United States v. Jose Cabada

FILED
NOT FOR PUBLICATION NOV 26 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10227

Plaintiff - Appellee, D.C. No. 2:08-cr-00562-EJG-6

v.
MEMORANDUM*
JOSE ANTONIO OJEDA CABADA,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 11-10262

Plaintiff - Appellee, D.C. No. 2:08-cr-00562-EJG-9

v.

JOSE GONZALEZ ARIAS, AKA Cesar
Castro Favela,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 11-10327

Plaintiff - Appellee, D.C. No. 2:08-cr-00562-EJG-5

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 v.

VICTOR MANUEL MARTINEZ,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 11-10328

Plaintiff - Appellee, D.C. No. 2:08-cr-00562-EJG-12

v.

JESUS ALFONZO BARRAZA
BARRAZA,

Defendant - Appellant.

Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, Senior District Judge, Presiding

Argued and Submitted November 17, 2014
San Francisco, California

Before: NOONAN and IKUTA, Circuit Judges, and DANIEL, Senior District
Judge.**

Jose Arias, Jesus Barraza, Jose Cabada, and Victor Martinez (“Appellants”)

appeal their jury convictions for narcotics-related offenses. We have jurisdiction

under 28 U.S.C. § 1291. We affirm in part and reverse and remand in part.

**
The Honorable Wiley Y. Daniel, Senior District Judge for the U.S.
District Court for Colorado, sitting by designation.
 We review for abuse of discretion the district court’s denial of Appellants’

motion to recuse or reassign the trial judge, who previously issued wiretap orders

in their case. See United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.

1997). We conclude that the district court did not abuse its discretion. There are

no facts indicating the trial judge’s bias. See United States v. Azhocar, 581 F.2d

735, 739-40 (9th Cir. 1978).

We review de novo Appellants’ argument that the Eastern District of

California’s policy of assigning criminal cases to the judge who was randomly

assigned to authorize the underlying wiretaps violates their Fifth Amendment due

process right. See In re Marshall, 721 F.3d 1032, 1039 (9th Cir. 2006). We

conclude that the Eastern District’s policy does not violate due process. Appellants

did not offer any facts suggesting that the government’s advance knowledge of the

judge’s identity would influence against whom and which charges it files. The

district court’s review of its earlier wiretap authorization is also not an “appeal”

under 28 U.S.C. § 47. Cf. Dawson v. Marshall, 561 F.3d 930, 932 n.2 (9th Cir.

2009).

Appellants did not object to the alleged improper prosecutorial statements at

trial. Thus, we review them for plain error. See United States v. Dorsey, 677 F.3d

944, 953 (9th Cir. 2012). We conclude that there was no vouching or improper

-3-
testimony in this case. Whether considered separately or cumulatively, we

conclude that the alleged vouching statements do not necessitate reversal.

We review for abuse of discretion the district court’s denial of Appellants’

motion for a mistrial. See United States v. Pineda–Doval, 614 F.3d 1019, 1036

(9th Cir. 2010). The district court did not abuse its discretion because it reasonably

inquired into the facts surrounding the alleged threat, and after concluding that the

incident was unrelated to the case or any of the defendants, interviewed each juror

to evaluate whether he or she could proceed fairly and impartially. The district

court’s conclusion, based on each juror’s comments and demeanor, that every juror

could make a fair and impartial decision deserves substantial weight. See United

States v. Stinson, 647 F.3d 1196, 1216 (9th Cir. 2011).

We review for abuse of discretion the district court’s decision to not replace

Jurors 7 and 11. See United States v. Alexander, 48 F.3d 1477, 1485 (1995). We

conclude that the district court did not abuse its discretion because it conducted an

in-depth in camera interview of each juror to ensure the alleged threat did not

affect either juror’s judgment or impartiality.

We review Barraza’s and Martinez’s claims of insufficient evidence for

plain error because the Fed. R. Crim. P. 29 motion was not renewed at the close of

all evidence or in a written post-trial motion. See United States v. Gonzalez, 528

-4-
F.3d 1207, 1210-11 (9th Cir. 2008). We consider whether, “viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” United

States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

As to Barraza, we conclude that a rational jury could find beyond a

reasonable doubt the elements of a drug conspiracy based on the testimony of an

inside informant, and a cooperating defendant, as well as intercepted phone calls,

corroborating his role in the drug trafficking organization. See United States v.

Reed, 575 F.3d 900, 923 (9th Cir. 2009).

As to Martinez, we conclude that a rational jury could infer based on

circumstantial evidence of his work as a mechanic that he knew about the

conspiracy and knowingly helped further it. See United States v. Duenas, 691 F.3d

1070, 1085 (9th Cir. 2012). We also conclude that the intercepted phone calls and

evidence seized on November 6, 2008 support Martinez’s conviction for

possession with intent to distribute based on either (1) a co-conspirator liability or

(2) aiding and abetting. See United States v. Tran, 568 F.3d 1156, 1167 (9th Cir.

2009); United States v. Moreland, 622 F.3d 1147, 1169 (9th Cir. 2010); United

States v. Klimavicius-Viloria, 144 F.3d 1249, 1263 (9th Cir. 1998). Lastly, we

-5-
conclude that the November 6, 2008 telephone conversation was sufficient

evidence upon which a rational jury could find that Martinez knowingly or

intentionally used a communication facility to aid the commission of a narcotics

offense. See United States v. Mincoff, 574 F.3d 1186, 1195 (9th Cir. 2009).

The parties agree that Arias’s 20-year sentence violated Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000). See United States v. Doe, 149 F.3d 945, 948

(9th Cir. 1998). We vacate Arias’s sentence and remand for re-sentencing subject

to the 10-year mandatory minimum (for conspiracy to distribute or possess crack

cocaine with a prior felony drug conviction) and the sentencing guideline range of

188 to 235 months. See 21 U.S.C. § 841(b)(1)(B).

Accordingly, we AFFIRM in part, and we VACATE Arias’s sentence and

REMAND for re-sentencing. Each party shall bear its own costs.

-6-