United States v. Cordova ( 2022 )

Appellate Case: 20-2007 Document: 010110643560 Date Filed: 02/10/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 10, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-2007
ANTHONY CORDOVA,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 2:16-CR-01613-JB-11)
_________________________________
Dain Smoland (Ann Marie Taliaferro with him on the briefs) of Smoland Law, Salt Lake
City, Utah, for Defendant-Appellant.
Tiffany L. Walters, Assistant United States Attorney (Fred. J. Federici, Acting United
States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
_________________________________
Before PHILLIPS, BALDOCK, and BRISCOE, Circuit Judges.
_________________________________
PER CURIAM
_________________________________
In July 2018, a jury convicted Anthony Cordova of two felonies associated
with the murder of Shane Dix: (1) committing a violent crime in aid of racketeering
activity (“VICAR murder”), under 18 U.S.C. § 1959(a)(1)–(2), and (2) in the course
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of that crime, causing the death of Dix through use or possession of a firearm, under
18 U.S.C. §§ 924(c), 924(j)(1).
In this appeal, Cordova challenges the district court’s pretrial ruling denying
his motion to exclude a mostly unintelligible one-minute recorded portion of a
conversation with a cooperating witness. In addition, Cordova contends that the
district court abused its discretion in denying his two motions for a new trial—one
alleging insufficiency of evidence and government misconduct, and the other alleging
newly discovered evidence. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
BACKGROUND
In 2015, law-enforcement officials uncovered a plot by members of the
Syndicato de Nuevo Mexico gang (“SNM”) to murder the New Mexico Secretary of
Corrections and other public officials.1 In response, a federal task force investigated
those specific threats as well as some unresolved homicides with suspected SNM ties.
One such homicide was that of Shane Dix—a member of a rival Albuquerque street
gang. In 2005, Dix was shot to death as he sat inside his van.
The investigation led law enforcement to Cordova. After much work, including
an unscheduled interview of Cordova at his welding class, the government obtained a
federal indictment charging Cordova with two counts from Dix’s murder. The first
count charged VICAR murder, under 18 U.S.C. § 1959(a)(1)–(2). The indictment
1
SNM formed in the early 1980s after a violent and deadly New Mexico state-
prison riot. SNM controls narcotics trafficking and other illegal activities within the
New Mexico prisons and significant street-level operations outside them.
2
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alleged that “as consideration for a promise and agreement to pay[] anything of
pecuniary value from [SNM], an enterprise engaged in racketeering activity,”
Cordova murdered Dix. The second count charged that Cordova had used and carried
a firearm during and in relation to a crime of violence (VICAR murder), which
resulted in Dix’s death, under 18 U.S.C. §§ 924(c), 924(j)(1).
I. Trial
We summarize the government’s theory of the case as this: In 2004, Dix shot
SNM-member Christopher Garcia in a dispute over a woman. In 2005, Garcia, on
behalf of SNM, retaliated by hiring Cordova, who acted as Garcia’s “runner,”2 and
SNM-member Mario Montoya to murder Dix. In exchange, Garcia, acting on behalf
of SNM, agreed to compensate Cordova and Montoya for the Dix murder. Everyone
did their part: Cordova and Montoya murdered Dix, and Garcia paid them in drugs
and cash.
In proving its case against Cordova at trial, the government presented the
testimony of several cooperating witnesses as well as that of FBI Agent Bryan Acee.
In particular, the government relied on Montoya. He testified that Garcia had
first approached him to kill Dix. Montoya agreed to do so because he owed Garcia a
debt. But Garcia grew impatient with Montoya’s delays, so Garcia included Cordova
in the murder plans. Armed with guns provided by Garcia, Montoya and Cordova
located Dix at a gas station. Cordova approached Dix about buying drugs from Dix.
2
A “runner” does whatever is needed (e.g., transporting drugs, messages, or
weapons). The government has never claimed that Cordova was an SNM member.
3
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Dix agreed to sell some, saying he’d get the drugs and meet them back at the gas
station. As Dix drove off in his van, Cordova told Montoya that he knew where Dix
was headed. So with Montoya driving and Cordova directing, they drove to Dix’s
location. When they saw Dix drive his van out of an alley, Cordova fired multiple
shots into the van, killing Dix. He then told Montoya to drive on. As they crossed the
Rio Grande River, Cordova told Montoya to stop the car, and Cordova threw the guns
into the river. Soon after the murder, Garcia gave Montoya cash and drugs in
exchange for killing Dix. And that same evening, Montoya saw Garcia pay Cordova
cash and drugs.
