United States v. Rogelio Lemus , 847 F.3d 1016 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50355
Plaintiff-Appellee,
D.C. No.
v. 2:13-cr-00825-
BRO-1
ROGELIO LEMUS, AKA Sky,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Argued and Submitted
February 2, 2016—Pasadena, California
Filed March 2, 2016
Before: STEPHEN R. REINHARDT, RICHARD A.
PAEZ, and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
2 UNITED STATES V. LEMUS
SUMMARY*
Criminal Law
The panel affirmed in part, vacated in part, and reversed
in part a criminal judgment, and remanded for resentencing,
in a case in which the defendant was convicted of possession
with intent to distribute more than 50 grams of
methamphetamine.
Viewing the evidence in the light most favorable to the
government, the panel held that a rational trier of fact could
have found beyond a reasonable doubt that the defendant
possessed methamphetamine with intent to sell it, but that no
reasonable factfinder could have determined beyond a
reasonable doubt that he possessed more than 50 grams of
methamphetamine. The panel wrote that it would be a bridge
too far to allow a jury to extrapolate from comparison drugs
that were not from activity related to the defendant or a
conspiracy in which the defendant is involved. The panel
explained that a 90% level of purity would more than suffice
to support the jury’s quantity determination, if adequately
connected to the drugs concerning which the defendant had
constructive possession, but that the government failed to
include evidence connecting that purity level to the
defendant. The panel remanded for resentencing pursuant to
the lowest quantity category under the sentencing guidelines.
The panel held that the district court did not abuse its
discretion in deciding not to declare a mistrial due to an FBI
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LEMUS 3
agent mentioning the name of the defendant’s gang, where
the district court immediately sustained the defendant’s
objection and ordered the jury to disregard it, carefully
examined a juror to ensure that she could disregard the
information, and gave a closing instruction limiting the jury’s
use of the gang information.
COUNSEL
Michael Tanaka (argued), Deputy Federal Public Defender,
Hillary Potashner, Federal Public Defender, Los Angeles,
California, for Defendant-Appellant.
Stephen G. Wolfe (argued), Assistant United States Attorney,
Sheila Nagaraj, Assistant United States Attorney, Lawrence
S. Middleton, Assistant United States Attorney, Chief,
Criminal Division, Eileen M. Decker, United States Attorney,
Los Angeles, California, for Plaintiff-Appellee.
4 UNITED STATES V. LEMUS
OPINION
M. SMITH, Circuit Judge:
Defendant Rogelio Lemus appeals his conviction for
possession with intent to distribute more than 50 grams of
methamphetamine. Because we conclude that insufficient
evidence supported the jury’s quantity determination, we
reverse in part and remand for resentencing pursuant to the
lowest quantity category under the sentencing guidelines.
FACTS AND PRIOR PROCEEDINGS
In early May of 2011, FBI informant Ana Montano was
dispatched to a bar to meet with Defendant Rogelio Lemus.
Lemus, seeing Montano’s gang tattoo, volunteered that he
was a member of the same gang, and asked Montano if she
knew the clique to which he belonged. Montano told him that
she was looking for somebody who could supply ounce-
quantities of methamphetamine. Lemus responded that he had
a pound for sale.
On May 16, 2011, Montano made a recorded call to
Lemus. She stated that she wanted to buy two ounces. Lemus
responded: “Just two? . . . I’m going to tell the guy,
because, well, you know, the bags have to be torn up, you
understand?” On May 18, 2011, Montano and Lemus
arranged to meet to carry out the sale and agreed to a price for
the two ounces, but Lemus was delayed by the absence of his
associate. When he finally arrived, Lemus, consistent with his
initial offer of a pound and his earlier hesitancy to “tear up”
the bags, but contrary to his agreement earlier that day to sell
a smaller quantity, stated that he was unable to sell the
methamphetamine in ounce quantities because they only sold
UNITED STATES V. LEMUS 5
it by the pound. Lemus offered to give Montano a sample, but
Montano demurred, saying that her buyer would not trust that
the sample was the same quality as the pound.
After the meeting, FBI agents followed Lemus to his
house, and were able to identify him from the motor vehicle
records for his truck. The agents did not conduct a traffic
stop, and did not obtain a search warrant to search for drugs.
No drugs were seen or observed on the date of the meeting,
and Montano did not believe that Lemus had the pound of
methamphetamine in his truck during the meeting, although
she believed that he had it that day.
