Opinion
No. 03-20051-JWL.
August 13, 2004
MEMORANDUM ORDER
A jury convicted defendants Carlos Portillo-Quezada, Kenneth Waterbury and Noe Espino of conspiring to distribute or possess with intent to distribute five hundred (500) grams or more of a mixture and substance containing a detectable amount of methamphetamine as charged in Count 1 of the Superseding Indictment. Additionally, the jury found Mr. Portillo-Quezada guilty of distributing five (5) grams or more of methamphetamine, possessing with intent to distribute five (5) grams or more of methamphetamine, and possessing a weapon in furtherance of a drug crime as charged in Counts 2, 3 and 4, respectively. The jury also found Kenneth Waterbury guilty of possessing with intent to distribute five (5) grams or more of methamphetamine and being a felon in possession of a firearm as charged in Counts 5 and 6, respectively.
The matter is before the court on defendants' motions for a new trial and motions for judgment of acquittal. As discussed more fully herein, the court denies the defendants' requested relief. In short, the government presented evidence sufficient for a rational juror to find all three defendants guilty beyond a reasonable doubt on their counts of conviction. Moreover, the parties have failed to show that the ends of justice require a new trial.
Carlos Portillo-Quezada filed a motion for new trial (Doc. 216) and a motion for judgment of acquittal (Doc. 217) . Mr. Waterbury and Mr. Espino filed motions joining Mr. Portillo-Quezada's motion for a new trial. (Docs. 218 and 219). Mr. Espino also filed a motion for judgment of acquittal (Doc. 220). The matter is before the court on all of these pending motions.
BACKGROUND
This case involved a large conspiracy to distribute methamphetamine in Kansas City, Kansas. The operation was organized primarily by three brothers; Carlos Portillo-Quezada, Eloy Portillo, and Raul Portillo (Carlos' twin brother). The brothers obtained their supply of methamphetamine from Luis Arellano. Mr. Arellano originally supplied Carlos Portillo-Quezada and his associates with two to three (2 to 3) ounces of "ice" methamphetamine each week. As the operation grew, Mr. Arellano was supplying Mr. Portillo-Quezada with four (4) ounces of "ice," three to four times per week. Carlos Portillo-Quezada or his brothers would then distribute the "ice" to numerous individuals including Stephen Ballard, Jerome Birdsong, Kenneth Waterbury, Noe Espino, Dale Bond, Vicky King, Tommy Davidson and others. These individuals, in turn, would both use and sell the quantities of methamphetamine that they obtained from Mr. Portillo-Quezada. To maintain the distribution business, Mr. Portillo-Quezada and his brothers employed the services of several individuals, including William Rieger, Patrick Laffredo, Kenneth Waterbury, Bruce Andrews and Noe Espino. These individuals performed various tasks such as executing lease agreements on residential properties to ensure that the members would have a place to run their drug operations, packaging methamphetamine, delivering the product to customers, loading a pipe with methamphetamine so that customers could sample the product, repairing automobiles that Mr. Portillo-Quezada used to store or transport methamphetamine, collecting drug debts, imposing retribution against those who crossed the organization, stealing or attempting to steal methamphetamine from other drug stash houses, and other miscellaneous tasks that furthered the objectives of the conspiracy.
Consistent with the standard governing a motion for new trial and a motion for judgment of acquittal, the facts in this section are set forth in the light most favorable to the government. United States v. Hughes, 191 F.3d 1317, 1321 (10th Cir. 1999) (noting that in reviewing these motions, the court views the evidence in the light most favorable to the government).
On April 8, 2003, law enforcement officials found the body of Bruce Andrews in Kansas City, Kansas. Mr. Andrews had been shot at close range with an assault rifle. Mr. Portillo-Quezada murdered Mr. Andrews, or employed the services of others to have him murdered, because he believed that Mr. Andrews had crossed the organization by setting up his brother Raul in a drug bust and by failing to pay an outstanding drug debt.
Utilizing the assistance of a confidential informant, law enforcement officials set up a controlled purchase of "ice" from Mr. Portillo-Quezada. On April 10, 2003, a confidential informant, accompanied by Undercover Officer Stan Isaacson, went to Mr. Portillo-Quezada's residence at 1124 Hilltop Drive in Kansas City, Kansas and purchased one ounce of "ice" from the defendant for $3,000. They paid Mr. Portillo-Quezada with pre-recorded buy money. Based on the controlled purchase and other intelligence, law enforcement officials obtained a warrant to search the residence located at 1124 Hilltop Drive in Kansas City, Kansas.
Members of the Kansas City, Kansas Police Department's Tactical Unit executed the warrant on April 11, 2003. Upon entering the residence, officers observed Kenneth Waterbury in the living room and ordered him to the floor. Once on the floor, officers observed a small handgun lying on the floor next to his leg. Officers discovered Pauline Macias and Eloy Portillo in one of the bedrooms, and recovered narcotics from that room. Officers found Carlos Portillo-Quezada in the other bedroom, inside a closet. Mr. Portillo-Quezada was holding a handgun, and methamphetamine was strewn across the floor where he stood. Ultimately, officers recovered methamphetamine, scales, weapons, a bullet proof vest, digital scales, and drug paraphernalia from the residence. While conducting a search incident to arrest, officers recovered methamphetamine and $35 of pre-recorded buy money from the Mr. Waterbury's person. Officers also recovered $1,090 of buy money from Mr. Portillo-Quezada.
On August 21, 2003, a Grand Jury returned an eight-count indictment naming Carlos-Portillo-Quezada, Kenneth Waterbury, Luis Arellano, Eloy Portillo, Pauline Macias, William Rieger, Stephen Ballard and Noe Espino as defendants. Mr. Arellano, Ms. Macias, Mr. Rieger, and Mr. Ballard entered plea agreements and cooperated as witnesses at trial. The government was unable to execute an arrest warrant for Eloy Portillo.
After a seven-day trial, the jury returned a verdict of guilty against defendants Portillo-Quezada, Waterbury and Espino on May 13, 2003. On May 14, 2004, defendant Portillo-Quezada filed a timely motion for extension of time to file post-trial motions. The court granted the motion as to all defendants on that same day. Mr. Portillo-Quezada and Mr. Waterbury filed their post-trial motions on June 14, 2004. Mr. Espino filed his post-trial motions on June 15, 2004.