Among other testimony, FBI Agent Bryan Acee recounted his unscheduled
interview with Cordova. On redirect examination, Agent Acee testified that Cordova
had appeared surprised after being told that Montoya was cooperating with law
enforcement on the Dix murder investigation. Agent Acee further testified that he had
been surprised that Cordova did not deny involvement in Dix’s murder. Cordova’s
silence, Agent Acee testified, was important evidence implicating Cordova in Dix’s
murder.3
3
We see nothing in the record stating that during the interview Agent Acee
had accused Cordova of murdering Dix. Despite that, the government argued in
closing that Cordova’s silence amounted to the “most important corroboration in this
case,” characterizing it as “corroboration from the defendant himself.” R. vol. 3 at
205.
4
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In his 302 Report,4 which was provided to Cordova just three weeks before
trial, Agent Acee hadn’t mentioned Cordova’s silence or that he had expressed
surprise about Montoya’s cooperation in the Dix murder investigation. Even so,
Cordova didn’t object to Agent Acee’s testimony at trial.
The government also played for the jury a one-minute portion of a November
2015 recorded conversation between Montoya and Garcia. The conversation was
transmitted from Montoya’s body wire and simultaneously recorded. Though the
transmission was no better than the recording, Agent Acee listened to it in real time
and immediately afterward debriefed Montoya about it. Agent Acee included the
contents of the debriefing in a report.
Though the recording was mostly unintelligible, some words stood out—like
“Antone,” Cordova’s nickname, and “jale” (i.e., work, like an assault or murder).
Because of the recording’s poor quality, Cordova moved before trial to exclude it.
The district court denied the motion, ruling that the audible portions of the recording
supported Agent Acee’s and Montoya’s testimony about the conversation and
wouldn’t unfairly prejudice Cordova. So the government played the recording at trial.
And Montoya testified about his recollection of the conversation, as well as the
audible portions of the recording. Montoya specifically testified that Garcia had
expressed irritation with Cordova (“Antone”) for discussing the Dix murder (“jale”)
4
A 302 Report memorializes an FBI agent’s witness interview. It is filed on
the FBI’s Interview Report Form FD-302.
5
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with others. Agent Acee testified that Montoya gave the same account to him during
their debriefing.
The jury convicted Cordova on both counts. Most relevant here, by special
verdict, it found that, as an element of VICAR murder, Cordova’s “general purpose
in committing murder was as consideration for a promise or agreement to pay
anything of pecuniary value from the charged enterprise.” R. vol. 1 at 287.5 The
district court sentenced Cordova to the statutory minimum term of life in prison
(because the government did not seek the death penalty).
II. Cordova’s First Motion for New Trial
Cordova moved for a new trial under Federal Rule of Criminal Procedure 33(a)
on two grounds. First, he challenged the credibility and sufficiency of the evidence
connecting him to the SNM enterprise. Second, he contended that the government
had twice violated its disclosure obligations under Federal Rule of Criminal
Procedure Rule 16, Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972): (1) by its delayed disclosure of Agent Acee’s 302
Report on his unscheduled interview with Cordova, and (2) by its failure to include
the agent’s observations during the interview, i.e., Cordova not denying involvement
in Dix’s murder and his surprise that Montoya was cooperating in the investigation.
5
The indictment also charged that Cordova had murdered Dix “for the purpose
of gaining entrance to and maintaining and increasing position in” SNM. R. vol. 1 at
116; see also 18 U.S.C. § 1959(a). The jury found that the government hadn’t proven
this alternative method of satisfying the statute’s purpose requirement.
6
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The district court denied the motion. It agreed that the government had
violated Rule 16 by not timely disclosing the 302 Report as well as Cordova’s
observed reactions during the unscheduled interview.6 The district court explained
that disclosure of Cordova’s silence was necessary because the government
characterized it as direct, substantive corroboration of his guilt. But the court
concluded that, given the weight of the evidence, the violations were harmless
because earlier disclosure wouldn’t have changed the verdict. The court also ruled
that Cordova had failed to show a Brady/Giglio violation, because the excluded
information from the 302 Report was not material.
