*1 plicit finding quantity impugn did not integrity of or raise doubt about the proceedings.
fairness of these argu- believe both of defendant’s
We appeal
ments in this are without merit.
Therefore, judgment of the District respects. is affirmed all
Court America,
UNITED STATES of Appellee,
Plaintiff —
v.
Rogelio PRECIADO, also known as Mendoza-Valencia,
Emilio Appellant.
Defendant — America,
United States of Appellee,
Plaintiff —
v. Borges-Cano,
Pablo also known as
Jaimie Samorano Defendant—
Appellant. America,
United States of Appellee,
Plaintiff — Sanchez,
Humberto also known as Sanchez-Hernandez,
Humberto Appellant.
Defendant — 02-3124, 02-3431,
Nos. 02-3533. Appeals,
United States Court of
Eighth Circuit. May
Submitted: 2003. July
Filed: 2003.
Rehearing Rehearing En Banc Aug.
Denied:
Stephen Grigsby, MN, V. Minneapolis, appellant for Preciado. get MN, he would have delay because Minneapolis, for George,
Andrea The informant de- money for the deal. Borges-Cano. appellant to the Borges-Cano Preciado and scribed MN, Glaser, Minneapolis, for B. Kurt a red Nissan Sentra agents as well as appellant Sanchez. then officers had observed. Surveillance III, AUSA, Dixon, Minne- Joseph T. parking lot of a located Sentra cases. MN, in all three appellees apolis, and nearby They also saw Preciado bar. get- around before Borges-Cano walking LOKEN, Judge, BRIGHT Chief Before Volkswagen into a black Jetta ting MURPHY, Judges. Circuit store. The two driving liquor back to the over an hour outside the store for waited MURPHY, Judge. Circuit *4 informant, following his the instruc- until Preciado, Borges-Cano, Pablo Rogelio tions, money the and told them he had charged were with Humberto Sanchez and in to fifteen minutes would do the deal ten more intent to distribute possession with down the street. at a carwash in methamphetamine, grams of than 500 first drove to Borges-Cano Preciado and 841(a)(1), §§ of 21 U.S.C. violation and then turned around the carwash and 841(b)(1)(A), do the conspiracy and with to the red parking to the bar lot where went same, § 846. Pre- in violation of 21 U.S.C. get Agents Borges-Cano was. saw Sentra to con- Borges-Cano pled guilty ciado and up Volkswagen and walk to out of by the district spiracy and were sentenced just of the bar as Sanchez came entrance respectively; months to 151 and 135 court1 right over to the out. The two walked sentencing issues. appeals raise their in. started the got and Sentra jury on both was convicted car, for Preciado to drive out of his waited months; and was sentenced to counts spot, followed Preciado parking and then multiple grounds. We af- appeals on cars the exit to the street where both to firm. arrested, All stopped. were three were Lopez-Reyes, August In 2001 Victor pounds five of metham- approximately and coconspira- in indictment as a named open found inside an Coca phetamine was tor, a confidential arrangements made with of the box the back seat Sentra. Cola informant for the sale of five government material found Packaging Septem- pounds methamphetamine. On A officer testified that trunk. surveillance 7, 2001, to the li- Lopez-Reyes went ber Cola box on the he had observed the Coca to where the informant worked quor store as it sat in the lot. backseat of the Sentra day. for later that Law arrange sale of the lot agents doing surveillance agents established surveil- enforcement put- had been seen reported that no one area, they withdrew lance around the but it was anything into the car while ting might not take they after heard the deal parked outside the bar. day. Borges- Preciado place and pled guilty on the first Preciado up liquor later showed at the store Cano empaneled sale, however, jury trial after the day the informant make the and adjust received a two level downward agents. They passed this news acceptance guidelines ment under the up again time to set surveillance so needed responsibility. He contends that he they told the informant to tell adjust- received a third level would be a should have Borges-Cano there Judge Doty, for the District of Minnesota. S. United States District 1. The Honorable David ment for timely acceptance because the save it this task. We conclude there was district court rejected should not have his no clear error in denying Preciado a fur- attempt plead guilty days earlier five ther offense level reduction under U.S.S.G before trial. review a deny We decision to 3El.l(b)(2).. § acceptance an responsibility adjustment Borges-Cano pled guilty ad for clear error. See United v. Er States vance of trial and moved at sentencing for vasti, (8th Cir.2000). a mitigating adjustment role under At the time of sentencing, 3B1.2, § U.S.S.G. claiming he was merely 3El.l(b)(2) § of the United States Sen