the drugs from the apartment.

These phone conversations, and the reasonable inferences that can be draw n

therefrom, when view ed, as we must, in a light most favorable to the government,

support a finding that M r. Lopez had the power to exercise control over the drugs.

As the reasonable inferences that can be drawn from the phone calls meet the

requirement of constructive possession, namely ability to control the contraband,

see Lopez, 372 F.3d at 1212, we are untroubled by the failure of old bills and

cast-off photographs to demonstrate M r. Lopez possessed a generalized dominion

over the apartment. W e therefore conclude the evidence presented was sufficient

to sustain M r. Lopez’s conviction for possession of methamphetamine with intent

to distribute.

2. Evidence Supporting Conspiracy C onvictions

M r. Lopez, M r. M ozqueda-Ramirez and M r. Vasquez contend the

government failed to prove they knowingly agreed to participate in a conspiracy.

“To prove conspiracy, the government must show: (1) that two or more people

agreed to violate the law, (2) that the defendant knew at least the essential

objectives of the conspiracy, (3) that the defendant knowingly and voluntarily

became a part of it, and (4) that the alleged co-conspirators were interdependent.”

United States v. Small, 423 F.3d 1164, 1182 (10th Cir. 2005). The “government

may establish these elements by direct or circumstantial evidence.” United States

-43- v. Evans, 970 F.2d 663, 668 (10th Cir. 1992). “W hen reviewing the jury’s

decision, we must view all of the evidence, both direct and circumstantial, in the

light most favorable to the government, and all reasonable inferences and

credibility choices must be made in support of the jury’s verdict.” Id. at 671

(quoting United States v. Dickey, 736 F.2d 571, 581 (10th Cir. 1984)).

W e examine M r. Lopez’s claim first. He disputes that sufficient evidence

was presented to demonstrate he agreed with others to violate the law. Such an

agreement “need not be explicit, but rather may be inferred from the facts and

circumstances of the case.” Id. at 669. In this case, the facts from which a jury

could infer an agreement include: (a) the storage unit rented in the name of

Emilio Felix, M r. Lopez’s alias, containing paperwork in that name and sandwich

bags, packing materials, a digital scale, and methamphetamine residue, see

Ramirez Rec., vol. XIII at 120-124; (b) testimony from an Ogden City police

officer that the “smell . . . and the wrapping” in the storage unit “was the same”

as the wrapping for the drugs found in apartment five, id. at 123; (c) M r. Gaitan-

Dominguez’s telephone conversation with M r. Lopez, asking M r. Lopez to “move

it” after M r. Gaitan-Dominguez was arrested in connection with drugs found in

apartment five, Gov’t Ex. 1R-T3 at 3; and (d) M r. Lopez’s recorded phone

conversations with M r. Ramirez discussing the transfer of money and drugs. 16

16 See, e.g., Gov’t Ex. 1R-T37 at 7 (M r. Lopez states “Every time I talk to [M r. Galaz], he’s just bringing out the money. W here the money is.”); Gov’t Ex. (continued...)

-44- Additional evidence connects an individual referred to by the conspirators

as Julio, Jul, or Julia to the distribution of drugs. M r. Lopez contends the record

does not establish that the Julia or Julio appellations noted in phone calls and the

drug ledger refer to him. Even assuming this is true, 17 the aforementioned

evidence directly implicating M r. Lopez is sufficient to establish an agreement.

In this regard, we note that the storage unit was registered to Emilio Felix, an

alias unambigously connected to M r. Lopez, see Ramirez, Rec., vol. XIII at 159,

175 (M r. Hurst identifies M r. Lopez as Emilio Felix, the renter of apartment five,

