United States v. Roxanne Carpenter ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 9 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10498
Plaintiff-Appellee, D.C. No.
4:17-cr-00602-CKJ-EJM-1
v.
ROXANNE MARIE CARPENTER, MEMORANDUM *
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-10006
Plaintiff-Appellee, D.C. No.
4:17-cr-00602-CKJ-EJM-4
v.
FAUSTO VELAZQUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted April 15, 2019
San Francisco, California
Before: HAWKINS and M. SMITH, Circuit Judges, and VRATIL,** District
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Judge.
Roxanne Carpenter, Fausto Velazquez, Phoelix Begay, and Brian Meyers
(together, codefendants) were indicted for conspiracy to kidnap and kidnapping
Angel Gonzalez, in violation of 18 U.S.C. §§ 1201(a)(1) and (c). Meyers and
Begay pleaded guilty, while Carpenter and Velazquez proceeded to trial where the
jury convicted them on both charges. In these consolidated cases, Carpenter and
Velazquez appeal a variety of the district court’s rulings related to their trial.1
We have jurisdiction over their appeal pursuant to 28 U.S.C. § 1291, and we
affirm.
I. Carpenter’s Claims
1. Carpenter argues that the district court erroneously gave an instruction based
on Pinkerton v. United States, 328 U.S. 640 (1946), because the facts of the case
did not require a Pinkerton instruction and it obliterated her duress defense.
Because Carpenter objected only on the basis that the Pinkerton instruction did not
apply to her, we review her objection based on the erasure of her duress defense
for plain error. See United States v. Gadson, 763 F.3d 1189, 1215 (9th Cir. 2014)
**
The Honorable Kathryn H. Vratil, United States District Judge for the
District of Kansas, sitting by designation.
1
We address Carpenter’s claim that the district court abused its discretion in
requiring her to publicly file her offer of proof for her duress defense, and
Velazquez’s claim that the district court erroneously admitted other act evidence,
in a separate, concurrently filed opinion.
2
(reviewing for plain error because defendants did not raise “this particular
objection to the Pinkerton instruction”).
The district court did not err in giving the Pinkerton instruction. As the
instruction explained, to find a defendant guilty of kidnapping as a coconspirator,
the jury had to first find that “a person named in Count Two of the Indictment
committed the crime of kidnapping as alleged in that count.” The jury could have
found that the kidnapping occurred prior to Carpenter’s arrival at Safeway—by
which point Gonzalez had already been bound and thrown into the vehicle’s
trunk—and Pinkerton liability could have applied to her. Further, the duress
instruction clearly stated, “Duress legally excuses the crime of conspiracy to
kidnap and kidnapping,” which established that the defense was an excuse to both
offenses. Thus, the Pinkerton instruction did not vitiate the duress instruction, and
the jury could still have found Carpenter’s codefendants guilty of kidnapping, yet
rendered a not guilty verdict for Carpenter due to duress.
2. Carpenter argues that the police obtained two of her post-arrest statements in
violation of Miranda v. Arizona, 384 U.S. 436 (1966), and that the district court
erred in denying her suppression motion.
Although Agent Notz misstated that Carpenter “may” receive a lawyer
rather than “will,” the other accurate warnings suffice to satisfy Miranda. See
Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (the inquiry regarding the
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adequacy of a Miranda warning is “simply whether the warnings reasonably
convey to a suspect his [Miranda] rights”). Even if Notz’s oral misstatement
would otherwise be legally fatal, the fact that the agents provided Carpenter with
an accurate written statement of rights form—that she signed—remedied any
insufficiency. See North Carolina v. Butler, 441 U.S. 369, 373 (1979) (noting that
a written waiver of one’s Miranda rights is “strong proof” that the waiver is valid).
In addition, we find that Carpenter validly waived her Miranda rights after
she invoked her right to silence. Carpenter reinitiated communication with the
agents after invoking her right to remain silent, and after the agent reminded her of
this right, she affirmed her willingness to talk. The district court found that
Carpenter was “very comfortable during the interview,” and that she seemed
“almost in control of the interview.” Carpenter does not identify any facts that
contradict those findings. On the record before us, there is nothing to demonstrate
that Carpenter’s waiver was unwilling or unknowing. See id. at 374–75.
Finally, Carpenter’s statements were voluntary. Although officers can make
“false representations,” “false promises,” on the other hand, may render a
confession involuntary. United States v. Preston, 751 F.3d 1008, 1026 (9th Cir.
2014). The test for voluntariness is one of the totality of the circumstances and
looks beyond just police conduct. See id. at 1019 (overruling prior case law to the
extent it held that “police coercion during interrogations must be evaluated without
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regard to the individual circumstances of the suspect”). While the agents’
comments regarding “helping” Carpenter or encouraging her honesty might
constitute borderline coercive conduct, there is no evidence that her will was
overborne. The district court found that Carpenter displayed no “hesitation or any
concerns” and “was very cooperative and interested in speaking with the agents.”
