United States Court of Appeals, District of Columbia Circuit
November 8, 2016
from the United States District Court for the District of
Columbia (No. 1:07-cr-00065-1) (No. 1:07-cr-00065-2)
Elizabeth A. Brandenburg argued the cause for appellant
Borda. With her on the briefs was Marcia G. Shein.
D. Hernandez, appointed by the court, argued the cause and
filed the briefs for appellant Alvaran-Velez.
A. Heller, Attorney, U.S. Department of Justice, argued the
cause and filed the brief for appellee.
Before: Tatel and Wilkins, Circuit Judges, and Ginsburg,
Senior Circuit Judge.
Wilkins, Circuit Judge
Christian Fernando Borda and Alvaro Alvaran-Velez challenge
the outcome of a jury trial finding them guilty under 21
U.S.C. §§ 959, 960, 963 of conspiracy to distribute
five kilograms or more of cocaine knowing and intending that
the cocaine would be unlawfully imported into the United
States. In support of their challenge, Appellants allege that
the District Court committed numerous procedural errors,
including improper evidentiary admissions and exclusions,
insufficient jury instructions, Brady and
Napue violations, improper closing arguments, and
sentencing errors. Appellants further maintain that there was
insufficient evidence to permit a rational juror to find
guilt beyond a reasonable doubt. For the following reasons,
we affirm Appellants' convictions but remand for the
District Court to resentence Mr. Alvaran.
December 9, 2010, Appellants Borda and Alvaran were convicted
of conspiracy to distribute at least five kilograms of
cocaine with the intent or knowledge that the cocaine would
be unlawfully imported into the United States. At trial,
Appellants did not contest that they engaged in drug
trafficking, but argued that they lacked the knowledge or
intent to import the drugs into the United States. The
conspiracy at issue in this case involved three separate
transactions: (1) Palm Oil #1; (2) Palm Oil #2; and (3) the
El Chino Load. The evidence presented at trial, taken in the
light most favorable to the government, see United States
v. Bryant, 523 F.3d 349, 353 (D.C. Cir. 2008);
United States v. Washington, 12 F.3d 1128, 1135-36
(D.C. Cir. 1994), is as follows.
first Palm Oil deal occurred between January 2005 and May
2005 and involved the transportation of approximately 1, 553
kilograms of cocaine hidden in drums of palm oil from
Cartagena, Colombia to Puerto Progreso, Mexico. A Mexican
drug trafficker named Raul Valladares ("Junior")
received the cocaine in Puerto Progreso, a small Mexican port
on the eastern side of the country, in mid-2005. Junior
transported the cocaine from Puerto Progreso to Monterrey, an
inland city located approximately one hour and forty-five
minutes (200 kilometers) by car from the United States
border. According to the evidence, Monterrey lacked
sufficient demand for a load of cocaine as large as the Palm
Oil #1 deal. Beginning in August 2005, Junior began working
as an informant for the United States Drug Enforcement
exchange for transporting the cocaine to Monterrey, Junior
charged Appellants an 18% fee. The transportation fee was
calculated based on the quantity of cocaine, not the
total price (i.e., Junior received payment in kilograms of
cocaine, not money). The usual transportation fee for moving
cocaine across the United States border is 40-45%. After
selling the cocaine, Junior was responsible for paying
Appellants $9, 100 per kilogram of cocaine, which is the
typical price for cocaine in Monterrey. For cocaine sold in
the United States, the usual price increases to $14, 000 or
$15, 000 per kilogram. Appellants expected Junior to pay for
the cocaine within ten days of receipt.
Junior, however, was unable to reimburse Appellants within
the specified time period. In light of this development, Mr.
Alvaran met with Camilo Suarez, another confidential
informant, on June 15, 2005, to discuss Junior's failure
to pay. At this meeting, Mr. Alvaran noted that Junior had
started to send "partials" across the border.
Despite the successful sale of cocaine, Appellants still had
not received payment. Mr. Alvaran commented that Monterrey
was full of merchandise (i.e., cocaine), but it was not
selling as fast as they had predicted. Junior later explained
that he had already begun selling the cocaine at market price
and would be able to start delivering money in Monterrey.
on July 20, 2005, Mr. Borda met with Mr. Alvaran and Mr.
Suarez to discuss Junior's outstanding payments. Mr.
Suarez defended Junior's payment delay by explaining that
the "market went bad because the border got harder"
for Junior. Appellants then discussed the conditions at the
border in greater detail, including new police officers and
increased inspections. Mr. Borda admitted that he understood
Junior's difficulties because he had previously been a
drug dealer in the United States. In particular, Mr. Borda
acquired first-hand knowledge of the U.S. drug market while
living in New York and Florida, and was previously convicted
in the Southern District of Florida for conspiracy to possess
with the intent to distribute cocaine back in August 1998.
