FILED
NOT FOR PUBLICATION FEB 25 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50555
Plaintiff - Appellee, D.C. No. 2:08-cr-00713-DSF-58
v.
MEMORANDUM*
RICARDO RUBIO-GARCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted January 8, 2016
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and MOTZ,** Senior
District Judge.
1. Sufficient evidence supports Ricardo Rubio-Garcia’s conviction for
possession of cocaine with intent to distribute. Viewed in the light most favorable
to the government, see United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
Page 2 of 7
(en banc), the evidence showed that Rubio gave directions to a Mexican drug
supplier that were to be relayed to a drug courier. Rubio then met the courier at a
prearranged location, briefly spoke with him, and got in the passenger seat of the
courier’s vehicle. Rubio directed the courier—whose vehicle was transporting ten
kilograms of cocaine hidden away in secret compartments—to a stash house where
the drugs could be removed. The jury also heard expert testimony that drug
trafficking organizations typically do not entrust individuals unfamiliar with the
details of the criminal enterprise with the location of a stash house, given the high
value of the narcotics stored there. A reasonable jury could infer from this
evidence “that [Rubio] associated with the criminal venture, participated in it, and
sought, by his actions, to make it a success.” United States v. Boykin, 785 F.3d
1352, 1359 (9th Cir. 2015). No more was required to convict Rubio under an
aiding-and-abetting theory, for which the government argued and on which the
jury was instructed. See id.
2. Sufficient evidence supports Rubio’s conspiracy conviction as well. The
above-narrated evidence amply demonstrated that Rubio agreed with at least the
supplier and the courier to participate in a drug deal and that he intended to aid in
its accomplishment. See United States v. Iriarte-Ortega, 113 F.3d 1022, 1024 (9th
Cir. 1997). The evidence also showed that the vehicle Rubio was directing drove
Page 3 of 7
in a pattern consistent with counter-surveillance activities, which “qualify as acts in
furtherance of a conspiracy.” United States v. Penagos, 823 F.2d 346, 348 (9th
Cir. 1987).
It is immaterial whether the evidence showed that Rubio was aware of the
entirety of the broader drug conspiracy charged in the indictment. There was no
constructive amendment, since the proof at trial was narrower than the charges in
the indictment. See United States v. Wilbur, 674 F.3d 1160, 1178 (9th Cir. 2012).
And any variance from the charged conspiracy was not prejudicial. See United
States v. Morse, 785 F.2d 771, 775 (9th Cir. 1986). First, this was not a case in
which the evidence suggested the existence of two temporally separate
conspiracies, which might cast doubt on the jury’s unanimity. See United States v.
Echeverry, 698 F.2d 375, 377 (9th Cir. 1983) (per curiam). Second, as even Rubio
concedes, the defense was not unprepared for the evidence at trial. And third, any
risk of prejudicial spillover from evidence irrelevant to the narrower conspiracy
was slight. Unlike in Kotteakos v. United States, 328 U.S. 750 (1946), Rubio was
tried alone, and the jury was not instructed on transference of guilt among co-
conspirators. See United States v. Duran, 189 F.3d 1071, 1082–83 (9th Cir. 1999).
3. The district court did not plainly err in admitting improper opinion
testimony. The case agent in charge of the investigation into the broader drug
Page 4 of 7
conspiracy testified as to his interpretation of various intercepted phone calls
involving the supplier, the courier, Rubio, and others; he also testified regarding
his perceptions of Rubio’s activities on the day of the drug deal. That he reviewed
translations of the intercepted conversations and did not listen to the calls in real
time does not mean that his testimony lacked proper foundation. He relied on his
ample “knowledge and investigation in this case” in forming his opinions, which is
all that is required in this context. See United States v. Torralba-Mendia, 784 F.3d
652, 660–61 (9th Cir. 2015). In addition, the vast majority of the case agent’s
opinion testimony was helpful to the jury and not based on expert knowledge. See
id.
However, not all of the case agent’s testimony was properly admitted. The
case agent explained the meaning of a few words and phrases that were well within
the common understanding of the jurors, and thus not helpful under Federal Rule
of Evidence 701. See United States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007).
He also initially based his opinion that Rubio was directing the load vehicle to a
stash house on his “training and experience,” and he provided some testimony on
what is “typical” of drug deals. Each of these opinions fell outside the bounds of
proper lay opinion. See Fed. R. Evid. 701, 702; Torralba-Mendia, 784 F.3d at 660.
Page 5 of 7
But Rubio cannot show that any of these errors violated his substantial
rights. The case agent’s testimony about what drug deals typically entail merely
duplicated what the government’s expert had already said, so any impact the error
had on the jury was limited. See United States v. Vera, 770 F.3d 1232, 1240 (9th
Cir. 2014). And the government corrected the case agent’s improper testimony
about Rubio’s role in the car immediately after it was introduced. Defense counsel
objected on foundation grounds, which led the prosecution to elicit testimony
about Rubio’s role in the load vehicle that was clearly based on the case agent’s
personal work on the case.
