United States v. Luis Vasquez
672 F. App'x 636
| 9th Cir. | 2016Background
- Defendant Luis Carlos Vasquez, a Customs and Border Patrol officer, was convicted by a jury of conspiracy to possess and import marijuana and related substantive offenses under 21 U.S.C. §§ 841, 846, 960, 963.
- The government declined to call a listed co-defendant (Victor Stuppi) at trial; Vasquez did not object at trial to that decision.
- Defense raised discovery/delayed-disclosure claims and alleged the government suppressed exculpatory evidence; the district court denied relief and proceeded to trial.
- Co-defendant Karla Prieto testified about a statement by coconspirator Juan Tiznado; the district court admitted that testimony under the coconspirator exception to hearsay.
- At sentencing the district court applied a 2-level obstruction enhancement for perjury and a 2-level weapons enhancement; Vasquez did not object to the weapons enhancement at sentencing.
- On appeal the Ninth Circuit affirmed the convictions, rejected claims of reversible error, vacated the sentence because the weapons enhancement was plain error, and remanded for resentencing without that enhancement.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Vasquez) | Held |
|---|---|---|---|
| Motion to supplement appellate record | Supplementation unnecessary; record on appeal is complete | Government sought to add cover letters and communications to clarify record | Denied — documents were not part of district-court record and FRAP 10(e) did not authorize supplementation. |
| Government’s failure to call listed witness (Stuppi) | Prosecutor not required to call all listed witnesses; no misconduct | Failure to call Stuppi deprived Vasquez of favorable testimony and constituted misconduct/Brady/Giglio violation | No plain error — prosecutor’s omission not misconduct; defendant could have called Stuppi; not a suppression under Brady/Giglio. |
| Delayed discovery / Brady suppression | Disclosures were timely or previously disclosed; no suppressed material that harmed defense | Late disclosures hindered preparation and constituted Brady/Rule 16 violations | No abuse of discretion; no Brady/Rule 16 violation or prejudice shown. |
| Admission of coconspirator hearsay (Tiznado’s statement via Prieto) | Statement was made during and in furtherance of the conspiracy and thus not hearsay | Statement not shown to be made in furtherance; admission prejudicial | Admission not an abuse of discretion; even if erroneous, any error was harmless. |
| Prosecutorial vouching in closing | Comments were invited response to defense assertion and did not render trial fundamentally unfair | Prosecutor improperly vouched and appealed to prosecutor’s credibility, warranting reversal | Improper vouching occurred but not plain error given the defense’s invited argument, jury instructions, impeachment of witness, and strong circumstantial evidence. |
| Weapons enhancement at sentencing | Enhancement appropriate because defendant possessed a service weapon during the offense unless clearly improbable connection | Weapon not connected to offense; enhancement unwarranted; plain error review due to lack of objection | Plain error — enhancement plainly erroneous; sentence vacated and remanded for resentencing without the enhancement. |
Key Cases Cited
- Lowry v. Barnhart, 329 F.3d 1019 (9th Cir. 2003) (standards for supplementing the appellate record)
- Weatherford v. Bursey, 429 U.S. 545 (1977) (no right to pretrial disclosure of government witnesses)
- United States v. Cabrera, 201 F.3d 1243 (9th Cir. 2000) (plain-error standard for unobjected-to prosecutorial actions)
- United States v. Bond, 552 F.3d 1092 (9th Cir. 2009) (government’s failure to call a witness is not Brady suppression)
- United States v. Moran, 493 F.3d 1002 (9th Cir. 2007) (standard and review for coconspirator-hearsay rulings)
- United States v. Weatherspoon, 410 F.3d 1142 (9th Cir. 2005) (prosecutorial vouching and improper assurances of witness credibility)
- United States v. Young, 470 U.S. 1 (1985) (when invited prosecutorial response can cure impropriety in argument)
- United States v. Jimenez, 300 F.3d 1166 (9th Cir. 2002) (clear-error review for obstruction-of-justice enhancement)
- United States v. Lindsey, 634 F.3d 541 (9th Cir. 2011) (plain-error review for unpreserved sentencing objections)