                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 25, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 10-8051
 v.                                           (D.C. No. 1:09-CR-00359-WFD-2)
                                                          (D. Wyo.)
 RICHARD VASQUEZ,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, TACHA, and EBEL, Circuit Judges.


      Richard Vasquez appeals from his conviction and sentence upon a jury

verdict of conspiracy to possess with intent to distribute, and to distribute

methamphetamine. 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A); Aplt. App. at 11.

He was sentenced to 156 months’ imprisonment and five years’ supervised

release. Aplt. App. at 605. On appeal, Mr. Vasquez challenges the admission of

his own statements and those of other claimed conspirators. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.



      *
        This order and judgment is not binding precedent, except under the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.
                                     Background

      In September 2009, a confidential informant identified Scott Hoffman as a

source of methamphetamine. Further investigation led the Wyoming Division of

Criminal Investigation (“DCI”) to believe that Mr. Vasquez was Mr. Hoffman’s

source. A search warrant was prepared and authorized. Mr. Vasquez’s statements

were made on October 17, 2009, when, following the search of Mr. Vasquez’s

home and his arrest, DCI Special Agent Scott Weischedel interviewed Mr.

Vasquez. Id. at 235. The search revealed small quantities of marijuana and

cocaine and a plastic spoon that tested positive for cocaine and methamphetamine,

along with a scale, plastic bags, six pistols and a rifle, and business cards

imprinted with the name “Richard Vasquez Drilling, Inc.”–all of which were

seized by authorities. Id. at 311-20, 323-24, 335. During his interview with the

DCI agent, Mr. Vasquez said he had cocaine in the house but no marijuana or

methamphetamine. Id. at 238. He did, however, admit to selling

methamphetamine “a long time ago” and that “he had used cocaine and

methamphetamine and that he shared it with people but that didn’t mean he sold

it.” Id. at 238-39.

      The deadline to file pretrial motions was January 4, 2010. Fed. R. Crim. P.

12(b)(3). Mr. Vasquez moved to exclude the seized cocaine and marijuana as

well as any lab reports and testimony referencing them on Fed. R. Evid. 403 and

404(b) grounds. Doc. 62. At the hearing on the motion the district court

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informed counsel it would await the foundation offered by the government before

ruling. Aplt. App. at 26. The parties proceeded to trial.

      Following admission and discussion of Mr. Vasquez’s statement to the DCI

Agent, the district court expressed some concern in chambers about the

voluntariness of the statement, id. at 259, 264, 277, which counsel for the parties

discussed at length, id. at 259-75. When the jury reconvened defense counsel

made an oral motion to suppress the statement in question. Id. at 278-80.

However, ruling on the motion, the district court determined that it was untimely

and that Mr. Vasquez failed to establish good cause for failing to file a motion

before trial or raise an issue regarding the statement’s voluntariness prior to its

introduction. Id. at 442-43. The court did issue a limiting instruction to the jury

advising them to disregard Mr. Vasquez’s statement unless they determined that it

was voluntary and giving them several factors to consider in assessing

voluntariness. Aplee. App. 31.

      Also at trial, co-defendant Scott Hoffman testified that he purchased

methamphetamine and marijuana from Shannon Blake, who was not indicted in

the case, and that Mr. Blake introduced Mr. Vasquez to Mr. Hoffman as his

source. Aplt. App. at 131, 134. Defendant’s counsel objected. Id. at 135-40.

The district court responded:

      “The Court will allow the testimony of this witness under
      801(d)(2)(E) and will make the appropriate findings, as I must, at the
      conclusion of the evidence in this case. The court is satisfied the

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      government has laid a satisfactory foundation.

             I’d also note that I’ve not been asked to do a James hearing in
      this matter, either orally or in writing; but, nevertheless, I’ll make
      the requisite findings and tie it all up at the end.”

Id. at 143.

      Mr. Hoffman testified that he purchased methamphetamine directly from

Mr. Vasquez after Mr. Blake’s arrest and that the two were in frequent phone

contact between 2006 and 2009. Id. at 148-50, 152-54, 164-66, 174, 180. He

also testified that he purchased marijuana from Mr. Vasquez on one occasion and

that Mr. Vasquez had also offered to procure cocaine. Id. at 156. Donna Cate,

Mr. Hoffman’s girlfriend, testified that she and Mr. Hoffman met Mr. Vasquez

through Mr. Blake, that she accompanied Mr. Hoffman to buy methamphetamine

from Mr. Vasquez nearly weekly, and that the men used the term “drill bits,”

which Mr. Hoffman told her was code for methamphetamine. Id. at 352-54, 356.

Mr. Vasquez made no objection to this statement.

      The court made its Rule 801(d)(2)(E) findings later, during the jury

instructions conference, concluding a preponderance of the evidence showed that

a conspiracy to sell methamphetamine existed; Mr. Vasquez, Mr. Blake, and Mr.

