FILED
NOT FOR PUBLICATION JUN 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50334
Plaintiff - Appellee, D.C. No. 2:10-cr-00825-R-1
v.
MEMORANDUM *
ALBERT JUAN ORTEGA,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-50401
Plaintiff - Appellee, D.C. No. 2:10-cr-00825-R-2
v.
MICHAEL MAGANA, AKA Mike,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted May 7, 2013
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW and MURGUIA, Circuit Judges, and RESTANI, Judge.**
Albert Ortega and Michael Magana appeal their convictions for kidnapping
and conspiracy to kidnap, in violation of 18 U.S.C. §§ 1201(a) and 1201(c). Albert
Ortega also appeals his convictions for possession with intent to distribute
methamphetamine and conspiracy to possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a) and 841(b); possession of a
firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924; and
possession of a firearm during a crime of violence, also in violation of 18 U.S.C. §
924. Michael Magana also appeals his sentence of 300 months imprisonment and
five years supervised release. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
I. Ortega
A. We decline to reach Ortega’s claim that he received ineffective
assistance of counsel as a result of his counsel’s conflict of interest. We usually
decline to reach ineffectiveness challenges on direct appeal, “because the claim
cannot be advanced without development of facts outside the record. The same
approach has been taken for claims of ineffectiveness due to a conflict of interest.”
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
2
United States v. Hanoum, 33 F.3d 1128, 1131 (9th Cir. 1994); see also United
States v. Wagner, 834 F.2d 1474, 1483 (9th Cir. 1987) (“The record before us
illustrates precisely why ineffective assistance claims cannot generally be
evaluated on direct appeal.”). The record demonstrates that Ortega’s trial counsel
simultaneously represented Ortega and an unindicted coconspirator and that
Ortega’s oral waiver of this conflict was deficient. See Lockhart v. Terhune, 250
F.3d 1223, 1232-33 (9th Cir. 2001) (explaining that, for a defendant to “knowingly
and intelligently” waive his right to conflict-free counsel, he must be informed “of
the specific ramifications of his waiver”). However, the record is insufficiently
developed at this stage to determine whether this conflict made it “likely” that
there was “some effect on [Ortega’s counsel’s] handling of particular aspects of the
trial.” United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992) (quoting
Mannhalt v. Reed, 847 F.2d 576, 583 (9th Cir. 1988)). Ortega remains free to raise
these claims in a collateral attack on his conviction under 28 U.S.C. § 2255. See
Hanoum, 33 F.3d at 1131 (“The customary procedure in this Circuit for
challenging the effectiveness of defense counsel in a federal criminal trial is by
collateral attack on the conviction under 28 U.S.C. § 2255, and this Court has been
chary of analyzing insufficiency of counsel claims on direct appeal.”).
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B. The district court did not abuse its discretion when it refused to grant
Ortega’s motions for a continuance on the eve and morning of trial. “[B]road
discretion must be granted trial courts on matters of continuances.” United States
v. Garrett, 179 F.3d 1143, 1145 (9th Cir. 1999) (quoting Morris v. Slappy, 461
U.S. 1, 11 (1983)). The district court, already having granted multiple
continuances, also granted Ortega’s motion to substitute his counsel less than a
month prior to trial on the condition that the substitution not delay the trial. Given
this, the district court acted well within its discretion when it refused to grant an
additional continuance on the ground that Ortega’s counsel felt unprepared for
trial. See Garrett, 179 F.3d at 1147 (concluding that a district court had not abused
its discretion when denying a continuance, despite failing to adequately explain its
reasons for doing so, when the defendant moved to replace his counsel shortly
before trial). However, even if the district court had abused its discretion by
refusing to continue the trial, any error would have been harmless in light of the
overwhelming evidence of Ortega’s guilt produced at trial. See United States v.
Kloehn, 620 F.3d 1122, 1130 (9th Cir. 2010) (“An arbitrary denial of a continuance
is subject to the harmless error test.”).
II. Magana
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A. The district court did not err by refusing to suppress the kidnapping
evidence that was intercepted pursuant to the wiretap authorization. See United
States v. Lynch, 367 F.3d 1148, 1159 (9th Cir. 2004). While kidnapping was not
listed as one of the target offenses in the wiretap authorization, the kidnapping
evidence does not fall within 18 U.S.C. § 2517(5) as evidence of “offenses other
than those specified in the order of authorization” because the kidnapping “arose
out of and was closely related to” the targeted narcotics and money laundering
offenses. United States v. Homick, 964 F.2d 899, 904 (9th Cir. 1992).
Accordingly, it was not necessary for the prosecution to seek authorization for the
interception or disclosure of the kidnapping evidence under § 2517(5).1 See id.
B. The district court did not err by joining for trial the conspiracy and
kidnapping charges against Ortega and Magana with the conspiracy, narcotics, and
firearms charges against Ortega under Federal Rule of Criminal Procedure 8(b).
See United States v. Vasquez-Velasco, 15 F.3d 833, 843 (9th Cir. 1994). Joinder
was proper because the kidnapping was performed to settle a drug debt owed to
Ortega, and thus the charges were “logically related.” United States v. Sarkisian,
197 F.3d 966, 976 (9th Cir. 1999) (explaining that joinder is appropriate where the
1
We therefore need not reach the district court’s alternative basis for its
ruling—that another district court judge actually authorized the use of the wiretap
kidnapping evidence.