a front man who facilitated deals and tencing provided Guidelines a one level transported drugs for Preciado and Lo adjustment downward for timely notice of pez-Reyes. The district court denied the an plead guilty, intent to thereby saving adjustment, finding that Borges-Cano was the government preparation. trial United “more than a minor participant,” and he Commission, Sentencing Guidelines appeals now from that denial. Whether an Manual, 3E1.1(b)(2) (2001) § [U.S.S.G.].2 adjustment § warranted under 3B1.2 is Although government originally determined “comparing the acts of each agreed to recommend the full three level participant in relation to the relevant con reduction at the time Preciado first tried *5 duct” by and “measuring participant’s each plead to guilty, he was not forthcoming ... acts and culpability relative against guilt about his and accept the court did not the elements of the offense.” United plea. his (8th v. Snoddy, 1224, States 139 F.3d 1228 ... “There is no absolute right Cir.1998). We review a determination that plea to have a guilty accepted. A court a defendant not entitled to a mitigating may reject plea a in exercise of sound adjustment role for clear error. See Unit judicial discretion.” v. Santobello New ed States v. Lopez-Arce, 775, 267 F.3d 784 York, 257, 262, 495, 404 U.S. 92 S.Ct. 30 (8th Cir.2001). (1971) (citations omitted). L.Ed.2d 427 The record establishes Borg
Preciado was any reticent to admit wrong es-Cano was participant not a minor in doing when the attempted he first plead criminal activity. Lopez-Reyes After guilty. He shifted his version of events arranged a sale with an undercover incrementally each officer time the district court 2001, July on Borges-Cano 16 delivered a indicated that it was not satisfied that pound half of methamphetamine there and adequate was an col factual basis to $3,500. lected a accept plea. payment a cash Sep On On this record the district tember 7 Borges-Cano court did not and reject abuse its discretion in Preciado met with ing informant, a confidential plea. waited See United States v. to Severino, (2d Cir.1986) gether 800 F.2d for an 45-46 over hour for the informant (district court buy money, did not collect the by abuse discretion and were arrest rejecting guilty plea where ed with process defendant’s ac Sanchez the closing count of drug events minimized role in the deal. Borges-Cano crime And it was and called credibility question). into who got Since out of the Volkswagen to meet government the pre was then forced Sanchez at the bar and left with him pare trial, for plea Preciado’s later did drugs not in the Sentra. Borges-Cano Now, (2003) § under the 401(g)(1)(A), PROTECT Act the third 117 Stat. 672 only granted level upon can be a motion 3El.l(b)). (amending § U.S.S.G. 108-21, prosecutor. Pub.L. No.
744
Cotroneo,
v.
See United States
deposition.
an
player,
minor
but
simply a
not
was
(8th Cir.1996) (standard
514
conspiracy
who
participant
active
review).
for continuance
A motion
The district
role.
significant
played a
moving party
his
by denying
granted
should be
clearly err
did not
court
adjustment.
reason.” See id.
“compelling
role
a
mitigating
shows
for a
request
F.3d
for a continuance
McGrady,
given
reason
See United
Cir.1996).
Correa,
(8th
depose
but
1042, 1043
time to
was to allow
deposition.
to a
was not entitled
number of issues
a
raises
may
that courts
provides
Fed.R.Crim.P.
out of the trial
grow
appeal, and several
preserve testimony
depositions “to
order
Hernandez-Correa.
testimony of Jose
trial,”
a
rule is not intended as
for
but the
that he
theory of defense was
Sanchez’s
discovery. See
general
mechanism
living
for a
used cars
bought and sold
F.2d
Hutchings, 751
United States v.
him about a car
had called
that Preciado
(8th Cir.1984).
argues
Sanchez now
him to meet
and asked
he had advertised
a
deposition,
continu-
that even without
that while he
testified
at the bar. Sanchez
him
his
helped
because
ance would have
Preciado, Borges-
there for
waiting
have had time to interview
counsel would
to the carwash.
him for a ride
Cano asked
give
did not
this reason
Correa. Sanchez
prior
had had no
claimed that he
continuance, however,
he asked for a
when
Borges-Cano
or
association with
in fact informed the dis-
and his counsel
put
have
else must
and that someone
attorney had re-
trict court
Correa’s
car
drugs
with the
Coca Cola box
privilege”
“grant
[him]
fused to
days
in the bar. Five
before
while he was
government
client. The
speaking to her
government
learned that
trial Sanchez
call
that it would
Correa
notified Sanchez
testify
would
to call Correa who
going
*6
potential
as it
about his
as soon
learned
with Preciado
that he had seen Sanchez
give
not
testimony, and
did
Sanchez
Although
drug
deal.