Hoffman were all members of that conspiracy; and the out-of-court statements

were made in furtherance of and during the course of that conspiracy. Id. at 475-

76, 478-79. With respect to Rule 404(b), the court considered testimony

demonstrating that Mr. Vasquez was a source of marijuana, that Mr. Hoffman

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purchased marijuana from Mr. Vasquez, and that Mr. Vasquez offered to sell him

cocaine. It concluded that these statements were inextricably intertwined with the

charged conspiracy and, therefore, outside the ambit of Fed. R. Evid. 404(b). Id.

at 482, 521-22. Moreover, the court concluded, Mr. Vasquez opened the door to

the introduction of evidence of cocaine and marijuana by putting forth Exhibit X,

which listed suspected marijuana and cocaine as among the items seized in Mr.

Vasquez’s home. Id. at 293-94, 318-20.



                                     Discussion

      On appeal, Mr. Vasquez argues that the district court erred in (1) denying

his untimely motion to suppress his own statement, (2) denying his motion to

suppress evidence of possession of cocaine and marijuana, and in (3) admitting

the statements of his alleged co-conspirators.

A.    Mr. Vasquez’s Statement.

      Mr. Vasquez argues that the statement made by him was involuntary and,

therefore, its admission violated the Fifth Amendment. Aplt. Br. 11. We review

the district court’s determination that a defendant has waived his right to suppress

evidence by failing to make a motion for abuse of discretion. See United States

v. Chavez-Marquez, 66 F.3d 259, 261 (10th Cir. 1995).

      A trial court is not required to hold a hearing on voluntariness when the

issue is not timely raised. Fed. R. Crim. P. 12(b)(3)(C); United States v. Miller,

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987 F.2d 1462, 1464 (10th Cir. 1993). Here, Vasquez did not move to suppress

his statement until after its admission at trial and did not object to its admission

when it was offered. See Miller, 987 F.2d at 1465. His failure to bring a pretrial

motion amounted to a waiver under Fed. R. Crim. P. 12(e). See United States v.

Hamilton, 587 F.3d 1199, 1213-14 (10th Cir. 2009). Mr. Vasquez’s argument that

we should consider the waiver under plain error is no longer viable; we recently

held that Rule 12(e)’s “good cause” standard is exclusive. United States v.

Burke, 633 F.3d 984, 991 (10th Cir. 2011).

B.    Mr. Vasquez’s Possession and Sale of Cocaine and Marijuana.

      Mr. Vasquez challenges the admission of evidence regarding marijuana and

cocaine. His challenge concerns (1) the admission of small quantities seized in

his home and (2) Mr. Hoffman’s references to sales of marijuana and cocaine

implicating Mr. Vasquez. Aplt. Br. 12. He asserts that this evidence led the jury

to reach the “inescapable conclusion that [Mr. Vasquez] was well versed in drug

dealing and that he was likely to have committed the crimes as charged in the

indictment.” Aplt. Reply Br. 6. We review a district court’s decision on the

admission of evidence for an abuse of discretion. Tanberg v. Sholtis, 401 F.3d

1151, 1162 (10th Cir. 2005) (citation omitted). Under this standard we reverse

“only if we have a firm and definite belief that the trial court made a clear error in

judgment.” Id. (internal quotation marks and citation omitted).

      Rule 404(b) provides that evidence of other “crimes, wrongs, or acts” is not

                                          -6-
admissible to prove character, although it may be admissible for other proper

purposes. Fed. R. Evid. 404(b). Even if otherwise admissible, the court may

exclude such evidence if “its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Fed. R. Evid. 403.

      The district court noted that the physical evidence of the cocaine and

marijuana would not be excluded under Rule 404(b) because their presence

indicated a lack of mistake or innocent purpose. Aplt. App. 473. But in making

its determination the court relied on the principle that “Rule 404(b) does not

apply to other act evidence that is intrinsic to the crime charged.” United States

v. Parker, 553 F.3d 1309, 1314 (10th Cir. 2009) (internal quotation marks and

citations omitted). The district court thus concluded that the uncharged acts

involving cocaine and marijuana were inextricably intertwined with the

conspiracy involving methamphetamine and therefore outside the ambit of Rule

404(b). Aplt. App. 521. The evidence was relevant because it tended to elucidate

the relationships among the members of the conspiracy and tended to show their

course of dealings. The district court did not abuse its discretion in making this

determination. See, e.g., United States v. Nicholson, 17 F.3d 1294, 1298 (10th

Cir. 1994). Likewise, the testimony showing that Mr. Hoffman was first

introduced to Mr. Blake as a source for marijuana within the time frame of the

                                        -7-
charged conspiracy does not fall into the scope of “other crimes, wrongs, or acts”

under Rule 404(b) because the marijuana and cocaine transactions were part and

parcel of the conspiracy.

