United States v. Garcia

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-3708
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United States of America, *
*
Appellee, *
*
v. *
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Arturo Padilla Garcia, *
*
Appellant. *
*
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Appeals from the United States
No. 10-3794 District Court for the
___________ District of Minnesota.

*
United States of America, *
*
Appellee, *
*
v. *
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Edvin Emanuel Gomez Maldonado, *
*
Appellant. *

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Submitted: June 14, 2011
Filed: July 22, 2011
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.

A jury found Arturo Garcia and Edvin Maldonado guilty of conspiracy to
distribute methamphetamine and multiple counts of distribution of methamphetamine.
The district court1 sentenced Garcia to 121 months’ imprisonment and Maldonado to
80 months’ imprisonment. Both Garcia and Maldonado now appeal their convictions.
For the reasons that follow, we affirm.

I. BACKGROUND

In November 2009, the Minneapolis Police Department began investigating
Garcia on suspicion that he was distributing methamphetamine. On November 24, a
confidential informant named Francisco Morales set up a meeting with Garcia in the
parking lot of a restaurant in Minneapolis. Three members of the Minneapolis Police
Department surveilled the November 24 meeting: Sergeant Grant Snyder, Sergeant
Matthew Wente, and Officer Bart Hauge. Garcia arrived in a Dodge Dakota and met
with Morales in Morales’s vehicle for several minutes. A recording device worn by
Morales captured their conversation, which involved a discussion in Spanish of drug
sources, costs, and purity. During the meeting, Garcia gave Morales a sample that
later tested positive for methamphetamine. After the meeting concluded, Garcia got
back into the Dodge Dakota and drove away from the scene. The officers followed
the Dakota to Garcia’s apartment building in southern Minneapolis, where Maldonado
also resided, and Garcia and two other individuals left the vehicle and entered the
building. After a short time, they exited the building and drove off in the Dodge

1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.

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Dakota. The officers followed the vehicle again, eventually stopping it and
identifying Garcia as one of the occupants.

On December 2, Morales arranged a controlled drug buy with Garcia at the
apartment building in Minneapolis in which he and Maldonado resided. Sergeant
Snyder, Sergeant Wente, and Officer Hauge conducted surveillance of the transaction.
Garcia exited the apartment and entered Morales’s vehicle, where he remained for
about two minutes. During this exchange, Garcia gave Morales a package that was
later tested and found to contain 25.3 grams of methamphetamine. Garcia and two
other individuals then drove to a restaurant in St. Paul, Minnesota, in the same Dodge
Dakota that the officers had encountered on November 24, where they met in the
parking lot with the occupants of a vehicle registered to an individual named Manuel
Rodriguez.

Rodriguez also was under suspicion of distributing methamphetamine and was
under investigation by the Drug Enforcement Administration (“DEA”). On December
10, DEA Special Agent Christopher Hage arranged a controlled buy between
Rodriguez and a confidential informant named Eduardo Urbina in the parking lot of
a Taco Bell in St. Paul. Special Agent Hage and Officer Kenneth Sass, a member of
the Minneapolis police department who was assigned to the DEA task
force, surveilled the transaction. Rodriguez arrived in his Ford pickup truck, and
Garcia was present in the Dodge Dakota, accompanied by Maldonado. Rodriguez
approached the Dakota and was given a package. He then walked over to Urbina and
sold him the package, which later was tested and found to contain 34.2 grams of
methamphetamine.

Special Agent Hage arranged a second controlled buy for later that same day,
to occur in the parking lot of a K-Mart store in St. Paul. Once again, Rodriguez
arrived at the parking lot in his Ford pickup, received a package from the Dodge

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Dakota occupied by Garcia and Maldonado, and sold it to Urbina. The package was
tested and found to contain 9.6 grams of methamphetamine.

After the transaction was complete, the officers followed the Dakota away from
the K-Mart and instructed officers in a marked Minneapolis police car to conduct an
investigative stop of the Dakota. Two of the three occupants identified themselves as
Garcia and Maldonado. At the officers’ request, they also provided their addresses
and cell phone numbers. Rodriguez’s subsequently obtained cell phone records
revealed 279 calls between Rodriguez and Maldonado from November 27 to
December 22.

