United States v. Rolando Ontiveros , 598 F. App'x 482 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 14 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50344
Plaintiff - Appellee, D.C. No. 2:99-cr-00083-DOC-23
v.
MEMORANDUM*
ROLANDO ONTIVEROS, AKA Rolo,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted November 18, 2014
Pasadena, California
Before: WARDLAW and PAEZ, Circuit Judges, and PONSOR, Senior District
Judge.**
Rolando Ontiveros appeals his conviction on ten counts: one count of
racketeering under 18 U.S.C. § 1962(c); one count of RICO conspiracy under 18
U.S.C. § 1962(d); one count of conspiracy to distribute controlled substances under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
21 U.S.C. § 846; five counts of violent crimes in aid of racketeering (VICAR)
under 18 U.S.C. § 1959(a); and two counts of use of firearms during or in relation
to a VICAR crime under 18 U.S.C. § 924(c). All charges relate to Ontiveros’s
involvement with the Mexican Mafia in the late 1990s.
Ontiveros argues that the district court erred by: (1) accepting a defense
witness’s invocation of his Fifth Amendment privilege against self-incrimination
without adequately determining the scope of the privilege; (2) failing to compel
testimony from that witness under a judicial grant of use immunity; (3) permitting
lay testimony from a co-conspirator who decoded drug jargon gathered from
conversations to which he was not a party; and (4) excluding testimony from a
special agent of the FBI as unfairly prejudicial under Federal Rule of Evidence
403. Ontiveros also challenges his convictions on the ground that they were not
supported by sufficient evidence under Jackson v. Virginia, 443 U.S. 307 (1979).
For the reasons explained below, we affirm.
We review the court’s application of Rule 403 for abuse of discretion and
harmless error. United States v. Gonzalez-Flores, 418 F.3d 1093, 1098-99 (9th
Cir. 2005); United States v. Sarno, 73 F.3d 1470, 1488 (9th Cir. 1995). We review
the remaining issues for plain error because Ontiveros did not raise them before the
district court.
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1. The district court’s determination that defense witness John Turscak
had invoked his Fifth Amendment privilege as to all questions was not plainly
erroneous. First, the district court properly inquired into the scope of Turscak’s
Fifth Amendment privilege against self-incrimination. United States v. Pierce, 561
F.2d 735, 741 (9th Cir. 1977). He was provided with counsel, and the court
permitted defense counsel to ask questions even after Turscak expressed his
intention to make a blanket invocation. Second, the court had sufficient knowledge
of the case and related cases to conclude that it would be untenable to restrict
questioning to certain subjects. See United States v. Klinger, 128 F.3d 705, 709
(9th Cir. 1997). Third, Ontiveros failed to demonstrate that the district court’s
statement of the law had a “chilling” effect on Turscak’s testimony.
2. The district court’s decision not to compel Turscak’s testimony under
a judicial grant of use immunity did not constitute plain error. Such immunity is
appropriate only when “(1) the witness’s testimony would have been relevant, and
(2) the prosecution refused to grant the witness use immunity with the deliberate
intention of distorting the fact-finding process.” United States v. Straub, 538 F.3d
1147, 1156 (9th Cir. 2008) (quoting Williams v. Woodford, 384 F.3d 567, 600 (9th
Cir. 2002)). Here, the second prong requires that the prosecution denied immunity
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to a defense witness who would have directly contradicted the testimony of an
immunized government witness. Id.
Assuming that Turscak’s testimony was relevant, failing to compel
Turscak’s testimony under a grant of use immunity did not distort the fact-finding
process because Turscak’s testimony would not have directly contradicted that of
any immunized government witness. Even if Turscak had testified to the facts
Ontiveros alleges, these facts would not have been inconsistent with the
government witnesses’ testimony.
3. The district court properly admitted government witness Max
Torvisco’s testimony as lay testimony under Federal Rule of Evidence 701.
Torvisco satisfied Rule 701’s perception requirement because, as a member of the
Mexican Mafia, he had personal knowledge of the contents of the calls and could
testify to known facts, including coded terms used by his co-conspirators. See
United States v. Gadson, 763 F.3d 1189, 1212-13 (9th Cir. 2014); United States v.
Freeman, 498 F.3d 893, 898, 904-05 (9th Cir. 2007).
4. The district court did not abuse its discretion by excluding Special
Agent Lee’s testimony under Federal Rule of Evidence 403. First, his testimony
that a government informant did not mention Ontiveros during a limited period of
time when that informant may not have been in contact with Ontiveros was only
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minimally probative. Second, any probative value was outweighed by the risk of
misleading the jury because hearsay and relevancy concerns barred the government
from introducing contradictory evidence.
5. Viewing the evidence in the light most favorable to the government, a
rational juror could find Ontiveros guilty of all charges beyond a reasonable doubt.
See Jackson, 443 U.S. at 319. Although the government relied heavily on
testimony from Ontiveros’s co-conspirators, this testimony was neither incredible
nor insubstantial on its face. United States v. Yossunthorn, 167 F.3d 1267, 1270
(9th Cir. 1999).
AFFIRMED.
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