      Mr. Vasquez also asserts that the probative value of the evidence regarding

his possession and sale of cocaine and marijuana is substantially outweighed by

the danger of undue prejudice. “Our deferential review applies both to a trial

court’s threshold determination of relevance under Rule 401 and to its conclusion

under Rule 403 that relevant evidence should nonetheless be excluded due to its

tendency to cause jury confusion or unfair prejudice.” Tanberg, 401 F.3d at 1162

(citation omitted). To the extent that Mr. Vasquez argues the physical evidence

of cocaine was prejudicial, this challenge is waived because he stipulated to the

trace amounts of methamphetamine and cocaine found in his bedroom. Aplt.

App. 314; see United States v. Cruz-Rodriguez, 570 F.3d 1179, 1184 (10th Cir.

2009). And as noted, the testimony including Mr. Vasquez’s sale of marijuana

and cocaine was highly relevant to demonstrating the course of dealing between

Mr. Hoffman and Mr. Vasquez. We therefore conclude it was not an abuse of

discretion for the district court to determine that the danger of unfair prejudice

did not substantially outweigh the probative value of the evidence.

C.    Mr. Blake and Mr. Hoffman’s Out-of-Court Statements.

      Federal Rule of Evidence 801(d)(2)(E) provides that “a statement by a co-

conspirator of a party during the course and in furtherance of the conspiracy” is

                                         -8-
not hearsay. Fed. R. Evid. 801(d)(2)(E). Accordingly, statements of co-

conspirators are admissible as substantive evidence against all other members of

the conspiracy. To establish a foundation for admission of evidence pursuant to

Rule 801(d)(2)(E) the government must prove the requisite facts by a

preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171, 175

(1987); United States v. Williamson, 53 F.3d 1500, 1517 (10th Cir. 1995). Mr.

Vasquez argues that the district court erred in admitting the testimony of Mr.

Hoffman and Ms. Cate because (1) no adequate foundation was provided under

Rule 801(d)(2)(E) and (2) Mr. Vasquez was denied the right to cross-examine Mr.

Blake, the alleged co-conspirator, in violation of the Confrontation Clause. Aplt.

Br. 13-14. “[W]hile the ultimate issue of the admission or exclusion of evidence

is reviewed for an abuse of discretion, preliminary foundational determinations,

such as whether statements offered under Rule 801(d)(2)(E) were made ‘during

the course of’ and ‘in furtherance of’ a conspiracy, are factual findings, reviewed

for clear error.” Williamson, 53 F.3d at 1517 (citation omitted).

      “Under Tenth Circuit law, a district court can only admit coconspirator

statements if it holds a James hearing or conditions admission on forthcoming

proof of a predicate conspiracy through trial testimony or other evidence.”

United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007) (internal

quotation marks and citation omitted). We conclude the district court did not

abuse its discretion in making its Rule 801(d)(2)(E) findings following the

                                        -9-
admission of the statements in question and that its findings were not clearly

erroneous. See, e.g., United States v. Cesareo-Ayala, 576 F.3d 1120, 1125 (10th

Cir. 2009). The government put forth evidence showing that Mr. Hoffman dealt

with Mr. Vasquez both directly and through Mr. Blake. Aplt. App. 132, 148-49.

The statements of Mr. Blake and Mr. Hoffman describe direct participation in the

conspiracy and, therefore, are not hearsay. See Townley, 472 F.3d at 1275.

         The statement of Mr. Blake does not implicate the Confrontation Clause

because it is neither hearsay nor testimonial. Accord Giles v. California

554 U.S. 353, 374 n.6 (2008). And even assuming Mr. Blake’s statement were

improperly admitted, any error would be harmless. See United States v. Burke,

571 F.3d 1048, 1057-58 (10th Cir. 2009). The prosecution put forth ample

evidence, and the in-court testimony of Mr. Hoffman and Ms. Cate proved that

Mr. Vasquez regularly sold methamphetamine to Mr. Hoffman between 2006 and

2009 regardless of any alleged sale to Mr. Blake.

         Finally, Mr. Vasquez waived his challenge on appeal to the admission of

Mr. Hoffman’s out-of-court statement to Ms. Cate regarding the significance of

the term “drillbits” by failing to object during trial and to argue for plain error

review in this appeal. See United States v. Solomon, 399 F.3d 1231, 1237-38

(10th Cir. 2005); United States v. Perez, 989 F.2d 1574, 1582 (10th Cir. 1993) (en

banc).

         We conclude the district court’s determination that the defendant waived

                                         - 10 -
his right to suppress his own statements was not an abuse of discretion and its

determination that the additional statements in question were made during the

course of and in furtherance of a conspiracy and that the declarants were members

of that conspiracy was not clear error.

      AFFIRMED. Appellant’s motion to withdraw his claim for ineffective

assistance of counsel is GRANTED.

                                          Entered for the Court


                                          Paul J. Kelly, Jr.
                                          Circuit Judge




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