5
charges are “logically related,” and that Rule 8(b) “is construed liberally in favor of
joinder”). Whether Magana participated in or even was aware of all of the offenses
that were joined under Rule 8(b) does not change this analysis. See United States
v. Golb, 69 F.3d 1417, 1426 (9th Cir. 1995) (holding that joinder of multiple
charges was appropriate where one defendant was unaware of some of the offense
conduct because the offenses were “[o]bviously” related to one another).
Nor did the district court abuse its discretion when it denied Magana’s
motion to sever his and Ortega’s trials. See United States v. Sullivan, 522 F.3d
967, 981 (9th Cir. 2008). Magana argues that he presented a sufficiently
antagonistic defense at trial to justify severance—that it was Ortega acting alone
who beat Vince with a baseball bat. However, battery is not an element of
kidnapping under 18 U.S.C. § 1201, and both Ortega and Magana could be found
guilty of kidnapping Vince regardless of who had actually beaten him.
Accordingly, Magana’s defense was not sufficiently antagonistic to merit
severance. See United States v. Hanley, 190 F.3d 1017, 1028 (9th Cir. 1999)
(superseded by statute on other grounds) (“A criminal defendant is entitled to a
separate trial on the ground of mutually antagonistic defenses only if the core of
the co-defendant’s defense is so irreconcilable with the core of his own defense
that the acceptance of the co-defendant’s theory by the jury precludes acquittal of
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the defendant.” (internal quotations omitted)). Moreover, the district court’s
limiting instruction cured any potential spillover effect from the evidence of
Ortega’s drug charges to the kidnapping charges against Magana. See Sullivan,
522 F.3d at 981-82.
C. The district court did not abuse its discretion when it refused to
provide the jury with a written copy of the jury instructions. See United States v.
Jones, 353 F.3d 816, 818 (9th Cir. 2003). “While providing the jury with written
instructions has become increasingly common in the past decades, it is not
automatically required.” Id. at 819. The district court’s decision, while somewhat
perfunctory, was sufficiently “well-considered and appropriate, given the relative
simplicity of the case, the court’s observations of the jurors’ understanding, and
[the defendants’] lack of objection to the content of the oral instructions.” Id.
D. Viewing the evidence presented at trial in the light most favorable to
the prosecution, a “rational juror could have found beyond a reasonable doubt” that
Magana was guilty of the crimes as charged. United States v. Bennett, 621 F.3d
1131, 1133 (9th Cir. 2010). The prosecution presented overwhelming evidence of
Magana’s guilt, including wiretap transcripts which chronicled Vince’s
kidnapping, physical evidence, and witness testimony by Vince, Abby, and the
7
officers. There is no basis to conclude on this record that there was insufficient
evidence to support Magana’s conviction.
E. The district court did not abuse its discretion when it sentenced
Magana to 300 months imprisonment followed by five years of supervised release
and 20 hours of weekly community service. See Gall v. United States, 552 U.S.
38, 49 (2007). Magana does not point to any procedural or substantive error which
would merit reversal and the district court adequately considered the 18 U.S.C. §
3553(a) factors during sentencing. See United States v. Valencia–Barragan, 608
F.3d 1103, 1108 (9th Cir. 2010). Magana’s sentence represented a downward
departure from the advisory Guidelines range of 360 months to life, and in light of
the totality of the circumstances, this below-Guidelines range was substantively
reasonable. See Gall, 552 U.S. at 51.
III. Evidentiary Rulings and Other Issues
A. Ortega and Magana were given the opportunity to fully and
effectively cross examine the prosecution’s witnesses, and the district court did not
abuse its discretion when it limited further questioning. See United States v. Long,
706 F.2d 1044, 1054 (9th Cir. 1983) (explaining that district courts have “wide
discretion in determining whether evidence is supported by proper foundation,
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whether it is relevant and whether its probative value substantially outweighs any
danger of unfair prejudice”).
B. Regardless of whether the impeachment testimony against Tina
Ramirez was admissible to prove bias, see United States v. Abel, 469 U.S. 45
(1984), Magana and Ortega failed to object to this testimony under either Federal
Rule of Evidence 403 or 608, and its admission does not amount to plain error.
See United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990) (explaining
that plain error review applies where a party fails to “timely object and state the
specific grounds for his objection”).
C. Agent Gutierrez’s testimony concerning the criminal investigation and
wiretaps in this case was not overly extensive as to the application and
authorization of the wiretaps and investigation and thus did not amount to
vouching. See United States v. Brooks, 508 F.3d 1205, 1210-11 (9th Cir. 2007)
(concluding that extensive and unnecessarily detailed testimony concerning the
wiretap application process by government agents constituted impermissible
vouching). Moreoever, even if Agent Gutierrez’s testimony had constituted
vouching, neither defendant objected on these grounds during trial, and the district
court’s error in allowing the testimony, if any, was not plain. See id. at 1211
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(concluding that admission of impermissible vouching testimony did not constitute
plain error in part due to the strength of the case against the defendant).
D. Magana and Ortega also failed to object to Agent Gutierrez’s
testimony as to the meaning of phrases intercepted by the wiretap. They now
argue that this testimony was improper opinion testimony under Federal Rule of
Evidence Rule 701. Even if the district court erred by permitting Agent Gutierrez
to give expert testimony without first being qualified as an expert witness, see
United States v. Greeman, 498 F.3d 893, 904 (9th Cir. 2007), this error does not
rise to the level of plain error. See Gomez-Norena, 908 F.2d at 500.
AFFIRMED.
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