At his post-arrest interview, Lemus denied involvement
in drug trafficking, and claimed that he often joked on the
phone about drugs. At trial, the government did not produce
the drugs or present any testimony that someone saw Lemus
in possession of a substance that appeared to be
methamphetamine.
DISCUSSION
I. Sufficiency of the Evidence
A. Standard of Review
In reviewing a conviction for sufficiency of the evidence,
we ask whether, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Nevils, 598 F.3d 1158,
1163-64 (9th Cir. 2010) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Under this two-step inquiry, we
therefore first consider the evidence presented at trial in the
6 UNITED STATES V. LEMUS
light most favorable to the prosecution, and second,
determine whether the evidence so viewed is adequate to
allow any rational trier of fact to find the essential elements
of the crime beyond a reasonable doubt. Id. at 1164.
B. The Elements of the Offense
Lemus was convicted of violating 21 U.S.C. § 841(a)(1),
which prohibits, inter alia, possession of a controlled
substance with intent to distribute. The jury found that he
possessed at least 50 grams of methamphetamine, subjecting
him to the penalty specified in 21 U.S.C. § 841(b)(1)(A)(viii).
To violate this statute, actual possession is not required:
constructive possession also suffices. “The term ‘constructive
possession’ does not connote a legal fiction. Rather, the term
simply reflects the common sense notion that an individual
may possess a controlled substance even though the substance
is not on his person at the time of arrest.” United States v.
Disla, 805 F.2d 1340, 1350 (9th Cir. 1986).
Constructive possession means “the exercise of ‘dominion
and control,’” and “may be demonstrated by direct or
circumstantial evidence that the defendant had the power to
dispose of the drug.” Id. (citing United States v. Amaro,
422 F.2d 1078, 1080 (9th Cir. 1970); Arellanes v. United
States, 302 F.2d 603, 606 (9th Cir. 1962)).
[O]ne having a working relationship or a
sufficient association with those having
physical custody of the drugs so as to enable
him to assure their production, without
difficulty, to a customer as a matter of course
may be held to have constructive possession.
But a casual facilitator of a sale, who knows a
UNITED STATES V. LEMUS 7
given principal possesses and trades in
narcotics but who lacks the working
relationship with that principal that enables an
assurance of delivery, may not be held to have
dominion and control over the drug delivered
and cannot be said to have possession of it.
Hill v. United States, 379 F.2d 811, 814 (1967) (quoting
United States v. Jones, 308 F.2d 26, 30–31 (2d Cir. 1962)).
“Constructive possession may also be proven by the
defendant’s participation in a ‘joint venture’ to possess a
controlled substance.” Disla, 805 F.2d at 1350 (citing United
States v. Valentin, 569 F.2d 1069, 1071 (9th Cir. 1978)).
“[C]oordinated activity among the defendants raises a
reasonable inference of a joint venture.” United States v.
Smith, 962 F.2d 923, 930 (9th Cir. 1992) (quoting United
States v. Hernandez, 876 F.2d 774, 778 (9th Cir. 1989)
(alteration in original)). “In addition to association, the
government must also establish that the defendant had a role
in directing or planning the acquisition or transportation of
the drugs.” Id.
C. Reliance on Lemus’s Statements
Lemus argues that without corroboration, his own
inculpatory statements made during the offense cannot
support a conviction. Lemus relies upon United States v.
Valdez-Novoa, 780 F.3d 906, 922 (9th Cir. 2014). However,
Valdez-Novoa involved a defendant’s confession, not
contemporaneous statements. Id. And, Valdez-Novoa framed
the rule as directed to confessions: “the contemporary
iteration of the common law corpus delicti rule” is that
“[a]lthough the government may rely on a defendant’s
8 UNITED STATES V. LEMUS
confession to meet its burden of proof . . . in order to serve as
the basis for conviction, the government must also adduce
some independent corroborating evidence.” Id.
Lemus relies on out-of-circuit authority to argue that we
should extend the corroboration requirement from statements
made during a confession to those made during the
commission of the crime, citing among others United States
v. Bryce, 208 F.3d 346, 356 (2d Cir. 1999) and United States
v. Baggett, 890 F.2d 1095-97 (10th Cir. 1989). We need not
address this contention, however, because the conviction here
does not rest solely on a bald statement by Lemus that he had
methamphetamine to sell. He also took steps consistent with
that statement, including agreeing on price, arranging a sale
date, collaborating with his associate, and, especially,
offering a sample. These actions would sufficiently
corroborate Lemus’ initial incriminatory statements, even if
we were to extend the rule.
