                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      February 19, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 12-1120
                                                (D.C. No. 1:09-CR-00056-PAB-10)
CARLOS RAMOS-CARRILLO, a/k/a                                (D. Colo.)
Chapin,

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before HARTZ, EBEL, and GORSUCH, Circuit Judges.


      Carlos Ramos-Carrillo managed an apartment building where the head of a

local drug ring rented space and conducted his trade. Mr. Ramos-Carrillo helped out

with that trade in various ways: he acquired apartments for storing drugs and guns,

he provided surveillance through on-site cameras and foot patrols, and he alerted the

ringleader when police showed up. Ultimately, Mr. Ramos-Carrillo and eleven


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
others found themselves indicted for their involvement in the business. All but

Mr. Ramos-Carrillo entered guilty pleas. At trial, a jury found Mr. Ramos-Carillo

guilty of conspiracy to distribute and possession with intent to distribute

methamphetamine.

       On appeal, Mr. Ramos-Carrillo argues that the indictment against him should

be dismissed. He claims the grand jury considering his case heard false testimony

that he was a member of MS-13, a nationwide street gang. And in his view, that

testimony was so prejudicial it prevented the grand jury from exercising its

independent judgment and denied him a fundamentally fair proceeding. See Bank of

Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (a nonconstitutional grand

jury error may result in dismissal if “the violation substantially influenced the grand

jury’s decision to indict, or if there is grave doubt that the decision to indict was free

from the substantial influence of such violations” (internal quotation marks omitted)).

       In fact, however, the grand jury was told no such thing. Witnesses testified

that other targets were members of MS-13. But Mr. Ramos-Carrillo was never

identified as an MS-13 member; no false information was provided to the grand jury

about him. To this, Mr. Ramos-Carrillo replies that the proceedings were still unfair.

Even allowing the grand jury to hear testimony about the MS-13 membership of

other targets prejudiced him: the public hates gangs, he says, and the prosecution fed

that hatred by recounting general background information about MS-13 activities in

other locales.


                                           -2-
      We don’t doubt the information the prosecution presented was powerful, and

we even assume it may have exceeded what was strictly necessary for the case at

hand. But there is no question that the evidence was directed to other defendants.

Neither is there any question the MS-13 discussion played (at the very most) only a

minor role in the grand jury proceeding: the district court found that 95% of the

grand jury testimony focused on the specific drug transactions and activities of the

defendants. R. vol. 1, at 688. And that case-specific testimony, including testimony

about Mr. Ramos-Carrillo’s personal involvement in illegal activities, was

substantial. Indeed, Mr. Ramos-Carrillo doesn’t now contest any of it. On this

record, we have a hard time faulting the district court’s assessment that there’s

insufficient “reason to believe that the grand jury’s decision to indict was

substantially influenced (or its independent judgment substantially impaired).”

Neither are we directed to authority that might compel such a conclusion.

      In an entirely different vein, Mr. Ramos-Carrillo claims the government

deliberately prompted one of his co-conspirators to testify (falsely) at trial that

Mr. Ramos-Carrillo delivered drugs to the ringleader’s apartment. See R. Supp.

vol. 2, at 389-90. There is, however, simply no evidence in the record before us that

the government knew the witness would testify falsely, let alone that the government

intended to front false testimony. See Johnson v. Mullen, 505 F.3d 1128, 1154

(10th Cir. 2007) (upholding a conviction where the record did not indicate that

prosecution knew allegedly perjured testimony was false). Mr. Ramos-Carrillo


                                           -3-
replies that, at the very least, the government committed reversible error by failing to

correct the false testimony. But that theory is also refuted by the record. The

prosecutor immediately corrected the false testimony, pressing the witness until he

confessed his false testimony (a fact that seems, if anything, to belie the suggestion

the government deliberately wished to present false testimony in the first place).

R. Supp. vol. 2, at 390-91.

       Finally, Mr. Ramos-Carrillo says the district court failed to answer the jury’s

questions regarding nearly 400 grams of cutting agent recovered from the apartment.

During deliberations, the jury initially asked what amounts it should consider in

determining the quantity of drugs — those actually seized or amounts discussed in

telephone conversations. The judge answered that the jury could consider the

amounts mentioned in telephone conversations. R. vol. 1, at 885-86. Then the jury

sent another note asking, “What about the cutting agent?? Also - can the quantity be

considered as intent to distribute or conspired to possess.” Id. at 887. While the

court and counsel were busy formulating an appropriate response to these latest

questions, the jury returned with a verdict. On the verdict form, the jury

“unanimously [found] the defendant conspired to distribute or conspired to possess

with the intent to distribute . . . 50 grams or more of methamphetamine (actual) [and]

500 grams or more of a mixture or substance containing a detectable amount of

methamphetamine.” Id. at 871-72. After trial, Mr. Ramos-Carrillo filed a motion for

new trial asserting error in the district court’s failure to address the cutting agent in


                                           -4-
answering these questions. He argued that the court should have informed the jury

that the cutting agent “should not be included in determining the quantity of

methamphetamine since it did not contain a detectable amount of methamphetamine.”

Id. at 882. Now on appeal Mr. Ramos-Carrillo pursues a slightly different theory,

arguing that the district court erred in failing to explain how the quantity of the

cutting agent might mitigate his intent to distribute methamphetamine.

      We cannot agree. Even assuming Mr. Ramos-Carrillo preserved the argument

he now wishes to pursue, we may review the district court’s denial of a new trial

motion at best only for abuse of discretion. United States v. McKeighan, 685 F.3d

956, 973 (10th Cir.), cert denied, 133 S. Ct. 632 (2012). Here, the jury reached a

verdict before the court could answer its latest question. Perhaps the court could

have forced it to wait for an answer, but it seems equally apparent the jury was able

to resolve its own question without the court’s assistance. After all, the jury

expressly found Mr. Ramos-Carrillo possessed an intent to distribute “50 grams or

more of methamphetamine (actual)” and “500 grams or more of a mixture or

substance containing a detectable amount of methamphetamine.” This verdict

suggests the jury well understood the existence of cutting agent evidence and the

light it might shed on Mr. Ramos-Castillo’s mens rea. In these circumstances, we are

unable to see how the district court’s acceptance of the verdict before answering the

jury’s question and its subsequent denial of a new trial amounted to an abuse of




                                          -5-
discretion. Neither, once again, has Mr. Ramos-Castillo identified any authority that

might compel a different result.

      The judgment of the district court is affirmed.


                                               Entered for the Court


                                               Neil M. Gorsuch
                                               Circuit Judge




                                         -6-