A federal grand jury returned a superseding indictment charging Garcia,
Maldonado, and Rodriguez with one count of conspiracy to distribute fifty grams or
more of methamphetamine, a violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846,
Garcia with three counts of distribution of methamphetamine, and Maldonado and
Rodriguez each with two counts of distribution of methamphetamine, violations of 21
U.S.C. § 841(a)(1), (b)(1)(B). Both Garcia and Maldonado entered pleas of not
guilty.2

Before trial, Maldonado and Garcia moved to suppress any statements or
evidence obtained from them during the investigation on Fourth, Fifth, and Sixth
Amendment grounds. A magistrate judge3 held a hearing on the motions, during
which the Government represented that it had no “statements or confessions.” Based
on this representation, the magistrate judge denied the motions to suppress statements
as moot and noted his intent to address the motions to suppress evidence separately
in a report and recommendation. The Government then filed a memorandum

2
The trial proceeded without Rodriguez, who was a fugitive.
3
The Honorable Arthur J. Boylan, Chief Magistrate Judge, United States
District Court for the District of Minnesota.

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clarifying that, although it did not intend to introduce any confessions by the
defendants, it did intend to introduce “statements made by them relating to their
identities.”

Subsequently, the magistrate judge issued his report and recommendation,
concluding that the December 10 vehicle stop did not violate the Fourth Amendment
and that, accordingly, “[s]uppression of the defendants’ identification, or any other . . .
statements that may have been obtained subsequent to the vehicle stop, is not required
on the ground that the stop was unlawful.” Maldonado objected to the magistrate
judge’s report and recommendation, renewing his Fourth Amendment objection to the
vehicle stop and further arguing that the introduction of any information gained from
questioning the occupants of the vehicle would violate Miranda v. Arizona, 384 U.S.
436 (1966). After de novo review, the district court adopted the report and
recommendation and denied the motions to suppress, rejecting Maldonado’s Miranda
argument. The case proceeded to trial.

On the second day of trial, the defendants informed the court that relatives of
two of the jurors had been observing the trial and had been present in the courtroom
for several proceedings that were held outside the presence of the jury. Because
Garcia and Maldonado were concerned that the relatives and jurors might have
discussed proceedings that took place outside the presence of the jury, they moved for
a mistrial. The court questioned the two jurors to determine whether they had spoken
to their relatives about the case. One of the jurors told the court that her relative had
informed her that the defendants were escorted in each morning by officers, but she
adamantly denied communicating this information to any other jurors. The other juror
informed the court that she scrupulously had avoided discussing the trial with her
relative. The court immediately dismissed the juror who had learned of the
defendants’ custodial status but allowed the other juror to remain on the jury, after
instructing her to continue to avoid discussing the trial with her relative.

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 The jury returned a verdict of guilty on all counts. Both Garcia and Maldonado
moved for a judgment of acquittal or for a new trial, challenging the sufficiency of the
evidence and alleging that the jury was tainted. The district court denied the motions,
and Garcia and Maldonado filed this appeal.

II. DISCUSSION

A. Sufficiency of the Evidence—Garcia

Garcia appeals the district court’s denial of his Fed. R. Crim. P. 29 motion for
judgment of acquittal. We review such a denial de novo, “viewing evidence in the
light most favorable to the government, resolving conflicts in the government’s favor,
and accepting all reasonable inferences that support the verdict.” United States v.
Yarrington, 634 F.3d 440, 449 (8th Cir. 2011) (quoting United States v. Scofield, 433
F.3d 580, 584-85 (8th Cir. 2006)). We will reverse “only if no reasonable jury could
have found [the defendant] guilty beyond a reasonable doubt.” United States v. Winn,
628 F.3d 432, 439 (8th Cir. 2010). Garcia also challenges the denial of his motion for
a new trial on sufficiency grounds. We review this denial for abuse of discretion.
United States v. Aguilera, 625 F.3d 482, 486 (8th Cir. 2010). “The decision to grant
or deny a motion for a new trial based upon the weight of the evidence is within the
sound discretion of the trial court,” but “[u]nless the district court ultimately
determines that a miscarriage of justice will occur, the jury’s verdict must be allowed
to stand.” United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002).

To support a conviction for conspiracy to distribute methamphetamine, the
Government must prove that (1) a conspiracy to distribute methamphetamine existed;
(2) the defendant knew about the conspiracy; and (3) the defendant knowingly became
a part of the conspiracy. See United States v. Moran, 612 F.3d 684, 690 (8th Cir.
2010), cert. denied, 562 U.S. ---, 131 S. Ct. 953 (2011). To prove distribution of
methamphetamine, the Government must show that the defendant knowingly sold or

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otherwise transferred methamphetamine. See United States v. Aguilar-Portillo, 334
F.3d 744, 747 (8th Cir. 2003). Garcia does not specify whether he challenges the
sufficiency of the evidence supporting the conspiracy count, the distribution counts,
or both. Nor does he identify which elements of either offense he believes the
Government failed to prove. Instead, he makes three specific challenges to the
Government’s evidence of his involvement in the November 24 meeting and the
December 2 and 10 transactions.

