United States 10th Circuit Court of Appeals Reports

Unpublished

U.S. v. ESPINOZA, 05-2121 (10th Cir. 1-10-2007) UNITED
STATES OF AMERICA, Plaintiff-Appellee, v. ALEJANDRO
ESPINOZA, Defendant-Appellant. No. 05-2121 (D.C. No.
CR-04-852) (D.N.M.) United States Court of Appeals, Tenth
Circuit. January 10, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] ORDER AND JUDGMENT[fn*]

[fn*] This order and judgment is not binding precedent,
except under the doctrines of law of the case, res
judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with
Fed.R.App.P. 32.1 and 10th Cir. R. 32.1.

Before KELLY, EBEL, and HOLMES, Circuit Judges.

Paul J. Kelly, Jr, Circuit Judge.

Defendant-Appellant Alejandro Espinoza challenges his
conviction for conspiracy to possess with intent to
distribute methamphetamine in violation of 21 U.S.C.
§ 846. After a jury trial, Mr. Espinoza was
convicted and sentenced to 240 months imprisonment to be
followed by five years supervised release. On appeal, Mr.
Espinoza challenges his conviction on four grounds: (1) the
district court abused its discretion in refusing to reopen
the case so that Mr. Espinoza could present additional
evidence, (2) the government violated Mr. Espinoza’s Fifth
Amendment rights by eliciting testimony about his decision
to remain silent after arrest, (3) the district court abused
its discretion in denying Mr. Espinoza’s motion for a
mistrial based on certain comments made by the government
during an objection, and (4) the cumulative errors made
during trial require reversal for a new trial. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.

Background

During December 2003 and January 2004, Grant County, New
Mexico deputies set up two controlled methamphetamine
purchases from Debra James. Ms. James was arrested and
agreed to cooperate with law enforcement. Ms. James told
deputies that her supplier was “Miguel Manzo,” a man whom
deputies later learned was actually Mr. Espinoza. Deputies
then recorded a series of telephone conversations between
Ms. James and Mr. Espinoza in which the two discussed
methamphetamine sales and the proceeds from those sales.
Eventually, Ms. James set up a meeting with Mr. Espinoza in
order to deliver money to him that she owed from a previous
methamphetamine purchase. When Mr. Espinoza arrived to pick
up the money, deputies arrested him.

At trial, Ms. James testified that she had purchased
methamphetamine from Mr. Espinoza for her personal use
beginning in September 2003. Ms. James testified that she
eventually allowed Mr. Espinoza to store methamphetamine at
her house and that she ultimately began delivering
methamphetamine for Mr. Espinoza. Ms. James testified that
she also received money from a street-level methamphetamine
distributor named “Johnny,” which she deposited into a bank
account controlled by Mr. Espinoza. Ms. James testified
that Mr. Espinoza supplied her with the methamphetamine
that she sold to the deputies.

During the cross-examination of Ms. James, Mr. Espinoza’s
counsel asked whether Mr. Espinoza drove a 1999 Dodge
Durango pickup. The prosecutor objected stating: “Defendant
is trying to elicit testimony that should come from the
defendant through this witness.” Aplt. Br., tab 2, at 177.
When the district court asked counsel the point of the
question, counsel explained that he sought to show that M
r. Espinoza had sold the truck and had a lot of money from
the sale. The prosecutor then reiterated: “Exactly, Your
Honor. That is testimony from the defendant, if he chooses
to testify, not to testify for the defendant through the
testimony of this witness.” Id. The district court
overruled the government’s objection.

The government later called another witness, Drug
Enforcement Administration Agent Jacinto Flores. Agent
Flores testified that when Mr. Espinoza was arrested, he
possessed two driver’s licenses — one bearing the
name Alejandro Espinoza and another bearing the name Miguel
Manzo. Agent Flores also testified that shortly after the
arrest, he advised Mr. Espinoza that it would be in his
best interest to cooperate. The prosecutor then asked, “And
what was his response to that question?” Aplt. Br., tab 3,
at 184. Agent Flores answered: “His response to me was that
I sounded like those detectives in the last case he had in
California, and he still wound up being screwed. He said he
wanted a lawyer this time.” Id. Defense counsel did not
object at this point.

After the government rested, Mr. Espinoza moved for a
mistrial alleging prosecutorial misconduct based on the
comments made by the prosecutor following the objection
made during Ms. James’s cross-examination and also based on
Agent Flores’s reference to M r. Espinoza’s prior
conviction. Mr. Espinoza argued the objection improperly
commented on a prior case in which he was involved. The
district court denied the motion.