STANDARD
As to the motions for judgment of acquittal, the court must uphold the jury's verdict of guilty if "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Haber, 251 F.3d 881, 887 (10th Cir. 2001) (quoting United States v. Schluneger, 184 F.3d 1154, 1158 (10th Cir. 1999)). The court "must ask `only whether taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find [defendant] guilty beyond a reasonable doubt.'" United States v. Magleby, 241 F.3d 1306, 1311 (10th Cir. 2001) (quoting United States v. Springfield, 196 F.3d 1180, 1184 (10th Cir. 1999)). "Furthermore, `the evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt.'" Id. (quoting United States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000)).
As to the motions for a new trial, Federal Rule of Criminal Procedure 33 provides that "[t]he court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." Fed.R.Crim.P. 33. "A motion for new trial under Fed.R.Crim.P. 33 is not regarded with favor and should be granted only with great caution." United States v. Custodio, 141 F.3d 965, 966 (10th Cir. 1998) (further quotation and citation omitted). The decision whether to grant a motion for new trial is committed to the sound discretion of the trial court. United States v. Stevens, 978 F.2d 565, 570 (10th Cir. 1992).
DISCUSSION
I. Motions for Judgment of Acquittal
Both Mr. Portillo-Quezada and Mr. Espino allege that there was insufficient evidence to support the jury's verdict on Count 1, the conspiracy charge. The court will analyze each defendant's motion separately.
A. Mr. Portillo-Quezada's Motion for Judgment of Acquittal
Mr. Portillo-Quezada argues that an impermissible variance exists between the indictment, which alleged a single, overarching conspiracy, and the evidence adduced at trial, which he contends demonstrated the existence of multiple independent conspiracies. Additionally, Mr. Portillo-Quezada contends that a material variance exists between the alleged dates of the conspiracy as charged in the indictment and the dates of the conspiracy proven at trial. The court analyzes each alleged material variance in turn.
1. Singe Conspiracy
In Count I of the Superseding Indictment, the Grand Jury charged that on or about January of 2000, through on or about July of 2003, the defendants entered into an agreement to distribute or possess with intent to distribute methamphetamine. Mr. Portillo-Quezada argues that the government's evidence demonstrated that he and his brothers were involved in separate, independent conspiracies. As such, he believes that due process considerations require the court vacate the conviction. The court disagrees.
To obtain a conspiracy conviction, the government must prove that: (1) there was an agreement to violate the law; (2) the defendants knew the essential objectives of the conspiracy; (3) the defendants knowingly and voluntarily participated in the conspiracy; and (4) interdependence existed among the coconspirators. United States v. Hanzlicek, 187 F.3d 1228, 1232 (10th Cir. 1999) (citing United States v. Ailsworth, 138 F.3d 843, 850 (10th Cir.), cert. denied, 525 U.S. 896 (1998)). "The government may prove these elements by direct or circumstantial evidence." Id. (citing United States v. Evans, 970 F.2d 663, 668 (10th Cir. 1992)). "`A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment.'" Id. (quoting United States v. Edwards, 69 F.3d 419, 432 (10th Cir. 1995)). "Any such variance is reversible error only if it affects the substantial rights of the accused." Id. (citing Ailsworth, 138 F.3d at 848).
"`Accordingly, where a single conspiracy is charged in the indictment, and the government proves only multiple conspiracies, a defendant who suffers substantial prejudice must have his conviction reversed.'" Id. (quoting Edwards, 69 F.3d at 432). A variance is prejudicial when guilt is imputed to one defendant from another defendant's conduct. See Kotteakos, 328 U.S. at 775-77. The issue of whether a single conspiracy existed is a question of fact for the jury, and the court reviews the jury's decision on the question in the light most favorable to the government. Hanzlicek, 187 F.3d at 1232 (citing Edwards, 69 F.3d at 432). The inquiry focuses on whether the necessary interdependence existed between the coconspirators. Id. Interdependence exists when each alleged coconspirator's activities constituted essential and integral steps toward the realization of a common, illicit goal. Id.
In support of their argument that the government's evidence necessitates a finding of multiple conspiracies, Mr. Portillo-Quezada argues that the conspiracy proven at trial established that "at least until July 2002, Carlos Portillo-Quezada was not involved in selling drugs, but his brothers Raul and Eloy were." Defendant contends that when he did get involved, he employed new individuals to carry out his distribution business. Based on this evidence, defendant suggests that there is insufficient evidence to prove the single conspiracy charged in the Superseding Indictment. The court is not persuaded by the defendant's argument.
The defendants do not suggest that Kenneth Waterbury or Noe Espino were not interdependent members of the conspiracy. Indeed, the government's evidence was sufficient to satisfy this element of the conspiracy charge.
First, the premise of defendant's argument (that he was not involved in the drug operation until July of 2002) is not supported by the evidence when viewed in the light most favorable to the government. While defendant correctly notes that Luis Arellano testified that he began supplying Carlos Portillo-Quezada with methamphetamine in July of 2002, the government presented evidence suggesting that Mr. Portillo-Quezada was involved in distributing narcotics before that date. Pauline Macias, Eloy Portillo's wife and Carlos Portillo-Quezada's sister-in-law, testified that Carlos was not the leader of the organization during the time period when Raul resided in the United States. She also testified, however, that Carlos Portillo-Quezada distributed narcotics before Raul was deported in 2002. Stephen Ballard testified that Carlos and his brother Raul worked together in distributing narcotics until the time Raul was deported in 2002. Patrick Laffredo testified that during a three year period prior to the police raid at the Hilltop residence in April of 2003, he observed Carlos Portillo-Quezada deliver methamphetamine to Jerome Birdsong on approximately 20 occasions. William Rieger testified that Eloy and his brothers were supplying Dale Bond and Vicky King when Mr. Rieger began purchasing methamphetamine from that couple in 2000. Based on this and other evidence presented at trial, a rational juror could conclude beyond a reasonable doubt that Mr. Portillo-Quezada was involved in the conspiracy before the summer of 2002.
