United States v. Ramos

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 96-50232

(Summary Calendar) _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REYNALDO CARRASCO RAMOS,

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas (M0-95-CR-15)

December 23, 1996 Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Reynaldo Carrasco Ramos appeals his convictions of four counts

of distribution of cocaine in violation of 21 U.S.C. § 841 and one

count of maintaining an establishment of manufacturing operations

in violation of 21 U.S.C. § 851. We affirm.

* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. I

In December 1994, Detective Manuel Beltran of the Midland,

Texas Police Department targeted suspected drug trafficking by

Ramos. Since Ramos knew Beltran and the other local police

officers, Beltran enlisted a confidential informant, Andy Bonilla,

to approach Ramos to purchase cocaine. Wearing a concealed

transmitter, Bonilla went to Tio’s Lounge where he met briefly with

Ramos and offered to purchase an ounce of cocaine. Ramos agreed to

meet Bonilla at Ramos’s residence to make the sale. During this

same recorded conversation, Ramos referred to 400 pounds of

marijuana in his possession. Beltran and another officer followed

Ramos and Bonilla to Ramos’s residence, where Bonilla paid Ramos

$700 in exchange for approximately one ounce of cocaine. Bonilla

purchased cocaine from Ramos on three other occasions; Beltran

monitored each purchase by transmitter.

During voir dire at Ramos’s trial, the prosecutor used a

peremptory challenge to exclude an Hispanic venireperson, Celia

Sosa. The district court required the prosecutor to state his

reason for striking Ms. Sosa; the prosecutor explained that he

struck Ms. Sosa because she had been observed sleeping during a

prior court session. The district court accepted this explanation

and dismissed Ms. Sosa.

During trial, Ramos sought admission of an affidavit signed by

Bonilla and prepared in connection with a prior, unrelated cocaine

case. In the affidavit, Bonilla states that he lived with “Disco

-2- Joe” Martinez and Tracy Bonilla (Bonilla’s sister) at the time

police raided their residence. Bonilla states that a small amount

of cocaine found during the raid of the residence belonged to him.

Ramos sought admission of the affidavit during his trial as

evidence that Bonilla planted cocaine in other people’s homes and

therefore may have planted cocaine in Ramos’s home. The district

court excluded the affidavit based on its finding that the

affidavit did not indicate that Bonilla planted drugs in the

residence.2 The court ruled, however, that Ramos could question

Bonilla during cross-examination about Martinez’s drug use and

about any prior statements Bonilla had made about Martinez.

Defense counsel did not pursue this line of questioning.

The prosecution presented audiotaped conversations between

Bonilla and Ramos as evidence against Ramos. Portions of the

recordings were inaudible and contained words spoken by

unidentified speakers. The district court ordered the redaction of

portions of two recordings and several pages of corresponding

2 The relevant portion of the affidavit provides:

On or about February 4, 1993, I was living with Joe Martinez and my sister Tracy Bonilla at 1202 S. Dallas, Midland, Texas 79701. On February 4, 1993, I had gone to buy some flowers because it was Tracy Bonilla’s birthday. While I was gone to the florist, the house was raided and a very small amount of cocaine was found. The cocaine that was found in the house was mine. Neither Joe Martinez nor Tracy Bonilla knew that I had it in the house nor did they have knowledge that I used cocaine occasionally and on a recreational basis.

Appellee’s Br. at 10-11 (Def.’s Ex. 16).

-3- transcripts, expressing concern about both the inaudibility and

unidentified speakers and about Ramos’s reference to his possession

of 400 pounds of marijuana.

After Ramos’s conviction, a probation officer prepared a

Presentence Investigation Report (“PSR”) for the court in which he

relied upon Ramos’s recorded reference to his possession of 400

pounds of marijuana in calculating Ramos’s offense level for

sentencing. Though Ramos objected to the inclusion of this

information in the PSR and objected to its consideration at his

sentencing, the district court found that Ramos’s statement should

be considered as evidence of relevant conduct under § 1B1.3 of the

Sentencing Guidelines (1995). The district court sentenced Ramos

to sixty-three months in custody, three years supervised release,

and a $250 fine.