First, Garcia suggests that there was insufficient evidence to establish that he
was present during the November 24 meeting, which was not the subject of a
distribution count but was alleged to be part of the conspiracy. We disagree.
Although Officer Hauge testified that he did not personally see Garcia on November
24, Sergeant Snyder testified that he was able to get a good look at him at the
restaurant parking lot through binoculars and identified Garcia in court as one of the
people he observed.4 Further, Sergeant Wente took a photograph at the parking lot
during the November 24 meeting and later made an in-court identification of Garcia
as the man in the photograph. Both Sergeant Wente and Officer Hauge also testified
that Garcia was in the Dodge Dakota when it was stopped after the meeting.5 The in-

4
We are not persuaded by Garcia’s suggestion that Officer Hauge’s testimony
confused the jury because at one point he purported to identify Garcia but later
testified that he did not personally observe Garcia on November 24. Officer Hauge
unambiguously testified that he did not personally see Garcia during the meeting.
Garcia also challenges the district court’s decision to allow Officer Hauge to testify
regarding the recorded conversation between Garcia and Morales on November 24,
on the grounds that Officer Hauge does not speak Spanish. We reject this argument
because the transcript of this conversation was translated into English and Garcia does
not challenge the accuracy of the translation.
5
Garcia challenges as hearsay Sergeant Wente’s identification of him as present
in the Dodge Dakota when it was stopped on November 24 because the court allowed
Sergeant Wente to refer to a police report written by Officer Hauge. We reject this
challenge because Sergeant Wente identified Garcia as one of the occupants of the
Dakota before referring to the police report.

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court identifications by Sergeants Snyder and Wente constituted sufficient evidence
for a reasonable jury to conclude that Garcia was present during the November 24
meeting; nor did the district court abuse its discretion in denying the motion for a new
trial in this regard.6

Next, Garcia challenges the sufficiency of the evidence of his involvement in
the December 2 controlled buy, opining that “there is insufficient evidence to identify
the person who made the transaction, and no credible evidence it was Garcia.” Garcia
is incorrect. Sergeant Snyder identified Garcia, whom he recognized from the
November 24 meeting, as participating in the transaction. Moreover, the
Government’s evidence showed that the transaction took place at the apartment
building in which Garcia resided, and the officers observed Garcia using the same
Dodge Dakota that had been used on November 24. These additional facts provided
significant circumstantial evidence supporting Sergeant Snyder’s affirmative
identification of Garcia. Taken together, this evidence is sufficient to support the
conclusion beyond a reasonable doubt that Garcia participated in the December 2
transaction, and the district court did err in denying judgment of acquittal or abuse its
discretion in denying Garcia’s motion for a new trial in this respect.

Finally, Garcia attacks the sufficiency of the evidence supporting his
participation in the December 10 transactions, arguing that the Government did not
establish “that Garcia was anything more than present at the scene on December 10.”
We are unpersuaded. Testimony by Special Agent Hage, Officer Sass, and Urbina,
a confidential informant, established that on two occasions on December 10
Rodriguez obtained a package containing drugs from a vehicle occupied by Garcia
and then sold that package to the confidential informant. Moreover, the evidence we

6
Garcia also challenges the Government’s decision not to call Morales, its
confidential informant, to testify about the November 24 meeting. Since there was
sufficient evidence to establish Garcia’s participation in the meeting without
Morales’s testimony, we reject this challenge.

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already have surveyed established that Garcia discussed illicit drug transactions with
Morales and provided him with a sample of methamphetamine on November 24, and
sold Morales methamphetamine on December 2. A reasonable jury was entitled to
conclude from this evidence that Garcia was “more than present” at the December 10
controlled buy, and the district court also did not abuse its discretion in refusing to
grant Garcia a new trial on this basis.

B. Motion to Suppress—Maldonado

Maldonado appeals the district court’s refusal to suppress the phone number
that he gave to the Minneapolis police officers during the December 10 vehicle stop,
which was instrumental in establishing at trial that he had talked to Rodriguez over the
phone 279 times between November 27 and December 22, 2009. On appeal from the
denial of a motion to suppress, we review the district court’s factual findings for clear
error and its legal conclusions de novo. United States v. Fiorito, 640 F.3d 338, 344
(8th Cir. 2011).

