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United States v. Rios-Morales

United States Court of Appeals, Tenth Circuit

December 28, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JOSE RIOS-MORALES, Defendant-Appellant.

         Submitted on the briefs: [*]


          Gregory C. Robinson, Lansing, Kansas, for Defendant - Appellant.

          Thomas E. Beall, United States Attorney, and Carrie N. Capwell, Assistant United States Attorney, Kansas City, Kansas, for Plaintiff - Appellee.

          Before BACHARACH, McKAY, and MURPHY, Circuit Judges.

          McKAY, Circuit Judge.

         A jury 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 error.


         The 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.)

         Omar's 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.

         Omar 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.

         While 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.

         After 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.

         Other 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 parking lot.

         Over 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.

         Other 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.

          The 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.

         On 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.

         Mr. 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 ...

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