II

Ramos presents four arguments on appeal: (1) that the

suppression of Bonilla’s affidavit violated Ramos’s Sixth Amendment

right to confront and cross-examine witnesses against him; (2) that

the district court abused its discretion by admitting audiotape

recordings and transcripts that contained inaudible portions and

unidentified speakers; (3) that the district court clearly erred in

finding 400 pounds of marijuana attributable to Ramos for

sentencing purposes; and (4) that the district court clearly erred

in finding that the prosecutor did not discriminate based on race

in using a peremptory challenge to strike an Hispanic juror.

-4- Ramos contends that the district court’s refusal to admit

Bonilla’s affidavit violated Ramos’s Sixth Amendment right to

cross-examine witnesses against him. He argues that the affidavit

constituted evidence that Bonilla had previously planted drugs in

someone else’s residence, and thus may have planted cocaine in

Ramos’s residence.

A trial court has wide latitude to impose reasonable

restraints upon a defendant’s right to cross-examination. United

States v. Alexius, 76 F.3d 642, 644 (5th Cir. 1996). We review a

district court’s restriction of the scope of cross-examination for

an abuse of discretion. Id. To demonstrate an abuse of

discretion, Ramos must show that the limitations imposed upon his

counsel’s cross-examination were clearly prejudicial. United

States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993), cert. denied,

___ U.S. ___, 115 S. Ct. 54, 130 L. Ed. 2d 13 (1994). In

determining whether the district court abused its discretion, “the

relevant inquiry is whether the jury had sufficient information to

appraise the bias and motives of the witness.” United States v.

Tansley, 986 F.2d 880, 886 (5th Cir. 1993).

We find no abuse of discretion in the district court’s refusal

to admit the affidavit. The plain language of the affidavit simply

does not support Ramos’s characterization of its contents. In

addition, Ramos has not demonstrated any clear prejudice as a

result of the claimed limitation on his cross-examination of

-5- Bonilla. The district court ruled that Ramos could question

Bonilla regarding matters addressed in the affidavit, and Ramos

failed to do so. Any prejudice Ramos may have suffered as a result

of the jury’s lack of information regarding these matters is self-

inflicted.

Ramos also argues that the district court abused its

discretion by admitting audiotape recordings and corresponding

transcripts that contained inaudible portions and unidentified

voices. Rulings on the admissibility of evidence are within the

discretion of the trial court. United States v. Eakes, 783 F.2d

499, 506 (5th Cir.), cert. denied, 477 U.S. 906, 106 S. Ct. 3277,

91 L. Ed. 2d 567 (1986). We review those rulings only for an abuse

of discretion. Id. at 506-07.

Tapes are not per se inadmissible because they are partially

inaudible; the issue is whether the unintelligible portions “are so

substantial as to render the recording as a whole untrustworthy.”

United States v. Greenfield, 574 F.2d 305, 307 (5th Cir.) (quoting

United States v. Avila, 443 F.2d 792, 795 (5th Cir.), cert. denied,

404 U.S. 944, 92 S. Ct. 295, 30 L. Ed. 2d 258 (1971)), cert.

denied, 439 U.S. 860, 99 S. Ct. 178, 58 L. Ed. 2d 168 (1978). This

determination is left to the sound discretion of the trial judge.

Id.

Ramos does not argue that the unintelligible portions of the

tapes were so substantial as to render the recordings as a whole

-6- untrustworthy. He argues that the government did not lay a proper

foundation for admission of the tapes. The record reflects,

however, that the district court specifically clarified the

foundation for admission of the recordings when it questioned

Beltran about the operation of the recording device, the operator’s

competence, the accuracy of the recordings, changes, additions or

deletions to the recordings, the chain of custody, and the

voluntariness of the recordings. In addition, the district court

redacted portions of the recordings and corresponding transcripts,

thereby substantially reducing the inaudible portions and

eliminating most of the statements made by unidentified speakers.

