               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 08a0197n.06
                           Filed: April 16, 2008

                                         06-5283

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                    )
                                             )
      Plaintiff-Appellee,                    )
                                             )
v.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
CHRISTIAN O. MUNGUIA, also known as          )   EASTERN DISTRICT OF TENNESSEE
Christian Mungilla-Sorrento,                 )
                                             )
      Defendant-Appellant.                   )




      Before: KEITH, DAUGHTREY, and ROGERS, Circuit Judges.


      PER CURIAM. The defendant, Christian O. Munguia, was convicted by a jury of

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

§§ 841(a)(1) and (b)(1)(A). On appeal, he contends that the district court erred by: (1)

denying his motion in limine to exclude certain evidence relating to cell-phone numbers;

(2) admitting evidence of witnesses’ cell phone contact lists and logs over his hearsay

objection; and (3) denying his post-trial motion for a material-witness warrant in order to

support his motion for a new trial. We find no reversible error and affirm.


                   FACTUAL AND PROCEDURAL BACKGROUND
06-5283
United States v. Munguia

       Munguia was jointly indicted on a charge of conspiracy to distribute

methamphetamine with three co-defendants, Charlie Stevenson, Vernon Whaley and

Frederico Lopez-Galardo, all three of whom pleaded guilty. Two, Stevenson and Lopez,

testified against Munguia at trial. Lopez told the jury that he was engaged in delivering

drugs for the defendant when he was caught and arrested on July 15, 2004. After his

arrest, he made a recorded telephone call to Munguia regarding the transaction. Due to

recording problems, much of the defendant’s side of the conversation was inaudible, but

a translator (the conversation was in Spanish) was able to identify the phrase “at what

time” followed shortly by “the money,” and Lopez explained that Munguia was asking

whether Lopez had gotten the money for the drugs he was supposed to deliver.

Stevenson, who had been arrested one day earlier than Lopez, testified that he was part

of a group that included Munguia and Whaley and that the group was involved in the

distribution of methamphetamine. He identified Munguia as the source of the drugs. In

addition, an unnamed co-conspirator, Denise Arellano, testified at trial that she was

arrested in June 2004 while carrying drugs from Munguia to Whaley.


       To corroborate the co-conspirators’ testimony, the prosecution offered evidence of

cell phone calls between each of the co-conspirators and several prepaid cell phones that

the prosecution alleged belonged to the defendant. To establish this tie, the prosecution

first presented the testimony of Barbara Cooper, custodian of records for T-Mobile, who

identified four specific phone numbers tied to four pre-paid cell phones. She explained that

when a customer buys a pre-paid phone, subscriber information such as name and

                                           -2-
06-5283
United States v. Munguia

address is not required or verified if given. She also indicated that three of the numbers

in question did not contain any subscriber information and that the remaining number was

linked with a subscriber named “Christian McGeea” and a date of birth that would have

made “Christian McGeea” six years old.


       Through the co-conspirators’ testimony, the prosecution linked one or more of these

pre-paid cell phone numbers to the numbers associated with the defendant in several of

the co-conspirators’ cell phones, i.e., the numbers that the co-conspirators had in their

electronic contact lists that they used to contact Munguia. In so doing, the prosecution

entered records and/or photos of the co-conspirator’s electronic contact lists and phone

logs that were stored in their cell phones, as well as the cell phones themselves.


       Finally, the prosecution called Marnie Corbitt, an agent with the Tennessee Bureau

of Investigation, to tie the cell phone number evidence together. Corbitt had worked on this

aspect of the case by examining the relevant cell phone records, and she testified that

during the relevant time period, there were multiple calls between each of the co-

conspirators’ cell phones and one or more of the T-Mobile numbers the prosecution

contended belonged to Munguia. She also explained that Munguia called his girlfriend,

Paula Brand, from jail and that the same number he dialed to reach her had been dialed

either from or to each of the T-Mobile cell phone numbers, in some cases many, many

times, further linking the phone numbers to the defendant.




                                           -3-
06-5283
United States v. Munguia

       Before trial, Munguia made a motion in limine to exclude the cell phone number

evidence as irrelevant and more prejudicial than probative. When arguing the motion at

the final pretrial conference, the defendant conceded that the issue was simply one of

relevance under Federal Rule of Evidence 403 and that the court would have to wait until

the proof came in and make a ruling at that time. During the testimony of the T-Mobile

custodian of records, the district judge accepted the exhibits regarding each of the pre-paid

phone numbers “subject to the objection that has already been made,” presumably

referring to the motion in limine. Later, during Lopez’s testimony, the defendant objected

on hearsay grounds to the introduction of the contact list and/or phone logs from the cell

phone Lopez used to call the defendant. Although this same type of testimony had come

in earlier through Arellano, defense counsel explained that he had forgotten to object at

that point. The judge overruled the hearsay objection, explaining that if the logs and

contact lists were hearsay, they were admissible under the hearsay exception for “records

of regularly conducted activity.” The record does not reflect that the defendant renewed

his objection when the same type of evidence was introduced during Stevenson’s

testimony.