day
before the
of
compelling reason for a
any
district court
in-
by
interviewed
been
previously
he had
Moreover,
op-
he had a full
continuance.
only learned
prosecution
vestigators,
trial,
at
portunity to cross examine Correa
picked
had
that Correa
shortly before trial
prejudice.
not
We con-
and he has
shown
lineup as someone
photo
from a
court did not abuse
clude that the district
prose-
drug
in the
business.
he knew
the motion.
denying
its discretion
counsel for Sanchez
cution informed
link his client
testimony would
Correa’s
claims that the district
a continu-
moved for
Preciado. Sanchez
iden
have excluded Correa’s
court should
ance,
the motion.
court denied
and the
photo
trial
tification of him at
because
trial that he had
later testified at
Correa
unduly
him earlier was
lineup shown to
and had seen San-
drugs for Preciado
sold
irreparable
and led to an
mis
suggestive
Paul bar in the
Preciado in a St.
chez with
Because
taken identification.
2001,
told him
spring
when
object
in court identi
failed to
to Correa’s
partners. Cor-
that he and Sanchez were
fication,
plain
claim for
we review this
to mean that he
rea understood Preciado
Goodson,
v.
155
error. See United States
methamphetamine to-
and Sanchez sold
(8th Cir.1998)
963,
(arguments
F.3d
968
gether.
court reviewed for
not made to district
error).
the earli
The test is whether
appeal
plain
that the
argues on
procedure
photographic identification
by denying his
er
court abused its discretion
suggestive as to
impermissibly
was “so
take Correa’s
request for a continuance to
discretion,
very
to a
substantial likelihood of
for
give rise
abuse of
see United States
Arias,
(8th
irreparable misidentification.” Simmons
v.
Cir.2001),
252 F.3d
States,
377, 384,
v. United
390 U.S.
88 and conclude there was no abuse in admit-
(1968).
404(b)
ting
S.Ct.
L.Ed.2d 1247
Be-
this evidence. Rule
of the
investigators
cause
had told
Correa
Federal Rules of
requires
Evidence
rea-
Preciado,
drugs
dehvered
for
he was
any
sonable notice of
“evidence of other
lineup
crimes,
shown a
photographs
unidentified
wrongs, or
prosecution
acts” the
any pictured
partner
and asked whether
intends to introduce.
given
Sanchez was
of Preciado’s named Humberto Esquivel. notice of
likely
Correa’s
testimony as soon
identify any picture
Correa could not
prosecution
as
as the
became aware of his
Esquivel,
photo
but he identified a
Although
San-
evidence.
it
only
a few days
trial,
chez as someone Preciado had introduced
before
we cannot say the notice was
him
argues
to at a St. Paul bar. Sanchez
unreasonable under
the circumstances.
procedure
that this
unduly suggestive
Green,
See United States v.
275 F.3d
(8th
because Correa would have
him
recognized
(notice
Cir.2001)
701-02
received week
from their
having
jail
been
the same
for before trial was reasonable
govern-
where
months,
several
and Correa admitted he
provided
ment
day
notice same
it learned
recognize anyone
did not
else. We note'
evidence).
Correa testified that he sold
multiple photo-
Correa was shown
methamphetamine
Preciado,
and he re-
graphs,
suggested
picture
no one
which
he peated Preciado’s statement
in the bar
select,
should
identify
he declined to
which identified
partner
Sanchez as a
any photo
Esquivel,
as
the connection that
methamphetamine
business. Correa’s
agents
hoping
were
to establish. We
testimony about Preciado’s statement was
lineup
conclude that
impermis-
was not
801(d)(2)(E).
