United States v. Casteneda ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10372
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00549-EJG
FRANCISCO MEDINA CASTENEDA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, District Judge, Presiding
Argued and Submitted
April 16, 2007—San Francisco, California
Filed January 15, 2008
Before: Alfred T. Goodwin, Dorothy W. Nelson, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge D.W. Nelson
531
UNITED STATES v. CASTENEDA 533
COUNSEL
John Balazs, Sacramento, California, for the appellant.
Thomas E. Flynn, Assistant U.S. Attorney, Sacramento, Cali-
fornia; James Hitt, Assistant U.S. Attorney, Sacramento, Cali-
fornia, for the appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Francisco Medina-Casteneda appeals his jury conviction
and sentence for (1) conspiracy to distribute and conspiracy
to possess with the intent to distribute cocaine and cocaine
base in violation of 21 U.S.C. §§ 841 and 846; (2) possession
with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1). We have jurisdiction to review the conviction
under 28 U.S.C. § 1291 and the sentence under 18 U.S.C.
§ 3741. On Medina-Casteneda’s petition for rehearing we
reaffirm his conviction, but in light of the recent Supreme
Court decision in Kimbrough v. United States, we vacate the
sentence and remand to the district court for re-sentencing.
BACKGROUND
On December 18, 2003, the government charged Medina-
Casteneda, Marcos Garcia, Rolando Medina, and Manuel
Lopez with drug trafficking offenses revealed during an
undercover investigation. The investigation involved drug
534 UNITED STATES v. CASTENEDA
purchases by undercover officers, coordinated police surveil-
lance, and a search pursuant to a search warrant. The search
yielded a bag of methamphetamine, two bags of rock cocaine,
four bags of approximately 20-30 grams of cocaine base,
guns, and plastic “kilo” wrappers and a coffee pot with
cocaine residue. The district court denied both a motion to
suppress evidence obtained in the search and a request for a
Franks hearing.
The government proceeded to trial with Medina-Casteneda
on the charges of (1) conspiracy to distribute and conspiracy
to possess with the intent to distribute cocaine and cocaine
base in violation of 21 U.S.C. §§ 841 and 846; (2) possession
with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1); and (3) possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1). A
jury found Medina-Casteneda guilty of the first two counts.
During sentencing, Medina-Casteneda asked the court to
reduce the sentence based upon the 100:1 sentencing disparity
between crack and powder cocaine offenses under the Guide-
lines. The district judge noted that he did not “believe it’s
appropriate for the Court to specifically reduce a sentence
under 18 U.S.C. 3553(a) on the basis that the Congress and
the U.S. Sentencing Commission are wrong in establishing
different penalties for different types of controlled sub-
stances.”
The district court sentenced Medina-Casteneda to 327
months imprisonment, 120 months supervised release, and a
$200 special assessment. Medina-Casteneda filed a timely
notice of appeal challenging both the conviction and the sen-
tence. On July 18, 2007, we affirmed the conviction and sen-
tence with a memorandum disposition. In a Petition for
Rehearing, Medina-Casteneda requested that we reconsider
our decision in light of the Supreme Court’s then-pending
decision in Kimbrough v. United States, No. 06-6330. In light
of the recent Kimbrough decision, 128 S. Ct. 558 (2007), we
UNITED STATES v. CASTENEDA 535
grant the petition in part, vacate the sentence, and remand to
the district court.