First, Maldonado suggests that the Government should have been precluded
from introducing the information derived from his phone number at trial because the
prosecutor initially claimed at the suppression hearing not to possess any “statements
or confessions,” which Maldonado interprets as encompassing the statements he gave
the police regarding his identity and phone number. This contention fails to persuade.
Even assuming that Maldonado’s interpretation of this representation is reasonable,
the Government swiftly clarified that it intended to introduce “statements made by
[Maldonado] relating to [his] identit[y],” and after conducting an evidentiary hearing
the magistrate judge recommended that “[s]uppression of the defendants’
identification, . . . or statements that may have been obtained subsequent to the vehicle
stop” was not required. Indeed, Maldonado was aware of the Government’s intention
to use the defendants’ identification statements in sufficient time to challenge their use
in his objections to the magistrate judge’s report and recommendation. We conclude

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that, at least by this point, Maldonado was no longer entitled to rely on his
interpretation of the Government’s initial representation that it did not possess any
“statements or confessions” by him. See United States v. Salcedo, 360 F.3d 807, 810
(8th Cir. 2004) (affirming the district court’s admission of defendant’s inculpatory
statement, despite the Government’s initial representation that it did not intend to
introduce any statements by defendant at trial, in part because the Government
elsewhere had disclosed the existence of the statement and “[t]here is no indication the
government attempted to unfairly surprise [the defendant], nor is there any indication
[he] was unfairly surprised”).

Next, Maldonado objects to the admission of the information derived from his
phone number on Fourth Amendment grounds. On appeal, he does not challenge the
district court’s determination that the police officers had reasonable suspicion to
conduct an investigative stop of the Dodge Dakota on the night of December 10, based
on the information relayed to them by the DEA task force members that the occupants
of the Dakota had been involved in drug transactions earlier that day. See United
States v. Williams, 139 F.3d 628, 629-30 (8th Cir. 1998). He also admits that an
officer conducting an investigative stop “may ask the detainee a moderate number of
questions to determine his identity and to try to obtain information confirming or
dispelling the officer’s suspicions.” Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
However, Maldonado now contends that, by asking for his phone number, the officers
exceeded the permissible scope of the investigative detention. Because Maldonado
failed to make any argument related to the scope of the investigative stop before the
district court, our review is limited to plain error. See United States v.
Cardenas-Celestino, 510 F.3d 830, 833 (8th Cir. 2008).7 We will reverse only if

7
“Our court has ‘not yet decided whether the failure to raise a suppression
matter in a timely pretrial motion precludes plain error review.’” United States v.
James, 534 F.3d 868, 875 (8th Cir. 2008) (quoting Cardenas-Celestino, 510 F.3d at
833). We assume without deciding that plain error relief would be available, since we
conclude that Maldonado has not shown plain error in any event.

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Maldonado shows that the district court committed an error that was plain, that
affected his substantial rights, and that seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Meeks, 639 F.3d 522, 526-
27 (8th Cir. 2011).

“After making an otherwise lawful Terry stop, an officer may conduct an
investigation ‘reasonably related in scope to the circumstances which justified the
interference in the first place.’” United States v. Banks, 553 F.3d 1101, 1105 (8th Cir.
2009) (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). “[Q]uestions concerning a
suspect’s identity are a routine and accepted part of many Terry stops.” Hiibel v. Sixth
Jud. Dist. Court of Nev., Humboldt Cnty., 542 U.S. 177, 186 (2004). “Knowledge of
identity may inform an officer that a suspect is wanted for another offense, or has a
record of violence or mental disorder. On the other hand, knowing identity may help
clear a suspect and allow the police to concentrate their efforts elsewhere.” Id.
However, “the request for identification [must be] reasonably related to the
circumstances justifying the stop.” Id. at 188. Similarly, the Supreme Court has
suggested that “the Fourth Amendment [might] permit seizures for the purpose of
fingerprinting, if there is reasonable suspicion that the suspect has committed a
criminal act,” but only “if there is a reasonable basis for believing that fingerprinting
will establish or negate the suspect’s connection with that crime.” Hayes v. Florida,
470 U.S. 811, 817 (1985).