admissible under Rule
See
sibly suggestive and did not improperly Arias,
Sanchez next pho that the cluded. The chart shows calls between the to lineup from which Correa him identified phones cellular of Sanchez and Preciado should have been excluded at trial. It was *7 phone and which initiated each call. “The lineup, Sanchez himself who introduced the charts, summary of diagrams, use and oth however, attempt in an to demonstrate to generally permissible er visual aids is jury the that it suggestive was and had court,” the sound discretion of the trial unduly influenced By introducing Correa. Crockett, 1357, United States v. 49 F.3d himself, this evidence pre Sanchez cannot (8th Cir.1995), 1360-61 and we find no vail argument on the that it should have Since, abuse of discretion here. the evi by been excluded the district court. Cf. dence to tended undermine Sanchez’s de Mihm, 1200, United States v. 13 F.3d 1204 Preciado, fense that did not know it was (8th Cir.1994) (unsuccessful tactical deci probative unduly prejudicial. and not review). plain sion waives even error Sanchez also raises several issues relat- alleges gov
Sanchez that attempts ed to he made to have Preciado ernment him give adequate did not notice Borges-Cano testify and in his defense. of testimony attempted Correa’s and that his testimo to call Preciado and ny hearsay included a statement. We re at Borges-Cano support theory trial to his view a evidentiary rulings district court’s that he at the bar to show a car.
746 wanted defend justment and Preciado to have his codefendants to hoped aggravating for the role enhancement responsible against the they were testify that them The giving by government. him into district sought tricked- and had deal purchasing by per- interest its discretion by feigning court did not abuse a ride responded for both men to as- Borges-Cano and mitting his car. Counsel Preciado by appearing subpoenas self incrimina- privilege against to sert their Sanchez’s each client to state that district court F.3d at 856 Washington, 318 tion. See right Fifth Amendment review). claim his (standard would of argues self incrimination. against to intro also wanted by excusing court erred the district that during his Preciado made duce statements con- Borges-Cano without and ar The court heard guilty plea.3 district of inquiry into the basis ducting further before counsel on this issue gument from privilege. claims of their evidence, as excluding the but Sanchez excusing a witness Before hearing a further should have serts that privi the Fifth Amendment the basis state determine whether the been held to wheth court should inquire district lege, a exception to as an ments were admissible proposed to the line “responses er his 804(b)(1). hearsay rule Fed.R.Evid. subject possible to questioning [him] would proceeding by at another Testimony given v. United States prosecution.” criminal may admitted witness be an unavailable (8th 845, 318 F.3d Cir. Washington, 856 testimony is whom the party against “the 2003). can satisfied inquiry That be opportunity ... and offered had an now prospec from counsel for the statements testimony by develop similar motive United States v. War tive witness. See cross, direct, examination.” or redirect (8th Cir.1996); 1014, F.3d 1019-20 field, 97 motive at Preciado’s government’s The 1354, Swanson, v. States United hearing was to change plea ensure Cir.1993). (8th Here, attorneys 1359 knowing, voluntary, and intel plea appeared Borges-Cano and for Preciado adequate an ligent there was court. questioned by the district and were had no need accept it—it factual basis opportu gave also Sanchez the court develop testimony about San or motive to probe the basis nity question them and Powell, F.2d States v. 894 chez. United privilege. That of the asserted basis (7th Cir.1990); United 901 yet here where neither man apparent (3d Cir.1981). Lowell, F.2d v. United been See Mitchell sentenced. during change statements States, 326, 119 S.Ct. 526 U.S. hearsay excep do not fit the plea hearing (1999) (defendant’s privi 143 L.Ed.2d Sanchez, and the district tion cited continues to lege self incrimination against abuse its discretion in exclud court did not in the of sentencing). A defendant’s role ing them. always sentencing, relevant at fense is *8 for a trial moved new after Borg since Sanchez especially that true here ground that Preciado on seeking mitigating a role ad- conviction es-Cano was Echols, (8th 585 n. 2 attempted unsuccessfully to States v. 144 F.3d 3. Sanchez also 1998). argument Such an would not have Cir. other out of court statements introduce Hill, any event Rule through assis- been successful in because Lisa Preciado student 804(b)(3) tant, requires "corroborating circum in the fact and reference to that is made clearly indicating the trustworthi does not stances” of Sanchez’s brief. The brief section statements, admitted, none of the declarant's argue have been how- ness that it should ever, respect in to Preciado. See have been shown and the issue is thus waived. United .
