August 20, 2019

Tenth Circuit: Defendants’ Convictions in Methamphetamine Trafficking Conspiracy Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Serrato on Friday, February 7, 2014.

Eddie Serrato and Sotero Negrete are drug dealers. In this case, they both were found guilty of multiple counts related to their involvement in a methamphetamine trafficking conspiracy centered in Casper, Wyoming. On appeal, Mr. Serrato raised four challenges to his conviction and sentence: (1) the prosecutor engaged in misconduct that violated his Fifth and Sixth Amendment rights; (2) there was an unconstitutional variance between the crime charged (a single conspiracy) and the evidence presented at trial (two separate conspiracies); (3) the district court abused its discretion in its calculation of his offense level under the federal sentencing guidelines;  and (4) the district court erred in denying his motion to suppress evidence obtained from a traffic stop that constituted an unconstitutional seizure under the Fourth Amendment.

Mr. Negrete raised arguments one and two above and added that the evidence was insufficient to support his conviction of using or carrying a firearm in furtherance of a drug trafficking crime.

First, both defendants challenged as prosecutorial misconduct two separate remarks made by government counsel during trial—one in the course of making an objection during the defendant’s cross-examination of DEA Special Agent Ryan Cox, and the other in counsel’s rebuttal closing argument. They contended that the misconduct violated their constitutional rights under the Fifth and Sixth Amendments.

During cross-examination of Special Agent Cox, defense counsel asked whether the government had intercepted phone calls involving Mr. Serrato other than recordings from jail calls. Special Agent Cox responded that he believed they did have other such recordings. When defense counsel asked whether Agent Cox would play the recording, Agent Cox responded “I didn’t prepare it today.” Government counsel objected: “Your Honor,  I’m going to object now. Counsel has every bit of discovery. If counsel wants to play a recording, he can play it. It’s not Mr. Cox’s responsibility to bring the recordings for Mr. Pretty [Defendant Serrato’s attorney]. He’s got them in discovery.”

Mr. Serrato’s attorney then asked for a sidebar and moved for a mistrial on the basis that any insinuation that Mr. Serrato needed to put on evidence violated his Fifth Amendment right to remain silent. Mr. Negrete’s attorney joined in the motion. The district court denied the motion.

The second challenged remark occurred during the government’s rebuttal closing argument. The defense called into question the veracity of the testimony of a confidential informant. Government counsel stated: “If you remember, these defense counsel had an opportunity to ask Agent Malone whatever they wanted. They never asked him.” Counsel for Mr. Serrato objected. Mr. Negrete’s counsel immediately joined the objection, stating, “That’s prosecutorial—as instructed, no defendant has any obligation to present a single piece of evidence or a single question.” The district court overruled the objection.

The Tenth Circuit assumed without deciding that the government  counsel’s comments were improper. Nevertheless, despite the impropriety, the court did not view the comments in a vacuum. The district court immediately and specifically gave the jury a curative instruction. As for the prosecutor’s comment during his rebuttal argument that the defendants could have asked Agent Malone questions if they had wanted to, the court found that sustaining the objection would have been the better course. However, the Tenth Circuit did not view that manner of responding to the objection as an error of constitutional significance.

Second, Defendants argued that the government failed to prove at trial the existence of one single conspiracy as charged in the indictment, resulting in a fatal variance between the charge and the evidence. A variance arises when an indictment charges a single conspiracy but the evidence presented at trial proves only the existence of multiple conspiracies. A variance is reversible error only if it affects the substantial rights of the accused.

The court concluded that the defendants’ actions, particularly providing assistance to Mr. Negrete in selling methamphetamine provided by Mr. Serrato, were acts in furtherance of the shared objective of distributing drugs received from a common source. The evidence before the jury was substantial enough to allow it to draw the conclusion that there existed an ongoing, facilitative relationship between parties who were aware of the scope of one another’s activities. The Tenth Circuit held that the evidence was sufficient to support the jury’s conviction on the single conspiracy as charged.

Third, Mr. Serrato appealed the district court’s calculation of his offense level under the Federal Sentencing Guidelines, arguing that a two-level increase for offenses involving the importation of methamphetamine should not have been applied. The court concluded that even if the district court erroneously included the importation enhancement in its calculation of the offense level—which the court neither reached nor decided—the error would be harmless.

Fourth, Mr. Serrato challenged the district court’s denial of his motion to suppress evidence obtained from a stop of his vehicle on April 6, 2011. Mr. Serrato argued that the stop was an unreasonable seizure under the Fourth Amendment. The district court found that law enforcement knew from surveillance that cars, particularly out-of-state cars, would come to Mr. Negrete’s house for the purpose of delivering methamphetamine and would park in the garage; and that a delivery of methamphetamine to be later transported to Iowa was scheduled to occur on approximately April 6, 2011. On that date, law enforcement observed a Utah vehicle and an Iowa vehicle at Negrete’s house. They stopped the vehicle with the Utah plates after it left Mr. Negrete’s house to identify the driver whom they suspected of distributing methamphetamine to Mr. Negrete. The stop lasted approximately 10 minutes, and the only information that was obtained was the driver’s (Serrato’s) identification. The district court concluded that these facts established that law enforcement had a reasonable suspicion of Defendant Serrato’s involvement with illegal activity when they stopped him. The Tenth Circuit concluded that these facts gave rise to reasonable and articulable suspicion that Mr. Serrato’s vehicle was involved in drug activity and justified a traffic stop.

Finally, Mr. Negrete was convicted of knowingly using and carrying a firearm during the commission of a drug trafficking crime (namely, conspiracy to possess with intent to distribute and distribution of methamphetamine). Mr. Negrete challenged the sufficiency of evidence, arguing that the government did not place a specific firearm into evidence at trial. Viewing the evidence in the light most favorable to the government, the court held that there was substantial evidence of Mr. Negrete’s guilt. The court did not know why a firearm was not placed in evidence, but the charge was proved by other means. The court was not persuaded that the jury’s determination should be overturned.

AFFIRMED.

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