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United States v. Olea-Monarez

United States Court of Appeals, Tenth Circuit

November 7, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
VICENCIO OLEA-MONAREZ, Defendant-Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 2:14-CR-20096-JAR-1)

          Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

          Carrie N. Capwell, Assistant United States Attorney (Thomas E. Beall, United States Attorney, and David P. Zabel, Assistant United States Attorney, with her on the brief), Office of the United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.

          Before MATHESON, BALDOCK and EID, Circuit Judges.

          EID, CIRCUIT JUDGE.

         Defendant-Appellant Vincencio Olea-Monarez was charged along with several co-defendants in a thirty-one-count indictment related to a large drug-trafficking conspiracy. Count 8 of the indictment alleged that on or about December 12, 2013, Olea-Monarez knowingly and intentionally distributed more than fifty grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii).

         During deliberations, the jury sent the district court two questions regarding Count 8. In the first, the jury asked what evidence would support Count 8. The judge responded that testimony and exhibits had been admitted concerning the count, which the jury could review upon their request. The second question asked whether the indictment for Count 8 had the incorrect date. The judge responded by noting that there had been four witnesses who testified about Count 8, and that Exhibits 98 and 99 relating to the charge had been admitted. Olea-Monarez now argues that both of the court's responses to the jury questions were erroneous and require reversal of his conviction for Count 8. We disagree and affirm the district court. We hold that the trial court judge did not abuse its discretion in responding to the jury's questions because, although it at times directed the jury's attention to evidence, it made no evaluation of the evidence and therefore did not impinge on the jury's role as factfinder.

         I.

         At trial, several witnesses testified as to a controlled purchase of methamphetamine by a confidential source from Olea-Monarez on December 12, 2013.

         First, Special Agent Timothy Swanson testified that at his direction, Craig Lee, the confidential source, performed a controlled purchase with Olea-Monarez on December 4, 2013. Agent Swanson noted that another controlled purchase occurred on December 12, 2013. However, because he did not personally participate in that purchase, the agent did not testify further about it. Second, Deputy Evan Comerio, an FBI task force officer in the investigation, testified that he supervised and directed Craig Lee to conduct a controlled buy of methamphetamine from Olea-Monarez on December 12, 2013. Through Deputy Comerio's testimony, the government offered the 53.3 net grams of methamphetamine purchased, and the lab report of the methamphetamine as Exhibits 98 and 99, respectively. Third, Craig Lee, the confidential source, testified on behalf of the government. While Lee could not testify as to the exact dates of the two controlled purchases, he was able to recall that both purchases occurred in December 2013. Finally, Olea-Monarez took the stand and admitted to two December 2013 controlled purchases with Craig Lee during cross-examination.[1]

         After the fifteen-day trial, the jury began deliberations. During deliberations, the jury sent a note to the district court asking: "With respect to Count No. 8, we can't find evidence to review with this charge. What is the evidence or government number?" Olea-Monarez argued the district court should decline to answer the question directly and instead tell the jury that it had received all the evidence in the case. Ultimately, the district court responded: "There was testimony concerning Count No. 8, and there were exhibits admitted concerning Count No. 8, which you have, except for the drug exhibit, which you can view upon request."

         Later, the jury asked another question: "We find evidence of a buy February 12. Count 8 references a buy December 12. Could Count 8 date be an incorrect date?" Olea-Monarez again urged the court to respond only that the jurors should depend upon their own notes and recollection of the evidence. Ultimately, the court responded: "There was testimony from at least four witnesses about this buy. There was Exhibit 98-drug evidence, which is available for your review upon request. Exhibit 99 is the lab report. You must rely on your collective recollection of all of the evidence, including the testimony and the admitted exhibits." Less than an hour later, the jury found Olea-Monarez guilty on all counts.

         Olea-Monarez now argues that both of the court's responses to the jury questions were erroneous and require reversal of ...


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