D. The Sufficiency of the Statements to Support the
Conviction
The evidence presented at trial is sufficient to sustain the
conviction under a constructive possession theory because a
reasonable jury could have concluded that Lemus (1) had “a
working relationship or a sufficient association with those
having physical custody of the drugs so as to enable him to
assure their production, without difficulty, to a customer as a
matter of course,” Hill, 379 F.2d at 814, or (2) that he
engaged in a joint venture, with a “role in directing or
planning the acquisition or transportation of the drugs.”
Smith, 962 F.2d at 930.
UNITED STATES V. LEMUS 9
At the first meeting between Lemus and Montano at the
bar, Lemus said that he had one pound of “crystal”
(methamphetamine) that he was willing to sell. On the day of
the intended sale, Montano and Lemus arranged to meet, and
Lemus instructed Montano that the price would be $1,100 for
each ounce. Lemus had to delay the meeting because his
associate, someone who has never been identified, was not
yet in the area.
In a phone call explaining why it was taking so long to
arrive, Lemus told Montano that the methamphetamine was
“in a city nearby.” When he finally arrived, he instructed
Montano to come down, but without the money, because “we
are going to explain something here.” Montano asked: “Do
you have it or don’t you?” Lemus responded that “[t]here was
a misunderstanding, I will explain it to you.”
When Montano reached the car, Lemus stated that he
could only sell by the pound, not by the ounce, but that
Lemus had a sample to give Montano if she wanted. Lemus
instructed Montano to tell her buyer that he dealt in “a pound
and up,” that Lemus had “a picture” he could show and that
he would bring a “sample” of “what I have in pounds” that
Montano could assess for quality. Montano declined the
sample, explaining that her buyer did not want a sample
because of the concern that the pound would not be of the
same quality. The meeting then ended.
After his arrest, Lemus told the interviewing FBI agent
that remarks he made over the phone about drugs were jokes.
Given the content and context of the recorded calls
introduced as evidence, a reasonable jury would have no
difficulty rejecting that explanation. These were not offhand,
playful remarks made and received in jest. Instead, they
10 UNITED STATES V. LEMUS
appear to be a continuous and serious attempt to arrange a
drug transaction.
Lemus had constructive possession via “the power to
dispose of” a pound of methamphetamine, Disla, 805 F.2d at
1350, although due to the policies of his distribution
structure, he lacked the power to dispose of the drug in
smaller, ounce-sized quantities. While this limitation shows
that Lemus lacked unfettered discretion to dispose of the
drugs, that is consistent with his participation in a joint
venture in which he lacked sole decision-making authority,
but in which he played a role directing the transportation of
the drugs. “[V]iewing the evidence in the light most favorable
to the prosecution,” Nevils, 598 F.3d at 1164, a rational trier
of fact could have found beyond a reasonable doubt that
Lemus possessed methamphetamine with intent to sell it.
However, Lemus was convicted of possessing more than 50
grams of methamphetamine, which affects the applicable
penalty. We turn now to an assessment of the evidence
introduced concerning that quantity determination.
E. The 50 Gram Quantity
Lemus argues that the quantity finding is unsupported by
the evidence because there was no drug seized that could be
tested for purity to determine whether it contained at least 50
grams of methamphetamine. To prove that the unobserved
pound of substance at issue contained at least 50 grams of
methamphetamine, the government offered an FBI agent’s
testimony concerning the range of purity of
methamphetamine previously purchased by the FBI. The
agent testified that only four of the approximately 30
controlled purchases made in the Los Angeles area by the FBI
from 2008 to 2014 were of below 90% purity.
UNITED STATES V. LEMUS 11
A pound contains approximately 453 grams. Thus, for
there to be 50 grams of methamphetamine in a pound of
material, it would need to be slightly over 11% pure. We have
previously upheld convictions requiring proof of at least 50
grams of methamphetamine in the absence of the drugs
themselves, and hence, in the absence of purity testing, where
the jury could infer that Lemus’s methamphetamine was at
least as pure as some actual methamphetamine that could be
used for comparison. Thus, Maciel upheld a conviction for
conspiracy to possess with intent to distribute 50 grams or
more of methamphetamine in the absence of the actual drugs.
461 Fed. App’x at 615–16.1 The defendant in Maciel offered
to supply a pound, and the lowest purity of methamphetamine
that had been seized from the stash house involved in the
conspiracy was 12%, a pound of which would exceed 50
grams. Id. at 615–16. This case differs significantly from
Maciel, however, because the drugs used for comparison here
were not connected to Lemus, but instead were from other
purchases in the Los Angeles area.