Subsequently, based on representations by defense counsel,
the district court announced that Mr. Espinoza had decided
not to call any witnesses. The district court’s
announcement prompted an outburst by Mr. Espinoza: “You’re
going to give me life without the possibility of parole,
and you’re not going to allow my side to be heard.” Aplt.
Br., tab 5, at 217. The district court then excused the
jury and reprimanded Mr. Espinoza. The district court then
recessed to allow Mr. Espinoza to consult with defense
counsel. When court reconvened, defense counsel stated that
he may have erred in failing to call Officer Larry Lutonsky
as a witness. Defense counsel asked leave to call Officer
Lutonsky. In support of this request, defense counsel
stated:

Well, I believe from the Discovery that my client pointed
out to me today that there was marijuana found in the
house when — in Debra James’ house after it was
searched. And I believe this witness is the witness who
took that marijuana into — into evidence; that I
believe Debra James said on the witness stand that there
was no marijuana in the house.

Id. at 225.

The government objected to the motion to reopen, describing
Mr. Espinoza’s outburst as “tactical” because even if Mr.
Espinoza felt he could not voice his objections through
counsel, he could have leveled his complaint well before
the jury entered the courtroom. Id. The government also
noted that ample discovery had been provided to counsel.
The district court denied the motion to reopen, stating
that extending the trial would disrupt its calendar. The
district court also suggested that Officer Lutonsky’s
testimony would only have limited impeachment value. The
district court also agreed that Mr. Espinoza’s outburst
appeared to be calculated.

During closing rebuttal, the prosecutor remarked:

There is absolutely no evidence, whatsoever, that the
[defendant] or Debra James was dealing in marijuana or
cocaine. As a matter of fact, the only time those words
were ever uttered in this trial came out of the mouth of
Mr. W right [defense counsel], and nobody else. And you
are warned — I mean, instructed what the lawyers
say, including myself, is not testimony, it’s just
argument and shouldn’t be considered to [sic] you as fact.

II R. Supp. at 31.

Following the government’s rebuttal, the district court
instructed the jury that “[t]he law does not require the
defendant to prove his innocence or produce any evidence at
all, and no inference, whatever, may be drawn from the
election of the defendant not to testify.” Id. at 7. The
district court further instructed: “I have ordered stricken
from the record the testimony of Agent Flores regarding the
conversation he had with the defendant, after the
defendant’s arrest, about the defendant’s prior involvement
with the authorities in California. Don’t consider any
testimony or other evidence which has been stricken in
reaching your decision.” Id. at 4.

Mr. Espinoza was subsequently convicted.

Discussion

I. The Motion to Reopen

We review the denial of a motion to reopen the evidence
for abuse of discretion. Morsey v. Chevron USA, Inc., 94
F.3d 1470, 1477 (10th Cir. 1996). A district court abuses
its discretion only if its decision is “arbitrary,
capricious, whimsical, or manifestly unreasonable.” United
States v. Atencio, 435 F.3d 1222, 1236 (10th Cir. 2006).
Even if a district court abuses its discretion, we will not
reverse if the error is harmless. United States v. Turner,
285 F.3d 909, 914 (10th Cir. 2002).

As we noted in United States v. Montgomery, 620 F.2d 753,
757 (10th Cir. 1980), the “trial court has some interest in
seeing that justice is done and in seeing that all the
facts are presented.” Against this backdrop, we find
instructive those factors the Third Circuit has relied upon
in deciding whether a district court abuses its discretion
in denying a motion to reopen the evidence. United States
v. Coward, 296 F.3d 176 (3d Cir. 2002). In Coward, the
court considered the following factors: (1) the timeliness
of the motion, (2) the character of the testimony, (3) the
effect of granting the motion, (4) the reasonableness of
the excuse for failing to present the evidence prior to
resting, and (5) whether belated receipt of the evidence
would mark it with distorted importance, prejudice the
other party’s case, or preclude the other party from
adequately addressing it. Id. at 181. Application of these
factors in the instant case demonstrates that the district
court did not abuse its discretion.

First, although the motion was made shortly after the
district court announced that the defense had concluded its
case, the timing of the motion was suspect because Mr.
Espinoza was present in court when his counsel informed the
court that he did not expect to call any witnesses. Aplt.
Br., tab 4, at 189. Thus, Mr. Espinoza could not have been
totally surprised when his counsel rested the following day
without calling any witnesses.

Second, the character of the testimony to be offered by
Officer Lutonsky at best was cumulative, as well as
collateral, impeachment evidence, which would ordinarily be
inadmissible under Fed.R.Evid. 608(b). At trial, Mr.
Espinoza’s counsel stated that the purpose of Officer
Lutonsky’s testimony was to impeach Ms. James, who had
testified that no marijuana had been found when the police
searched her house. Aplt. Br., tab 5, at 224, III R. at
164. While M r. Espinoza’s appellate counsel argues that
Officer Lutonsky’s testimony was “substantive” and
supported Mr. Espinoza’s theory that he only supplied Ms.
James with marijuana and not methamphetamine, this purpose
was not advanced before the trial court. Mr. Espinoza’s
counsel tried to develop such a theory in the
crossexamination of Ms. James but was unable to do so. III
R. at 162, 178-79.