III. Cordova’s Second Motion for New Trial
Before Cordova’s trial, Garcia declined to cooperate with the government and
invoked his Fifth Amendment right to not testify. But after Cordova’s trial, and
before his own sentencing, Garcia interviewed with the government in an effort to
secure prison placement in a gang-dropout yard. During his first interview, Garcia
admitted to having asked Montoya to murder Dix. But he denied ever asking Cordova
to murder Dix or even having spoken to him about the Dix murder. But during a
second interview three weeks later, Garcia recalled that after Dix’s murder, Cordova
would remind him that he “did that thing” for him, leading Garcia to give him free or
reduced-priced drugs. R. vol. 2 at 427. Garcia said that he understood “that thing” to
be Dix’s murder. He also confirmed that during the recorded conversation between
6
We do not resolve whether Cordova’s silence constitutes an “oral statement”
as contemplated by Federal Rule of Criminal Procedure 16(a)(1)(A).
7
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himself and Montoya, he had told Montoya that Cordova shouldn’t be talking to
others about the Dix murder.
After the government timely disclosed Garcia’s statements, Cordova filed a
second motion for new trial. In the motion, Cordova argued that Garcia’s statements
were newly discovered and material evidence that would likely result in an acquittal.
He also argued that Garcia could not invoke his Fifth Amendment rights at a new
trial given the lack of risk of self-incrimination, and that even if he could, the
government could immunize Garcia, and the statements could be admitted under the
statement-against-interest hearsay exception. And Cordova asserted that after
granting a new trial, the district court should enter a judgment of acquittal if the
government refused to immunize Garcia. To refuse to immunize Garcia, Cordova
contended, would violate Cordova’s due process rights.
The district court denied Cordova’s motion, concluding that the statements
would be “merely impeaching” of Montoya, immaterial, and unlikely to produce an
acquittal. It also concluded that the statements would be inadmissible hearsay, that
Garcia could likely invoke his Fifth Amendment right not to testify, and that the
government wouldn’t violate Cordova’s due process rights by refusing to immunize
Garcia.
DISCUSSION
Cordova raises three claims on appeal. First, he argues that the district court
erred in denying his first motion for new trial, which he based on (1) insufficient
evidence in support of the VICAR murder charge and (2) his assertions that the
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government violated its disclosure obligations. Second, he argues that the district
court erred in denying his second motion for a new trial, which he based on newly
discovered evidence. And third, he argues that the district court erred in admitting the
recording of Garcia and Montoya’s November 2015 conversation. We reject each of
Cordova’s arguments in turn and affirm.
I. First Motion for New Trial
a. Sufficiency of the Evidence
We review de novo the sufficiency of the evidence supporting a guilty verdict.
United States v. Dewberry, 790 F.3d 1022, 1028 (10th Cir. 2015). We will not weigh
witness credibility or conflicting evidence as those are tasks left to the province of
the jury. Id. Rather, we ask “only whether, taking the evidence—both direct and
circumstantial, together with reasonable inferences to be drawn therefrom—in the
light most favorable to the government, a reasonable jury could find the defendant
guilty beyond a reasonable doubt.” United States v. Baldridge, 559 F.3d 1126, 1134
(10th Cir. 2009) (citation omitted). But even under this deferential standard, we will
reverse “if the evidence does no more than raise a mere suspicion of guilt or requires
piling inference upon inference to conclude the defendant is guilty.” Dewberry, 790
F.3d at 1028 (citation omitted).
To establish that Cordova committed a VICAR murder under 18 U.S.C. §
1959(a)(1), the government had to prove four elements: (1) SNM was an “enterprise”
under 18 U.S.C. § 1959(b)(2); (2) SNM was engaged in “racketeering activity” under
18 U.S.C. § 1961(1); (3) Cordova murdered Dix; and (4) Cordova murdered Dix “as
9
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consideration for the receipt of, or as consideration for a promise or agreement to
pay, anything of pecuniary value from an enterprise engaged in racketeering
activity.” The jury instructions specified that for the fourth element, the government
needed to prove “that the promise or agreement was made by an individual [here,
Garcia] acting on behalf of the enterprise [here, SNM] and not acting solely in his
personal capacity.” Supp. R. vol. 1 at 1655 (emphasis added).
Cordova challenges the sufficiency of the evidence for only the fourth element.
He does so in two distinct ways. First, he argues that the government failed to show
an actual agreement between Cordova and Garcia to kill Dix. Second, he argues that
even if an agreement existed, the government failed to show that Garcia made the
agreement on behalf of SNM and paid Cordova on behalf of SNM, rather than as a
personal vendetta against Dix for Dix’s shooting him in a dispute over a woman.