16 (...continued) 1R-T46 at 3 (M r. Ramirez asks M r. Lopez, “Share some, can you?” M r. Ramirez then tells M r. Lopez, “[Topo] finished it off.,” M r. Lopez says, “like seven,” and M r. Ramirez responds, “Y eah, I’ve seen it.” ); Gov’t Ex. 1R-T60 at 5 (M r. Ramirez says, “[M r. Galaz] had it right in his house, can you believe that?” Lopez responds “Oh, really?” Ramirez replies, “He had a half, because he gave me another half, so I could store it for him); Gov’t Ex. 1R-T69 at 7-8 (M r. Ramirez asks “Y ou still can’t get anything for me, right?” M r. Lopez responds “There ain’t nothing, Deano. . . . Last night I . . . I called and no one has any . . . Jose told me that he has some.); Gov’t Ex. 1-RT-74 at 3 (M r. Lopez asks “W hat did he tell you?” M r. Ramirez responds, “That you owed six . . . and [you] were gonna give it to him in two’s.”); Id. at 8 (discussing a police search of [M r. Galaz’s] basement, M r. Lopez states “the guy bought a pick . . . in order to make a stash down there.”). 17 Contrary to M r. Lopez’s contention, at least one reference to “Julio” can be reasonably associated with him. In his brief, M r. Lopez acknowledges he “help[ed] retain an attorney,” A plt. Br. at 37, for M r. Gaitan-Dominguez and M r. Solis-Gaona after their arrest. In M r. Galaz’s written financial accounting, he noted, “Julio took 10 thousand for the lawyer.” Gov’t Ex. 1R-24(g). A juror could reasonably infer that M r. Lopez’s involvement in retaining an attorney and the ledger’s reference to a “Julio” taking money for a lawyer describe the same person and action. Although this entry alone does not prove all references to Julio pertain to M r. Lopez, the listing of M r. Lopez, even once, in the ledger supports a conclusion that he was part of the criminal enterprise.

-45- and testifies that M r. Lopez admitted he was both M r. Lopez and M r. Felix), and

M r. Lopez discussed in numerous phone calls with M r. Ramirez what a juror

could reasonably conclude was the trafficking of drugs. None of this evidence

required the jury to conclude an offhand reference to an individual by the

shortened or feminine form of Julio was in fact M r. Lopez. There is sufficient

evidence linking M r. Lopez to the conspiracy even without considering evidence

referencing Julio, Julia, or Juliana.

Similarly, M r. M ozqueda-Ramirez argues there was insufficient evidence

linking him to the conspiracy. He asserts the evidence connecting him to the

conspiracy consisted solely of phone calls between him and M r. Aparicio in

which he made “innocuous statements regarding a white Camaro or a Brave One.”

M ozqueda-Ramirez Br. at 21. He contends that the “reference to a w hite Camaro

could have been just that, a white Camaro and not drugs,” id. at 20, and that a

“Brave One” could represent a “saying that means something to H ispanics”

unrelated to drugs. Id. at 21. If those references were the w hole of M r.

M ozqueda-Ramirez’s statements, we might be inclined to rule in his favor, but his

conversations included numerous additional alleged coded references to drugs and

money, 18 in a context demonstrating his involvement in distribution. 19 The

18 See, e.g., Gov’t Ex. 4A-T5 “a quarter,” “tickets,” “small room of a hotel,” “the other animal,” “windows,” “ice,” “little eight,” and “a Seven Eleven”); G ov’t ex. 4A -T11 (“that stuff,” “a ball,” “a notebook”); Gov’t ex. 4A - 18 (“material,” “the brave one,” “white paint”); Ramirez Rec., vol. XIV at 46-47 (continued...)

-46- extensive recorded dialogue between M r. M ozqueda-Ramirez and M r. Aparicio,

containing what a jury could reasonably conclude was coded language relating to

drug distribution, is sufficient to support M r. M ozqueda-Ramirez’s conspiracy

conviction.

M r. Vasquez makes similar claims as to the sufficiency of the evidence to

support his conspiracy conviction. Previously, we concluded the cellular phone

receipts found on M r. Vasquez when he was arrested were mistakenly admitted

into evidence at trial. Even without the aid of the receipts, however, a reasonable

jury could find M r. V asquez guilty of conspiracy beyond a reasonable doubt.

W iretap recordings capture M r. Vasquez directly conversing about drugs or, more

precisely, terms a reasonable jury could conclude refer to drugs and drug dealing.