Applying these principles, we believe that the request for Maldonado’s phone
number was properly within the scope of the investigative stop. The DEA task force
members had observed the involvement of the two occupants of the Dodge Dakota in
two drug transactions earlier that day. The confidential informant had arranged both
of the December 10 transactions by phone, and the members of the task force knew
the phone number of at least one of the suspects. Under these circumstances, the
officers conducting the investigative stop could reasonably conclude that learning the
phone numbers of the occupants of the Dodge Dakota might “establish or negate

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[their] connection with [the] crime,” Hayes, 470 U.S. at 817, and that this information
was “‘reasonably related in scope to the circumstances that initially’ prompted the
stop.” See United States v. Shafer, 608 F.3d 1056, 1062 (8th Cir. 2010) (quoting
United States v. Fuse, 391 F.3d 924, 927 (8th Cir. 2004)). Accordingly, we conclude
that Maldonado has failed to demonstrate error, let alone plain error.

Finally, Maldonado argues that his statement giving the police officers his
phone number should have been suppressed because it was obtained in violation of
Miranda v. Arizona, 384 U.S. 436 (1966). “The Supreme Court in Miranda stated
that warnings are required when interrogation is initiated by law enforcement officers
after a person has been taken into custody” and whether an individual is in custody
“ultimately turn[s] on whether there is a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.” United States v. Boslau, 632
F.3d 422, 427 (8th Cir. 2011) (internal citation and quotation marks omitted).
Whether a defendant was “in custody” for Miranda purposes is a question of law that
we review de novo. United States v. Muhlenbruch, 634 F.3d 987, 995 (8th Cir. 2011).

In this case, the Minneapolis police officers asked Maldonado for his name and
phone number in the context of a brief investigative stop. The Supreme Court recently
reaffirmed that “the temporary and relatively nonthreatening detention involved in a
traffic stop or Terry stop does not constitute Miranda custody.” Maryland v. Shatzer,
559 U.S. ---, 130 S. Ct. 1213, 1224 (2010) (internal citation omitted) (citing McCarty,
468 U.S. at 439-40); see also United States v. Morse, 569 F.3d 882, 884 (8th Cir.
2009). Because the record establishes that Maldonado never was subjected to “a
formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest,” Boslau, 632 F.3d at 427 (quoting California v. Beheler, 463 U.S. 1121,
1125 (1983)), the district court was correct to conclude that he was not “in custody”
for Miranda purposes when he gave the officers his phone number.

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 C. Sufficiency of the Evidence—Maldonado

Maldonado also appeals the district court’s refusal to grant his motion for
judgment of acquittal on the count of conspiracy to distribute fifty grams or more of
methamphetamine.8 To support this conviction, the Government was required to
prove that (1) a conspiracy to distribute methamphetamine existed; (2) Maldonado
knew about the conspiracy; and (3) Maldonado knowingly became a part of the
conspiracy. See Moran, 612 F.3d at 690. “In addition, the government must
demonstrate that the conspiracy involved the purported drug quantity, in this case at
least fifty grams of actual methamphetamine.” Id. Maldonado challenges the
sufficiency of the evidence that he knowingly became part of a conspiracy, noting that
“mere association with individuals engaged in illegal conduct is not sufficient.” He
also challenges the sufficiency of the evidence supporting the jury’s determination
that the conspiracy involved at least fifty grams of methamphetamine.

We conclude that there was sufficient evidence to establish that Maldonado
knowingly became a part of a conspiracy to distribute methamphetamine. “[B]ecause
the nature of conspiracy entails secrecy, the agreement and members’ participation in
[the conspiracy] must often be established by way of inference from the surrounding
circumstances.” United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir. 2007)
(alterations in original) (quoting United States v. Cabrera, 116 F.3d 1243, 1245 (8th
Cir. 1997)). The Government’s evidence established that on two separate occasions
on December 10, Maldonado and Garcia arrived in the same Dodge Dakota at the

8
Like Garcia, Maldonado also raised his sufficiency challenge before the
district court in the context of a Fed. R. Crim. P. 33 motion for a new trial. However,
Maldonado makes no argument on appeal that the district court abused its discretion
in denying his motion for a new trial. Therefore, we read Maldonado’s challenge to
the sufficiency of the evidence as an appeal only of the denial of his motion for
judgment of acquittal and will reverse “only if no reasonable jury could have found
[him] guilty beyond a reasonable doubt.” Winn, 628 F.3d at 439.