Nonetheless, Mr. Borda expressed frustration at Junior's
untimely payments and complained that Junior was not paying
the negotiated price. Mr. Borda referred to the fact that
Junior had taken the cocaine across the border, sold it at
the higher U.S. price, brought the money back to Monterrey,
and paid Appellants the Monterrey price for cocaine.
trial, Mr. Suarez testified that all 1, 553 kilograms of the
Palm Oil #1 deal were eventually transported into the United
States, with at least 200 kilograms trafficked to New York.
However, a substantial period of time existed when Mr. Suarez
did not know what Junior had done with the cocaine.
Additionally, Mr. Suarez noted that Mr. Borda previously
refused on two occasions to transport cocaine into the United
States because he did not want the "responsibility"
October 2005, Junior had paid Mr. Borda approximately $6
million. Junior's payments were all in United States
currency, mostly in $20 bills. However, the testimony at
trial established that the money received for the cocaine was
laundered through a money exchange house before being
distributed to Appellants. Once the proceeds were received in
Monterrey, Mr. Alvaran arranged for the cash to be
transported to Mexico City. Mr. Alvaran's secretary, Mr.
Lucas, would pick the money up in Mexico City and deliver it
to Juan Jaime Montoya-Estrada, another co-conspirator. The
money was then moved to either Mr. Alvaran's apartment or
Mr. Montoya's apartment, where Mauricio Cruz counted the
proceeds. The ledgers kept by Appellants and Mr. Montoya show
that Junior paid between $153, 000 and $1, 020, 000 every
couple of weeks between June 17, 2005 and August 4, 2005.
the shipment of the first Palm Oil load, but before Junior
successfully paid for all of the cocaine, Appellants and Mr.
Suarez initiated negotiations for a second Palm Oil deal. The
parties discussed shipping additional cocaine from Colombia
to Mexico, and Mr. Suarez recommended using Junior on this
transaction since the parties had already completed "one
run" with him. Although Appellants ordered the palm oil,
and Junior invested money in the new deal, the transaction
never materialized due to Junior's late payments on the
first Palm Oil load.
the third transaction, termed the El Chino Load, occurred in
approximately September 2005. In this deal, Appellants and a
drug trafficker named El Chino agreed to transport 3, 000
kilograms of cocaine from Colombia to Mexico City. The
cocaine would be transported in two "go-fast boats,
" and subsequently transferred to a
Venezuelan-registered fishing vessel. The fishing vessel
would meet a boat sent by El Chino off the coast of Honduras,
and El Chino's associates would then transport the
cocaine to Mexico City.
the initial shipment of cocaine, one of the
"go-fast" boats broke down. As a result, only 1,
500 kilograms of cocaine made it to the Venezuelan fishing
vessel. While the fishing vessel was supposed to meet El
Chino's associates approximately sixty miles off the
coast of Honduras, the crew spotted a U.S. plane above the
vessel and threw the cocaine into the Caribbean Sea before
being intercepted by the U.S. Coast Guard. Accordingly, when
the Coast Guard searched the vessel, no contraband was
the presentation of evidence in this case, the jury returned
a guilty verdict for both Mr. Borda and Mr. Alvaran. While
the District Court noted that the Government's evidence
was "not overwhelming, " United States v.
Borda, 786 F.Supp.2d 25, 36, 44 (D.D.C. 2011), it upheld
the jury's verdict and denied Appellants' request for
a new trial.
sentencing hearing, the District Court found Appellants
responsible for 200 kilograms of cocaine, in accordance with
Mr. Suarez's testimony that Junior delivered 200
kilograms of cocaine to New York. The District Court further
determined that Mr. Alvaran was "a manager or
supervisor" of a conspiracy that included at least five
participants. Given this finding, the District Court added
three extra points to Mr. Alvaran's offense level,
bringing his total level to 41. The Sentencing Guidelines
range for this offense level is 324 months to 505 months, and
the Probation Office recommended 360 months. The District
Court, however, noted that it was not bound by the Guidelines
range, and engaged in an analysis of the § 3553 factors.
See 18 U.S.C. § 3553(a). Following this
evaluation, the District Court imposed a below-Guidelines
sentence of 180 months for Mr. Alvaran, which was
substantially less than Mr. Borda's sentence of 300
sentencing, Mr. Borda and Mr. Alvaran filed timely appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
first argue that the Government's evidence at trial was
insufficient to permit a rational juror to find that
Appellants knew or intended that the cocaine would be
transported into the United States. Borda Br. 13, 19-25;
Alvaran Br. 6-7, 9-13. In their briefing, however, Appellants
ignore the Government's presentation of evidence on the
intent element, and erroneously draw all reasonable
inferences in favor of themselves. See Gov't Br.
18-19; see generally Borda Br. 20-25; Alvaran Br.
