United States v. Rivera

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 25, 2012
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 11-4028
v. (D.C. No. 2:09-CR-00872-DB-1)
(D. Utah)
RAMON RIVERA,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before LUCERO, McKAY, and GORSUCH, Circuit Judges.

A federal jury convicted Ramon Rivera of three armed robberies that

occurred in the same area in a span of about a month. First hit was the Family

Dollar store in Layton, Utah. Next came the Family Dollar store in Clinton. And

finally there was the Central Park restaurant in Sunset. At trial, the government

presented eyewitness testimony for each crime, physical evidence (including

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
clothes and a gun linking Mr. Rivera to the crimes), surveillance video, expert

testimony that Mr. Rivera’s cell phone was in the area of the second and third

crime sites immediately after the crimes, and incriminating statements Mr. Rivera

made both before and after he was taken into custody.

On appeal, Mr. Rivera argues that the district court abused its discretion by

failing to grant him a mistrial. He points to the fact that Megan Johnson, a clerk

at the Layton Family Dollar and a witness to the first robbery, testified that she

had seen a news report on the Clinton robbery and believed the Layton and

Clinton robbers to be the same person. Though the government had supplied a

witness statement by Ms. Johnson to the defense, Mr. Rivera argues that the

statement did not include this particular line of testimony. And the government’s

failure to disclose this particular line of testimony before trial, Mr. Rivera says,

violated legal duties owed to him and entitled him to a mistrial.

Mr. Rivera, however, does little to explain the source of the legal duties he

has in mind. He briefly asserts that the government’s failure to disclose violated

Fed. R. Crim. P. 16, the United States Attorney’s Open File policy, and Brady v.

Maryland, 373 U.S. 83 (1963). But he makes no attempt to explain what portions

of these authorities or case law interpreting them support his argument. Brady,

for example, mandates the disclosure of exculpatory, not inculpatory evidence

such as this. Id. at 87-88. And even accepting (without granting) the possibility

Mr. Rivera might have a valid but unarticulated argument under Rule 16, it would

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not guarantee him a mistrial. A district court has wide discretion in fashioning an

appropriate remedy for Rule 16 violations, and in many cases the exclusion of the

undisclosed evidence is sufficient to cure any error. See United States v. Wicker,

848 F.2d 1059, 1061 (10th Cir. 1988) (“[T]here is no abuse of discretion when a

district judge for prophylactic purposes suppresses evidence . . . the government

should have disclosed earlier.”) (quotation omitted). And that’s precisely what

happened in this case. Finding the evidence inadmissible on other grounds, the

district court struck Ms. Johnson’s testimony regarding the news report and

instructed the jury to disregard it. Neither is this the exceptional case where the

stricken evidence might have “create[d] so strong an impression on the jurors that

they [were] unable to disregard it,” and made a mistrial necessary. United States

v. Williams, 923 F.2d 1397, 1401 (10th Cir. 1990). Given the presence of

surveillance video, self-incriminating statements, physical evidence, and expert

testimony all pointing independently and collectively to Mr. Rivera’s guilt, we

can say with certainty that Ms. Johnson’s incriminating testimony wasn’t so

potently prejudicial that a curative instruction was inadequate and mistrial

mandatory.

Separately but relatedly, Mr. Rivera argues that the government failed to

notify him of the changed testimony of Kelli Eldridge, an employee at the Central

Park restaurant and a witness to the third robbery. In a statement taken

immediately after the robbery (and provided to the defense), Ms. Eldridge said

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she could not remember the height of the robber and did not mention anything

about the robber having an accent. At trial, however, she stated that she believed

that the robber was between 5’1” and 5’7” and had an accent. Again, Mr. Rivera

argues that the government should have disclosed the change in testimony earlier

and submits that the district court abused its discretion by not granting a mistrial.

In Mr. Rivera’s view, prior disclosure of Ms. Eldridge’s change in testimony

might have led to more effective impeachment and so should have been disclosed

under United States v. Bagley, 473 U.S. 667, 676 (1985) (extending Brady rule to

impeachment evidence).

The difficulty is that, even accepting for purposes of our analysis

Mr. Rivera’s premise that earlier disclosure might have led to more effective

impeachment, to establish a Bagley violation he must show her testimony was

“material,” in the sense that it might have affected the outcome of his trial. Id. at

674-75. And this is something he cannot do. At trial, there was substantial

independent evidence pointing to Mr. Rivera’s guilt and Mr. Rivera has identified

no reason to believe that further investigation into the discrepancy would have

yielded useful exculpatory evidence that might have altered the outcome of his

trial.

Finally, and for the first time on appeal, Mr. Rivera challenges other

aspects of his trial, including the district court’s handling of the testimony of

Ms. Price, a witness to the Layton store robbery. As before, Mr. Rivera says the

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district court should have granted him a mistrial when the government did not

notify the defense Ms. Price would testify on the particular question of the

robber’s height (namely, that he was shorter than 5’5”). To prevail on issues not

raised at trial, however, an appealing party must satisfy the requirements of plain

error review. Fed. R. Crim. P. 52(b). Mr. Rivera, however, doesn’t even attempt

to meet this standard, failing even to mention the plain error standard much less

develop any argument suggesting why and how it is met, and all this necessarily

“marks the end of the road for [his] argument[s].” Richison v. Ernest Grp., Inc.,

634 F.3d 1123, 1131 (10th Cir. 2011).

Affirmed.

Entered for the Court

Neil M. Gorsuch
Circuit Judge

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