                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS June 17, 2013
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                      No. 12-6159
          v.                                   (D.C. No. 5:11-CR-00234-HE-1)
 RAFAEL QUINTERO RIVAS, also                            W.D. Oklahoma
 known as Rafael Rivas, also known as
 Rafael Quintero, also known as Guero,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HOLMES, MURPHY, and MATHESON, Circuit Judges.



                                I. INTRODUCTION

      A jury convicted Rafael Quintero-Rivas on multiple counts of violating

federal drug laws. 1 After the district court submitted the case to the jury,


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.

      1
        The jury found Quintero-Rivas guilty of conspiracy to possess with intent
to distribute methamphetamine, in violation of 21 U.S.C. § 846; three counts of
distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); one count
of possession with intent to distribute methamphetamine, in violation of 21 U.S.C.
                                                                     (continued...)
Quintero-Rivas moved for a mistrial, asserting counsel for a co-defendant

“call[ed] him a drug dealer” during closing arguments, “much to [his] prejudice.”

The district court denied the motion. On appeal, Quintero-Rivas asserts the

district court erred in denying his motion for a mistrial and in failing to sua

sponte reconsider a previously denied motion to sever. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, this court affirms.

                                II. BACKGROUND

      In 2010, the Drug Enforcement Administration (“DEA”) contacted

Immigration and Customs Enforcement Homeland Security Investigations (“HSI”)

for assistance with an investigation of methamphetamine distribution in

Oklahoma City. As an outgrowth of this collaboration, HSI started investigating

Quintero-Rivas. 2 HSI employed traditional physical surveillance, wiretap TT3, a

pen register, and a pole camera that overlooked Quintero-Rivas’s apartment

complex. This investigation established copious evidence Quintero-Rivas both


      1
        (...continued)
§ 841(a)(1); and seven counts of use of a communication facility to facilitate the
distribution of methamphetamine, in violation of 21 U.S.C. § 843(b).
      2
        HSI Special Agent Austin Shaver testified the DEA sought HSI’s
assistance because the large size of the criminal enterprise under investigation
required extensive surveillance. Ultimately, when the original wiretap (“TT1”)
identified an independent avenue for investigation centered around Quintero-
Rivas, the matter was “spun off” to HSI. HSI then obtained a separate wiretap
(“TT3”) of a phone utilized by Quintero-Rivas to facilitate the distribution of
methamphetamine. The evidence adduced at the trial in this case flowed from the
investigation surrounding wiretap TT3.

                                          -2-
distributed methamphetamine to other dealers and facilitated drug deals between

other distributors.

      Based on evidence obtained from this investigation, a grand jury returned a

multi-count indictment charging Quintero-Rivas and others 3 with various drug

offenses. Campos filed a pre-trial motion for severance; Quintero-Rivas joined

the motion. 4 The motion principally asserted a joint trial would be unfair because

most of the evidence pertained solely to Campos’s co-defendants, whose alleged

culpability far exceeded his own asserted wrongdoing. 5 The district court denied


      3
       The indictment also set out charges against Valente Campos, Jesus
Figueroa-Labrada, Irving Lechuga-Garcia, Eloy Villa, Jose Gonzalez-Gondarilla,
and Ivan Guzman-Torres.
      4
        Quintero-Rivas asserts the district court erred, late in the trial, when it
failed to sua sponte reconsider its pre-trial denial of this motion. He did not,
however, include in the record a copy of the severance motion or the
government’s response thereto. But cf. 10th Cir. R. 10.3(D)(2) (providing that
when an appeal is from an order disposing of a motion, the motion and any
response thereto must be included in the record). Although under no obligation to
do so, this court has accessed the relevant materials through the district court’s
electronic docket. Nevertheless, we do not recommend relying on this
discretionary procedure. See Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 908-10
(10th Cir. 2009) (refusing to hear claims of error predicated on materials not
included in the record).
      5
       Given this rationale, Quintero-Rivas’s joinder in the motion is puzzling.
As reflected in the indictment, Quintero-Rivas was the central player in the
alleged conspiracy. Quintero-Rivas was named in twelve of the twenty counts,
while Campos was named in only three of the twenty counts. Furthermore, all
twenty counts, including those that did not name him, revolved around Quintero-
Rivas. It is simply not possible the type of spillover identified in the motion
could have impacted Quintero-Rivas. His joinder might be explained by the fact
the motion also argued severance would be appropriate if, after a James hearing,
                                                                        (continued...)

                                         -3-
the motion, concluding the trial would be neither unusually lengthy nor so

complex a jury would be unable to segregate the evidence as to each defendant.

See United States v. Pack, 773 F.2d 261, 267 (10th Cir. 1985) (concluding trial

court did not abuse its discretion in denying severance motion when “the trial was

neither unusually lengthy nor complex and the jury could compartmentalize the

evidence as to each of the defendants and properly apply it to the court’s

instructions”).