       During trial, defense counsel asked the judge to issue a material witness warrant

for Jose Goicochea, a witness whose presence he had not been able to secure despite a

subpoena. Referring to testimony by co-defendant Lopez that he called Munguia to pick

him up at some point during the drug deal and that Munguia sent another person to come

get him, counsel explained that Goicochea – allegedly the person who picked up Lopez –

                                            -4-
06-5283
United States v. Munguia

was willing to testify that it was not Munguia who sent him. The judge issued the warrant,

but Goicochea still did not appear. After the verdict, the defendant made another motion

for a warrant to detain a material witness, arguing that Goicochea’s testimony could be

exculpatory and provide grounds “based on new evidence for a new trial.” The district

court denied the motion, holding that there was no current proceeding for which the warrant

could issue, that there was no reason to believe that the witness could be located at that

point in time, and that even if the testimony were helpful, it would be outweighed by the

considerable evidence supporting the conviction.


                                       DISCUSSION


       The defendant now contends that the district court should have granted his pre-trial

motion to exclude telephone records, his motion to exclude hearsay evidence, and his

post-trial motion for a material-witness warrant. We conclude that the district court did not

err in denying all three motions.


The Motion in Limine


       The defendant contends that he “was prejudiced by allowing the jury to hear

evidence regarding phone records without ever insuring that they were ever relevant” in the

absence of evidence that the records actually pertained to him and his cell phone, citing

Federal Rule of Evidence 403. As a result, he argues, the jury heard evidence that was

more prejudicial than probative. We review a district court’s decision to admit or exclude


                                            -5-
06-5283
United States v. Munguia

evidence for abuse of discretion and, even if an abuse is found, a new trial is not required

unless the defendant’s “substantial rights” were affected by the admission of the evidence.

See United States v. Bonds, 12 F.3d 540, 554 (6th Cir. 1993); Fed. R. Crim. P. 52(a).

Although we have also held that “a motion in limine does not preserve evidentiary

questions for appeal,” because the district court in this case accepted the evidence “subject

to the objection that [had] already been made,” presumably any error was preserved. See

Johnson Controls v. Jay Indus., 459 F.3d 717, 728 (6th Cir. 2006) (internal quotation and

citation omitted).


       Munguia provides no case law in support of his Rule 403 objection. Moreover,

contrary to his assertion that the cell phone evidence was irrelevant, he admits in his brief

that it “bolstered the credibility of [the co-conspirators] and supported the government in

their argument to convict the Appellant.” Indeed, the evidence was highly probative as

corroboration of the co-conspirators’ testimony that they were in contact with Munguia

regarding various drug transactions. It was also sufficiently linked to him both through the

co-conspirators’ testimony that they used the particular numbers to contact Munguia and

through the testimony of Corbitt, who studied the phone records and linked each of the pre-

paid cell phones to the defendant through his girlfriend’s phone number. Munguia’s

arguments that the evidence was prejudicial and that the jury was confused or misled are

neither well-developed nor supported by the record. We conclude that the district judge

did not abuse his discretion in admitting the cell-phone evidence.



                                            -6-
06-5283
United States v. Munguia

The Hearsay Objection


       Munguia next argues that the cell-phone contact lists and call logs are hearsay, that

they are not subject to a recognized exception to the hearsay rule, and that “Appellant was

prejudiced at the court’s admission of these cell phone address entries saved in the

software of the cell phone because the government used these phone numbers to

corroborate [the coconspirator’s] statements that the Appellant was involved in the

conspiracy [and] [t]he government’s case hinged entirely on the credibility of these three

witnesses.” We review the district court’s decision to admit evidence over a hearsay

objection de novo.” United States v. Gaitan-Acevedo, 148 F.3d 577, 591 (6th Cir. 1998).

In order to constitute reversible error, it must appear “more probable than not that the error

materially affected the verdict.” United States v. Hernandez, 227 F.3d 686, 696 (6th Cir.

2000); Fed. R. Crim. P. 52(a).


       Here, the defendant objected to testimony by Lopez regarding the records in

question, but not to that by Arellano and Stevenson. As a result, a more limited review for

plain error would be appropriate with regard to the last two witnesses. In any event, we

find no error because the claim fails under either standard. See Fed. R. Crim. P. 52(b).


       Hearsay is “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.