DISCUSSION
I. Cocaine Sentencing Disparity
[1] In recent months, both the United States Sentencing
Commission and the Supreme Court criticized the 100-to-1
sentencing disparity between offenses involving crack and
powder cocaine. See U.S. SENTENCING COMM’N, REPORT TO THE
CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY 8 (May
2007), available at http://www.ussc.gov/r_congress/
cocaine2007.pdf; Kimbrough, 128 S. Ct. at 568. “[T]he crack/
powder disparity produces disproportionately harsh sanctions,
i.e., sentences for crack cocaine offenses ‘greater than neces-
sary’ in light of the purposes of sentencing set forth in
§ 3553(a).” Kimbrough, 128 S. Ct. at 575. Consequently, the
Court held that “it would not be an abuse of discretion for a
district court to conclude when sentencing a particular defen-
dant that the crack/powder disparity yields a sentence ‘greater
than necessary.’ ” Id. Indeed, “[t]o reach an appropriate sen-
tence, . . . disparities must be weighed against the other
§ 3553(a) factors and any unwarranted disparity created by
the crack/powder ratio itself.” Kimbrough, 128 S. Ct. at 574.
[2] In the instant case, Medina-Casteneda asked the district
court to consider the 100-to-1 disparity when determining his
sentence for offenses involving crack cocaine. The judge
responded,
I don’t believe it’s appropriate for the Court to spe-
cifically reduce a sentence under 18 U.S.C. 3553(a)
on the basis that the Congress and the U.S. Sentenc-
ing Commission are wrong in establishing different
penalties for different types of controlled substances.
. . . To the extent the difference in penalties are out
536 UNITED STATES v. CASTENEDA
of whack, it’s for the Congress to change them, not
this trial court.
These statements demonstrate that the district court did not
foresee the extension of its Booker discretion that would be
announced two years later by the Supreme Court in Kim-
brough. Thus, the district court did not feel free to consider
whether “any unwarranted disparity created by the crack/
powder ratio” produced a sentence “ ‘greater than necessary’
to achieve § 3553(a)’s purposes.” Id. at 574-75.
[3] We vacate the sentence and remand to the district court
to reconsider the sentence in light of the Kimbrough decision
and to determine whether the disparity between crack and
powder cocaine produced a sentence “greater than necessary”
under § 3553(a). As noted above, this issue comes before the
panel as a Petition for Rehearing. We grant the Petition for
Rehearing with respect to the foregoing issue and we repro-
duce the relevant portions of our Memorandum Disposition
issued July 18, 2007, to address the remaining arguments in
this case.
II. Readback of Testimony
[4] The district court did not abuse its discretion in denying
the jury’s request to read back Marcos Garcia’s testimony.
After the jury requested the read back of Garcia’s testimony,
the judge consulted with counsel for both sides without the
jury present. He explained that in accordance with Ninth Cir-
cuit case law, he ordinarily discouraged rereads because of the
tendency of the jury to focus on one particular piece of evi-
dence at the expense of other evidence. Counsel for the appel-
lant agreed that Garcia’s testimony should not be reread to the
jury unless the jury asked for the testimony to be reread at
some future point in its deliberations. In light of the district
court’s great latitude to address requests for readbacks and its
recognition of the problems associated with readbacks, we
hold that the judge’s decision to deny the requested readback
UNITED STATES v. CASTENEDA 537
was not an abuse of discretion. See United States v. Nolan,
700 F.2d 479, 486 (9th Cir. 1983) (finding no error in the
court’s refusal to have testimony reread and recognizing that
the decision enjoys a great deal of discretion).
[5] The district court also did not abuse its discretion by
granting the request for a reread of Detective Filopowski’s
testimony. Appellant asserts that the district court erred when
it allowed the jury to have Detective Filipowski’s testimony
reread without ensuring that the jury did not unduly empha-
size it, citing United States v. Hernandez, 27 F.3d 1403, 1408-
09 (9th Cir. 1994). We hold that the appellant waived this
claim by agreeing that Detective Filipowski’s testimony could
be reread without such an admonition. In particular, counsel
for both sides were provided with the controlling law. There-
fore, Medina-Casteneda waived the argument that the reread
of Detective Filipowski’s testimony without proper instruc-
tion was error. See United States v. Burt, 143 F.3d 1215, 1217
(9th Cir. 1998) (“A defendant’s right to challenge a [judicial
ruling] is waived if the defendant considered the controlling
law and in spite of being aware of the applicable law, pro-
posed or accepted a flawed instruction.”) (internal quotation
marks omitted).