Mr. Espinoza’s trial counsel extensively cross-examined
and impeached Ms. James on numerous points. These included:
(1) that she stood to receive significant benefits from her
cooperation with the government, (2) that she had admitted
prior marijuana and methamphetamine use, (3) that she had
multiple suppliers of methamphetamine, albeit for personal
use, (4) that she was terminated by her employer for
violating company policies, and (5) that she failed to
inform the police about methamphetamine later found in her
home. Allowing Officer Lutonsky to testify would have
simply added another point of impeachment among many.

Third, reopening the trial would have delayed the
proceedings and disrupted the district court’s already busy
calendar. Mr. Espinoza requested a weekend continuance so
he could locate Officer Lutonsky. This would have delayed
closing arguments and jury instruction from Friday, January
21, 2005 to Monday, January 24, 2005. It would have also
disrupted another trial the district court was set to begin
the following week.

Fourth, it appears that trial counsel was aware of the
nature of Officer Lutonsky’s probable testimony given
discovery prior to trial. Aplt. Br., tab 5, at 225. Thus,
it appears that defense counsel made a reasonable tactical
choice to forego this evidence until his client suggested
otherwise at the close of the trial. Such a deliberate
choice is not a sufficient excuse for failing to offer
testimony prior to the close of evidence.

Finally, we do not think that the late receipt of this
evidence would have prejudiced the government or prevented
the government from addressing it, or that the jury would
have placed undue importance on it.

Because most factors militate against reopening the
evidence, we conclude that the district court did not abuse
its discretion. Our conclusion in this case does not mean,
however, that district courts should view motions to reopen
with skepticism. To the contrary, when the burden is not
significant, and assuming the admissibility of the proposed
evidence, prudence suggests that district courts should
lean towards granting motions to reopen so that the parties
have a full opportunity to be heard.

II. The Testimony About Mr. Espinoza’s Right to Remain
Silent

Mr. Espinoza argues that the government violated his Fifth
Amendment rights when Agent Flores testified about Mr.
Espinoza’s decision to remain silent immediately after his
arrest. We generally apply harmless error review when the
government improperly references a defendant’s decision to
exercise his Fifth Amendment rights. See United States v.
Lauder, 409 F.3d 1254, 1261 (10th Cir. 2005). However, when
a defendant fails to offer a contemporaneous objection to
such an impermissible comment, we review for plain error.
United States v. Toro-Pelaez, 107 F.3d 819, 826-27 (10th
Cir. 1997). Under the plain error standard, a defendant
must show: (1) that the district court committed error, (2)
that the error was plain, (3) that the error affected his
substantial rights, and (4) that the error “seriously
affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Gonzales-Huerta,
403 F.3d 727, 732 (10th Cir. 2005) (en banc). To show that
an error affected substantial rights, a defendant must
typically demonstrate that the outcome of the proceedings
was affected. Id.

In this case, Mr. Espinoza failed to object to Agent
Flores’s testimony on the basis that the testimony violated
his Fifth Amendment rights, so our review is for plain
error. The government concedes that the first two prongs of
the plain error standard are met because, under established
law, “once a defendant invokes his right to remain silent,
it is impermissible for the prosecution to refer to any
Fifth Amendment rights which defendant exercised.” Lauder,
409 F.3d at 1261. The government strenuously argues,
however, that Mr. Espinoza cannot show that Agent Flores’s
statement affected his substantial rights.

In determining whether an error affects substantial rights,
we apply the same factors considered in harmless error
analysis, except that the burden falls to the defendant.
See United States v. Olano, 507 U.S. 725, 734 (1993).
Thus, we must consider:

(1) the use to which the prosecution puts the silence,
(2) who elected to pursue the line of questioning, (3) the
quantum of other evidence indicative of guilt, (4) the
intensity and frequency of the reference, and (5) the
availability to the trial judge of an opportunity to grant
a motion for mistrial or to give curative instructions.

Lauder, 409 F.3d at 1261.

As to the first factor, it is not clear that the government
put Agent Flores’s statement to much use at all. Agent
Flores was called principally to testify regarding Mr.
Espinoza’s use of the alias “Miguel Manzo” and his
possession of two different driver’s licenses. This
testimony was important to the government’s case because
Ms. James said she knew Mr. Espinoza as “Miguel Manzo.”
While counsel for the government did ask the question that
prompted Agent Flores’s testimony regarding Mr. Espinoza’s
decision to remain silent, it does not appear that the
government tried to use the testimony as substantive
evidence of guilt.

