United States v. Cristian Quintero Felix , 663 F. App'x 557 ( 2016 )

FILED
NOT FOR PUBLICATION
OCT 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10128
Plaintiff-Appellee, D.C. No.
4:13-cr-00633-PJH-1
v.
CRISTIAN FERNANDO QUINTERO MEMORANDUM*
FELIX,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Argued and Submitted September 12, 2016
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and SESSIONS,** District Judge.
Cristian Quintero Felix appeals his convictions for possession with intent to
distribute cocaine within 1,000 feet of a school and possession of a firearm in
furtherance of a drug trafficking offense. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
1. Felix, invoking Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v.
United States, 405 U.S. 150 (1972), contends the district court should have
required the prosecutor to turn over evidence relating to the government’s
confidential informant, whom the defense called to testify. The court allowed the
defense to treat the informant as an adverse witness from the outset of his
testimony.
Pursuant to an earlier district court order, the prosecution produced a short
Giglio letter that noted the dates and benefits associated with informant’s working
relationship with the Department of Homeland Security (DHS). After receiving
this information on the day of the informant’s testimony, Felix continued to seek
additional evidence related to the informant’s full criminal history and “rap” sheet
and his cooperation with the Oakland Police Department (OPD), the local agency
that had arrested Felix on DHS’s request.
Assuming, without deciding, that Giglio applies to this witness and to the
types of evidence Felix sought, there was no material violation of Brady or Giglio.
There is no reasonable probability that “the cumulative effect of all [withheld]
evidence favorable to the defense,” had it been disclosed, would have changed the
result of the Felix’s trial. See Kyles v. Whitley, 514 U.S. 419, 421–22 (1995).
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“Impeachment evidence is especially likely to be material when it impugns
the testimony of a witness who is critical to the prosecution’s case.” Silva v.
Brown, 416 F.3d 980, 987 (9th Cir. 2005). Here, the prosecution did not rely upon
the informant’s testimony to establish any elements of the charged offenses. Felix
had two guns and various ammunition in his backpack at the time of his arrest. It
is not reasonably probable that further impeachment of the informant would have
affected the jury finding that Felix possessed at least one of the two guns in
furtherance of the drug trafficking offense.
Additionally, “evidence is material if it is of a different character than
evidence already known to the defense . . . . [But it] is cumulative . . . if the
grounds for impeachment are no secret to the jury.” United States v. Wikes, 662
F.3d 524, 535–36 (9th Cir. 2011) (internal quotations omitted). Even without
additional Giglio disclosures from OPD, it was clear from the informant’s many
different statements that he was not a particularly reliable witness. Further, the
defense heavily impeached the informant’s testimony by repeatedly drawing
attention to his criminal history and past work with OPD, both while the informant
was on the stand and during closing arguments. Felix’s Giglio claim does not raise
a reasonable probability that additional impeachment evidence would have
changed the outcome of the trial.
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2. The district court did not abuse its discretion in denying Felix’s motion
for new trial, made on the basis of an inadvertently disclosed transcript of an in
camera discussion. The district court correctly highlighted the five-part test for
motions for new trial based on newly discovered evidence, see United States v.
Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009), and then found that information
from the sidebar did not constitute new evidence, admissible material evidence, or
evidence that would probably have led to an acquittal if it had been admitted.
These conclusions were neither illogical nor implausible based on the facts in the
record. See id.The statements made by the informant’s counsel in the in camera discussion
support the fact that others knew the informant was a “go-to guy” for fencing
firearms, but that fact had already been admitted at trial. To the extent that
counsel’s statements also alluded to the informant’s subjective beliefs about
Felix’s purpose in showing him a gun, those beliefs would have been inadmissible
as speculation. Finally, even if Felix were able to prove his intent as to the one gun
he displayed to the informant on the basis of evidence from the sidebar, that
evidence would not have spoken to his intent as to the other gun and therefore
would not have likely changed the outcome of his trial.
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3. Assuming that Felix preserved objections to testimony offered by
Detective Stofle not only on relevance grounds but also on the grounds that it was
inadmissible lay opinion or had a prejudicial impact that outweighed its probative
value, any error in the district court’s admission of the evidence over those
objections was harmless. Other testimony provided by Detective Stofle about
Felix’s prior arrest was much more useful to the government’s case than his
comment about Felix’s truthfulness. Specifically, Detective Stofle testified that, at
the time of his prior arrest, Felix possessed various drugs and a gun but did not
appear to be under the influence of drugs, and that Felix had, in his inbox at the
time of his arrest, the text message (“you got half a g?”) referenced in the
prosecutor’s question about Felix’s truthfulness. Outside of Detective Stofle’s
testimony, there was considerable “properly admitted evidence [that] was highly
persuasive and overwhelmingly pointed to” Felix’s intent to sell the drugs in his
possession in 2013. See United States v. Bailey, 696 F.3d 794, 804 (9th Cir. 2012).
It is more probable than not that any possible error in the admission of Detective
Stofle’s testimony regarding Felix’s truthfulness had no material effect on the
verdict.
5. Finally, we review Felix’s prosecutorial misconduct claim for plain error,
because Felix did not object to the asserted misconduct at trial. See United States
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v. Moreland, 622 F.3d 1147, 1158 (9th Cir. 2010). “Under the plain error standard,
relief is not warranted unless there has been: (1) error, (2) that was plain, (3) that
affected substantial rights, and (4) that seriously affected the fairness, integrity, or
public reputation of the judicial proceedings.” Id. (internal quotations omitted).
Even if asking Detective Stofle to comment on the defendant’s truthfulness when
he was questioned in the past regarding a different crime was improper, the
prosecutor’s conduct did not “seriously affect[] the fairness, integrity, or public
reputation of the judicial proceedings . . . [and] failing to reverse a conviction
would [not] result in a miscarriage of justice.” See id.***
We conclude that any withheld Giglio evidence was not material, the district
court did not abuse its discretion in denying Felix’s motion for new trial on the
basis of newly discovered evidence, and neither Detective Stofle’s testimony nor
the prosecutor’s conduct in eliciting it was sufficiently prejudicial to warrant
reversal.
AFFIRMED.
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