We find analogous authority in the sentencing context,
where courts are often called upon to estimate drug quantities.
The standards applicable to such estimates are not identical
to those applicable to jury findings; they are in some ways
more flexible, and in other ways, more restrictive. For
purposes of sentencing, quantity need only be proven by a
preponderance of the evidence, but “the information which
supports an approximation must possess sufficient indicia of
reliability to support its probable accuracy,” and the district
court must err on the side of underestimating the quantity.
United States v. Kilby, 443 F.3d 1135, 1141 (9th Cir. 2006)
1
The parties discussed Maciel, an unpublished disposition. We consider
it for its persuasive value only.
12 UNITED STATES V. LEMUS
(quoting United States v. Culps, 300 F.3d 1069, 1076 (9th
Cir. 2002)).
In Kilby, the district court based its approximation on
tablets of “Foxy” “seized in two unrelated cases from
different parts of the country,” with no evidence of a common
supplier or evidence that Foxy tablets are always the same
approximate size, and where the two samples had quite
different weights. Id. at 1142. While noting that we have
repeatedly approved approximations “based on facts specific
to the defendant’s case,” Kilby held that the district court’s
approximation was insufficiently reliable. Id. at 1141–42. By
contrast, United States v. Flores, 725 F.3d 1028 (9th Cir.
2013) approved an estimate employing an average pill size
consistent with those typically sold by the conspiracy at issue
and by the defendant. Id. at 1035–37.
This case is similar to Kilby in that the comparison
methamphetamine came from cases that were not tied to
Lemus, but different in that the comparison
methamphetamine came from Los Angeles, not elsewhere in
the country. Unlike in Flores, here, there was no evidence of
actual drug quantity from other arms of a conspiracy, and
indeed, Lemus was not charged with conspiracy.
These sentencing determination cases are instructive in a
general sense, but this case involves a factual determination
reached by the jury. In that sense, Maciel, although non-
precedential, remains the closest case, and again, unlike here,
the comparison drugs in Maciel were from the conspiracy at
issue.
It would be a bridge too far to allow a jury to extrapolate
from comparison drugs that were not from activity related to
UNITED STATES V. LEMUS 13
the defendant or a conspiracy in which the defendant is
involved. A 90% level of purity would more than suffice to
support the jury’s quantity determination, if adequately
connected to the drugs concerning which Lemus had
constructive possession. However, the government failed to
include evidence connecting that purity level to Lemus.
Viewing the evidence in the light most favorable to the
government, no reasonable factfinder could have determined
beyond a reasonable doubt that Lemus possessed more than
50 grams of methamphetamine.
Because the drug quantity finding fails based on
insufficient evidence, the government may not retry that
issue, and instead must seek resentencing based solely on the
basic possession conviction, i.e., under the lowest quantity
category in Federal Sentencing Guidelines § 2D1.1. “The
Double Jeopardy Clause forbids a second trial for the purpose
of affording the prosecution another opportunity to supply
evidence which it failed to muster in the first proceeding.”
Burks v. United States, 437 U.S. 1, 11 (1978); see also United
States v. Vera, 770 F.3d 1232, 1250 (9th Cir. 2014) (holding
that retrial did not violate the Double Jeopardy Clause where
reversal based on trial error, distinguishing reversal for
insufficient evidence).
II. The District Court’s Decision Not to Declare a
Mistrial
A. Legal Standard
We review a district court’s denial of a motion for a
mistrial for abuse of discretion. United States v. Dorsey,
677 F.3d 944, 954 (9th Cir. 2012). A cautionary instruction
from the judge is generally sufficient to cure any prejudice
14 UNITED STATES V. LEMUS
from the introduction of inadmissible evidence, and “is the
preferred alternative to declaring mistrial when a witness
makes inappropriate or prejudicial remarks; mistrial is
appropriate only where there has been so much prejudice that
an instruction is unlikely to cure it.” United States v.
Escalante, 637 F.2d 1197, 1202–03 (9th Cir. 1980). A
decision to not declare a mistrial will be reversed only if the
improper comment, viewed in the context of the entire trial,
more likely than not materially affected the verdict. Dorsey,
677 F.3d at 954.
B. The Remark and the District Court’s Response
Before trial, Lemus moved to exclude any evidence of his
membership in MS-13 or any other gang. The district court
granted the motion in part, ruling that while evidence of gang
membership would be somewhat prejudicial, the prejudice
did not outweigh the evidence’s probative value, specifically,
as to why “the two parties engaged in a drug transaction, not
knowing each other very well at all.” However, the court
excluded the name of Lemus’s claimed gang as irrelevant.
