FILED
NOT FOR PUBLICATION
OCT 23 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10453
Plaintiff-Appellee, D.C. No.
1:08-cr-00739-SOM-1
v.
RAMIRO HERNANDEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, District Judge, Presiding
Argued and Submitted October 11, 2017
Honolulu, Hawaii
Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.
Ramiro Hernandez (“Hernandez”) appeals his conviction and 300-month
sentence for: (Count One) conspiracy to distribute and possess with intent to
distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(A); (Count Two) possession with intent to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2; and (Count Three) attempt to
possess with intent to distribute 500 grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2. We have
jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.
1. Hernandez’s Sixth Amendment confrontation rights were not violated at
trial. First, the district court did not abuse its discretion by admitting into evidence
Raymond Villagomez’s (“Villagomez”) statements against Hernandez under
Federal Rule of Evidence 804(b)(6) (the “forfeiture by wrongdoing” exception).
As explained by the court, a preponderance of the evidence supported the
conclusion that Hernandez intended for and caused Villagomez to be unavailable at
trial, and that, as a result, the admission of Villagomez’s statements did not violate
the Confrontation Clause. See Giles v. California, 554 U.S. 353, 359 (2008)
(explaining that the forfeiture by wrongdoing exception applies against a criminal
defendant when the defendant acted with the design to prevent the witness from
testifying). That evidence included the facts that: (1) Hernandez’s relatives and
associates threatened Villagomez to convince him not to testify; (2) Villagomez’s
identity as a witness was not readily available to outside parties and therefore was
likely communicated to Hernandez’s relatives by or at the direction of Hernandez;
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and (3) Hernandez repeatedly nodded his head when Villagomez refused to answer
questions at trial. See United States v. Hernandez, No. CRIM. 08-00739 SOM,
2012 WL 1580454, at *7 (D. Haw. May 3, 2012) (explaining that “the nature of the
information (that Villagomez was cooperating with the United States against
Hernandez), as well as the nature of the people with whom Villagomez . . . had
altercations, supports the conclusion that Hernandez was involved in getting that
information to people for the purpose of having them intimidate Villagomez”).
Second, the district court did not err by admitting into evidence recorded
phone calls between Jose Perez (“Perez”) and Hernandez in which Perez called
Hernandez at the direction of U.S. Drug Enforcement Administration agents to
confirm Hernandez’s involvement in the plan to distribute the methamphetamine.
Because Perez’s statements to Hernandez were not offered for the truth of the
matter asserted, the Confrontation Clause did not bar their admission. See
Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (explaining that the
Confrontation Clause “does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted”). Nor did the district court
err by admitting the agents’ testimony regarding instructions given to Perez before
Perez called Hernandez. For reasons similar to those explained in United States v.
Gouveia, 468 F. App’x 793, 796 (9th Cir. 2012) (Hernandez’s co-defendant’s
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appeal), the agents’ instructions “did not indicate to the jury that Perez had made
incriminating statements” about Hernandez, or that Perez had identified Hernandez
as his supplier. Indeed, the agents’ plan for Perez to call Hernandez could have
resulted from a law enforcement tip or other source implicating Hernandez in the
scheme to distribute the methamphetamine.
2. The district court did not err by denying Hernandez’s motion for a new
trial and judgment of acquittal on the basis of insufficient evidence. Viewing the
evidence in the light most favorable to the government, a rational trier of fact could
have found Hernandez guilty beyond a reasonable doubt on all counts of the
indictment. See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) (explaining that
the “critical inquiry” when reviewing a sufficiency of the evidence claim is
“whether, after 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”).
With respect to Counts 1 and 3, the following evidence supports a
reasonable inference that Hernandez agreed with co-conspirators to distribute
methamphetamine, and that he took substantial steps to possess with the intent to
distribute methamphetamine in July 2006: (1) telephone records between
Hernandez and Perez and Gouveia during the course of the conspiracy; (2) three
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recorded conversations between Hernandez and Perez in which Hernandez
acknowledged receipt of methamphetamine in Hawaii and instructed Perez to
collect money; (3) testimony sufficient to establish Hernandez’s identity on those
recordings; (4) testimony that Hernandez taught a witness to hide drugs inside a
vehicle employing the same method as the one used in the two shipments; and (5)
Villagomez’s statements describing Hernandez’s role in acquiring the
methamphetamine from a source in Mexico and shipping it to Hawaii. See United
States v. Moe, 781 F.3d 1120, 1124–25 (9th Cir. 2015), cert. denied, 136 S. Ct. 342
(2015) (“[F]or a charge of conspiracy to possess a drug with intent to distribute, the
government must show that the buyer and seller had an agreement to further
distribute the drug in question.”) (citation and internal quotation marks omitted);
United States v. Mincoff, 574 F.3d 1186, 1195 (9th Cir. 2009) (“An attempt
conviction requires evidence that a defendant intended to violate the statute and
took a substantial step toward completing the violation.”) (citation omitted).
With respect to Count 2, the evidence supports a reasonable inference that
the car that arrived in Hawaii in March 2006 was used to transport
methamphetamine. As a result, in light of the (1) above-referenced evidence that
Hernandez conspired and participated in the July 2006 shipment; (2) unique
similarities between the March and July 2006 shipments; (3) common identities of
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the co-conspirators involved in the two shipments; and (4) evidence that
methamphetamine was hidden in both shipments in the same way that Hernandez
had taught a witness to hide drugs, a reasonable juror could infer that Hernandez
also aided in the March 2006 shipment with the intent that his co-conspirators
possess and distribute methamphetamine. See United States v. Sanchez-Mata, 925
F.2d 1166, 1168 (9th Cir. 1991) (“A conviction for possession with intent to
distribute narcotics may be based on one of three legal theories: (1) co-conspirator
liability[]; (2) aiding and abetting[]; and (3) exercising dominion and control over
the contraband.”) (citation omitted).
3. Hernandez has not demonstrated that the government violated its
discovery obligations before or during trial. Because Hernandez has failed to
identify any evidence that the government allegedly failed to produce, and has not
demonstrated the materiality of any such evidence, we reject Hernandez’s
arguments as meritless. See Kyles v. Whitley, 514 U.S. 419, 433 (1995)
(explaining that, “for Brady purposes . . . favorable evidence is material . . . if there
is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.”) (citation and internal
quotation marks omitted). We also reject as meritless Hernandez’s unsupported
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claim that the government’s alleged failure to grant a witness immunity denied him
his right to a fair trial.
AFFIRMED.
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