9-13. For the reasons discussed below, we reject
Appellants' sufficiency of the evidence challenge.
reviewing a conviction for sufficiency of the evidence, we
must determine whether, after viewing the evidence in the
light most favorable to the prosecution, any
rational juror could have found the elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319 (1979); United States v. Thompson, 279
F.3d 1043, 1050-51 (D.C. Cir. 2002); United States v.
Washington, 12 F.3d 1128, 1135-36 (D.C. Cir. 1994). This
standard seeks to preserve the jury's role as
fact-finder. Jackson, 443 U.S. at 319; United
States v. Glover, 681 F.3d 411, 423 (D.C. Cir. 2012). A
defendant "faces a high threshold" and bears a
"heavy burden" when seeking to overturn a guilty
verdict on this ground. Washington, 12 F.3d at 1135;
United States v. Branham, 97 F.3d 835, 853 (6th Cir.
viewed in the light most favorable to the Government, the
evidence is sufficient to allow a rational juror to find
guilt beyond a reasonable doubt. At trial, witness testimony
suggested that Appellants knew Junior was sending cocaine
across the border. Specifically, Mr. Suarez testified that
Junior had started to send "partials" to the border
and "[t]hey were waiting for the money to come back from
there." Appellants then conversed about Junior's
difficulties at the border, and Mr. Borda sympathized with
Junior's hardships because Mr. Borda had previously been
a drug dealer in the United States. Mr. Suarez further
testified that all 1, 553 kilograms of the Palm Oil cocaine
were transported into the United States, and at least 200
kilograms were sold in New York.
jury's decision to credit Mr. Suarez's testimony was
not unreasonable in light of the circumstantial facts
presented by the Government. First, the Government
introduced evidence regarding the geographic location of
Mexico and the United States, focusing particularly on the
distance from Monterrey to the U.S. border. Through witness
testimony, the Government established that Appellants knew
the Palm Oil cocaine would be transported by Junior from
Puerto Progreso to Monterrey. Puerto Progreso is a small
port, and Monterrey is an inland city with no direct access
to the ocean. Although Appellants argued that they intended
to sell the cocaine in either Mexico or Europe, a reasonable
juror could find that moving the merchandise inland
contradicted this theory. Further, Monterrey is located only
200 kilometers from the U.S. border, and the evidence showed
that Monterrey had an insufficient demand for the amount of
cocaine contained in the Palm Oil load. A rational juror
could infer that Appellants did not intend to sell the
cocaine in Mexico, but rather intended for the cocaine to be
distributed within the United States.
Appellants received payment for the Palm Oil cocaine in U.S.
currency. At no point in time did Appellants receive payment
in European or Mexican currency, refuting Appellants'
contentions that they intended to sell the drugs in Europe or
Mexico. To the contrary, Appellants kept ledgers that showed
the receipt of U.S. currency - mostly in $20 bills. Although
the profits passed through a money exchange house before
distribution, a reasonable juror could nonetheless infer that
the receipt of U.S. currency meant that the drugs were sold
in the United States. Thus, Mr. Suarez's testimony,
combined with the circumstantial evidence of geographic
location and receipt of U.S. currency, could enable a
rational juror to find guilt beyond a reasonable doubt.
Appellants cite numerous examples of evidence they believe to
be exculpatory or contradicting, see Borda Br.
20-25; Alvaran Br. 9-13, much of that evidence is also
consistent with the jury's guilty verdict, and the Court
must view all the evidence in a light most favorable to the
prosecution. See Jackson, 443 U.S. at 319;
Thompson, 279 F.3d at 1050-51. A reasonable juror
could examine the evidence and, taking all inferences in
favor of the Government, conclude that Appellants knew or
intended that the cocaine would be transported into the
United States. Accordingly, Appellants have not met their
high burden to show that no rational juror could find for the
Government, and the evidence is sufficient to support the
jury's guilty verdict.
next challenge four specific evidentiary rulings made by the
District Court. First, Appellants contend that the District
Court erred by denying Mr. Borda's motion to admit a 2006
e-mail from Junior to the DEA. Borda Br. 34-40; Alvaran Br.
17-19. Second, Mr. Borda argues that the admission of his New
York property records and Florida driver's license were
irrelevant to the case and prejudicial. Borda Br. 40-42.
Third, Mr. Borda asserts that the District Court erred by
admitting his prior federal drug conviction. Id. at
42-48. Fourth, Mr. Borda contends that the District Court
erroneously admitted co-conspirator testimony that was
unrelated to the charged conspiracy. Id. at 48-52.
We decline to reach the merits of these arguments because,
for the reasons that follow, we find that, even assuming
error, any such error was not prejudicial.
Court reviews the District Court's evidentiary rulings,
particularly the admission or exclusion of evidence, for
abuse of discretion. United States v. Vega, 826 F.3d
514, 537 (D.C. Cir. 2016) (per curiam); United States v.