Overall, Cordova argues that the government’s evidence in support of the fourth
element failed to allow the jury to make its required reasonable inferences. Instead,
Cordova contends, the jury was left to speculate and fill in the gaps by piling
inference on inference.
We disagree. The line between reasonable inferences and speculation may
often be difficult to define, but not here. We begin with Cordova’s first challenge to
the fourth element. The government presented sufficient circumstantial evidence at
trial from which a jury could find beyond a reasonable doubt that Cordova had made
an agreement with Garcia to murder Dix. That evidence included the following:
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 Four SNM members, including Montoya, testified that Garcia solicited
them to murder Dix, offering them money, drugs, and debt forgiveness.
 Montoya testified that “everyone” likely knew that Garcia wanted Dix
dead.
 Montoya testified that Cordova was Garcia’s “runner,” someone who
would do what he, and by extension SNM, needed done.
 Montoya testified that while he, Cordova, and Garcia were together,
Garcia told him and Cordova to handle shooting Dix together.
 Montoya testified that Garcia gave him and Cordova guns for the Dix
murder.
 Montoya testified that on the same night that Garcia paid Montoya for
the murder of Dix, he saw Garcia give Cordova cash and drugs.
 Montoya testified that Cordova told him that he got rid of the car they
used to follow and murder Dix (allegedly Cordova’s girlfriend’s or
wife’s car) so it couldn’t be used as evidence in the future. Garcia
bought him a Suburban truck as a replacement vehicle.
 An FBI Agent testified that one of Cordova’s recorded jail calls
revealed that Cordova owned a Suburban.
 A former SNM associate, Gallegos, testified that Cordova told him that
Garcia had paid him with heroin for murdering Dix.
Based on this circumstantial evidence viewed in the light most favorable to the
government, we conclude that a reasonable jury making reasonable inferences could
find that Garcia made an agreement with Cordova to murder Dix in exchange for
cash and drugs. This is so even absent evidence of an express agreement between
Garcia and Cordova. See United States v. Whitney, 229 F.3d 1296, 1301 (10th Cir.
2000) (noting that an “agreement may be informal and may be inferred entirely from
circumstantial evidence”). Further, on appeal, we neither reweigh the evidence nor
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redetermine the credibility of the witnesses. See United States v. Bowen, 527 F.3d
1065, 1076 (10th Cir. 2008).
Next, we turn to Cordova’s second challenge to the fourth element. We
similarly conclude that the government presented sufficient evidence from which a
jury could find beyond a reasonable doubt that in making the agreement with
Cordova, Garcia acted on behalf of SNM. Among that evidence was the following:
 An SNM member testified that SNM “greenlighted” the murder of
Dix, first in 2001 for speaking against SNM, and again in 2004 for
shooting Garcia.
 Former and current SNM members described SNM’s retaliation
policy—that to maintain respect from outsiders SNM members must
retaliate when threatened, or else face discipline from SNM.
 Garcia approached only SNM members, including Montoya, and a
close SNM associate, Cordova, to murder Dix.
 Montoya testified that Dix’s murder reflected Cordova’s loyalty to
SNM.
Based on this circumstantial evidence viewed in the light most favorable to the
government, the jury could reasonably infer that Garcia’s murder-for-hire agreement
with Cordova was on SNM’s behalf. It doesn’t matter whether personal reasons may
have also motivated Garcia to murder Dix. See United States v. Kamahele, 748 F.3d
984, 1008 (10th Cir. 2014).
In sum, sufficient evidence established beyond a reasonable doubt the fourth
element of a VICAR murder. Thus, the jury reasonably found Cordova guilty of a
VICAR murder. This is not a case in which the evidence raised no more than a “mere
suspicion of guilt” or required “piling inference upon inference to conclude” Cordova
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is guilty. Dewberry, 790 F.3d at 1028 (citation omitted). We therefore reject
Cordova’s sufficiency-of-evidence claim and conclude that the district court properly
rejected his first motion for new trial on that ground.
b. Government Misconduct
We move next to Cordova’s argument that the district court erred in holding
that the government’s failure to disclose Agent Acee’s impressions of Cordova’s
reactions during their interview was not prejudicial and did not warrant a new trial.7
Cordova insists he needed time before trial to file unspecified pretrial motions, better
impeach Agent Acee, and challenge the murder investigation generally.
