                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 23 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   14-10453

              Plaintiff-Appellee,                D.C. No.
                                                 1:08-cr-00739-SOM-1
 v.

RAMIRO HERNANDEZ,                                MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                   Susan Oki Mollway, District Judge, Presiding

                      Argued and Submitted October 11, 2017
                                Honolulu, Hawaii

Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.

      Ramiro Hernandez (“Hernandez”) appeals his conviction and 300-month

sentence for: (Count One) conspiracy to distribute and possess with intent to

distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C.

§§ 846, 841(a)(1), and 841(b)(1)(A); (Count Two) possession with intent to



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2; and (Count Three) attempt to

possess with intent to distribute 500 grams or more of methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2. We have

jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

      1. Hernandez’s Sixth Amendment confrontation rights were not violated at

trial. First, the district court did not abuse its discretion by admitting into evidence

Raymond Villagomez’s (“Villagomez”) statements against Hernandez under

Federal Rule of Evidence 804(b)(6) (the “forfeiture by wrongdoing” exception).

As explained by the court, a preponderance of the evidence supported the

conclusion that Hernandez intended for and caused Villagomez to be unavailable at

trial, and that, as a result, the admission of Villagomez’s statements did not violate

the Confrontation Clause. See Giles v. California, 554 U.S. 353, 359 (2008)

(explaining that the forfeiture by wrongdoing exception applies against a criminal

defendant when the defendant acted with the design to prevent the witness from

testifying). That evidence included the facts that: (1) Hernandez’s relatives and

associates threatened Villagomez to convince him not to testify; (2) Villagomez’s

identity as a witness was not readily available to outside parties and therefore was

likely communicated to Hernandez’s relatives by or at the direction of Hernandez;


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and (3) Hernandez repeatedly nodded his head when Villagomez refused to answer

questions at trial. See United States v. Hernandez, No. CRIM. 08-00739 SOM,

2012 WL 1580454, at *7 (D. Haw. May 3, 2012) (explaining that “the nature of the

information (that Villagomez was cooperating with the United States against

Hernandez), as well as the nature of the people with whom Villagomez . . . had

altercations, supports the conclusion that Hernandez was involved in getting that

information to people for the purpose of having them intimidate Villagomez”).

      Second, the district court did not err by admitting into evidence recorded

phone calls between Jose Perez (“Perez”) and Hernandez in which Perez called

Hernandez at the direction of U.S. Drug Enforcement Administration agents to

confirm Hernandez’s involvement in the plan to distribute the methamphetamine.

Because Perez’s statements to Hernandez were not offered for the truth of the

matter asserted, the Confrontation Clause did not bar their admission. See

Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (explaining that the

Confrontation Clause “does not bar the use of testimonial statements for purposes

other than establishing the truth of the matter asserted”). Nor did the district court

err by admitting the agents’ testimony regarding instructions given to Perez before

Perez called Hernandez. For reasons similar to those explained in United States v.

Gouveia, 468 F. App’x 793, 796 (9th Cir. 2012) (Hernandez’s co-defendant’s


                                           3
appeal), the agents’ instructions “did not indicate to the jury that Perez had made

incriminating statements” about Hernandez, or that Perez had identified Hernandez

as his supplier. Indeed, the agents’ plan for Perez to call Hernandez could have

resulted from a law enforcement tip or other source implicating Hernandez in the

scheme to distribute the methamphetamine.

      2. The district court did not err by denying Hernandez’s motion for a new

trial and judgment of acquittal on the basis of insufficient evidence. Viewing the

evidence in the light most favorable to the government, a rational trier of fact could

have found Hernandez guilty beyond a reasonable doubt on all counts of the

indictment. See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) (explaining that

the “critical inquiry” when reviewing a sufficiency of the evidence claim is

“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”).

      With respect to Counts 1 and 3, the following evidence supports a

reasonable inference that Hernandez agreed with co-conspirators to distribute

methamphetamine, and that he took substantial steps to possess with the intent to

distribute methamphetamine in July 2006: (1) telephone records between

Hernandez and Perez and Gouveia during the course of the conspiracy; (2) three


                                          4
recorded conversations between Hernandez and Perez in which Hernandez

acknowledged receipt of methamphetamine in Hawaii and instructed Perez to

collect money; (3) testimony sufficient to establish Hernandez’s identity on those

recordings; (4) testimony that Hernandez taught a witness to hide drugs inside a

vehicle employing the same method as the one used in the two shipments; and (5)

Villagomez’s statements describing Hernandez’s role in acquiring the

methamphetamine from a source in Mexico and shipping it to Hawaii. See United

States v. Moe, 781 F.3d 1120, 1124–25 (9th Cir. 2015), cert. denied, 136 S. Ct. 342

(2015) (“[F]or a charge of conspiracy to possess a drug with intent to distribute, the

government must show that the buyer and seller had an agreement to further

distribute the drug in question.”) (citation and internal quotation marks omitted);

United States v. Mincoff, 574 F.3d 1186, 1195 (9th Cir. 2009) (“An attempt

conviction requires evidence that a defendant intended to violate the statute and

took a substantial step toward completing the violation.”) (citation omitted).

      With respect to Count 2, the evidence supports a reasonable inference that

the car that arrived in Hawaii in March 2006 was used to transport

methamphetamine. As a result, in light of the (1) above-referenced evidence that

Hernandez conspired and participated in the July 2006 shipment; (2) unique

similarities between the March and July 2006 shipments; (3) common identities of


                                          5
the co-conspirators involved in the two shipments; and (4) evidence that

methamphetamine was hidden in both shipments in the same way that Hernandez

had taught a witness to hide drugs, a reasonable juror could infer that Hernandez

also aided in the March 2006 shipment with the intent that his co-conspirators

possess and distribute methamphetamine. See United States v. Sanchez-Mata, 925

F.2d 1166, 1168 (9th Cir. 1991) (“A conviction for possession with intent to

distribute narcotics may be based on one of three legal theories: (1) co-conspirator

liability[]; (2) aiding and abetting[]; and (3) exercising dominion and control over

the contraband.”) (citation omitted).

      3. Hernandez has not demonstrated that the government violated its

discovery obligations before or during trial. Because Hernandez has failed to

identify any evidence that the government allegedly failed to produce, and has not

demonstrated the materiality of any such evidence, we reject Hernandez’s

arguments as meritless. See Kyles v. Whitley, 514 U.S. 419, 433 (1995)

(explaining that, “for Brady purposes . . . favorable evidence is material . . . if there

is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.”) (citation and internal

quotation marks omitted). We also reject as meritless Hernandez’s unsupported




                                            6
claim that the government’s alleged failure to grant a witness immunity denied him

his right to a fair trial.

       AFFIRMED.




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