4. The district court’s failure to instruct the jury on the distinction between
the case agent’s lay testimony and his expert testimony did not rise to the level of
plain error. See Torralba-Mendia, 784 F.3d at 658–59. The case agent was not
qualified as an expert and, as explained above, nearly all of his testimony was well
within the bounds of proper lay opinion testimony. Any possible confusion and
prejudice were therefore limited, since the jury was not aware of the case agent’s
dual roles. See Vera, 770 F.3d at 1242.
5. The district court did not plainly err in admitting expert testimony about
the structure of drug organizations. Rubio was charged with conspiracy to
distribute and possess cocaine. The expert testimony in question was relevant to
Page 6 of 7
the jury’s determination of whether a conspiracy existed and whether Rubio
knowingly participated in it. See Torralba-Mendia, 784 F.3d at 662–63; United
States v. Valencia-Amezcua, 278 F.3d 901, 908–09 (9th Cir. 2002).
6. The government’s introduction of expert testimony that drug trafficking
organizations do not use so-called “blind mules” does not necessitate reversal.
Whether or not some drug cartels do in fact use couriers who are unaware that they
are transporting drugs is irrelevant in this case, since Rubio was not a drug
courier.1 Viewed in the light most favorable to the government, the evidence
showed that Rubio knew the location of the stash house, which the jury was told is
a crucial and highly guarded piece of information within drug conspiracies. Rubio
has come forward with nothing to impugn the veracity of the expert’s testimony
that drug organizations typically do not entrust individuals unfamiliar with the
details of the criminal enterprise with the location of their stash houses. He thus
cannot satisfy the requirements of plain error review. See United States v. Sanchez,
659 F.3d 1252, 1257 (9th Cir. 2011).
1
Per Rubio’s unopposed request, this court takes judicial notice of the
complaint in United States v. Chavez, Case No. 11-3330-G (W.D. Tex. 2011), in
which the United States charged a defendant with conspiring with a drug
trafficking organization (separate from the one at issue here) that made widespread
use of blind mules.
Page 7 of 7
7. The prosecution’s misconduct in questioning the sole defense witness
does not provide a basis for reversal. All of the calls about which the witness
testified were admitted into evidence, which allowed the jury to independently
evaluate the voices at issue. And even Rubio acknowledges that the
witness—whose voice-identification testimony was riddled with errors—“did not
offer the most compelling testimony on [his] behalf.”
8. Reversal is not required on account of cumulative error. See Parle v.
Runnels, 505 F.3d 922, 927 (9th Cir. 2007). The few errors at trial fall short of
fatally undermining the government’s case, as the evidence more than sufficed to
demonstrate Rubio’s guilt on both counts.
AFFIRMED.
United States v. Rubio-Garcia, No. 14-50555 FILED
FEB 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FRIEDLAND, Circuit Judge, dissenting:
Multiple evidentiary errors and instances of prosecutorial misconduct
marred Rubio’s trial. Because I believe that the cumulative effect of these
mistakes rendered the verdicts entirely unreliable, I would reverse both convictions
and remand for a new trial.1
First, in my view, there can be no question that the conspiracy the
Government sought to prove at trial varied from that with which Rubio was
charged. The Grand Jury in this case returned an indictment charging thirty co-
defendants, including Rubio, with participating in a single, wide-ranging
conspiracy run by the Sendis-Ramirez organization to traffic cocaine and other
narcotics from Mexico into the United States spanning the period from May 2007
through November 2012. But because the district court failed to read or describe
the indictment, and instead only informed the jury that Rubio was charged with
conspiring to distribute cocaine, the jury was not “fairly apprised of the nature of
[this] charge[].” Robles v. United States, 279 F.2d 401, 403-04 (9th Cir. 1960).
1
Although I believe the errors at trial should require us to reverse the convictions, I
would hold that sufficient evidence was presented to permit a retrial. Cf. United
States v. Bibbero, 749 F.2d 581, 586 (9th Cir. 1984) (explaining that the Double
Jeopardy Clause precludes retrial when a conviction is reversed for insufficient
evidence).
1
Likewise, in a departure from our model jury instruction, see Ninth Cir. Model
Crim. Jury Instruction 9.19 (2015), the district court’s instruction on the conspiracy
charge did not state the timeframe of the alleged conspiracy but instead allowed the
jury to convict Rubio if it found that he joined any agreement between two or more
persons to distribute cocaine. Given that the argument and evidence at trial
focused almost entirely on the single transaction in which Rubio was allegedly
involved, it seems clear that the jury convicted Rubio of a much narrower
conspiracy than that charged—one limited to an agreement among perhaps four
people to distribute a single load of cocaine on a single occasion. See United
States v. Wilbur, 674 F.3d 1160, 1178 (9th Cir. 2012) (providing that a variance
occurs when “the evidence offered at trial proves facts materially different from
those alleged in the indictment” (quoting United States v. Hartz, 458 F.3d 1011,
1020 (9th Cir. 2006))).