The parties agree that we generally review de novo a district court’s ruling on
a Brady/Giglio claim used to support a motion for new trial. United States v.
Ahrensfield, 698 F.3d 1310, 1319 (10th Cir. 2012). But the government contends that
Cordova failed to properly preserve the issue, meaning he must satisfy plain-error
review. That said, we need not resolve the standard of review, because Cordova’s
claim fails under either de novo or plain-error review. We will briefly explain why.
A defendant seeking a new trial based on a Brady/Giglio violation must show
by a preponderance of the evidence that “(1) the prosecution suppressed evidence, (2)
the evidence was favorable to the defendant, and (3) the evidence was material.” Id.(quotations omitted). Evidence is material “when there is a reasonable probability
that, had the evidence been disclosed, the result of the proceeding would have been
7
On appeal, Cordova does not argue that the district court erred in failing to
grant a new trial given the government’s late disclosure of Agent Acee’s 302 Report.
We therefore do not address it.
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different.” Smith v. Cain, 565 U.S. 73, 75 (2012) (citation omitted). And a
“reasonable probability” means “that the likelihood of a different result is great
enough to undermine confidence in the outcome of the trial.” Id. (cleaned up).
Even assuming the first and second prongs are met, the third prong is not. As
discussed above, the witness testimony presented by the government against Cordova
was substantial. Agent Acee’s testimony about Cordova’s reactions during his
interview a month before his arrest was not a crucial part of the government’s case.
And we are satisfied that Cordova’s re-cross and impeachment of Agent Acee
weakened the testimony.
Thus, in the end, none of Cordova’s arguments shake our confidence in the
guilty verdict. And because they don’t, the evidence isn’t material, and Cordova is
not entitled to a new trial based on the Brady/Giglio claim.8
II. Second Motion for New Trial
Next, we address Cordova’s argument that the district court erred in denying
his second motion for new trial, which rested on Garcia’s post-trial interviews—
specifically his statement that “he never asked” Cordova to murder Dix.
We review for an abuse of discretion the denial of a request for a new trial
based on newly discovered evidence. United States v. McCullough, 457 F.3d 1150,
8
We are uncertain from Cordova’s briefing whether he is arguing that the
district court erred in concluding that the government’s Rule 16 error was harmless.
He simply recites the district court’s ruling on the Rule 16 issue. If Cordova is
arguing that he is entitled to a new trial based on the alleged Rule 16 violation, we
would reject that argument for the same reason we reject his Brady/Giglio claim: the
violation does not undermine our confidence in the outcome of the trial.
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1167 (10th Cir. 2006). An abuse of discretion occurs when the district court’s
decision is “arbitrary, capricious, whimsical, or manifestly unreasonable.” Id.(citations omitted).
To receive a new trial based on newly discovered evidence, a defendant must
show that:
(1) the evidence was discovered after trial, (2) the failure to learn of the
evidence was not caused by [his] own lack of diligence, (3) the new
evidence is not merely impeaching, (4) the new evidence is material to
the principal issues involved, and (5) the new evidence is of such a
nature that in a new trial it would probably produce an acquittal.
Id. (quoting United States v. LaVallee, 439 F.3d 670, 700 (10th Cir. 2006)).
We afford the district court broad discretion in determining whether newly
discovered evidence would have influenced the jury. United States v. Jordan, 806
F.3d 1244, 1252 (10th Cir. 2015). And generally, motions for a new trial based on
newly discovered evidence are disfavored and granted “only with great caution.”
McCullough, 457 F.3d at 1167 (citations omitted).
Here, the district court concluded that Cordova had met prongs one, two, and
four, but failed to satisfy prongs three and five. Because we agree that Cordova failed
to show that the newly discovered evidence would have probably produced an
acquittal at a new trial, our analysis begins and ends with prong five.9
9
The parties devoted much of their briefing to Garcia’s future hypothetical
invocation of his Fifth Amendment right not to testify, whether the government
should be compelled to immunize Garcia, and the admissibility of Garcia’s debrief
statements. But, even accepting Cordova’s position on those issues, he would still fail
to meet his burden on the fifth prong, so we will not opine on them.
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Cordova argues in two conclusory paragraphs that prong five is met. This is
so, he contends, because “a statement by the only other party to the alleged ‘murder-
for-hire’ arrangement directly contradicting its existence is ‘extremely probative’ of
Cordova’s innocence, and would likely produce an acquittal due to the paucity of
evidence the Government relied upon here.” Opening Br. at 35. This argument fails
for three primary reasons.