Mitchell, 816 F.3d 865, 870 (D.C. Cir. 2016) (explaining
that the trial court's admissibility rulings are reviewed
for abuse of discretion if a timely objection is made, and
plain error if an objection is not preserved). Even if this
Court determines that an evidentiary error occurred, it will
not reverse an otherwise valid judgment unless the error
affected the appellant's "substantial rights."
Fed. R. Crim. P. 52(a) ("Any error, defect, irregularity
or variance which does not affect substantial rights shall be
disregarded."); United States v. Russo, 104
F.3d 431, 434 (D.C. Cir. 1997); United States v.
Baker, 693 F.2d 183, 188-89 (D.C. Cir. 1982). An error
affects the appellant's substantial rights if it
influenced or tainted the outcome of the district court
proceedings. United States v. Olano, 507 U.S. 725,
734 (1993); United States v. Smith, 232 F.3d 236,
243 (D.C. Cir. 2000). As the Supreme Court noted in
Kotteakos v. United States, "[t]he inquiry
cannot be merely whether there was enough to support the
result, apart from the phase affected by the error. It is
rather, even so, whether the error itself had substantial
influence. If so, or if one is left in grave doubt, the
conviction cannot stand." 328 U.S. 750, 765 (1946).
Where the Court is sure "that the error did not
influence the jury, or had but very slight effect, the
verdict and the judgment should stand." Id.
Thus, a reversal is usually only warranted where the error
was prejudicial. Olano, 507 U.S. at 734; see
Baker, 693 F.2d at 188-89.
Appellants contend that the District Court erred by denying
Mr. Borda's motion to admit a 2006 e-mail from
confidential informant Junior to the DEA. See Borda
Br. 16, 34-40; Alvaran Br. 17-19. Appellants argue that the
e-mail, which conveyed Mr. Borda's interest in sending
drugs to Europe, was relevant to the issue of intent and did
not contain impermissible hearsay. Borda Br. 35-40; Alvaran
Br. 17-19. Even assuming that the District Court's
decision to exclude this e-mail was error, it was not
March 6, 2006, Junior sent an e-mail to the DEA titled
"Tony-Mexico-Saturday 4 March." The e-mail included
a description of Junior's meeting with Mr. Borda in which
Mr. Borda offered Junior a new deal to settle Junior's
account. Most relevantly, the e-mail stated that "[h]e
is not interested in sending anything to the United States.
Nothing. He is interested in Spain, (Valencia) and Mex."
Appellants sought to admit this e-mail to negate the element
Government opposed admission of the e-mail and argued that if
the District Court admitted Junior's March 6, 2006
e-mail, it would need to admit another e-mail by Junior sent
later in the day regarding a meeting with a Mexican drug
trafficker named Esteban Olivera (referred to as Estevan). In
this second e-mail, Junior explained that he told Estevan
"about the business with [Borda]" and that Estevan
agreed to receive the containers. The e-mail further reported
that "[o]n the trip we receive from [Mr. Borda], he
wants to send to New York." The Government argued that
the pronoun "he" in the prior sentence referred to
Mr. Borda, and suggested Mr. Borda intended to distribute
cocaine in the United States.
District Court was faced with dueling e-mails rather than
Junior's testimony because Junior had disappeared by the
time of trial and was feared to have been kidnapped and
murdered. Ultimately, the District Court declined to admit
the March 6, 2006 e-mail. First, the District Court explained
that the e-mail did not relate to the charged conspiracy
because it occurred six months after the Palm Oil and El
Chino deals concluded. Second, the District Court noted that
the use of ambiguous pronouns in the e-mail rendered it vague
and confusing. Third, the District Court stated that even if
the email had been relevant (i.e., within the scope of the
conspiracy), it constituted hearsay. Finally, the District
Court acknowledged that if Junior's 2006 e-mail were
introduced, the Government would be permitted to admit the
second e-mail on redirect.
deciding whether the District Court erred, we find that the
exclusion of Junior's March 6, 2006 e-mail was not
prejudicial. First, Junior's 2006 e-mail
occurred outside the scope of the conspiracy and was
contradicted by another e-mail later that day. It therefore
had little probative value on the issue of Mr. Borda's
intent to sell drugs in the United States from January 2005
to September 2005. Second, Appellants introduced
more probative evidence of their intent at trial, rendering
Junior's 2006 e-mail duplicative. For example, Mr. Suarez
testified on cross-examination that Mr. Borda rejected
several offers to send cocaine to the United States. Mr.
Suarez further acknowledged that Mr. Borda maintained an
interest in transporting cocaine to Europe, particularly
Holland, Italy, Spain, Switzerland, and Portugal, and that
Mr. Borda had strong connections to ship the cocaine from
Mexico to Europe. ...