on the briefs: [*]
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. No. 2:14-CR-20117-JAR-2)
Gregory C. Robinson, Lansing, Kansas, for Defendant -
E. Beall, United States Attorney, and Carrie N. Capwell,
Assistant United States Attorney, Kansas City, Kansas, for
Plaintiff - Appellee.
BACHARACH, McKAY, and MURPHY, Circuit Judges.
found Defendant Jose Rios-Morales guilty of possessing with
intent to distribute more than fifty grams of methamphetamine
and conspiring to do the same. He received a sentence of 292
months' imprisonment, at the bottom of the advisory
Guidelines range. On appeal, he challenges the admission of
404(b) evidence and raises claims of prosecutorial
misconduct, witness perjury, jury taint, and cumulative
drug conspiracy at issue in this case involved Defendant, his
brother Omar, and co-defendant Felipe Sifuentes. Mr.
Sifuentes, who entered into a plea agreement with the
government, was a key witness at Defendant's trial. He
testified that he began selling methamphetamine around 2011
or 2012. In 2013 or 2014, Mr. Sifuentes stopped selling
methamphetamine for a period of time because he owed his
suppliers a large sum of money and they would no longer
provide him with inventory on credit. In mid-2014, however,
Defendant told Mr. Sifuentes "that he knew someone, his
brother, that could send [Mr. Sifuentes] some"
(Appellant's App. Vol. I at 1165), and a conspiracy was
born. Mr. Sifuentes and Defendant's brother never met in
person, but Defendant arranged for them to speak on the
telephone. They soon agreed that Omar would send
methamphetamine for Mr. Sifuentes to sell in Kansas. Mr.
Sifuentes agreed to pay Omar $6, 200 per pound, giving
Defendant an additional $300 per pound as his cut. For his
part, Defendant would send the $6, 200 per pound to Omar so
that Mr. Sifuentes "wouldn't have any issues with
that." (Id. at 1169.)
associates in California sent three shipments of
methamphetamine to the address Mr. Sifuentes gave to Omar,
which belonged to a friend of Mr. Sifuentes whom he knew as
"Chabacano." (Id. at 1171.) Mr. Sifuentes
paid Chabacano for allowing him to use his address in this
way. Mr. Sifuentes instructed Omar to send the fourth
shipment to Mr. Sifuentes' own address, which he provided
to Omar. This shipment was intercepted by postal inspectors.
The postal inspectors questioned Mr. Sifuentes, but he
disclaimed any knowledge of the package or its contents, and
they did not contact him again. Worried by the experience, he
told Defendant "that [this] was the last time, that we
couldn't work that way, you know, sending it through the
mail." (Id. at 1178.) For three or four months,
Mr. Sifuentes did not engage in any drug trafficking.
came up with a new plan, however, and contacted Mr. Sifuentes
to tell him that he had "found another way to send [him]
the drugs." (Id. at 1179.) His plan was to load
the methamphetamine onto a car in California, then pay for
the car to be transported on a commercial car hauler to its
destination in Kansas. Mr. Sifuentes discussed this idea with
Defendant, who "asked if [they] could do this for the
last time and, you know, he wants to go on vacation to Mexico
and he doesn't have any money." (Id. at
1181.) They agreed to go ahead with the plan.
the car was in transit in Oklahoma, law enforcement officers
noticed something suspicious about the car's appearance
and, with the consent of the car hauler's driver, they
searched the vehicle and discovered several pounds of
methamphetamine inside. The officers followed the car hauler
to Kansas, where the driver made a recorded phone call to the
number listed on the bill of lading. This number belonged to
Mr. Sifuentes, who answered the phone and spoke with the
driver. Omar had arranged for Defendant's address to be
listed as the delivery address on the bill of lading.
However, the parking lot of Defendant's apartment complex
was too narrow for the car hauler to safely maneuver in, so
the driver arranged to meet with Mr. Sifuentes in a nearby
commercial parking lot instead.
paying the car hauler driver and accepting receipt of the
car, Mr. Sifuentes removed the California license plate from
the vehicle and replaced it with a Kansas plate. He then
drove the vehicle to Defendant's apartment. After parking
in Defendant's parking lot, Mr. Sifuentes got out of the
car and looked inside of the trunk. He was promptly arrested.