The majority finds that no prejudice attached to this variance. I disagree.
The defense came to trial prepared to convince the jury that “the government never
connected [Rubio] to the larger Sendis Ramirez organization.” This strategy was
rendered irrelevant by the variance because it was not responsive to the theory that
Rubio conspired to carry out the single transaction. Further, the confusion about
the scope of the conspiracy at issue permitted evidence about the Sendis-Ramirez
organization and drug deals in which Rubio had no alleged involvement to spill
2
into his trial. Once admitted without even a limiting instruction, this largely
irrelevant evidence created a danger that the jury would unfairly impute to Rubio
guilt attributable to members of the Sendis-Ramirez organization.
As the majority concedes, this was not the only flaw in Rubio’s trial. There
also was the admission of improper lay and putative expert testimony by the case
agent without a dual-role instruction, which created the risk that the jury would
give the officer’s lay opinions unmerited credibility. See United States v.
Freeman, 498 F.3d 893, 903-04 (9th Cir. 2007). And there was the undisputed
prosecutorial misconduct during cross-examination of the sole defense witness—
when the prosecutor was permitted, over defense objections, to repeatedly invoke
hearsay conversations with other prosecutors to impeach the witness’s résumé.
Even more problematically, there was the admission of false testimony by
the Government’s “drug expert,” that drug trafficking organizations do not use
unknowing couriers, or “blind mules,” despite this court’s repeated admonition
against such testimony’s introduction. See United States v. Flores, 510 F. App’x
594, 595 (9th Cir. 2013) (unpublished); United States v. Venagas-Reynoso, 524 F.
App’x 373, 377 (9th Cir. 2013) (unpublished). The use of knowingly false
testimony to obtain a criminal conviction contravenes due process and can be
cause for reversal. Napue v. Illinois, 360 U.S. 264, 269 (1959); see United States
v. Houston, 648 F.3d 806, 814 (9th Cir. 2011).
3
The majority contends that the introduction of the blind mule testimony was
not material to Rubio’s conviction because Rubio was not himself a drug courier.
Respectfully, I believe the majority misapprehends the way the Government used
the testimony at trial. The Government elicited the testimony to support the
inference that drug trafficking organizations never employ unknowing participants
in their transactions and thereby to undercut Rubio’s theory of defense that he was
an unwitting participant in the drug deal at issue. Indeed, the prosecution explicitly
asked the jury to draw this very inference during its closing remarks when it told
them that Rubio’s defense was directly contradicted by the special agent’s expert
testimony that drug trafficking organizations do not use individuals “who [do not]
know that a drug deal is going on.” The Government’s evidence and argument that
drug organizations do not use unwitting persons in their drug deals went directly to
Rubio’s mental state and therefore to an essential element of the crimes charged.
There can be little confidence in a verdict obtained in this manner. See Hayes v.
Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc) (explaining that the materiality
standard contemplates “not whether the defendant would more likely than not have
received a different verdict . . . , but whether . . . he received a fair trial, understood
4
as a trial resulting in a verdict worthy of confidence” (quoting Hall v. Dir. of Corr.,
343 F.3d 976, 983-84 (9th Cir. 2003) (per curiam))).2
Together these errors unfairly prejudiced Rubio by “render[ing] [his]
defense ‘far less persuasive than it might have been.’” Parle v. Runnels, 505 F.3d
922, 934 (9th Cir. 2007) (quoting Chambers v. Mississippi, 410 U.S. 284, 294
(1973)); see United States v. Wallace, 848 F.2d 1464, 1476 n.21 (9th Cir. 1988)
(determining that error not objected to at trial may be aggregated together with
preserved errors in cumulative error analysis). The deleterious effect of
cumulative error is particularly severe here given the weakness of the
Government’s case, which was built on Rubio’s participation in a single phone call
in which no mention of drugs was made and the short period of time he spent in the
passenger seat of the load car. See United States v. Frederick, 78 F.3d 1370, 1381
(9th Cir. 1996) (“[W]here the government’s case is weak, a defendant is more
likely to be prejudiced by the effect of cumulative errors.”). Because I have no
2
I also reject the Government’s specious argument that the testimony was not
actually false because the case agent premised the statements as being based on his
personal experience. As the jury was repeatedly told, the case agent testified as an
expert on drug trafficking, not based on his percipient observations. Further, the
implication of the Government’s argument is that the prosecution could overcome
Napue in almost every case by asking an expert to qualify false testimony as being
based on his or her experience. I decline to endorse an outcome that would create
such an end run around the Napue bar. Testimony that is “so misleading as to
amount to falsity,” United States v. Vozzella, 124 F.3d 389, 390 (2d Cir. 1997),
deserves no place in a criminal trial.
5
confidence in the process through which the jury reached its verdicts, I would
reverse to permit Rubio to confront the Government’s case on a fair playing field.
6
United States v. Ricardo Rubio-Garcia
Court: Court of Appeals for the Ninth Circuit
Date filed: 2016-02-25
Citations: 636 F. App'x 717
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