FILED
NOT FOR PUBLICATION DEC 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30179
Plaintiff - Appellee, D.C. No. 1:08-cr-00149-JDS-2
v.
MEMORANDUM*
MAURISIO RAMIREZ,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-30180
Plaintiff - Appellee, D.C. No. 1:08-cr-00149-JDS-3
v.
GILBERTO ACEVEDO,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-30194
Plaintiff - Appellee, D.C. No. 1:08-cr-00149-JDS-1
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
DOMINGO BAEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, Senior District Judge, Presiding
Argued and Submitted November 14, 2011
Portland, Oregon
Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.
Defendant-appellant Maurisio Ramirez appeals his conviction of conspiracy
to posses with intent to distribute cocaine in violation of 21 U.S.C. § 846. His co-
defendants Gilberto Acevedo and Domingo Baez appeal their related convictions
of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C.
§ 846 and two counts of possession with intent to distribute cocaine in violation of
21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm in all respects.
A. Maurisio Ramirez
Ramirez contends the district court erred in admitting co-conspirator Ricardo
Collazo-Canales’s statements identifying him as the conspiracy’s supplier of
cocaine. To determine whether a particular statement was made in furtherance of
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the charged conspiracy, the district court must consider “[t]he broad context or
circumstances in which the statement was made. . . . [T]he foundation need be
sufficient only to infer the statement’s purpose; it need not be laid bare on the
pages of the trial transcript.” United States v. Larson, 460 F.3d 1200, 1211 (9th
Cir. 2006).
Collazo-Canales testified that he sold and distributed cocaine on Baez’s
behalf. In light of this testimony, the district court could reasonably infer that Baez
identified Ramirez to assure Collazo-Canales that he had a secure, trusted source of
cocaine. See id. at 1212 (finding no error in admitting statements that “informed
[the co-conspirator] of certain steps taken in the process of reaching the ultimate
goal of distribution . . . [and] served to keep [the co-conspirator] informed as to the
[group’s] drug supply”). Although Collazo-Canales testified that he believed that
the challenged statements were mere chit-chat, the court must look “to the
declarant’s intent in making the statement, not the actual effect of the statement.”
United States v. Williams, 989 F.2d 1061, 1068 (9th Cir. 1993). Consequently, the
district court did not err in admitting Collazo-Canales’s statements implicating
Ramirez.
Nor did the district court err in denying Ramirez’s motion for acquittal.
Viewing the evidence in the light most favorable to the government, see United
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States v. Sarkisian, 197 F.3d 966, 984 (9th Cir. 1999), a reasonable juror could find
Ramirez guilty beyond a reasonable doubt in light of Collazo-Canales’s
inculpatory testimony, the wiretap recorded conversations between Baez and
Ramirez arranging drug transactions, and the considerable volume of phone calls
between Baez and Ramirez during the charged conspiracy. See United States v.
Romero, 282 F.3d 683, 686-87 (9th Cir. 2002); United States v. Ruiz-Lopez, 234
F.3d 445, 447-48 (9th Cir. 2000).
Finally, the district court did not err in sentencing Ramirez. Information
given supporting a drug quantity approximation must possess sufficient indicia of
reliability to support its probable accuracy. The testimony of co-conspirators given
under oath can contain sufficient indicia of reliability to support the calculation’s
probable accuracy. See United States v. Alvarez, 358 F.3d 1194, 1213 (9th Cir.
2004) (citing United States v. Vought, 69 F.3d 1498, 1502-03 (9th Cir. 1995)
(finding that witness testimony supported trial court’s calculation of drug
quantity)). Accordingly, the district court properly relied on Baez’s testimony
under oath before the grand jury, as well as his statements to government agents,
regarding the quantity of cocaine involved in the charged conspiracy.
B. Gilberto Acevedo
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Acevedo contends that the district court abused its discretion in denying his
motion for appointment of an expert in voice analysis to aid his attorney in
impeaching government witnesses’ testimony identifying him as the speaker on
various wiretapped cell phone conversations with Baez. “It is an abuse of
discretion to deny a request for an expert . . . where (1) ‘reasonably competent
counsel would have required the assistance of the requested expert for a paying
client,’ and (2) the defendant ‘was prejudiced by the lack of expert assistance.’”