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scene of a controlled drug buy and supplied Rodriguez with the methamphetamine
that he then sold to a confidential informant. Further, Rodriguez’s phone records
showed that there were a total of twenty-five calls between him and Maldonado on
December 10. Special Agent Hage provided expert testimony to the effect that the
first person called by a drug supplier after a controlled buy is arranged is likely to be
involved in the conspiracy. And Rodriguez’s phone records showed that each time
the DEA’s confidential informant arranged a transaction with him, Rodriguez
immediately called Maldonado. A reasonable jury could conclude beyond a
reasonable doubt, based on this evidence, that Maldonado was engaged in a
conspiracy with Garcia and Rodriguez to distribute methamphetamine. See United
States v. Smith, 632 F.3d 1043, 1046 (8th Cir. 2011) (affirming a conviction for
conspiracy to distribute cocaine based in part on cell phone records of numerous calls
between the members of the conspiracy).

Moreover, sufficient evidence supported the jury’s drug quantity determination.
Maldonado contends that in order to reach the 50 grams of methamphetamine alleged
in the conspiracy count, the jury must have held him responsible for the 25.3 grams
of methamphetamine distributed on December 2 as well as the 43.8 grams distributed
on December 10. Maldonado argues that no direct evidence establishes that he was
present at the December 2 transaction. However, “a defendant in a conspiracy may
be ‘held responsible for all reasonably foreseeable drug quantities that were in the
scope of the criminal activity that he jointly undertook.’” United States v. Littrell, 439
F.3d 875, 881 (8th Cir. 2006) (quoting United States v. Jimenez-Villasenor, 270 F.3d
554, 561 (8th Cir. 2001)). There was sufficient evidence for the jury to conclude that
Garcia and Maldonado’s conspiracy to distribute methamphetamine extended from
December 10 at least as far back as December 2. The December 2 transaction took
place in the parking lot of the apartment building where both Maldonado and Garcia
resided, and to which the police had followed Garcia on November 24. See Meeks,
639 F.3d at 527-28 (relying on testimony that defendants were selling drugs out of the
same apartment in affirming a conviction for conspiracy to distribute cocaine).

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Further, the evidence supported the inference that Rodriguez was part of the
conspiracy, and Rodriguez’s cell phone records established that there was a total of
279 calls between Rodriguez and Maldonado from November 27 to December 22.
Indeed, the cell phone records showed that, just as on December 10, there were
twenty-five phone calls between Rodriguez and Maldonado on December 2, providing
further evidence that Maldonado was participating in the conspiracy at that point. See
Smith, 632 F.3d at 1046. Accordingly, a reasonable jury could have concluded that
Maldonado became part of the conspiracy at least as early as December 2, and the
amount of methamphetamine distributed on that date properly is attributable to him.
See Littrell, 439 F.3d at 881. The district court did not err in denying Maldonado’s
motion for judgment of acquittal.

D. Jury Contamination

Both Garcia and Maldonado appeal the district court’s refusal to grant a new
trial based on alleged jury contamination. We review the district court’s denial of a
motion for a new trial for abuse of discretion. United States v. Johnson, 639 F.3d 433,
442 (8th Cir. 2011). We find no such abuse here. Once the accusation of
contamination was leveled, the district court immediately questioned the two jurors
involved. When the first juror informed the court that she had learned of the
defendants’ custodial status, a possible violation of Estelle v. Williams, 425 U.S. 501,
512 (1976), the court first satisfied itself that the juror had not shared this information
with any other jurors and then promptly excused her from further service. The court
found credible the assurances of the second juror that she had not discussed the trial
with her relatives and allowed her to remain on the jury after admonishing her to
continue avoiding discussion of the trial with others. Garcia and Maldonado have
given us no reason to second-guess the court’s determination that the jurors’ accounts
were credible. See United States v. Hall, 497 F.3d 846, 852 (8th Cir. 2007) (noting
that “a district court’s credibility determinations are ‘virtually unassailable on appeal’”
(quoting United States v. Watson, 479 F.3d 607, 611 (8th Cir. 2007))); see also United

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States v. Console, 13 F.3d 641, 669 (3d Cir. 1993) (upholding the district court’s
determination that a juror’s “allegation that other jurors were reading newspaper
accounts of the case was not credible” because “the district court had the opportunity
to observe [the juror’s] demeanor when she made the allegation”). Accordingly, we
conclude that the district court acted properly to isolate and remove the jury
contamination and did not abuse its discretion in declining to grant a new trial on this
basis.

III. CONCLUSION

For the foregoing reasons, Garcia’s and Maldonado’s convictions are affirmed.
______________________________

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