18 (...continued) (A gent Barrett’s testified the term “[h]otel [represents] the pound quantity, a room being a quarter pound, and a quarter of that, or the small room, would be a quarter of the quarter” and “from my own experience . . . windows is a common term for crystal methamphetamine.”). 19 See, e.g., Gov’t. Ex. 4A-T5 (In a phone call involving M r Aparicio and M r. M ozqueda-Ramirez, M r. Aparicio says “I just wanted to see if you could get me a small room of a hotel,” and “I w ant to be sure that you can get it.” M r. M ozqueda-Ramirez later says “I’ve got some but it’s just three or four little ones. I’ve got them ready”); Gov’t. Ex. 4A-T11 (In a phone call involving M r A paricio and M r. M ozqueda-Ramirez, M r. A paricio says “There’s this guy that w ants . . . a ball . . . and there was another guy up there that w anted a whole notebook . . . . B ut I don’t know if you w ould be able to lend me the whole notebook for two days.”); Gov’t Ex. 4A-T18 (In a phone call involving M r Aparicio and M r. M ozqueda-Ramirez, M r. M ozqueda-Ramirez says he is “over here on the streets already,” M r. Aparicio asks “H ow are you doing on material?” and M r. M ozqueda-Ramirez responds by asking “which kind? the brave one . . . the white paint?”).

-47- For example, M r. Vasquez and M r. Aparicio engaged in the following recorded

conversation:

[Jose Aparicio]: . . . do you have any material. [V asquez]: . . . the only thing I have left are donuts. [Jose Aparicio]: No, no problem, I only need a quarter, a hotel. [Vasquez]: oh. [Jose Aparicio]: W ith the money on hand.

Gov’t Ex. 4A-T7. Although the government failed to establish “donuts” had a

drug-related meaning, see Ramirez Rec., vol. XIV at 50, it did provide the jury

with specific secondary drug-related definitions for the terms “hotel” and

“quarter.” See id. at 46.

Furthermore, numerous references to M r. Vasquez, by his given name or by

his nickname, Chilango, 20 in other recorded wiretap conversations indicate his

involvement in drug trafficking. 21 Furthermore, M r. Galaz-Felix ’s ledger

20 Notably, M r. Vasquez self-identified as Chilango in a recorded call with M r. Ramirez. See Gov’t Ex. 1R-T66 (M r. Ramirez asks, “W ho is this?” and M r. Vasquez responds, “This is Chilango, man”); Gov’t Ex. 2, # 93 (authenticating M r. V asquez as speaker on above call). 21 See Gov’t Ex. 1R-T6 ( Jose Aparicio tells C arlos A paricio, “It w as a half ounce that belonged to Chilango.” Carlos A paricio later says, “I just called Chila a little while ago, to tell him that I wanted, but he says he doesn’t have anything left . . . . It’s just that when I get some, I tell Chila.”); Gov’t Ex. 1R-T86 (M r. Galaz-Felix says to M r. Ramirez, “Y ou have Chilango’s number, right? . . . Tell him that the old stuff . . . Tell him he owes for the old stuff . . . and the yellow ish kind . . . he was going take off the phone expenses and stuff.”); Gov’t Ex. 1R- T66 (M r. V asquez discusses M r. Galaz-Felix’s arrest with M r. Ramirez, “He asked me to call you . . . . They got him with just the tickets, right?”); Gov’t Ex. 1R-T75 (M r. Galaz-Felix says to M r. Ramirez “I told Chilango that . . . two out of those four. Two for the thirteen point five and two for twelve and a half. I mean, (continued...)

-48- includes a number of entries for “Vasquez” and variations of the nickname

Chilango accompanied by references to money and items and quantities that could

be interpreted as drug related euphemisms. Taking this evidence together with

the reasonable inferences to be drawn therefrom in the light most favorable to the

government, we conclude a reasonable jury could find M r. Vasquez guilty of

conspiracy beyond a reasonable doubt.

TRIAL CO UNSEL ISSUES

1. Claim of Ineffective Assistance of M r. M ozqueda-Ramirez’s Counsel

M r. M ozqueda-Ramirez argues his original trial counsel was ineffective for

failing to file pre-trial motions or join the motions of other defendants and for

failing to recognize a conflict of interest earlier in the trial process. As we have

previously noted, however, “[i]neffective assistance of counsel claims should be

brought in collateral proceedings, not on direct appeal. Such claims brought on

direct appeal are presumptively dismissible, and virtually all will be dismissed.”