      Eventually, Quintero-Rivas, Campos, Gonzalez-Gondarilla, and

Figueroa-Labrada proceeded to trial. During its opening statement, the

government told the jury the evidence would demonstrate each of the four

defendants, “[a]lthough varying in degrees,” played a necessary role in the drug

conspiracy set out in the first count of the indictment. Nevertheless, the

government stated the evidence would show “there was one common factor in

each and every transaction, and that person who was at the center of this


      5
        (...continued)
the district court concluded certain statements were only admissible against some
defendants. See United States v. James, 590 F.2d 575, 580-83 (5th Cir. 1979)
(holding a trial court should ordinarily not allow a jury to hear out-of-court
coconspirator declarations before holding a hearing, outside the jury’s presence,
to determine whether such statements are admissible under Federal Rule of
Evidence 801(d)(2)(E)). After holding a James hearing, however, the district
court concluded the charged conspiracy existed, Quintero-Rivas and Campos were
members of the conspiracy, and all the statements at issue were made in the
course of and in furtherance of the conspiracy. See United States v. Lopez-
Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996) (setting forth standard for
admitting evidence pursuant to Rule 801(d)(2)(E)).

                                         -4-
organization was Rafael Rivas.” Consistent with its opening statement, the

overwhelming bulk of the government’s extensive trial evidence centered around

the drug trafficking activities of Quintero-Rivas. 6

      During closing arguments, counsel for Gonzalez-Gondarilla, Michael

Johnson, stated the evidence demonstrated Quintero-Rivas sold drugs, but

asserted there was no evidence Gonzalez-Gondarilla participated in any drug

trafficking. After the remarks, and after Figueroa-Labrada’s counsel gave his

closing, and after the government made its final closing, and after the district

court submitted the matter to the jury, Quintero-Rivas objected to Johnson’s

comments and moved for a mistrial. In support of the motion, Quintero-Rivas

argued as follows:

      We had previously filed a motion to sever in this case. That motion
      was overruled. In that motion we set out that there’s the possibility
      of the inconsistent defenses. [7] In closing arguments those things

      6
       It is unnecessary for purposes of resolving this appeal to set out the
extensive trial evidence supporting the jury’s guilty verdicts as to Quintero-Rivas.
It would be an understatement, however, to call the evidence overwhelming. The
government presented to the jury a multitude of wiretapped phone calls in coded
language highly indicative of the drug trade. Extensive physical surveillance
supported each alleged drug transaction identified in the indictment.
Furthermore, as the investigation was coming to a close, officers arrested one of
the co-conspirators leaving Quintero-Rivas’s apartment with a substantial quantity
of methamphetamine. Finally, when agents eventually searched Quintero-Rivas’s
apartment, they found a large sum of cash, a digital scale coated with
methamphetamine residue, a drug ledger, and several cell phones.
      7
      As should be apparent from the discussion above, at no point did Campos’s
motion to sever raise the potential for inconsistent defenses as a basis for
                                                                       (continued...)

                                          -5-
      came to life with Mr. Johnson pointing at Mr. Rivas and calling him
      a drug dealer, much to Mr. Quintero-Rivas’s prejudice. We would
      move for a mistrial.

The district court denied the motion. The jury convicted Quintero-Rivas on all

twelve counts.

                                 III. DISCUSSION

      On appeal, Quintero-Rivas “sets forth one proposition of error with two

prongs.” Appellant’s Br. at 7. He asserts Johnson’s conduct entitles him to a new

trial under two separate legal theories: the district court erred (1) in failing to

grant his motion for a mistrial; and (2) in failing to sua sponte reconsider and

grant his previously denied severance motion. Neither contention is meritorious.

A. Mistrial

      In support of his assertion the district court erred in denying his request for

a mistrial, Quintero-Rivas points to comments made by Johnson during opening

and closing statements. In particular, Quintero-Rivas asserts Johnson sought to

inculpate him, essentially acting as a second prosecutor. According to Quintero-

Rivas, he was forced to defend himself against both the accusations of the

government and from repeated, unsubstantiated statements from Johnson.

      Quintero-Rivas did not object to any of the comments he now identifies as

improper. As a result, the district court was denied the opportunity to give a


      7
       (...continued)
severance. See supra n.5 & accompanying text.

                                          -6-
specific curative jury instruction, should it deem one appropriate. United States

v. Martinez, 455 F.3d 1127, 1130 n.2 (10th Cir. 2006) (stating a defendant must

object “at the first reasonable opportunity” so the district court may take curative

actions less drastic than a mistrial). For that reason, this court should limit its

review to plain error. United States v. Lamy, 521 F.3d 1257, 1265 (10th Cir.

