United States v. Omar Fuentes Alarcon , 682 F. App'x 556 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-30196
Plaintiff-Appellee, D.C. No.
1:14-cr-02071-TOR-1
v.
OMAR FUENTES ALARCON, AKA MEMORANDUM*
Omar Alarcon Fuentes,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-30198
Plaintiff-Appellee, D.C. No.
2:13-cr-00125-TOR-2
v.
OMAR ALARCON FUENTES, AKA
Omar Fuentes Alarcon, AKA Omar
Ramales Quintero,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted February 9, 2017
Seattle, Washington
Before: FISHER, PAEZ, and CALLAHAN, Circuit Judges.
A jury convicted Omar Fuentes (“Fuentes”) of knowingly distributing over
50 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(viii). The district court denied his subsequent motions for a judgment of
acquittal and for a new trial, concluding that the evidence was neither insufficient
nor erroneously admitted. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
In the context of a Rule 29 motion for a judgment of acquittal, we review de
novo the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158,
1163-65 (9th Cir. 2010) (en banc); Fed. R. Crim. P. 29(c). We must reject
Fuentes’s sufficiency challenge if, “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.” Jackson v. Virginia,
443 U.S. 307, 319 (1979).
Denial of a Rule 33 motion for a new trial is reviewed for abuse of
discretion. United States v. French, 748 F.3d 922, 934 (9th Cir. 2014); Fed. R.
Crim. P. 33. The district court’s “power to grant a motion for a new trial is much
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broader than its power to grant a motion for judgment of acquittal.” United States
v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992). “The district court need not view
the evidence in the light most favorable to the verdict; it may weigh the evidence
and in so doing evaluate for itself the credibility of the witnesses.” Id. (quoting
United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)).
1. The district court did not err in denying Fuentes’s motion for a judgment
of acquittal. There was ample evidence to support the jury’s verdict. Namely,
Deputy Hause testified that Fuentes confessed to distributing a pound of
methamphetamine on the date in question. We assume, as we must, that the jury
resolved any conflicts in the evidence in favor of the prosecution. Nevils, 598 F.3d
at 1164.
2. As to the motion for a new trial, none of Fuentes’s arguments are
persuasive. First, the parties presented conflicting witness testimony about
whether Fuentes invoked his right to remain silent under Miranda v. Arizona, 384
U.S. 436 (1966), when Deputy Hause interrogated him. It was therefore for the
district court to determine the credibility of the witnesses, and resolve any
conflicts. We decline to disturb that determination in the absence of any
identifiable error. United States v. Bhagat, 436 F.3d 1140, 1146 n.3 (9th Cir.
2006) (“It is the province of the trier of fact ‘to determine the credibility of
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witnesses, resolve evidentiary conflicts, and draw reasonable inferences from
proven facts.’” (quoting United States v. Magallon-Jimenez, 219 F.3d 1109, 1114
(9th Cir. 2000))).
Second, the district court did not abuse its discretion in allowing the
prosecutor to admit Fuentes’s statements to Deputy Hause. The statements were
used to prove the quantity, price, and source of the methamphetamine, not as
propensity evidence. See United States v. Melvin, 91 F.3d 1218, 1222-23 (9th Cir.
1996); Fed. R. Evid. 404(b).1
Third, the Government did not commit prosecutorial misconduct in eliciting
testimony of Fuentes’s statements to Deputy Hause. On the first day of trial,
defense counsel raised the Rule 404(b) issue (again) and the district court ruled that
the statements were admissible.2
Finally, we decline to consider Fuentes’s ineffective assistance of counsel
argument. Generally, we do not review ineffective assistance of counsel claims on
direct appeal unless one of two “extraordinary exceptions” applies: either 1) the
1
We review de novo whether evidence falls within the scope of Rule 404(b)
of the Federal Rules of Evidence, which prohibits propensity evidence. United
States v. DeGeorge, 380 F.3d 1203, 1219 (9th Cir. 2004).
2
We review de novo whether any prosecutorial misconduct occurred.
United States v. Flores, 802 F.3d 1028, 1034 (9th Cir. 2015), cert. denied, 137 S.
Ct. 36 (2016).
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record is sufficiently developed, or 2) counsel was obviously ineffective. United
States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009). Neither exception applies
here.
AFFIRMED.
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