United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). See also

M assaro v. United States, 588 U .S. 500, 504 (2003). Accordingly, we dismiss

21 (...continued) and two for thirteen and five hundred . . . . Because he owed the part for five hundred and . . . Two for thirteen and the other one for twelve.”); Gov’t Ex. 1R- T56 (M r. Galaz-Feliz tells M r. Ramirez that “C hilango called me . . . I told him to drop by . . . to take it over to you. . . so just keep it there for me and I’ll pick it up.” during a conversation about stashing drugs).

-49- M r. M ozqueda-Ramirez’s present ineffectiveness claim. He may reassert this

claim in future collateral proceedings.

2. Denial of M otion for W ithdraw al of M r. M ozqueda-Ramirez’s Counsel

M r. M ozqueda-Ramirez asserts the district court erred in denying his

attorney’s motion to withdraw as counsel. See M ozqueda-Ramirez Rec., vol. II at

163. W e review the denial of such a motion for an abuse of discretion. See

United States v. Johnson, 961 F.2d 1488, 1490 (10th Cir. 1992). “To warrant a

substitution of counsel, the defendant must show good cause, such as a conflict of

interest, a complete breakdown of communication or an irreconcilable conflict

which leads to an apparently unjust verdict.” United States v. Porter, 405 F.3d

1136, 1140 (10th Cir. 2005) (quotation marks omitted). In his brief, M r.

M ozqueda-Ramirez restates his ineffectiveness claim, discussing the difficulties

encountered by counsel in preparing for trial in a limited time frame and the

“scant”ness of evidence proving his involvement in the conspiracy, essentially

reiterating his sufficiency arguments. He does not demonstrate good cause for

removal of counsel as defined in Porter. Our independent review of the M arch 2,

2004 motion hearing before the magistrate judge does not convince us of the

existence of a complete breakdown in the attorney-client relationship. See

Ramirez Rec., sup. vol. VII at 9 (M r. M ozqueda-Ramirez explaining to the

magistrate judge, “I just want to switch attorneys.”). W e are not persuaded the

district court abused its discretion in denying M r. M ozqueda-Ramirez’s request

-50- for w ithdrawal of his attorney.

SENTENCING ISSUES

1. Application of M andatory M inimum

The district court sentenced M r. M ozqueda-Ramirez to 151 months

imprisonment, followed by five years of supervised release, in accordance with

the lower end of the recommended guidelines range. See Rec., vol. XI at 16. M r.

M ozqueda-Ramirez now asserts “the trial judge erred by imposing minimum

mandatory sentencing in light of . . . Blakely . . . and . . . Booker.” M ozqueda-

Ramirez. Br. at 25. In doing so, he fails to cite facts in the trial record or post-

Booker case law from the Tenth Circuit to clarify and support his claim. As best

as we can decipher, a statutory minimum mandatory sentence of five years was

required on M r. M ozqueda-Ramirez’s conviction for conspiracy to distribute

controlled substances, and M r. M ozqueda-Ramirez’s argument is that the

application of a mandatory minimum violated his Sixth A mendment right to a jury

trial. W e have held, however, that United States v. Booker, 543 U.S. 125 (2005),

“does not apply to statutory minimum sentences.” United States v. Harris, 447

F.3d 1300, 1307 (10th Cir. 2006). Consequently, although we cannot tell from

the provided record how the minimum mandatory on one count factored into his

total guideline range, the court did not err in sentencing him to the extent that the

sentence incorporated a mandatory minimum required by statute.

-51- 2. Sentencing of M r. Ramirez

M r. Ramirez contends the district court erred by imposing a sentence based

on facts not proven beyond a reasonable doubt or admitted by him, in violation of

Booker and its antecedents. Specifically, he argues the district court comm itted a

constitutional Booker error by relying on evidence not proven to the jury to

establish his possession of a gun, his use of a minor, and his leader status. See

United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005).

The Probation Office, in drafting M r. Ramirez’s presentence report

(“PSR”), originally assigned a base offense level of 38. At M r. Ramirez’s

sentencing hearing, the district court rejected the PSR’s recommendation and

instead assigned a base level of 32 to account for a lower drug quantity. See

Ramirez Rec., vol. XXI at 19. The court supplemented the base level of 32 with 4

additional levels for being a leader, 2 for possession of a gun, and 2 for the use of

a minor to commit an offense. M r. Ramirez’s offense level then totaled 40, which

led to a recommended range of 360 months to life when combined with his

criminal history category of IV. The court noted it did “not believe that [18

U.S.C. §] 3553 requires a life sentence.” Id. at 4. Before determining M r.