2008). Because, however, Quintero-Rivas is not entitled to relief even under the

normally applicable abuse-of-discretion standard, United States v. Meridyth, 364

F.3d 1181, 1183 (10th Cir. 2004), this court need not further consider the

question.

      A mistrial is appropriate only when a defendant’s right to a fair and

impartial trial has been impaired. United States v. Caballero, 277 F.3d 1235,

1242 (10th Cir. 2002). In the context of this case, we consider (1) whether any of

the district court’s instructions limited the effect of the improper statements and

(2) “whether the improper remark[s] [were] inconsequential in light of the other

evidence of the defendant’s guilt.” Meridyth, 364 F.3d at 1183.

      Applying this standard, we first note that Quintero-Rivas’s assertion

Johnson acted like a second prosecutor is simply not supported by the record. It

is certainly true Johnson stated on several occasions that Quintero-Rivas was

dealing drugs. Johnson also, however, challenged key pieces of the evidence and

pointed to evidence contradicting the government’s theory that Quintero-Rivas

was a sophisticated drug distributor. Furthermore, Johnson spent much of his

                                          -7-
closing argument attacking the credibility of Tomas Olivas, the government’s

primary witnesses against Quintero-Rivas. In particular, he asserted the evidence

showed the primary drug distributor in this case was Olivas, and that Olivas had

set up a down-on-his luck Quintero-Rivas. 8 Likewise, Johnson asserted the

evidence demonstrated a drug ledger the government attributed to Quintero-Rivas

actually belonged to Olivas. Thus, while it is true that Johnson stated during his

arguments to the jury that the evidence demonstrated Quintero-Rivas distributed

drugs, it is simply not accurate to assert Johnson acted as a second prosecutor.

      In any event, Quintero-Rivas’s assertion he was prejudiced by Johnson’s

statements is unconvincing given the overwhelming evidence presented at trial.

See supra n.6 (summarizing overwhelming nature of evidence of Quintero-Rivas’s

guilt); Lamy, 521 F.3d at 1266 . Moreover, the district court’s general jury

instructions specifically informed the jury as follows: “The evidence in this case

consists of the sworn testimony of the witnesses, all exhibits which have been

received in evidence, and all facts which have been admitted or stipulated. The

arguments and statements of the attorneys are not evidence.” This court presumes

the jury followed these instructions. United States v. Davis, 40 F.3d 1069, 1079

(10th Cir. 1994) (“This court has held that potentially prejudicial statements by a



      8
       The record reveals that at the time Olivas met Quintero-Rivas and brought
him into the drug trade, Quintero-Rivas was unemployed because his restaurant
had just gone out of business.

                                        -8-
codefendant’s counsel can be remedied through jury instructions.”). Given the

overwhelming evidence against Quintero-Rivas and the district court’s instruction

regarding the attorneys’ opening and closing statements, this court easily

concludes the district court did not abuse its discretion in denying Quintero-

Rivas’s mistrial motion.

B. Severance

      Quintero-Rivas argues the district court erred in failing to sua sponte

reconsider and grant his previously denied motion to sever. In so arguing, he

misstates the substance of his severance motion. The motion was based

exclusively, at least in relevant part, on the potential for prejudice from spillover.

See supra n.5 & accompanying text. In the motion for mistrial made after the

case was submitted to the jury, however, Quintero-Rivas asserted the previously

denied motion was based on the possibility of inconsistent defenses. Quintero-

Rivas has not argued a severance motion based on the potential for prejudice from

spillover preserves for appellate review an inconsistent-defenses theory. Thus,

Quintero-Rivas has forfeited any severance claim based on inconsistent defenses.

To obtain appellate relief on a claim of error forfeited in the district court, an

appellant must satisfy the exacting dictates of Federal Rule of Criminal Procedure

52(b) by demonstrating the existence of plain error.

      Quintero-Rivas cannot show error, let alone plain error. The Federal Rules

of Criminal Procedure express a “preference in the federal system for joint trials

                                          -9-
of defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534,

537 (1993). “Prejudicial joinder occurs only when an individual’s right to a fair

trial is threatened or actually deprived.” United States v. Johnson, 130 F.3d 1420,

1427 (10th Cir. 1997). To establish “real prejudice, the defendant must

demonstrate that the alleged prejudice he suffered outweighed the expense and

inconvenience of separate trials.” United States v. Martin, 18 F.3d 1515, 1518

(10th Cir. 1994) (quotation omitted). The trial record reveals no antagonism of

defenses among any of the co-defendants. Each defendant simply asserted the

government failed to prove its case. No defendant tried to blame any other

defendant for drugs the government attributed to him. For the reasons set forth in

Section III.A. of this opinion, Quintero-Rivas cannot show any real prejudice

flowing from Johnson’s opening and closing statements.

                               IV. CONCLUSION

      The judgment of conviction entered by the United States District court for

the District of Western Oklahoma is hereby affirmed.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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