He agreed to cooperate and told the officers that the
methamphetamine in the vehicle was intended for his friend
Jose, who lived at the complex. With the officers listening
in and recording, Mr. Sifuentes called Defendant to advise
him that the car had arrived. He also told Defendant that the
car had a flat tire and that he had left the car unlocked,
with the keys under the floor mat, for Defendant.
officers took up surveillance positions outside of
Defendant's workplace. At about 2 p.m., he left work, got
into his car, and started driving southbound on the K-7 state
highway, followed by several officers in unmarked vehicles.
From K-7, Defendant turned into a Wal-Mart parking lot. He
did not stop at the store, but continued on to an outer road,
then made a few more turns to end up back on southbound K-7
again. The officers believed he was conducting a
counter-surveillance heat run, and they used their radios and
counter-counter-surveillance tactics to ensure that someone
had eyes on Defendant at all times while attempting not to
alert him to their pursuit. As he drew up to his apartment
complex, Defendant again engaged in what the officers took to
be a counter-surveillance measure by driving past his complex
to a shopping center just east of his apartment, then making
his way through the parking lot back to his apartment. After
parking, Defendant got out of his vehicle and immediately
went into his apartment without stopping to look at the car
Mr. Sifuentes had called him about and left unlocked in his
the next few hours, Mr. Sifuentes made several recorded calls
to both Omar and Defendant. Eventually, Mr. Sifuentes told
Defendant that he was heading over to Defendant's parking
lot and would meet him there. An officer drove Mr. Sifuentes,
in Mr. Sifuentes' own car, to the parking lot, and Mr.
Sifuentes got out and began walking toward the drug car. At
this point, Defendant left his apartment and met Mr.
Sifuentes near the car. Mr. Sifuentes opened the driver's
side door and showed a sample of the methamphetamine to
Defendant. Both men were then arrested.
witnesses testified at trial that Defendant's brother
Omar was incarcerated throughout the course of the
conspiracy, but the facility where he was imprisoned had
"a big issue" with contraband, particularly cell
phones, finding their way into inmates' hands.
(Id. at 433.) A correctional officer further
testified about finding Omar in possession of a cell phone on
one occasion in 2014.
jury also heard testimony about Defendant's involvement
with Mr. Sifuentes in the earlier conspiracy to possess and
distribute drugs obtained from Mr. Sifuentes' previous
suppliers, with an instruction that this evidence was offered
only for the limited purpose of proving Defendant's
knowledge, motive, and opportunity in the charged conspiracy.
Mr. Sifuentes testified that, as part of the earlier
conspiracy, he made three trips to California in 2012 and
2013 to pick up methamphetamine from his suppliers, package
it, and mail it back to his house. He testified that he paid
Defendant $2, 000 to $2, 500 per trip for driving to
California with him and assisting him in packaging and
mailing the drugs. He further testified that Defendant was
well aware that the purpose of these trips was to obtain
drugs. On the first two trips, Mr. Sifuentes testified, they
packaged the drugs at a hotel in Chino and then shipped them
from a FedEx across the street from the hotel. On the third
trip, they were delayed arriving in California due to car
troubles, and, after they had picked up the drugs, Mr.
Sifuentes ended up packaging them in the back of the car
while Defendant was driving. They stayed overnight with
Defendant's cousin in California on that trip.
their way back to Kansas from their third and final trip to
California, they were stopped by law enforcement officers in
Oklahoma. Although the drugs had been sent to Kansas via
FedEx, their packaging materials were still in the vehicle,
and a police canine apparently alerted on the vehicle.
Defendant and Mr. Sifuentes waited in the back of the police
car while the police searched their vehicle. While they
waited, Mr. Sifuentes later testified, they had a
conversation about how "this was going to be our last
time. If we got out of this one, we would not go back to
California." (Id. at 1158.) The police
ultimately let them continue on their way.
Sifuentes and Defendant did not make another drug-buying trip
to California, at least in part because Mr. Sifuentes ran
into monetary difficulties with his source of supply. Some of
the lower-level dealers he had sold drugs to on credit were
unable to pay their debts to him, which, in turn, left him in
debt to his own suppliers. His involvement in the earlier
conspiracy ended because of these unpaid debts. But, as
described above, it was then that Defendant ...