Ramirez’s actual sentence, the court “recognize[d], as we all do now, [the

Sentencing Guidelines] are not mandatory. They are a factor.” Id. at 26. See

also id. at 4 (“I’m not bound by the guidelines.”). The court then sentenced M r.

Ramirez to 30 years imprisonment and 5 years of supervised release.

-52- The type of constitutional error M r. Ramirez asserts does not apply here

because the district court did not apply the guidelines as mandatory.

“[C]onstitutional [Booker] error . . . occurs when the district court applies the

Guidelines in a mandatory fashion, makes factual findings (other than the fact of

prior convictions), and imposes a sentence above the maximum that would apply

in the absence of such findings.” United States v. Yazzie, 407 F.3d 1139, 144

(10th Cir. 2005) (emphasis added). As the Supreme Court itself indicated in

Booker,

[i]f the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. W e have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.

543 U.S. at 233. The remedy in Booker established an advisory scheme, and the

district court in this case properly contemplated the guideline recommendations as

a non-binding factor. There was no “constitutional Booker error” as it was

defined in Yazzie and Gonzalez-Huerta.

After Booker, the fixed statutory maximum and not the discretionary

guidelines range establishes the “maximum” for purposes of Apprendi v. New

Jersey, 530 U.S. 466 (2000). See United States v. Crockett, 435 F.3d 1305, 1319

(10th Cir. 2006). Only if M r. Ramirez’s sentence exceeded the statutory

-53- maximum, which in this case was life imprisonment, 22 would he have a potentially

cognizable Apprendi argument. The district court’s use of sentencing

enhancem ents did not violate M r. Ramirez’s Sixth A mendment rights.

M r. Ramirez also contends 21 U.S.C. §§ 841 and 846 are void for

vagueness because the guideline sentencing factors were not defined by statute as

elements of the crimes or charged in the indictment. M r. Ramirez concedes he

“had sufficient notice to know that conspiring to distribute 500 grams or more of

a mixture containing methamphetamine was unlawful conduct,” but he asserts he

“could not have known that he would be subject to criminal liability for his role

in the offense or relevant conduct” recognized by sentencing enhancements.

Ramirez. Br. at 17.

The Sentencing Guidelines provide that “[c]onduct that is not formally

charged or is not an element of the offense of conviction may enter into the

determination of the applicable guideline sentencing range.” U.S.S.G. § 1B1.3,

backg’d, and the Supreme Court has said sentencing courts “may exercise[]

discretion . . . in imposing sentence within statutory limits in the individual case.”

Apprendi, 530 U.S. at 481(emphasis in the original). See also Booker, 543 U.S. at

22 See 21 U.S.C. § 841(1)(A)(viii) (“In the case of a violation . . . involving . . . 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine . . . such person shall be sentenced to a term of imprisonment which may not be . . . more than life.”) (emphasis added); 21 U.S.C. § 846 (“Any person who . . . conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense.”).

-54- 233. W here the guidelines are merely advisory, as they were at the time of M r.

Ramirez’s sentencing, the maximum sentence is the statutory limit, not the upper

bound of the calculated guidelines range.

M r. Ramirez’s only conviction was for violating § 841 and § 846, the

content of which he concedes he had sufficient notice. “The evidence produced at

trial demonstrates that [the defendant] had knowledge of the illegality of his

activities, and thus this is not a situation where he could not reasonably

understand that his contemplated conduct is proscribed.” United States v. Day,

223 F.3d 1225, 1229 (10th Cir. 2000) (internal quotation marks omitted). The

district court here exercised its discretion to arrive at a carefully considered

sentence that fell within the statutory range. The sentencing enhancements were

not required to be included in the statute as elements of the crime because they

were properly within the court’s discretion at sentencing. W e will not deem the

statute vague due to their absence.

C ON CLU SIO N

W e A FFIR M the convictions and sentences of all defendants.

-55-