First, Cordova once again ignores the government’s other circumstantial, yet
substantial, evidence. As discussed, that evidence demonstrated an agreement
between Garcia and Cordova to commit Dix’s murder. And given that evidence, we
are confident that even if Garcia’s statements were admitted at a new trial, an
acquittal would be unlikely.
Second, Cordova also fails to factor the incriminating statements Garcia made
in his second interview. For instance, Garcia stated that when Cordova would
purchase drugs from him, Cordova would make comments like “remember, I did that
thing for you,” which led Garcia, understanding Cordova to be referring to Dix’s
murder, to give Cordova drugs for a reduced price or for free. And when asked about
the poorly recorded conversation between himself and Montoya, Garcia confirmed
that he was telling Montoya about how Cordova had been ill-advisedly discussing the
Dix murder with others. Such statements certainly undermine the value of Garcia’s
statement that “he never asked” Cordova to murder Dix.
Third, Cordova overestimates the probative value of Garcia’s statement that he
never asked Cordova to murder Dix. He characterizes that statement as one that
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“directly negate[s] an essential element of the VICAR charge”—i.e., the agreement
between Cordova and Garcia. But the government can prove an agreement between
Garcia and Cordova to commit a VICAR murder with the testimony of others with
knowledge as well as circumstantial evidence. See Whitney, 229 F.3d at 1301. Here,
as discussed, abundant circumstantial evidence supported the necessary agreement.
See id.In sum, because Cordova failed to meet his burden on the fifth prong of the
test for procuring a new trial based on newly discovered evidence, the district court
didn’t abuse its discretion in denying Cordova’s second motion for a new trial.
III. Admission of the Recording
Finally, Cordova argues that the district court abused its discretion by
admitting into evidence the largely unintelligible one-minute portion of the recording
of Montoya and Garcia’s conversation as well as Montoya’s recollections of the
conversation.
We review a district court’s admission of evidence for abuse of discretion.
United States v. Smith, 534 F.3d 1211, 1218 (10th Cir. 2008). “Because evidentiary
rulings are within the sound discretion of the district court, this court will reverse
only upon a definite and firm conviction that the lower court made a clear error of
judgment or exceeded the bounds of permissible choice in the circumstances.” United
States v. Chavez, 976 F.3d 1178, 1193 (10th Cir. 2020) (cleaned up). We will not
disturb a defendant’s conviction based on erroneous admission of evidence if the
error is harmless. United States v. Bornfield, 145 F.3d 1123, 1131 (10th Cir. 1998).
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“An erroneous admission of evidence is harmless unless it had a substantial influence
on the outcome or leaves one in grave doubt as to whether it had such effect.” Id.(quotations and citations omitted).
Recordings objected to as unintelligible may be admitted unless the
unintelligible portions render the recording untrustworthy. United States v. Davis,
780 F.2d 838, 846 (10th Cir. 1985). “Admission is especially appropriate where a
witness who heard the statements also testifies and the recording gives independent
support to his testimony.” Id. at 846 (quotations omitted).
Here, the parties agree that the one-minute recording played at trial is mostly
unintelligible, save for scattered words, including “Antone” (i.e., Cordova) and “jale”
(i.e., work, like an assault or murder). The district court found that the recording’s
poor quality didn’t render the recording inadmissible. It also found that Montoya and
Agent Acee could testify to the contents of Garcia and Montoya’s conversation, with
the intelligible portions of the recording used to support their testimony. This made
the recording’s admission “especially appropriate.” The district court also noted that
though the quality of the recording limited its probative value, risk of unfair
prejudice did not substantially outweigh that value. This was so, the court reasoned,
because the jury would hear the recording itself and Cordova would have ample
opportunity to attack the recordings limitations, as well as Montoya’s and Agent
Acee’s testimony. We agree with the district court’s reasoning and conclude that it
didn’t abuse its discretion by admitting the recording or the related testimony.
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We also conclude that even if the district court erred by admitting the
recording into evidence—and it didn’t—such error would be harmless given the
government’s other evidence against Cordova. See Bornfield, 145 F.3d at 1131.
CONCLUSION
For these reasons, we affirm Cordova’s convictions, the district court’s orders
denying Cordova’s motions for a new trial, and the district court’s evidentiary ruling
admitting the recording and related testimony.
19