United States v. Rodriguez-Lara, 421 F.3d 932, 940 (9th Cir. 2005) (quoting
United States v. Nelson, 137 F.3d 1094, 1101 n. 2 (9th Cir. 1998)). “Prejudice
must be shown by clear and convincing evidence.” Id.
Here, the government presented considerable evidence implicating Acevedo
in the charged conspiracy other than the wiretap recordings. Collazo-Canales
testified that he observed Acevedo deliver a kilogram of cocaine to Baez, and that
Baez identified Acevedo as a supplier. Moreover, Acevedo’s attorney vigorously
cross-examined the government’s witnesses about their limited interactions with
Acevedo, as well as the language barrier between them, without expert assistance.
Under these circumstances, Acevedo failed to adduce clear and convincing
evidence of prejudice sufficient to establish that the district court abused its
discretion in denying his motion.
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C. Domingo Baez
Baez contends that it was prejudicial error for the district court to permit the
jury to replay wiretap recordings of his conversations with Ramirez and Acevedo
in the privacy of the jury room, in his absence. “[A] defendant has a right to be
present when tape-recorded conversations are replayed to a jury during its
deliberations.” United States v. Felix-Rodriguez, 22 F.3d 964, 967 (9th Cir. 1994).
The government concedes that the district court erred, but argues that the error
was harmless because the government adduced ample evidence implicating Baez in
the charged conspiracy. This evidence included Collazo-Canales’s testimony that
he observed Baez in possession of three to four kilograms of cocaine during the
course of the conspiracy, and the testimony of six additional witnesses—including
street-level dealers, drug users, and an undercover government agent—who
purchased cocaine from Baez. In light of this evidence, we conclude that Baez has
failed to show that he suffered prejudice as a result of any error in allowing the
replay. See United States v. Sacco, 869 F.2d 499, 502 (9th Cir. 1989) (district
court did not abuse its discretion in allowing the replay of a videotaped deposition
where there was “ample physical evidence, aside from the videotape, of [the
defendant]’s criminal conduct,” such that showing the deposition was not a
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“repetition of the government’s case against [the defendant]” (internal quotation
marks omitted)).
Nor did the district court err in calculating Baez’s sentence. The drug
quantity at issue did not involve “break points,” and therefore the district court’s
estimate did not result in a quantity “barely above” an amount corresponding to a
significantly lower sentencing range. See United States v. Scheele, 231 F.3d 492,
499 (9th Cir. 2000). The district court also properly applied a leadership role
enhancement under § 3B1.1(c) of the Sentencing Guidelines to Baez’s sentence.
The evidence adduced at trial established that Baez directed Collazo-Canales to
deliver cocaine to certain customers, and instructed Conner Urion to house a safe
containing drugs at his residence. These acts were sufficient to establish that Baez
exercised supervisory authority. See United States v. Salcido-Corrales, 249 F.3d
1151, 1154 (9th Cir. 2001).
We decline to address the merits of Baez’s ineffective assistance of counsel
claim. “Claims of ineffective assistance of counsel are generally inappropriate on
direct appeal.” United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003)
(citing United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000)). Here, the record
is insufficiently developed as to why Baez’s attorney made the strategic decision to
admit Baez’s limited involvement in cocaine sales during his opening argument.
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See id. (“McKenna urges us to review her claim of ineffective assistance of counsel
on direct appeal because the record is sufficiently developed. But . . . [t]he record
is . . . not developed with respect to why her attorneys felt that the motions
McKenna wanted filed were not warranted by the evidence. . . . Accordingly, we
decline to review McKenna’s claim of ineffective assistance of counsel.”). Baez’s
claim would properly be raised in a motion under 28 U.S.C. § 2255.
The conviction in No. 10-30180 (Acevedo) and the convictions and
sentences in No. 10-30179 (Ramirez) and No. 10-30194 (Baez) are AFFIRMED.
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