The district court made clear that because “gang membership
is incredibly prejudicial,” its use at trial would be limited to
a particular purpose, and that trial would not be opened up to
examine the acts of the MS-13 gang.
Despite that ruling, and despite the prosecutor asking
“[w]ithout telling us the name of the gang, for how long had
the informant been a member of the gang before she began
cooperating with the FBI?”, the agent responded “Um, I don’t
know the exact number of years, but, um, the informant
became a member of MS-13 –,” whereupon the defense
immediately objected. The court sustained the objection,
instructed the jury to disregard the answer, and directed the
UNITED STATES V. LEMUS 15
prosecutor to ask another question. At the break, the defense
moved for a mistrial, arguing that a curative instruction
would only highlight the issue.
The government argued that the testimony was “an
altogether unfortunate habitual reference . . . by someone who
makes the reference day in and day out in his work and
slipped into it when made.” The government opposed a
mistrial, but acknowledged that granting one was within the
court’s discretion, and that the court was in a position to
assess what remedy was required. The court ruled that its
immediate instruction to disregard the testimony, and the
instruction it would provide after closing arguments
concerning the limited relevance of the gang evidence, were
sufficient to cure any prejudice.2
Later, one juror informed the court clerk that while she
understood the court’s instruction to disregard the testimony,
she started thinking about it, and believed that she had read
about the case, and knew “all about it.” Counsel discussed
with the court that there may have been press about the
takedown that occurred in this case, and the defense stated
that one of the articles referred to Lemus with his gang
moniker. The court questioned the juror outside of the
presence of the other jurors, and the juror reported that she
had seen reports covering the sting operation which discussed
2
That instruction was: “You have heard evidence that the defendant
was a member of a gang. I instruct you that this evidence is admitted only
for the limited purpose of . . . providing context for the relationship
between the Government’s confidential informant and the defendant and,
therefore, you must consider it only for that limited purpose and not for
any other purpose.”
16 UNITED STATES V. LEMUS
the global nature of this gang and “the sort of violence”
attached to it.
The juror confirmed that she would be able to follow the
court’s previous instruction to disregard information about
the particular gang, and would be able to follow the
forthcoming limiting instruction. The juror confirmed that she
did not think that the press reports were relevant to anything,
but felt compelled to inform the court that she remembered
them. The juror stated that the press reports would not affect
her view of the case at all, and that she would disregard them
and base her verdict only on the law and the court’s
instructions. Based on that discussion, the court was satisfied
that the juror would disregard anything she had read about the
gang.
“When the court strikes testimony and gives . . . an
instruction [to disregard it], there is a strong presumption that
the jury has followed the court’s instruction.” United States
v. Pavon, 561 F.2d 799, 803 (9th Cir. 1977). “The trial court
is in the best position to determine whether an incident merits
a mistrial.” United States v. Gardner, 611 F.2d 770, 777 (9th
Cir. 1980). That is because “the district court had the
opportunity to see and hear the witnesses and to weigh their
testimony. It was in a far better position than we to judge the
effects of the incidents.” United States v. Love, 535 F.2d
1152, 1157 (9th Cir. 1976).
Here, the district court was well aware of the prejudicial
impact that disclosure of the particular gang could have, and
previously determined that the risk of prejudice outweighed
any probative value of that information. When the FBI agent
nonetheless mentioned the name of the gang, the district court
immediately sustained the objection and ordered the jury to
UNITED STATES V. LEMUS 17
disregard it. When one juror reported that she had read
something about the gang in question, the district court
carefully examined the juror to ensure that she could
disregard that information in reaching a verdict. Finally, the
court gave a closing instruction limiting the jury’s use of the
gang information solely to understand the relationship
between Lemus and Montano.
Having observed the jury and all of the testimony, and
having given considered thought to this issue in light of the
entire proceeding, the district court determined that a mistrial
was not necessary. The district court did not abuse its
discretion in so determining.
CONCLUSION
AFFIRMED in part, VACATED in part, and
REMANDED. We VACATE the 50 gram finding and the
sentence, which was entered pursuant to 21 U.S.C.
§ 841(b)(1)(A)(viii). We REMAND for resentencing for
violation of 21 U.S.C. § 841(a)(1) only.