We find no abuse of discretion in the district court’s admission of

the recordings and corresponding transcripts.

Ramos next contends that the district court clearly erred in

finding 400 pounds of marijuana attributable to him for sentencing

purposes. We review for clear error a district court’s factual

findings regarding the quantity of drugs attributable to the

defendant for sentencing purposes. United States v. Vital, 68 F.3d

114, 120 (5th Cir. 1995).

In determining the relevant facts at sentencing, the district

court is not restricted to information that would be admissible at

trial. Id. Instead, it may consider any information that has

sufficient indicia of reliability to support its probable accuracy.

Id. If information is presented to the sentencing judge with which

-7- the defendant would take issue, the defendant bears the burden of

demonstrating that the information cannot be relied upon because it

is materially untrue, inaccurate, or unreliable. United States v.

Angulo, 927 F.2d 202, 205 (5th Cir. 1991).

In making its drug quantity finding, the district court relied

upon the recording of Ramos’s negotiations with Bonilla and others

at Tio’s Lounge, during which Ramos stated that he had about 400

pounds of marijuana in his possession. This information was also

contained in the PSR prepared by the probation officer. Though

Ramos argued that no evidence supported his possession of the

marijuana, he offered no affidavits or other evidence rebutting his

recorded statement that he possessed the marijuana nor did he offer

any evidence demonstrating that the statement was materially

untrue, inaccurate, or unreliable. See Vital, 68 F.3d at 120

(“[I]f no relevant affidavits or other evidence is submitted to

rebut the information contained in the PSR, the court is free to

adopt its findings without further inquiry or explanation.”).

Thus, we find no clear error in the district court’s drug quantity

finding for sentencing purposes.

Lastly, Ramos argues that the district court clearly erred in

finding that the prosecutor did not discriminate based on race in

using a peremptory challenge to dismiss an Hispanic juror. We

review a district court’s decision regarding a Batson violation for

clear error. Hernandez v. New York, 500 U.S. 352, 369, 111 S. Ct.

-8- 1859, 1871, 114 L. Ed. 2d 395 (1991); United States v. Clemons, 941

F.2d 321, 325 (5th Cir. 1991). Because the trial court’s findings

on the ultimate question of discriminatory intent “largely turn on

evaluation of credibility, a reviewing court ordinarily should give

those findings great deference.” Hernandez, 500 U.S. at 364, 111

S. Ct. at 1868-69 (quoting Batson v. Kentucky, 476 U.S. 79, 98

n.21, 106 S. Ct. 1712, 1724 n.21, 90 L. Ed. 2d 69 (1986)).

In this case, the district court accepted the prosecutor’s

explanation that he dismissed Ms. Sosa because she had been

observed sleeping in a prior court session. Exercising a

peremptory strike against a sleeping venireperson does not offend

Batson. See United States v. Maseratti, 1 F.3d 330, 335-36 (5th

Cir. 1993) (finding that prosecutor’s explanation that he struck

black venireperson because “she appeared to be sleeping during part

of the voir dire” was “clearly race-neutral, and Appellants’

arguments [of Batson violations] are without merit”), cert. denied,

510 U.S. 1129, 114 S. Ct. 1096, 127 L. Ed. 2d 409 (1994), and cert.

denied, ___ U.S. ___, 114 S. Ct. 1552, 128 L. Ed. 2d 201 (1994),

and cert. denied, ___ U.S. ___, 115 S. Ct. 282, 130 L. Ed. 2d 198

(1994). Thus, we find no clear error in the district court’s

decision to dismiss Ms. Sosa.

AFFIRMED.

-9- -10-