Evid. 801(c).    We have previously held that “[p]ersonal telephone directories and

notebooks are admissible as ‘drug records’ for non-hearsay purposes of showing that a

                                            -7-
06-5283
United States v. Munguia

conspiracy existed and that a defendant was a member of the conspiracy. See Gaitan-

Acevado, 148 F.3d at 591; see also United States v. Chavez, 229 F.3d 946, 953-54 (10th

Cir. 2000) (defendant argued that phone number on scrap of paper was hearsay because

it was offered to show that the person who answered the call was a co-conspirator, but the

court held that it was properly admitted for the “non-hearsay purpose of linking the co-

conspirators,” explaining that “[n]o, ‘truth’ can be gleaned from a mere phone number and

thus, the number could not have been submitted for the truth of the matter asserted.”) The

defendant presents no rationale for distinguishing the cell-phone contact lists and logs from

paper-based personal telephone directories or notes introduced for the purpose of

establishing a conspiracy, and we see none. We conclude, therefore, that the evidence

was properly admissible for the non-hearsay purpose of linking Munguia to his co-

conspirators. Although this rationale was not the basis upon which the district court

admitted the evidence, we may affirm the district court on any basis apparent from the

record. See United States v. Bercier, 506 F.3d 625, 629-30 (8th Cir. 2007) (reviewing

court is “not bound by the grounds on which the district court admitted the evidence, as it

is a well-settled principle that we may affirm a district court’s judgment on any basis

supported by the record”) (internal quotation marks and citation omitted).


The Material Witness Warrant


       Finally, Munguia contends that his post-trial motion for a material witness warrant

to secure the testimony of Jose Goicochea, filed pursuant to 18 U.S.C. § 3144, should


                                            -8-
06-5283
United States v. Munguia

have been granted because Goicochea’s testimony would have provided a basis for a new

trial. Because the statute provides the district court with the discretion to issue such a

warrant upon showing of certain pre-conditions, we review the ruling for an abuse of

discretion. See 18 U.S.C. § 3144.


       The statute provides:


       If it appears from an affidavit filed by a party that the testimony of a person
       is material in a criminal proceeding, and if it is shown that it may become
       impracticable to secure the presence of the person by subpoena, a judicial
       officer may order the arrest of the person and treat the person in accordance
       with the provisions of section 3142 of this title. No material witness may be
       detained because of inability to comply with any condition of release if the
       testimony of such witness can adequately be secured by deposition, and if
       further detention is not necessary to prevent a failure of justice. Release of
       a material witness may be delayed for a reasonable period of time until the
       deposition of the witness can be taken pursuant to the Federal Rules of
       Criminal Procedure.


18 U.S.C. § 3144.


       First, it is questionable whether section 3144 is applicable post-trial, i.e., whether

there is a “criminal proceeding” within the meaning of the statute at that point in the

proceedings. The district judge apparently held that it could not be invoked post-trial. The

defendant has not produced any authority to the contrary, and we have found none. Even

assuming, however, that the statute is applicable, the defendant’s claim fails on other

grounds.




                                            -9-
06-5283
United States v. Munguia

       “[A]n application for a material witness warrant under § 3144 must establish

probable cause to believe that (1) the witness’s testimony is material, and (2) it may

become impracticable to secure the presence of the witness by subpoena.” United States

v. Awadallah, 349 F.3d 42, 64 (2nd Cir. 2003). Here, the defendant cannot meet the

requirement of materiality. The only purpose of the testimony at issue – Jose Goicochea’s

assertion that somebody besides Munguia sent him to pick up Lopez – would be to

impeach Lopez’s testimony that he called Munguia to pick him up and that Munguia sent

somebody, presumably Goicochea, to do so. But we have held that impeachment

testimony alone cannot support a motion for a new trial. See United States v. Braggs, 23

F.3d 1047, 1050-51 (6th Cir. 1994). And, given the overwhelming proof of guilt introduced

at trial including testimony from three co-conspirators that was both consistent and

corroborated by their cell phone records, it is obvious that Goicochea’s testimony would

not have produced an acquittal – nor would it if the case were retried. For this reason,

even if we were to find error in connection with the district court’s ruling, the error would

necessarily be harmless.


       Finally, we note that the record indicates that the defendant failed to comply with the

affidavit requirement in section 3144. Although neither the district court nor the parties

addressed this issue, counsel for defendant acknowledged at oral argument that no

affidavit had been filed with the motion for a material witness. This deficiency in the record

provides an additional ground upon which to uphold the district court’s ruling.



                                            - 10 -
06-5283
United States v. Munguia

                                    CONCLUSION


       For the reasons set out above, we AFFIRM the judgment of the district court.




                                         - 11 -