III. Closing Argument
The misstatement of the reasonable doubt standard during
closing argument did not constitute plain error that would
entitle Medina-Casteneda to a reversal of his conviction. We
have held that in order to show that a misstatement of law
affects the substantial rights of a defendant, the defendant
must demonstrate that the error was prejudicial. See Sims v.
Brown, 425 F.3d 560, 579 (9th Cir. 2005). In this case, neither
party disputes that the jury instructions properly defined the
beyond a reasonable doubt standard. “The jury is regularly
presumed to accept the law as stated by the court, not as
stated by counsel.” United States v. Rodrigues, 159 F.3d 439,
451 (9th Cir. 1998). This presumption has not been overcome
538 UNITED STATES v. CASTENEDA
in this case as there is no evidence that the jury was confused
by the proof beyond a reasonable doubt standard. The jury
never sought clarification of the standard, and the likely preju-
dicial effects of this misstatement of the law on the defendant
in the context of the extensive closing arguments by both
sides and proper jury instructions is very low (indeed the
prosecutor correctly described the standard a couple of sen-
tences earlier in the closing argument).
IV. Voir Dire
[6] The district court did not abuse its discretion in reject-
ing Medina-Casteneda’s proposed voir dire question to the
jury about its willingness to follow a limiting instruction
regarding evidence of his prior conviction. A district court has
considerable discretion to accept or reject proposed voir dire
questions and, as long as it conducts an adequate voir dire, its
rejection of specific questions is not error. United States v.
Giese, 597 F.2d 1170, 1182-83 (9th Cir. 1979). In this case,
the district court adequately addressed the issue in Medina-
Casteneda’s proposed voir dire question by asking a more
general question regarding the juror’s ability to follow the law
in accordance with the judge’s instruction. We therefore hold
that the district court did not abuse its discretion and that the
voir dire in this case was conducted adequately.
V. Franks Hearing
Assuming arguendo Medina-Casteneda made a substantial
preliminary showing that the affiant intentionally or reck-
lessly omitted information showing the number of people that
Garcia came into contact with prior to the drug transaction
with the undercover police officers on November 18, 2003, a
corrected or supplemented affidavit would still “provide a
magistrate with a substantial basis for concluding that proba-
ble cause existed.” United States v. Stanert, 762 F.2d 775,
780, 782 (9th Cir. 1985) (citing Franks v. Delaware, 438 U.S.
154, 155-56 (1978)). The Supreme Court has held that “[t]he
UNITED STATES v. CASTENEDA 539
critical element in a reasonable search [of a property] is not
that the owner of the property is suspected of crimes but that
there is reasonable cause to believe that the specific ‘things’
to be searched for and seized are located on the property to
which entry is sought.” Zurcher v. Stanford Daily, 436 U.S.
547, 556 (1978). For purposes of probable cause to search the
residence on 1728 East Avenue, the sufficiency of the infor-
mation in the affidavit to support a probable cause finding that
Medina-Casteneda was the provider of the drugs is irrelevant.
Instead, what is relevant is whether there was sufficient infor-
mation to support a probable cause finding that the 1728 East
Avenue residence contained evidence of drugs. Even if the
affidavit were supplemented with the omitted details from the
police surveillance report regarding the number of people
Garcia came into contact with, it would have no effect on the
probable cause finding concerning the property.
The other information that Medina-Casteneda argues was
intentionally omitted or falsely represented also did not
address the residence. In particular, purported misstatements
about Medina-Casteneda’s prior convictions and the police
officer’s alleged erroneous prior identification of Medina-
Casteneda on November 18, 2003, would not have materially
affected the probable cause determination regarding the 1728
East Avenue residence.
CONCLUSION
For the foregoing reasons we affirm the conviction in part,
vacate the sentence, and remand to the district court for re-
sentencing.
Conviction AFFIRMED in part, sentence VACATED, and
case REMANDED.