Carpenter’s manner during the interrogation, her experience with law enforcement,
and the lack of, or slight, police coercion establish that her statements were
voluntary. 2
3. The Sentencing Guidelines provide that “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense, decrease the offense
level by 2 levels.” U.S.S.G. § 3E1.1(a). Carpenter sought a downward adjustment
for acceptance of responsibility, which the district court rejected because she
“never really, in my mind, accepted responsibility for the idea that this was an
activity that was committed primarily to get some easy money to improve their
2
The parties dispute whether Carpenter sought suppression of the statement taken
as she was transported to the courthouse. Although Carpenter appears to have
initially sought suppression of this second statement as well, at the suppression
hearing, she eventually conceded, “If everything went wrong, it went wrong the
first day,” and did not object to the court ruling only on the first statement. On
appeal, Carpenter’s briefs contain no specific argumentation regarding the second
statement, and it remains unclear on what grounds she seeks suppression of this
statement. Even if we undertook de novo review of this second statement, the
delay in time, the re-reading of the Miranda rights and Carpenter’s second waiver
surely dissipated any coercion from the agents’ conduct the day before, rendering
her statement voluntary.
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living situation . . . I just reject the contention that this was done out of fear for her
safety or the safety of others.” We find nothing to disturb the district court's
findings, and the district court did not abuse its discretion in denying the reduction.
See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).
4. Under the Sentencing Guidelines, a defendant who was an “organizer,
leader, manager, or supervisor” of the offense may be subject to an increased
offense level. U.S.S.G. § 3B1.1(c). During sentencing, the court applied this
upward adjustment finding that Carpenter “was an organizer or leader.”
Indeed, Carpenter obtained the equipment used to kidnap Gonzalez, the
codefendants used her vehicle, she directed the group to her friend’s home while
they waited to hear from the cartel regarding where to meet, and she ultimately
drove Gonzalez to Mexico. The evidence was sufficient to show that she was an
organizer, see United States v. Maldonado, 215 F.3d 1046, 1050–51 (9th Cir.
2000) (noting a “single incident of persons acting under a defendant’s direction”
constitutes sufficient evidence), and the district court did not abuse its discretion in
applying the enhancement, see Gasca-Ruiz, 852 F.3d at 1170.
II. Velazquez’s Claims
1. Velazquez argues that Carpenter’s Mirandized statements to the agents
implicated him based on hearsay evidence, and that the court failure to sua sponte
instruct the jury that Carpenter’s statements could not be used against him
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constitutes reversible error. Because Velazquez failed to object, we review the
absence of the limiting instruction for plain error. United States v. Sauza-Martinez,
217 F.3d 754, 759 (9th Cir. 2000).
A district court’s failure to give a sua sponte limiting instruction regarding
hearsay testimony by one defendant that implicates a codefendant constitutes plain
error. See United States v. Armijo, 5 F.3d 1229, 1233 (9th Cir. 1993); Sauza-
Martinez, 217 F.3d at 760. Virtually none of Carpenter’s statements, however, are
“evidence of [Velazquez’s] guilt.” Armijo, 5 F.3d at 1232. Carpenter’s hearsay
statements that Velazquez had marijuana in his bathroom, that he might have
stolen the missing marijuana, and that he was the “enforcer” of the house and his
uncle was in the cartel do not incriminate Velazquez in the charged offenses—
kidnapping and conspiracy to kidnap Gonzalez. Thus, these non-incriminating
statements do not fall within the ambit of our case law and it was not plain error for
the district court not to provide the limiting instruction.
By contrast, Carpenter’s statement, “Oh, let me talk to [Velazquez] because
I want him to call and find out if there is still money on his head. We’re not going
to do this if there’s not going to be any money,” implied that Velazquez was
involved in the conspiracy to kidnap Gonzalez, and that he potentially committed
the overt act of checking the bounty amount with the cartel. Even though the
district court’s failure to issue a limiting instruction on this statement constituted
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plain error, we find that the error did not affect Velazquez’s substantial rights. See
Sauza-Martinez, 217 F.3d at 759. Carpenter’s statement was cumulative of the
other evidence properly admitted at trial that established that Velazquez was the
group’s negotiator with the cartel. For example, Carpenter testified that she asked
Velazquez to call the cartel to discover how to “make the guns stop” and he did,
and Meyers testified that Velazquez negotiated with the cartel to determine the
meet-up location to turn over Gonzalez and receive the reward. In light of this
additional evidence presented at trial, we decline to reverse the district court.
2. Velazquez raises an ineffective assistance of counsel (IAC) claim that
asserts that his trial counsel’s performance constituted abandonment. Generally,
this court permits IAC claims on direct appeal in “unusual cases where (1) the
record on appeal is sufficiently developed to permit determination of the issue, or
(2) the legal representation is so inadequate that it obviously denies a defendant his
Sixth Amendment right to counsel.” United States v. Rahman, 642 F.3d 1257,
1260 (9th Cir. 2011). We conclude that this is not an “unusual” case because
Velazquez challenges both his trial counsel’s closing argument and his
“constructive absence throughout trial,” and his trial counsel’s representation was
not an obvious denial of his right to counsel. See United States v. Swanson, 943
F.2d 1070, 1072 (9th Cir. 1991) (finding that because the defendant’s IAC claim
relied “solely” on his trial counsel’s closing argument, the record was sufficient for
8
review on direct appeal). Accordingly, we decline to decide this claim, and
Velazquez will retain his right to raise this claim in a collateral proceeding.
AFFIRMED.
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