Thursday, January 14, 2016

Court rejects challenges to meth trafficking conviction

U.S. v. Ibarra-Diaz, 2015 WL 6847828 (11/9/15) (Kan.) (published) - Meth trafficking conviction affirmed. With the exception of a sufficiency of the evidence claim, Mr. Ibarra-Diaz's appellate claims are reviewed for plain error because they were not raised below.

Hearsay objections to various statements did not preserve Confrontation Clause arguments. The Court rejects challenges to the following detective testimony: 1) that he began his investigation based on info he obtained from the CI; 2) that the confidential informant (CI) said he was afraid of Mr. Ibarra-Diaz - the Court notes the district court told the jury to disregard this; 3) that the CI called the detective out of the blue and told him the CI had discussed a drug transaction with Mr. Ibarra-Diaz -- the Court finds this was not for a hearsay purpose because it was offered to explain why the detective did not put a body wire on the CI; 4) that the CI told the detective he gave the detective's phone number to Mr. Ibarra-Diaz -- this recounted nonverbal conduct, not a statement; 5) that the CI told the detective Mr. Ibarra-Diaz had a pound of meth to sell for $18,000, which was not testimonial hearsay; 6) that the CI suggested the detective pretend to be a stripper's boyfriend from Salina who did not speak Spanish -- again, not hearsay; 7) that the detective had prior information that Mr. Ibarra-Diaz had purchased a Ford Explorer -- not hearsay; 8) that the detective had other officers stop Mr. Ibarra-Diaz's car because the CI told him the CI was sent over with a pound of meth that was in the car -- not hearsay; 9) that the CI told the detective there was more meth at Mr. Ibarra-Diaz's house. Although the government conceded this statement was hearsay and that its admission violated the Confrontation Clause, the 10th decides Mr. Ibarra-Diaz failed to show violation of his substantial rights because he did not demonstrate a reasonable probability that the trial outcome would have been different without the error. The detective's testimony about why he reacted as he did at the drug bust - including the fact that he was a single dad raising two children - was irrelevant and likely to mislead the jury. But Mr. Ibarra-Diaz failed to show clear or obvious error that would meet the plain error standard and cannot show that the error impacted his substantial rights.

By failing to timely raise a duplicity challenge to the indictment based on the government's presentation of two factual predicates -- meth from the vehicle and meth from the residence -- for the same offense, Mr. Ibarra-Diaz waived it.

There was sufficient evidence to support the conviction. Mr. Ibarra-Diaz failed to challenge the sufficiency of the evidence to convict him as a principal in his opening brief and therefore waived it. Anyway, there was ample evidence on which the jury could have convicted him as an aider and abetter.