Additionally, the government's evidence demonstrates that the brothers were interdependent. First, the brothers utilized the same supplier for their operation. Luis Arellano testified that Carlos Portillo-Quezada introduced his brothers Raul and Eloy to him. While Mr. Arellano would typically deliver the methamphetamine to Carlos Portillo-Quezada, at times, Raul or Eloy would pick up the "ice" for Carlos. Second, the brothers cooperated in distributing the methamphetamine. William Rieger testified that Eloy Portillo and Carlos Portillo-Quezada generally worked together in the distribution of methamphetamine. For example, Mr. Rieger testified that he observed Eloy and Carlos jointly selling methamphetamine from the same residence. He also testified that Carlos Portillo-Quezada and his brother Raul Portillo worked as a team in distributing methamphetamine, until Raul was deported in 2002. Tommy Davidson testified that he acquired "ice" methamphetamine from Eloy, Raul and Carlos. While he generally paid Eloy for the product, he would pick up the methamphetamine from either Eloy, Carlos or William Rieger (who was working for Carlos). Third, Eloy and Carlos cooperated in the management and general operation of the conspiracy. William Rieger testified that he initially worked as a courier for Eloy, but after Raul was deported, Eloy instructed him to "take care of" and "look after" his brother Carlos. Mr. Rieger subsequently began working for Carlos as his courier. Eloy and Carlos cooperated in collecting drug debts. Both Patrick Laffredo and Stephen Ballard testified that Eloy Portillo collected a drug debt that Mr. Ballard owed to Carlos Portillo-Quezada. See United States v. Vaziri, 164 F.3d 556, 565 (10th Cir. 1999) (finding sufficient evidence of a single conspiracy where evidence demonstrated, among other facts, that the coconspirators protected each others' interests). Eloy and Carlos also cooperated in their efforts to avoid detection by law enforcement. Mr. Rieger testified that on one occasion while he was working for Carlos, he drove Carlos Portillo-Quezada to a gentleman's house so that he could package methamphetamine. While Mr. Rieger waited in the vehicle for Carlos, Eloy called him and told him to leave the scene because law enforcement officials were in route. Finally, the fact that the central figures of the conspiracy were brothers further evidences their interdependence. United States v. Owens, 70 F.3d 1118, 1127 (10th Cir. 1995) (conclusion that single conspiracy existed reinforced by the fact that four of the five individuals tried together were members of the same family).
The defendant correctly observes that some of the government's evidence suggests that Carlos Portillo-Quezada took over the organization's leadership role only after Raul was deported in 2002, and when he took control, he employed new and additional members to further the objectives of the conspiracy. This evidence, however, does not demonstrate the existence of multiple conspiracies. See, e.g., United States v. Owens, 70 F.3d 1118, 1127 (10th Cir. 1995) (recognizing that although each coconspirator had a different role and their roles changed during the six years the organization existed, each served as a vital part of the overall conspiracy, either as suppliers, drug manufacturers, couriers, or lookouts and therefore the evidence supported a finding of a single conspiracy); United States v. Roberts, 14 F.3d 502, 511 (10th Cir. 1993) (explaining that lapses of time, changes in membership, or shifting emphases in the locale of operations do not necessarily convert a single conspiracy into multiple conspiracies).
In the end, the government's evidence demonstrates that Carlos and his brothers' activities constituted essential and integral steps toward the realization of a common, illicit goal. As such, a rational juror could find beyond a reasonable doubt that the defendants entered into a single conspiracy as charged in Count 1 of the Superseding Indictment.
Alternatively, even if the government's evidence was insufficient to prove a single conspiracy (and it proved only the existence of multiple conspiracies), Mr. Portillo-Quezada has failed to demonstrate that he suffered legal prejudice as a result of such a variance. As noted above, where a single conspiracy is charged, but the government proves only multiple conspiracies, relief is warranted if the defendant suffers substantial prejudice. Kotteakos, 328 U.S. at 773-74. A variance is prejudicial when guilt is imputed to one defendant from another defendant's conduct. Id. at 775-77. In evaluating whether a potential prejudicial spillover impermissibly affected the fairness of a trial in which a variance occurred, the Tenth Circuit has considered the following factors: (1) whether the proliferation of separate conspiracies in the case affected the jury's ability to segregate each defendant's individual actions and participation; (2) whether the variance caused confusion among the jurors as to the limited use of certain evidence; and (3) the strength of the evidence underlying the conviction. United States v. Edwards, 69 F.3d 419, 433 (10th Cir. 1995).
Here, the factors do not support a finding of prejudice. First, the jury could easily have segregated Carlos Portillo-Quezada's actions and participation from the other conspirators. At best, defendant has argued that there were two or three independent conspiracies, each operated by his brothers. Thus, unlike in Kotteakos, there is no proliferation of conspiracies that would lead to juror confusion. Moreover, the government's evidence focused primarily on the conduct of Carlos Portillo-Quezada and his associates. Therefore, to the extent that the government's evidence proved the existence of multiple conspiracies, it did not hinder the jury's ability to consider independently and separately the evidence offered against each defendant. Second, to the extent that multiple conspiracies existed, the court's instructions to the jury minimized the risk of prejudice to the defendant. In its final instructions to the jury, the court explained:
A separate crime is charged against one or more of the defendants in each count of the Superseding Indictment. Each count, and the evidence pertaining to it, should be considered separately. Also, the case of each defendant should be considered separately and individually. The fact that you may find one or more of the accused guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime or any other defendant. You must give separate consideration to the evidence as to each defendant.
The Tenth Circuit has found that such an instruction minimizes the risk of prejudice to the defendant. Edwards, 69 F.3d at 433. Finally, as highlighted above, the government presented overwhelming evidence of Carlos Portillo-Quezada's guilt.
Defendant explains that because the Superseding Indictment charged him with being in a conspiracy with numerous other individuals over a period of three years, the defense had to be prepared to address a great deal of evidence involving many people. This, however, is common in all drug conspiracy cases, and it does not rise to the level of substantial prejudice that would warrant a judgment of acquittal. In light of these factors, the court finds that even if the government's evidence supports only a finding of multiple conspiracies, the defendants were not prejudiced by this variance, and therefore, his conviction should stand
2. Material Variance Based on Dates Charged in Indictment.
In Count 1 of the Superseding Indictment, the grand jury charged that the conspiracy commenced on or about January 1, 2000, and continued to on or about July 23, 2003. Defendants argue that there is a material variance between the dates of the conspiracy as alleged in the Superseding Indictment and the dates of the conspiracy proven at trial. In particular, defendants suggest that the conspiracy did not commence in 2000, as alleged in the indictment. The court finds that there is no material variance, and to the extent a variance exists, defendants are not entitled to relief.
First, construed in the light most favorable to the government, the evidence produced at trial does not support a finding of a variance between the indictment date and the proof at trial. William Rieger testified that he first met Eloy Portillo in 2000, and that he began acquiring methamphetamine from Eloy or individuals who received their methamphetamine from Eloy shortly thereafter. He further testified that Carlos Portillo-Quezada worked with Eloy and Raul in distributing methamphetamine. Pauline Macias testified that Carlos distributed narcotics before Raul was deported in 2002. A rational juror could conclude from this and other evidence presented at trial that the conspiracy commenced "on or about" January 1, 2000.
Second, to the extent that the government's evidence relevant to the genesis of the conspiracy varies from the dates alleged in the Superseding Indictment, the court finds that defendants have not shown that such a variance affected their substantial rights. "The requirement that allegations and proof correspond is intended to safeguard basic Fifth and Sixth Amendment rights of the accused." United States v. Ailsworth, 138 F.3d 843, 849 (10th Cir. 1998) (citations omitted). "The accused must (1) be informed of the charges against him so that he may present his defense and not be surprised by the evidence offered at trial; and (2) be protected against another prosecution for the same offense." Id. "A variance is not fatal unless the defendant could not have anticipated from the indictment what evidence would be presented at trial or unless the conviction based on an indictment would not bar a subsequent prosecution." Id. In light of these considerations, the Tenth Circuit has found that "there is no fatal variance where a defendant is convicted upon evidence which tends to show a narrower scheme than that contained in the indictment, provided that the narrower scheme is fully included within the indictment." United States v. McClatchey, 217 F.3d 823, 833-34 (10th Cir. 2000).
Here, to the extent that there is a variance, it is founded upon the length of the conspiracy. Even under the defendants' interpretation, the temporal scope of the conspiracy fell within the time-frame charged in the Superseding Indictment. As such, any variance is not material. See United States v. Ghant, 339 F.3d 660, 662 (8th Cir. 2003) (a variance between the indictment date and the proof at trial is not fatal so long as the acts charged were committed within the statute of limitations period, and prior to the return date of the indictment); United States v. Queen, 132 F.3d 991, 999 (4th Cir. 1997) (date of conspiracy was not a substantive element of the crime, and where a particular date is not a substantive element of the crime charged, strict chronological specificity or accuracy is not required). Moreover, the Superseding Indictment sufficiently informed the defendants of the charges against them, and there is no reason to believe that the description of the conspiracy contained in the Superseding Indictment (and the evidence presented at trial) would not protect the defendants against a subsequent prosecution on the same offense. To that extent, the Superseding Indictment and the government's proof at trial comport with Fifth and Sixth Amendment due process considerations. In light of the foregoing, the court finds that defendants are not entitled to relief on this ground.
B. Mr. Espino's Motion for Judgment of Acquittal
Rather than joining Mr. Portillo-Quezada's motion for judgment of acquittal, Mr. Espino filed his own motion alleging that the government's evidence was insufficient to support his conviction for the conspiracy charged in Count 1 of the Superseding Indictment. Because his motion was filed out of time, the court lacks subject matter jurisdiction over the issues raised therein. Even if the court had subject matter jurisdiction, the court finds that a rational juror could have found beyond a reasonable doubt that Mr. Espino was guilty of conspiring to distribute or possess with intent to distribute five hundred (500) or more grams methamphetamine.
1. Subject Matter Jurisdiction
Federal Rule of Criminal Procedure 29 requires a defendant to renew a motion for judgment of acquittal "within 7 days after a guilty verdict or after the court discharges the jury, whichever is later, or within any other time the court sets during the 7-day period." Fed.R.Crim.P. 29(c)(1). The court may not extend the time to take any action under Rule 29, except as stated in that rule. Fed.R.Crim.P. 45(b)(2). The time limits imposed by Rule 29 for the making of a motion for judgment of acquittal is a jurisdictional limitation on the ability of the trial court to grant the requested relief. Rowlette v. United States, 392 F.2d 437, 439 (10th Cir. 1968).
Here, the jury reached its verdict and the court discharged the jury on May 13, 2004. On May 14, 2004, the defendants filed a timely motion to extend the time for filing post-trial motions by thirty (30) days. The court granted the motion on that same day. Because the court does not count the day on which it granted the extension, the thirty-day clock period commenced on May 15, 2004. Fed.R.Crim.P. 45(a)(1) (noting that when computing any period of time specified in these rules, the court excludes the day of the act, event, or default that begins the period). The thirty day time-period expired on Sunday, June 13, 2004. Given that the last day of the period expired on a Sunday, however, the parties had until the end of the day on Monday, June 14, 2004, to file their post-trial motions. Fed.R.Crim.P. 45(a)(3) (contemplating that when computing a period of time, the court should include the last day of the period, unless it is a weekend, and if so, the period runs until the end of the next day that is not a weekend or legal holiday). Mr. Espino filed his motion on Tuesday, June 15, 2004, one day beyond the time period provided by the district court. As such, the court lacks subject matter jurisdiction over the motion. See, e.g., United States v. Rupert, 48 F.3d 190 (6th Cir. 1995) (holding that a district court lacks jurisdiction over a post-trial motion for judgment of acquittal filed one day outside the Rule's seven-day period).
2. Merits of the Motion
Even if defendant had filed his motion within the period contemplated by the court and Fed.R.Crim.P. 29, the court finds that Mr. Espino would not be entitled to relief because a rational juror could have found beyond a reasonable doubt that he was guilty of the conspiracy charged in Count 1.
First, viewed in the light most favorable to the government, the evidence demonstrated that Mr. Espino played a substantial role in the distribution of methamphetamine in the organization. William Rieger, who worked for both Eloy Portillo and Carlos Portillo-Quezada, testified that Noe Espino assisted Carlos Portillo-Quezada by delivering methamphetamine. Mr. Rieger further testified that Mr. Espino was a regular distributor for Mr. Portillo-Quezada. According to Mr. Rieger's testimony, Mr. Espino would acquire and distribute $800 worth of methamphetamine from Carlos Portillo-Quezada two to three times a week. Given the quantity of methamphetamine that could be purchased for this price and the frequency of Mr. Espino's purchases, a rational juror could have found that Mr. Espino purchased the product to redistribute and not for personal consumption.
Second, the government's evidence demonstrates that Mr. Espino provided security for the organization. Tommy Davidson testified that during drug transactions, Mr. Espino would sit in the corner of the house, holding a weapon and watching over everybody. Additionally, Captain Cosgrove testified that Noe Espino confessed to the fact that he aided and abetted another individual in the murder of Bruce Andrews. Evidence independent from Captain Cosgrove's testimony revealed that the murder was motivated by Carlos Portillo-Quezada's belief that Mr. Andrews had crossed the organization.
Mr. Espino challenges the credibility of Mr. Davidson and other witnesses. However, when reviewing the sufficiency of the evidence in support of a conviction, the court neither weighs conflicting testimony nor considers the credibility of witnesses. United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004). Instead, the court must simply determine whether the evidence, if believed, would be sufficient to prove defendant's guilt beyond a reasonable doubt. Id.
As set forth above, the government's evidence establishes that there was an agreement to distribute or possess with intent to distribute methamphetamine, that Mr. Espino was aware of the essential objectives of the agreement, that he knowingly and voluntarily took part in the conspiracy, and that he was interdependent with the other members. See Ailsworth, 138 F.3d at 850 (setting forth the elements of the crime of conspiracy). As such, even if the court had jurisdiction over the defendant's motion, he would not be entitled to relief.
II. Motions for New Trial
Mr. Portillo-Quezada raises numerous arguments in support of his motion for a new trial. The other two defendants join in the motion. The court addresses each issue in turn.
For the same reasons Mr. Espino's motion for judgment of acquittal was not timely, his motion to join Mr. Portillo-Quezada's motion for a new trial is not timely. As such, the court lacks subject matter jurisdiction over the motion as it pertains to Mr. Espino. United States v. Quintanilla, 193 F.3d 1139, 1148 (10th Cir. 1999) ("The time limitations imposed by Rule 33 are jurisdictional in nature.").
A. Prosecutor's Statements During Voir Dire
During the government's voir dire, the prosecutor made the following remarks:
Finally, many of us have in our minds what the picture of a criminal is. We know what drug dealers look like. They have big tattoos and guns and etc. and we expect them to have long hair and they wear biker jackets and that kind of thing.
The defendants objected and moved for a mistrial because two of the three defendants had tattoos. The court sustained the defendants' objection to the prosecutor's statement, but denied their motions for a mistrial. To cure any possible prejudice, the prosecutor offered the following clarification:
I am not saying that drug dealers look a certain way. I'm saying that some people have perceptions of what criminals look like. I am not saying that drug dealers have tattoos. I am not saying that drug dealers all carry guns, absolutely not. My remarks are not evidence. I am saying that some people have pictures in their minds of what a criminal looks like. Because of that they decide that somebody is guilty or not guilty based on that picture. Does everybody agree they will put aside the picture in their mind of what a criminal looks like and listen to the evidence and decide their verdict based on that evidence not on some picture that you have of what a criminal must be or what a criminal must look like?
Additionally, the court offered the following cautionary instruction:
Just as I indicated to you earlier, that the concept of being equal before the eyes of the law applies to things like nationality or ethnicity, so too does it apply to appearance. People don't come before a court and stand trial based upon how they look or how they behave other than their actions that are actually charged or proven in a case, so it would be wrong, it would be a violation of your sworn oath as a juror to find somebody guilty because he didn't like their looks or because of the way they looked or the way they dressed or their appearance. . . . Is there anybody that believes that you think that you would have any difficulty judging this case solely on the evidence and setting aside appearances, good or bad, that you may perceive of people and listen and watch behaviors of those kinds of things? Anybody think you would have any difficulty with that? I see no hands.
Despite these efforts, the defendants contend that the prosecutor's statements warrant a new trial. The court disagrees.
When improper or prejudicial remarks are made by one venireperson and heard by other venirepersons during the jury selection process, the Tenth Circuit has held the test of juror impartiality is whether the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. United States v. Lacey, 86 F.3d 956, 969 (10th Cir. 1996). Similarly, when analyzing a claim of prosecutorial misconduct the court decides whether the conduct was improper, and if so, whether the conduct warrants reversal. United States v. Gordon, 173 F.3d 761, 769 (10th Cir. 1999). Applying these considerations to the facts in this case, the court finds that the ends of justice do not require a new trial.
The Tenth Circuit has explained that the court cannot consider a prosecutor's comment in a vacuum. United States v. Gabaldon, 91 F.3d 91, 95 (10th Cir. 1996). As such, here, the court must consider the prosecutor's comment in conjunction with her efforts to clarify the statement, the court's curative instruction, and the fact that no prospective juror responded affirmatively when the court asked if anyone would have difficulty judging the case on the facts, instead of the appearance or physical characteristics of the defendants. Viewed in this context, the prosecutor's statement did not unduly prejudice the defendants. See, e.g., United States v. McKissick, 204 F.3d 1282, 1300 (10th Cir. 2000) (finding district court did not err in denying request for mistrial based on prospective juror's comment that she had a preconceived idea of the defendants' guilt due to the body language, in part, because cautionary instruction cured any error); Gabaldon, 91 F.3d at 95 (finding that prosecutor's comments during voir dire and trial did not interfere with defendant's right to fair trial, in part, because by sustaining objections and instructing the jury, the court minimized potential damage). As such, the court denies the defendants' request for relief on this ground.
B. Admission of the AK-47 Assault Rifle
During the search of Mr. Portillo-Quezada's residence and his automobiles, law enforcement officials recovered an AK-47. At trial, the government introduced the weapon over the objection of the defendants. In their motion for a new trial, defendants argue that the weapon and testimony regarding its discovery was unduly prejudicial.
Under the Federal Rules of Evidence, all relevant evidence is typically admissible. Fed.R.Evid. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Nevertheless, even if evidence is relevant, the court may exclude it "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403.
Here, the evidence was clearly relevant because the government demonstrated a nexus between the weapon and the offenses charged in the Superseding Indictment. First, William Rieger testified that he observed Carlos Portillo-Quezada attempt to saw off the weapon while the two were staying at the drug house located at 1124 Hilltop Drive. Luis Arellano testified that Mr. Portillo-Quezada offered to sell him the weapon during the course of at least two methamphetamine transactions. Stephen Ballard testified that Mr. Portillo-Quezada threatened him with the weapon during a drug transaction. This evidence is relevant because it makes it more probable that Mr. Portillo-Quezada was involved in a conspiracy to distribute or possess with intent to distribute methamphetamine, as charged in Count 1. See United States v. Green, 175 F.3d 822, 832 (10th Cir. 1999) (defendant's handling of weapons, among other conduct, was relevant inferential evidence of his knowing participation in drug conspiracy); United States v. Anderson, 189 F.3d 1201, 1207 (10th Cir. 1999) (seizure of a "street sweeper" shotgun and an assault rifle near a safe, and three semiautomatic handguns under the mattress in defendant's bedroom, among other evidence, sufficient to support jury's conviction on drug conspiracy charge). Additionally, Mr. Portillo-Quezada's use of this weapon during narcotics transactions is probative of his intent to distribute methamphetamine, an essential element of the crimes charged in Counts 2 and 3. United States v. Garrett, 903 F.2d 1105, 1113 (7th Cir. 1990) (collecting circuit cases finding that firearms, as tools of the narcotics dealer's trade, evidence an intent to distribute); see also United States v. Martinez, 938 F.2d 1078, 1084 (10th Cir. 1991) ("Violence is not an uncommon feature of the drug trade and weapons are often viewed as necessary tools to facilitate it.").
Additionally, the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice to the defendants. Defendants suggest that the jury might have inferred that Mr. Portillo-Quezada was the individual who murdered Bruce Andrews because Mr. Andrews was shot with an assault rifle and Mr. Portillo-Quezada possessed one. Detective Mast, however, made clear that this weapon was not linked to the homicide. Moreover, the testimony of Luis Arellano, Stephen Ballard, William Rieger and others directly implicated Mr. Portillo-Quezada in the homicide. The prejudicial effect stemming from the admission of the assault rifle, to the extent it exists, is minimized by the direct evidence that independently implicated Mr. Portillo-Quezada in the murder. Given that the prejudicial effect of this evidence does not substantially outweigh its probative value, the court properly admitted the assault rifle into evidence, and defendants are not entitled to relief on this ground.
Mr. Waterbury's argument as to prejudice is even less compelling. The government never attempted to link the gun to Mr. Waterbury, and the government's witnesses made clear that Mr. Waterbury was not implicated in the murder investigation.
C. Admission of the Gold AK-47 Medallion
At trial, the government introduced a gold AK-47 medallion, along with other jewelry, worn by defendant Carlos Portillo-Quezada. The defendants contend that this evidence was unduly prejudicial. The court disagrees.
First, the evidence was relevant. After Agent Isaacson entered the residence located at 1124 Hilltop Road to conduct a controlled purchase of "ice," he observed that Mr. Portillo-Quezada was wearing the medallion. He described this medallion to other officers so that they could identify Carlos Portillo-Quezada if and when they entered the residence. To that extent, the gold AK-47 medallion was relevant identification evidence tending to prove that Mr. Portillo-Quezada was the individual who distributed methamphetamine on April 10, 2003, as charged in Count 2. Moreover, when officers executed the warrant, Officer Henre noticed an individual holding a handgun in one of the bedroom closets. He identified the individual as Mr. Portillo-Quezada after observing that he was wearing the gold medallion that Agent Isaacson had described prior to the raid. During trial, Officer Henre was unable to identify Mr. Portillo-Quezada in the court room. The officer, however, was able to identify Mr. Portillo-Quezada from a photograph, in part, because of the jewelry the defendant wore in the picture. Thus, the medallion is relevant identification evidence tending to show that Mr. Portillo-Quezada was the individual who possessed a firearm in relation to a drug crime as charged in Count 4. Finally, Tommy Davidson provided testimony that implicated Carlos Portillo-Quezada in the drug conspiracy. Mr. Davidson testified that the only way he could tell Carlos apart from Raul was the jewelry that Carlos wore and the way that he spoke English. Thus, the medallion was relevant identification evidence implicating Carlos Portillo-Quezada in the conspiracy.
Moreover, the prejudicial effect of admitting the gold medallion did not substantially outweigh its probative value. Though the supporting briefs are less than clear, Mr. Portillo-Quezada appears to argue that the jury may have concluded that Mr. Portillo-Quezada was the individual who murdered Bruce Andrews because he wore a medallion portraying an assault rifle similar to the one used to murder Bruce Andrews. This argument is, at best, tenuous. Moreover, the prejudicial impact of the medallion is minimized by the fact that the government offered direct evidence implicating Mr. Portillo-Quezada in the murder. As such, the court finds that the evidence was properly admitted under the Federal Rules of Evidence, and defendants are not entitled to relief on this ground.
Mr. Portillo-Quezada also wore a crucifix. Under the defendant's reasoning, the jury would have associated this artifact with the defendant's piety. Neither this nor the defendant's inference seems plausible.
D. The Murder of Bruce Andrews
At trial, the government offered testimony that directly implicated Mr. Portillo-Quezada in the murder of Bruce Andrews. These witnesses testified that Carlos Portillo-Quezada murdered Bruce Andrews because he believed that Mr. Andrews crossed his organization. The defendants objected to this testimony as unduly prejudicial, and now argue that its admission warrants a new trial. The court disagrees.
An uncharged act, such as the murder in this case, is intrinsic to the charged conspiracy if: (1) it was part of the scheme for which a defendant is being prosecuted, or (2) it was inextricably intertwined with the charged crime such that a witness' testimony would have been confusing and incomplete without mention of the prior act. United States v. Johnson, 42 F.3d 1312, 1316 (10th Cir. 1994). Other Circuits have held that uncharged murder evidence is properly admitted as intrinsic evidence demonstrating the existence of a conspiracy or continuing criminal enterprise. In United States v. Miller, 116 F.3d 641 (2d Cir. 1997), for example, the government prosecuted numerous defendants in connection with their participation in the activities of a gang known as the "Supreme Team," whose business was the distribution of cocaine base by means of a RICO enterprise conducted through a campaign of violent enforcement and retribution. At trial, the government introduced evidence of numerous killings by the Supreme Team security force, including evidence that defendant Hale had killed a person named "Dre" and that various others had killed several other persons who were considered to be threats to the Team's operations. Id. at 682. Defendants argued on appeal that the evidence should have been excluded under Fed.R.Evid. 404(b) because these murders were not alleged in the indictment. The Second Circuit disagreed "because the government did not offer this as evidence of `other' acts within the meaning of Rule 404(b) but rather offered it as proof of the existence of the RICO enterprise alleged in the indictment which used such acts of violence in furtherance of its narcotics conspiracy." Id. The court further explained that "[w]here, as here, the indictment contains a conspiracy charge, uncharged acts may be admissible as direct evidence of the conspiracy itself." Id. (citations and quotations omitted). "An act that is alleged to have been done in furtherance of the alleged conspiracy is not an `other' act within the meaning of Rule 404(b); rather, it is part of the very act charged." Id. (citations and quotations omitted). The Second Circuit affirmed the district court because the proof of these murders was relevant to show the existence and nature of the enterprise and the conspiracy, and the probative value of the evidence was not substantially outweighed by its potential for unfair prejudice. Id.
The Fifth Circuit reached a similar result in United States v. Baptiste, 264 F.3d 578 (5th Cir. 2001). In Baptiste, following a rash of shootings and drug arrests, a federal grand jury charged the appellants in an eighteen-count superseding indictment with conspiracy to distribute crack cocaine, using firearms during and in relation to drug trafficking crimes, and possessing firearms after being convicted of felonies. The trial court admitted evidence of uncharged murders and attempted murders. On appeal, defendants argued that the evidence was inadmissible under Fed.R.Evid. 404(b). In affirming the district court's evidentiary ruling, the Fifth Circuit noted that "[e]vidence of uncharged crimes in not extrinsic if it is inextricably intertwined with the evidence of charged offenses, or if it is necessary to complete the story of the crime." Id. at 590. The appellate court explained that the evidence was admissible under either rationale:
Both of the grounds for admission of uncharged crimes are present here. Evidence of the murders and attempted murders was relevant to prove that the appellants were trying to protect a drug conspiracy. Moreover, there was no reasonable way to divorce the firearms charges from the murders and attempted murders. The evidence of the uncharged conduct was inextricably intertwined with evidence of the charged crimes and necessary to complete the story surrounding the firearms and conspiracy charges. Rule 404(b) does not apply.Id. (citations omitted). Additionally, the Fifth Circuit agreed with the district court that the evidence should not have been excluded under Fed.R.Evid. 403, explaining that "[a]lthough the evidence of the murders and attempted murders was prejudicial, it was necessary for the jury to understand the brutal nature of the conspiracy." Id.
In contrast, other circuits have found uncharged murder evidence is not admissible if the government fails to proffer a sufficient link between the murder and the charged conspiracy. The Third Circuit's opinion in United States v. Murray, 103 F.3d 310 (3d Cir. 1997), is instructive. In Murray, the appellant was convicted of an intentional killing in furtherance of a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848(e)(1)(A); conspiracy to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846 and 841(a)(1); and distribution of and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). On appeal, Mr. Murray argued that the district court erred in admitting testimony under Fed.R.Evid. 404(b) and 403 that he had committed a murder not charged in the indictment. At trial, the government offered the testimony of Jemeke Stukes, who testified that while in New York City, he met Mr. Bradley, who introduced him to Mr. Murray. Stukes further testified that Murray committed an uncharged murder in New York City in 1991. The government's principal argument for admitting the evidence was that Stukes' testimony was relevant to show Mr. Murray's role in the charged conspiracy. The Third Circuit, however, noted that this argument was undermined by the absence of any evidence that the New York murder was related to the charged continuing criminal enterprise. The court explained:
This theory, however, is undermined by the absence of any evidence that the New York murder about which Stukes testified was in any way related to the charged CCE. On the contrary, it appears from Stukes' testimony that the murder arose out of a dispute between the cousin of a friend of Bradley's ("Howie") and the New York victim over drug sales in New York City. The government has not directed our attention to any evidence that Howie, his cousin, or the New York victim were involved in the CCE described in the indictment or that the dispute with the New York victim had anything to do with the activities of that CCE, whose drug sales took place in Harrisburg. (App. 65-66) Thus, evidence that Murray was a triggerman in the New York murder does not tend to show that he performed the same role in the Harrisburg CCE, and consequently this evidence does not seem to be admissible under Rule 404(b) to show his role in the charged CCE.Id. at 317. While the Third Circuit analyzed the admissibility of the evidence under Rule 404(b), the court's reasoning is equally applicable where the government attempts to admit the testimony as intrinsic evidence showing the existence, nature or scope of a conspiracy.
Here, the government presented substantial evidence demonstrating that the murder was an integral part of the conspiracy to distribute or possess with intent to distribute methamphetamine. For example, William Rieger testified that Carlos Portillo-Quezada suspected that Bruce Andrews had cooperated with law enforcement officials, leading to the arrest of his brother, Raul. Eloy told Mr. Rieger that if they found out that Bruce Andrews was involved in a "set up," he and Carlos were "going to take care of it." After Bruce Andrews was killed, Carlos Portillo-Quezada told Mr. Rieger that he could not pay him for his services because he had to pay Mr. Espino for his assistance in the homicide. Stephen Ballard testified that Carlos Portillo-Quezada asked him what to do about Bruce Andrews because he ripped him off or owed him money from a drug deal. Subsequent to Mr. Andrews' murder, Carlos Portillo-Quezada went to Stephen Ballard's residence to attempt to front him four ounces of methamphetamine. During this encounter, Carlos told Mr. Ballard that he "killed that fucker Bruce." Similarly, Luis Arellano testified that Carlos Portillo-Quezada told him that he was "pissed off" at some guy who owed him money and asked Mr. Arellano what he should do about the situation. Approximately two weeks later, Carlos Portillo-Quezada told Mr. Arellano that he had shot somebody. This evidence clearly demonstrates that Mr. Portillo-Quezada murdered Bruce Andrews because he believed that Mr. Andrews crossed the organization by ripping the members off and/or because he set up individuals involved in his distribution operation. As such, the evidence was properly admitted as intrinsic evidence, inextricably intertwined with proof of the conspiracy itself. See, e.g., United States v. Gadson, 74 Fed. Appx. 245, 247-248, 2003 WL 21697223, at *2 (4th Cir. July 21, 2003) (homicide evidence properly admitted as an intrinsic act, inextricably intertwined with proof of the conspiracy itself, and that its probative value was not substantially outweighed by its prejudice where government demonstrated that murder was an integral component of the conspiracy); United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996) (finding no plain error in admission of homicide evidence where murder demonstrated the extent to which Chin was willing to go to ensure that the drug transaction, along with future transactions, went smoothly); United States v. Claiborne, 92 F. Supp.2d 503, 514-15 (E.D. Va. 2000) (admitting evidence of juvenile crimes because "[t]he alleged threats of violence, shootings, beatings, and murder were all part and parcel of the defendant's attempts to keep the drug business . . . operating smoothly and without interference").
E. Prosecutorial Vouching
Defendants contend that the government improperly vouched for and bolstered the credibility of cooperating witnesses. During direct examination of the government's cooperating witnesses, the witnesses testified to the terms of their plea agreements. Included among those terms was a standard provision requiring the individual to provide truthful information as a precondition for the government filing a motion for a downward departure based upon substantial cooperation. The defendant objected to this line of questioning as improper vouching.
The Tenth Circuit has recognized that the prosecution may not personally vouch for the credibility of its witnesses. United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990). "Argument or evidence is impermissible vouching only if the jury could reasonably believe that the prosecutor is indicating a personal belief in the witness' credibility, either through explicit personal assurances of the witness' veracity or by implicitly indicating that information not presented to the jury supports the witness' testimony." Id. "Presenting evidence on a witness' obligation to testify truthfully pursuant to an agreement with the government and arguing that this gives the witness a strong motivation to tell the truth is not, by itself, improper vouching." Id. "Use of the `truthfulness' portions of these agreements becomes impermissible vouching only when the prosecutors explicitly or implicitly indicate that they can monitor and accurately verify the truthfulness of the witness' testimony." Id. at 1498-99.
Here, there was no improper vouching. The witnesses' testimony did no more than reveal that the witnesses had an obligation to testify truthfully and explain the consequences of a breach of that obligation. Id. at 1499 (finding no vouching under similar circumstances). The defendants have not identified any instances where the prosecutor explicitly or implicitly suggested that she could monitor and accurately verify the truthfulness of the cooperating witness' testimony. Moreover, the court has found none in its independent review of the record. As such, the court finds that defendants are not entitled to relief on this ground.
On one occassion the prosecutor stated "[t]hank you for your honesty," but the court sustained the defendant's objection in that instance.
F. Graphic Description of Murder
While the court permitted the government to admit evidence concerning the murder of Bruce Andrews, it cautioned the government not to go into detail about the graphic nature of the crime scene. During direct examination, Captain Cosgrove described Noe Espino's statement to police, wherein he confessed to participating in the murder of Bruce Andrews. During the course of his testimony, Captain Cosgrove stated that Mr. Espino explained that he had to clean blood and brain matter from the window of the vehicle used in the murder before he could drive it away. The defendants contend that this statement interfered with their right to a fair trial. The court does not agree.
While the court hoped to avoid such descriptions of the murder scene, Captain Cosgrove's statement was not so egregious as to render the trial fundamentally unfair. First, the statement was brief. Second, it was not excessively graphic. The jury knew that Mr. Andrews was shot multiple times at close range with an assault rifle. Based on this information, it would not be surprising to the common person that blood and brain matter would have spattered on the vehicle's window. On balance, the court finds that the interests of justice do not require a new trial based upon Captain Cosgrove's statements. See, e.g., United States v. Shoemaker, 542 F.2d 561, 564 (10th Cir.), cert. denied, 429 U.S. 1004 (1976) (holding that admission of graphic photographs of murder victim was not abuse of discretion under Rule 403); United States v. Thai, 29 F.3d 785, 813 (2d Cir. 1994) (finding that district court properly admitted Detective's graphic testimony regarding bloodstains did not violate Fed.R.Evid. 403).
G. Agent Langan's Statement Regarding Mr. Waterbury's Letter
While incarcerated on the pending charges, Mr. Waterbury wrote a letter to Mark Nimmo. Therein, Mr. Waterbury made incriminating statements regarding his involvement in distributing methamphetamine. The court permitted the government to read into evidence a redacted version of the letter. The redactions were made to prevent the jury from inferring that Mr. Waterbury was implicated in the homicide of Bruce Andrews. At trial, however, Agent Langan testified that he came into possession of the letter after a third party informed him that she had a letter which contained "information . . . regarding the homicide of Bruce Andrews." Counsel for Mr. Waterbury objected to the statement under Fed.R.Evid. 403. The court overruled the objection, but made two other redactions to ensure that the jury would not infer from the letter that Mr. Waterbury was implicated in the homicide. Additionally, the court instructed the jury that the letter which they were about to hear had nothing to do with the murder. Moreover, on direct examination, Agent Langan clarified that he received the letter in connection with his investigation of Kenneth Waterbury in a drug case. Subsequently, the government recalled Agent Langan to clarify that there was no indication that Mr. Waterbury was involved in Mr. Andrews' death.
In his motion for a new trial, Mr. Waterbury contends that the trial court should have granted a mistrial based upon Agent Langan's testimony. The court disagrees.
In determining whether to grant a mistrial, a district judge must first determine whether an error has occurred and, if so, whether that error impaired the defendant's right to a fair and impartial trial. United States v. Meridyth, 364 F.3d 1181, 1183 (10th Cir. 2004). The district court certainly did not abuse its discretion in denying a mistrial here. The district court gave an appropriate, timely, and clear instruction explaining that the letter did not implicate Mr. Waterbury in the murder of Bruce Andrews. Additionally, the prosecutor took substantial steps to clarify, through the testimony of Agent Langan, that Kenneth Waterbury was not a suspect. These efforts were sufficient under the circumstances to protect the defendant against the risk of unfair prejudice. See United States v. Cavely, 318 F.3d 987, 997 (10th Cir. 2003) (explaining that mistrial was not warranted where district court gave a timely and clear instruction explaining why the jury should disregard the witness's unsupported identification of the substance in question). As such, Mr. Waterbury is not entitled to relief on this ground.
H. Cumulative Impact of the Evidentiary Challenges
In their motion for a new trial, defendants do not suggest that any of these alleged errors independently warrant relief. Instead, they contend that the cumulative effect of the alleged errors warrants a new trial. The court disagrees.
The cumulative error doctrine applies where there are two or more actual errors. Moore v. Gibson, 195 F.3d 1152, 1175 (10th Cir. 1999), cert. denied, 530 U.S. 1208 (2000). The doctrine, however, is inapplicable to the cumulative effect of non-errors. Id. Given the court's finding that the admission of the above challenged evidence did not constitute error, the defendant's claim of cumulative error necessarily fails.
Additionally, cumulative error analysis is an extension of the harmless error doctrine. As such, the court "evaluate[s] whether cumulative errors were harmless by determining whether a criminal defendant's substantial rights were affected." Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998). "A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless." Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir. 2003). The harmlessness of cumulative error is determined by conducting the same inquiry as for individual error — courts look to see whether the defendant's substantial rights were affected. United States v. Sarracino, 340 F.3d 1148, 1169 (10th Cir. 2003). As set forth above, the government presented substantial and compelling evidence against the defendants. To the extent that the court erred based on one or more of the grounds defendants' specified in their motion for a new trial, the error is harmless in light of the government's substantial and compelling evidence of the defendants' guilt. As such, the defendants are not entitled to a new trial based upon the cumulative error doctrine.
CONCLUSION
In the end, the court denies the defendants' motions in their entirety. The court denies the motions for judgment of acquittal because the government provided sufficient evidence for a rational juror to convict all three defendants of conspiring to distribute or possess with intent to distribute methamphetamine. The court denies the motions for a new trial because the defendants failed to demonstrate that the interests of justice warrant relief. Finally, as to defendant Noe Espino, the court finds that it lacks subject matter jurisdiction over his motions.
IT IS THEREFORE ORDERED THAT defendants' motions for judgment of acquittal (Docs. 217 and 220) are denied in their entirety. Defendant Portillo-Quezada's motion for a new trial (Doc. 216) and the defendants' motions to join (Docs. 218 and 219) are denied in their entirety.
IT IS SO ORDERED.