IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 7, 2009
No. 08-50598
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BLANCA GUADALUPE RAMIREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-2284-2
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Blanca Guadalupe Ramirez appeals her jury trial conviction and 33-month
sentence for importation of more than 50 kilograms of marijuana into the United
States, in violation of 21 U.S.C. §§ 952(a) & 960(a)(1), (b)(3), and possession with
intent to distribute more than 50 kilograms of marijuana, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C). The charges underlying Ramirez’s conviction
stemmed from an August 18, 2007, vehicle check at the Paso Del Norte Port of
*
Pursuant to 5 TH C IR. R. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50598
Entry in El Paso, Texas, during which approximately 199 pounds of marijuana
was found concealed in the vehicle in which Ramirez was a passenger.
Ramirez raises three issues on appeal. She argues that the district court
abused its discretion in limiting the cross examination of her codefendant
regarding the co-defendant’s motivation for entering into a plea agreement and
testifying against her, that the district court abused its discretion in refusing her
proposed jury instruction and in refusing to give the jury a clarifying instruction
after it received a question from the jury, and that the Government failed to
disclose evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Limitation on cross examination
The Confrontation Clause is generally satisfied when the defendant has
been “permitted to expose to the jury the facts from which jurors, as the sole
triers of fact and credibility, could appropriately draw inferences relating to the
reliability of the witness.” United States v. Restivo, 8 F.3d 274, 278 (5th Cir.
1993) (internal quotation marks omitted). “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). Where the district
court limits the cross examination of a witness, as in this case, the standard of
review is for an abuse of discretion. United States v. Jimenez, 464 F.3d 555, 558-
59 (5th Cir. 2006).
The only limitation on defense counsel’s cross examination of Ramirez’s
codefendant was that counsel could not question the co-defendant about her
exact sentencing range or about the exact sentence reduction she might receive
in exchange for entering into a plea agreement and testifying against Ramirez.
Defense counsel was otherwise at liberty to question the codefendant about her
motives for entering into a plea agreement and for testifying against Ramirez,
including the possibility of receiving a reduced sentence.
The testimony elicited through cross examination was sufficient to
appraise the jury of the codefendant’s possible motives for testifying against
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No. 08-50598
Ramirez. See Tansley, 986 F.2d at 886. Further, Ramirez has failed to show
that a reasonable juror would have received a significantly different impression
of her codefendant’s credibility if her exact sentencing range was divulged. See
United States v. Davis, 393 F.3d 540, 547 (5th Cir. 2004). Accordingly, the
district court did not abuse its discretion in limiting the scope of the cross
examination.
Jury Instruction
The district court’s refusal to give a defendant’s proposed jury instruction
is reviewed for abuse of discretion, “and the trial judge is afforded substantial
latitude in formulating his instructions.” United States v. Rochester, 898 F.2d
971, 978 (5th Cir. 1990). “The district court abuses its discretion only if . . .
(1) the requested instruction is substantively correct; (2) the requested
instruction is not substantially covered in the charge given to the jury; and (3) it
concerns an important point in the trial so that the failure to give it seriously
impairs the defendant’s ability to effectively present a particular defense.”
United States v. St. Gelais, 952 F.2d 90, 93 (5th Cir. 1992). There is no abuse of
discretion if the given instructions fairly and adequately address the relevant
issues of the case. Id.
Ramirez contends that the district court abused its discretion in failing to
give her requested instruction on “mere presence.” The mere presence
instruction went to the conspiracy counts, for which Ramirez was acquitted.
Thus, Ramirez has not demonstrated that the district court’s failure to give the
requested instruction seriously impaired her “ability to effectively present a
particular defense,” and therefore the district court did not abuse its discretion.
See St. Gelais, 952 F.2d at 93.
Likewise, we find no error in the district court’s response to the question
posed by the jury during its deliberations concerning when Ramirez first knew
that there were drugs in the vehicle. The district court directed the jurors to the
jury charge, which required the jurors to find beyond a reasonable doubt that
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No. 08-50598
Ramirez knew that she was bringing a substance into the United States and that
the substance was marijuana. The jury instruction correctly and adequately
addressed the issue, and the district court did not err in responding as it did.
Brady violation
Ramirez contends that the Government had information in its file that
Ramirez’s codefendant had “a history of drug abuse” but failed to disclose that
information to the defense in violation of Brady. This court reviews allegations
of Brady violations de novo. United States v. Infante, 404 F.3d 376, 386 (5th Cir.
2005). To establish a Brady claim, the defendant must show that (1) the
prosecution suppressed evidence, (2) favorable to the defense, and (3) the
evidence was material. Id. at 386.
Ramirez has failed to demonstrate that “there exists ‘a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Mahler v. Kaylo, 537 F.3d 494, 500 (5th
Cir. 2008) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). She
therefore has failed to show that the that the evidence is “material” for Brady
purposes.
The judgment of the district court is AFFIRMED.
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