Furthermore, we are convinced from our review of the briefs
and record, that a significant quantity of other evidence
indicated Mr. Espinoza’s guilt, including the testimony of
M s. James, recorded phone conversations between Mr.
Espinoza and Ms. James, bank records of cash deposits into
Mr. Espinoza’s bank account, and the fact that Mr. Espinoza
was arrested at a prearranged meeting to collect a drug
debt. This evidence, without the implication created by
Agent Flores’s testimony, was more than enough for a
reasonable jury to convict Mr. Espinoza and surely dictated
the outcome of the case.

Additionally, the reference to M r. Espinoza’s choice to
remain silent was a singular incident which was not
repeated nor subsequently commented upon by the
prosecution. And, the district court struck this portion of
Agent Flores’s testimony from the record sua sponte,
ordering the jury to disregard it. We presume the jury
followed this instruction. See United States v. Cherry,
433 F.3d 698, 702 (10th Cir. 2005). For these various
reasons, we conclude that Mr. Espinoza has failed to show
Agent Flores’s testimony affected his substantial rights.
Accordingly, Mr. Espinoza has failed to satisfy the plain
error standard.

III. The Motion for Mistrial

We review the district court’s denial of M r. Espinoza’s
motion for a mistrial based on prosecutorial misconduct for
abuse of discretion. United States v. Caballero, 277 F.3d
1235, 1242 (10th Cir. 2002). A district court “may
appropriately grant a mistrial only when a defendant’s
right to a fair and impartial trial has been impaired. . .
.” Id.[fn1] We affirm the district court because we find
there was no prosecutorial misconduct.

Mr. Espinoza argues that counsel for the government engaged
in misconduct because, during an objection, he “said
essentially that counsel was attempting to obtain testimony
from the witness that should come from the defendant,” and
that “[t]his was a comment on Mr. Espinoza’s right not to
testify [that] violated his Fifth Amendment rights.” Aplt.
Br. at 30. In determining whether a prosecutor’s remarks
are in fact a comment on a defendant’s right not to
testify, we ask “whether the language used by the
prosecution was manifestly intended or was of such
character that the jury would naturally and necessarily take
it to be a comment on the failure of the accused to
testify.” United States v. Nelson, 450 F.3d 1201, 1213
(10th Cir. 2006). “[M]anifest intent will not be found if
some other explanation for the prosecutor’s remark is
equally plausible.” Id. Additionally, “[t]he question is
not whether the jury possibly or even probably would view
the remark in this manner, but whether the jury necessarily
would have done so.” Id.

In this case, there is no evidence that the prosecutor
“manifestly intended” to comment on Mr. Espinoza’s failure
to testify. The prosecutor’s remarks came during a
colorable objection to questions posed by defense counsel.
It is quite plausible, if not probable, that the prosecutor
made the comments because he was objecting to a perceived
attempt by defense counsel to introduce impermissible
hearsay evidence. Indeed, although it overruled the
prosecutor’s objection, the district court ordered Ms.
James to answer only those questions to which she possessed
personal knowledge. This isolated statement made during an
objection simply is not misconduct.[fn2]

IV. The Cumulative Effect of the “Errors”

Mr. Espinoza also argues that there is cumulative error
requiring reversal. Cumulative error analysis “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.” United States v. Apperson, 441 F.3d 1162,
1210 (10th Cir. 2006). Given that we have found only one
error in this case (Agent Flores’s testimony about Mr.
Espinoza’s decision to remain silent) we will not reverse
on grounds of cumulative error. See Workman v. Mullin, 342
F.3d 1100, 1116 (10th Cir. 2003) (noting that cumulative
error analysis requires at least two errors).

AFFIRMED.

[fn1] Mr. Espinoza argues that our review should be de novo
because the district court denied the motion for a mistrial
because of an error of law — namely that it
mischaracterized defense counsel’s failure to object as
invited error. Aplt. Br. at 32. Based on the record, it
appears the district court rejected the motion for mistrial
because the government engaged in no misconduct. Aplt. Br.,
tab 5, at 204-05. Regardless, because we conclude there was
no misconduct on the part of the government, we would
affirm under either standard of review.

[fn2] Even if the prosecutor’s comments were misconduct,
they did not affect the fairness of the proceedings. The
district court gave an adequate instruction on Mr.
Espinoza’s right to remain silent, the remarks were
extremely limited, and they played little role in the case
as a whole. See United States v. Gabaldon, 91 F.3d 91, 95
(10th Cir. 1996).