747
testify
subpoenaed.
in
ry hearing
exceptional
would now
San-
circumstances.
in
Zuazo,
432;
chez’s counsel asserted
an affidavit that
Dogskin,
See
ing. Dogskin, See United States v. (8th Cir.2001) (standard F.3d BRIGHT, Judge, Circuit concurring
review). By the time Sanchez made that part, dissenting part. motion, the district court already de I concur in the affirmance of the convic- nied the motion for new trial it because tions and Rogelio sentences of had concluded that testimony Borges-Cano. and Pablo I dissent from likely acquittal. would not lead to See Zuazo, opinion affirming United conviction of (8th Cir.2001) (motion Humberto I Sanchez. would remand to new trial on the district newly hearing basis of court for a on San- only discovered evidence granted grounds where new evidence chez’s motion for a new trial on likely acquittal). testify lead to that Preciado will district court has Sanchez had wide type post nothing discretion this trial to do drug with the transaction in motion and it need only grant question. an evidentia- suggests very damaging The dissent that this reference to a dence was for Sanchez and for testimony "seemingly trial, convicted codefendant's testimony his own at as was the evi- recognizes unreliability of Correa's testi- showing dence extensive calls between Pre- mony,” specifically but the court was address- (and showing ciado calls made *9 ing testimony. Preciado's There was also phones each of from their to the same num- corroborating considerable evidence at trial Mexico). bers in California and example, Correa. For the surveillance evi- Sanchez)] [(Humberto had b. “He case, relied prosecution this
In drugs.” serving nothing to do with the felon testimony of a convicted Hernandez-Correa, to link time, jail Jose Sanchez) (Humberto was [ ] c. “He enterprises. criminal to any conspiracy.” part not of testimony highly questiona- is This sort guy That right. not d. “This is view, oth- little corroboration my In ble. Sanchez) (Humberto nothing to had] [ conviction. Sanchez for the existed erwise do with this case.” Preciado as relationship with explained your government. “I not trust e. do auto- of a used possible sale relating to a up government Your is screwed —it mobile. me, many people, it screws screwed that Precia- presented evidence man up for that and it is screwed relationship. In the testify will to their do Sanchez) (Humberto this to be in ] [ trial, counsel Sanchez’s for new motion I responsibility I for what case. take stating the an affidavit presented the-court (Humberto San- Why he [ done. does following: chez) had go jail to to when he have ] appointed to panel attorney am a CJA I nothing.” done Sanchez. Humberto defend liar that say f. “That snitch was a to Preciado, Mendo- a.k.a. Emilio Regelio Sanchez) (Preciado to- ] we & were [ za-Valencia, Mr. a co-defendant of was (Humberto I saw him gether. [ never before the and was sentenced Sanchez) It is all thing. before this ] [Hjonorable Doty August Judge man a murderer a lie. That everybody knows Mexico here — I August afternoon of In the government your that. How could legal with telephone a conversation (Referring protect use him and him?” Preciado, attorney Ste- for Mr. counsel testimony of Hernan- to the trial Jose phone con- Griggsby. During that ven that saw dez-Correa who testified he my ques- to explained I desire versation together and Sanchez relationship to client about his tion his 2001.) March and Mr. Sanchez’s Humberto Sanchez be I Mr. Preciado he would asked drug dealings alleged in the involv[ment] or me willing write statement allow to Griggsby gave Mr. in the instant case. discussing him Mr. Sanchez’s to record client. speak with his permission me that in this case. He said involvement meeting with 2002 I had a August On help Mr. Sanchez but he wanted County Preciado at Sherburne Mr. suspicious my he was reasons angry was general, In Mr. Preciado Jail. or to asking to write a statement him and he the sentence he received about He stated that he record him. would working for anyone his distrust stated brought have to into court before be myself). He (including government repeat his statements. would angry also Mr. App. at 42. not case he was charged this because Pre- meeting trial, our Mr. During involved. a new denying In the motion for following state- “Thus, made the relevant ciado court stated: defendant district ments: government’s proposes contradict the (Humberto testimony of the co- through witness met him [
a.“I never Sanchez) testimony of a defendant. The convicted were arrested ] before we sufficiently co-defendant would not be September 2001].” [on *10 testimony received more credible than the jury’s trial to overturn the determina-
at
tion, acquittal upon to make retrial or App. 46. This statement seem-
probable.” unreliability of Cor-
ingly recognizes the testimony the conviction
rea’s on which However, has, testimony
rests. yet,
as not been heard. Until Preciado
actually corroborating testifies and evi-
dence, any, presented testimony reliability.
cannot be tested as to
Thus, I would the district vacate court’s
denial for a new trial and remand to the full evidentiary hearing
district court for a
to determine whether Sanchez is entitled
ato new trial.
Barry CORNISH, Petitioner, M. BLAKEY,
Marion C. Administrator of Administration,
the Federal Aviation al., Respondents.
et
No. 02-2912. Appeals,
United States Court of
Eighth Circuit.
Submitted: Feb. 2003. July
Filed: