FILED

NOT FOR PUBLICATION MAY 17 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-30265

Plaintiff - Appellee, D.C. No. 2:07-cr-00343-JLR-1

v.

MEMORANDUM *

MIGUEL ANGEL JIMENEZ,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 11-30282

Plaintiff - Appellee, D.C. No. 2:07-cr-00343-JLR-5

v.

NIVALDO RIASCOS,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 11-30283

Plaintiff - Appellee, D.C. No. 2:11-cr-00233-JLR-1

v.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

NIVALDO RIASCOS,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 12-30028

Plaintiff - Appellee, D.C. No. 2:07-cr-00343-JLR-3

v.

HECTOR FABIO ZAPATA,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Argued and Submitted March 6, 2013

Seattle, Washington

Before: FERNANDEZ, W. FLETCHER, and RAWLINSON, Circuit Judges.

A jury convicted Defendants Riascos, Zapata, and Jimenez of conspiracy to

import a controlled substance to the United States in violation of 21 U.S.C. §§

952(a), 960(b)(1)(B)(i), and 963, and conspiracy to distribute a controlled

substance in the United States in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),

and 846. The jury also found Defendant Jimenez guilty of conspiracy to launder

2 money in violation of 18 U.S.C. §§ 1956(a)(2)(A) and 1956(h), and money

laundering in violation of 18 U.S.C. §§ 1956(a)(2)(A) and 2. The defendants

appeal their convictions, and Defendant Zapata appeals his sentence. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and we largely affirm.

1. Sufficiency of the Evidence

The defendants claim there was insufficient evidence to convict. We review

these claims de novo. United States v. Garcia, 497 F.3d 964, 966-67 (9th Cir.

2007). Because Defendant Jimenez did not properly preserve this objection with

respect to his money laundering charges, we review that claim for plain error.

United States v. Eriksen, 639 F.3d 1138, 1148 (9th Cir. 2011). When reviewing a

sufficiency claim, we must “view the evidence in the light most favorable to the

prosecution to determine whether ‘the jury reasonably could have found the

defendant guilty beyond a reasonable doubt.’” Garcia, 497 F.3d at 967 (quoting

United States v. Lothian, 976 F.2d 1257, 1261 (9th Cir.1992)).

We hold that the government presented sufficient evidence that the

defendants intended to import and distribute cocaine in the United States. The

government provided evidence of the conspiracy itself, drug trafficking routes and

practices, and the importance of distribution in the United States in order to profit

from the venture. The jury also heard evidence that at least one conspirator

3 acknowledged the final destination. Because there was sufficient evidence to

support the conspiracy to distribute counts, there was sufficient evidence to support

Jimenez’s conspiracy to launder money count and money laundering counts. We

therefore hold there was sufficient evidence to support the convictions.

2. Expert Testimony

Defendant Zapata challenged both the adequacy of the expert disclosures

and the substance of the expert testimony provided by three DEA agents.

a. Rule 16 Disclosures

Zapata claims the summaries of the experts’ testimony were insufficient

under Federal Rule of Criminal Procedure 16. Because no defendant objected at

trial to the adequacy of the disclosures, we review for plain error. We hold that the

disclosures were sufficient to convey the minimal notice required by Rule 16.

b. Improper Opinion

Zapata also argues that the experts improperly opined on the intent of the

defendants in violation of Federal Rule of Evidence 704(b). The parties dispute the

standard of review, but we hold that the arguments fail if reviewed for either an

abuse of discretion or plain error.

The experts in this case did not testify to the intent or knowledge of the

particular defendants. The experts discussed general trafficking routes, control of

4 the relevant regions at the relevant times, and the likely destination of a shipment

of the relevant size departing from the relevant point at the relevant time. The

experts testified that they had no personal knowledge of the facts of this case, and

their generalized testimony provided appropriate modus operandi testimony. See

United States v. Freeman, 498 F.3d 893, 906-07 (9th Cir. 2007); United States v.

Younger, 398 F.3d 1179, 1190 (9th Cir. 2005). The expert testimony did not

require the jury to find a certain mental state if the jury credited the experts. See

United States v. Gonzales, 307 F.3d 906, 911-12 (9th Cir. 2002); United States v.

Morales, 108 F.3d 1031, 1038 (9th Cir. 1997). We thus hold there was no abuse of

discretion or plain error in permitting the testimony.

3. Voluntariness of Custodial Statement

Defendant Jimenez challenges the admission of testimony based on his

inadmissible custodial statement. Defendant Jimenez claims the statement was

involuntary, and so inadmissible for any purpose. We review de novo the district

court’s determination that a statement was voluntary, but review factual findings

for clear error. United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003).

We hold that the government met its burden to prove that Jimenez’s

statement was voluntary. It was not clearly erroneous for the district court to credit

the DEA agent’s testimony over Jimenez’s. There was no physical coercion, and

5 there is no evidence of impermissible threats or improper promises by the

government. We agree with the district court that Jimenez’s ultimate refusal to

cooperate suggests that the circumstances did not actually compel his statement.

See United States v. Bautista, 362 F.3d 584, 592-93 (9th Cir. 2004).

4. Testimony Based on the Inadmissible Custodial Statement

The defendants challenge the district court’s admission of testimony that

relied on information a DEA agent received from Defendant Jimenez’s

inadmissible statement. The district court admitted the testimony only to rebut

attacks made by defense counsel on the case agent’s investigation and diligence.

The court specifically instructed the jury not to consider the evidence for the truth

of the matter asserted. The agent did not attribute the evidence to any defendant,

nor did he state the basis for his knowledge.

We first hold that there was no error under Federal Rule of Evidence 403.

The district court did not abuse its discretion in admitting the testimony, the court

offered an adequate limiting instruction, and the record shows the court conducted

a sufficient balancing.

We also hold that the admission of the testimony did not infringe on any

defendant’s rights under the Confrontation Clause. This court reviews de novo

claims of Confrontation Clause violations. United States v. Berry, 683 F.3d 1015,

6 1020 (9th Cir. 2012). The Confrontation Clause does not bar testimonial

statements that are not offered to establish the truth of the matter asserted. See

Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004); Tennessee v. Street, 471 U.S.

409, 414 (1985). The testimony in this case was not offered for its truth, but rather

as rebuttal of an inference that the government had not been diligent in its

investigation. There is no evidence that this rationale was pretextual, or that the

scope of the testimony strayed beyond its limited purpose. Compare United States

v. Nguyen, 565 F.3d 668, 674 (9th Cir. 2009) (finding a statement was offered for

the truth where its scope was clearly broader than the claimed non-hearsay

justification). We hold that there was no error.

5. Guilty Plea Statements

Defendant Riascos claims it was error to admit statements he made pursuant

to a 2001 guilty plea. He claims the statements were inadmissible under Federal

Rule of Evidence 410. The statements, however, were made pursuant to a

completed and valid guilty plea; Riascos did not withdraw his plea, nor did he

plead nolo contendere. Rule 410 thus does not apply to his statements, which were

admissible.

6. Severance Motions

7 Defendants Jimenez and Zapata challenge the district court’s denial of their

severance motions that were based on admission of Defendant Riascos’s prior

conviction. Defendant Zapata also challenges the denial of his severance motion

that was based on the testimony about his co-defendant’s inadmissible statement.

We review the district court’s denial of a severance motion for an abuse of

discretion. United States v. Stinson, 647 F.3d 1196, 1205 (9th Cir. 2011) (en

banc).

We hold the district court did not abuse its discretion in either situation.

First, arguments about the prosecution’s closing arguments and cross examination

are not factually supported in the record. Second, the district court provided

complete and exhaustive limiting instructions. Third, the Confrontation Clause

arguments fail for the reasons previously discussed. Neither Zapata nor Jimenez

has carried the burden of showing he did not receive a fair trial, or that the limiting

instructions were inadequate. See United States v. Johnson, 297 F.3d 845, 855 (9th

Cir. 2002).

7. Sentencing Information

We review de novo the sufficiency of a sentencing information under 21

U.S.C. § 851. United States v. Mayfield, 418 F.3d 895, 1019-20 (9th Cir. 1999).

Defendant Riascos’s argument that the United States Attorney must personally sign

8 the penalty information is meritless and has no basis in the statute. We hold there

was no error.

8. Sentencing

Defendant Zapata claims the district court failed to consider his mitigation

arguments and made improper statements regarding his right to counsel. We

review sentences for procedural and substantive reasonableness. United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008). We review the district court’s

sentencing decisions for an abuse of discretion. Id. Zapata’s arguments find no

factual support in the record and are meritless. Under either standard of review

posed by the parties, these arguments fail.

9. Supervised Release

Defendant Riascos challenges the district court’s revocation of his

supervised release from his prior conviction, resulting in an additional thirty

months’ imprisonment (running concurrently). We review the district court’s

decision to revoke a term of supervised release for an abuse of discretion. United

States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir. 2003).

Riascos claims revocation was improper because he did not receive proper

notice under 18 U.S.C. §§ 3583(f) or 3603(1). If the notice requirements of §§

3583(f) and 3603(1) are not met, revocation is still appropriate if the defendant

9 received actual notice of his supervised release terms. United States v. Ortega-

Brito, 311 F.3d 1136, 1138 (9th Cir. 2002). The record contains no evidence of

actual notice, and so we vacate the thirty concurrent months added to Defendant

Riascos’s sentence. We note that any claims that Defendant Riascos was not on

supervised release at the time of the offense are meritless. See United States v.

Ramirez-Sanchez, 338 F.3d 977, 979-80 (9th Cir. 2003).

Because we find no reversible error, we do not disturb the judgments against

any defendant.

AFFIRMED in part, VACATED in part, and REMANDED for correction of

Defendant Riascos’s sentence.

10

FILED

U.S. v. Jimenez, No. 11-30265 MAY 17 2013 U.S. v. Riascos, No. 11-30282

MOLLY C. DWYER, CLERK

U.S. v. Riascos, No. 11-30283 U .S. C O U R T OF APPE ALS

U.S. v. Zapata, No. 12-30028 Rawlinson, Circuit Judge, concurring in part and dissenting in part:

I concur in the conclusions of the majority disposition that sufficient

evidence supported the convictions, that admission of the expert and lay testimony

was within the district court’s discretion, that the custodial statement of Defendant

Miguel Jimenez was voluntary, that the guilty plea statements made by Defendant

Nivaldo Riascos were admissible, that the sentencing information complied with

21 U.S.C. § 851, and that the sentence imposed upon Defendant Hector Zapata was

procedurally and substantively reasonable.

I do not concur in the conclusion that the revocation of Riascos’ supervised

release was improper.

Riascos’ supervised release was revoked due to his violation of the standard

condition that he not commit any federal, state or local crime while on supervised

release. Riascos maintains that because he had no notice of this standard

condition, it cannot serve as the basis for revocation of supervised release.

However, Riascos’ judgment of conviction gives notice of this condition

immediately below the heading of SUPERVISED RELEASE. In addition, our

precedent permits us to impute knowledge of a prohibition on further criminal

1 activity by the releasee. See United States v. Simmons, 812 F.2d 561, 565 (9th Cir.

1987). It is only “when . . . the proscribed acts are not criminal,” that actual

notice is required. Id. (emphasis added).

Because I am of the view that our precedent is consistent with the district

court’s revocation of supervised release, I would affirm the district court’s

judgment without remanding to vacate the sentence imposed upon Riascos

following revocation of his supervised release.

2