                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4345


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RUBEN ORTIZ BARRAZA, a/k/a Ruben Barraza-Ortiz,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00079-FDW-DCK-6)


Submitted:   January 28, 2010             Decided:   February 19, 2010


Before MICHAEL, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Edward R. Ryan, Acting United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Ruben        Ortiz       Barraza       was    convicted         by    a     jury    of

conspiracy to possess with intent to distribute at least 100

kilograms of marijuana, 21 U.S.C.A. §§ 846, 841(b)(1)(B) (West

1999 & Supp. 2009) (Count One), and possession with intent to

distribute of at least 100 kilograms of marijuana, 21 U.S.C.A.

§ 841(a),      (b)(1(B),        18   U.S.C.     § 18      (2006).           In   this      appeal,

Barraza challenges his conviction and sentence, and the district

court’s denial of his motion for a new trial under Fed. R. Crim.

P. 33 based on newly discovered evidence.                        We affirm.

            The government’s trial evidence showed that in January

2007 a tractor-trailer truck was stopped in Mississippi because

it    lacked    a      visible       Department          of    Transportation              number.

Inspection revealed that it contained rotting fruit and $1.2

million    in     cash     in    several       suitcases.             The    driver,        Benito

Delagarza, cooperated and made two recorded telephone calls to

his boss, Ruben Barraza, who was listed on documents in the

truck’s   cab     as     the    owner    of    the       trucking      company.            Barraza

agreed to send money so that Delagarza could return to Texas and

said he did not know “how much” was in the truck, but that

Delagarza should get a receipt for it.                        Delagarza later recorded

two   conversations         with      co-defendant            Ruben    Garcia         in    Texas,

during    which     they       discussed      preparations        for       two   more       trips

using a blue truck and transporting 2000 “pesos” to Charlotte,

                                               2
North     Carolina.     One   of   the    Drug    Enforcement    Administration

(DEA) agents who conducted the investigation in Texas testified

that the defendants used the term “pesos” to mean “pounds.”

             On March 19, 2007, Delagarza recorded both audio and

video tapes of a truck being loaded at a warehouse leased by

Barraza.     The lights in the warehouse were dimmed while packages

were placed in the truck, then the lights were turned back on

and   a   forklift    was   used   to    fill    the   truck   with   pallets   of

produce.      Co-defendants Ruben Barraza, Garcia, Edgar Barraza,

and Juan Garza were present.            Barraza operated the forklift.

             After    Delagarza     drove       the    truck   away    from     the

warehouse, federal agents kept the truck under surveillance and

unloaded produce and more than 2000 pounds of marijuana from it

some distance away.         The marijuana was flown separately to North

Carolina, while       Delagarza drove the truck to Charlotte.                 When

Delagarza reached Charlotte, the agents reloaded the marijuana

onto the truck.       Delagarza called Barraza on March 22, 2007, and

was told to go to a warehouse leased by co-defendant Patrick

Schwenke.      After the marijuana was unloaded by Schwenke, Juan

Sanchez-Solorzano, and others, they were arrested, as was co-

defendant Sharu Bey, who arrived to buy marijuana.                    Unaware of

the arrests, Garcia and Garza sent a moneygram to Delagarza the

same day.



                                          3
            In April and in late May 2007, Delagarza drove loads

of   marijuana    to   Indianapolis,         Indiana,   and    to    Durham,      North

Carolina, as directed by Barraza and Garcia.                   Ruben Barraza and

Garcia   were    arrested    in   June    2007.      Edgar     Barraza      became    a

fugitive.       Barraza,     Garcia,     and   Bey   went     to    trial   and   were

convicted on all counts.            Garza, Schwenke, Sanchez-Solorzano,

and two other co-defendants entered guilty pleas; however, only

Sanchez-Solorzano       testified       at     the   trial.          Delagarza     was

expected to testify, but disappeared shortly before the trial

began.

            Before     trial,     the    government     moved       to   admit    tape

recordings of the monitored conversations between Delagarza and

defendants Barraza and Garcia.                The district court granted the

motion, finding that the defendants’ inability to cross-examine

Delagarza did not violate the Confrontation Clause because the

recorded conversations were among co-conspirators.                          The court

also held that Delagarza’s statements were not hearsay because

they were not offered for “the truth of the matter asserted,”

Fed. R. Evid. 801, but to provide a context for the defendants’

statements.      The government requested a limiting instruction, to

which the court agreed.

            During     the    trial,      Barraza       and    Garcia       expressed

frustration at Delagarza’s absence.               Garcia’s attorney asked the

federal agent in charge of the Charlotte investigation if he

                                          4
knew where Delagarza was, although Barraza’s attorney did not

agree that the question should be asked.                 At the close of the

government’s evidence, Garcia’s attorney informed the court that

he intended to request a missing witness instruction; however,

he later decided not to do so.                Garcia did point out in his

closing     argument     that      neither   Delagarza       nor     Schwenke     had

testified.

            At   Barraza’s      sentencing    hearing,   while       objecting     to

the drug quantity attributed to him, his attorney brought to the

court’s attention a page from Garza’s presentence report which

stated    that   Garza    initially      lied    about   the       extent   of    his

involvement in the conspiracy.               The district court determined

that the information was not relevant to sentencing, but could

have been used to impeach Garza’s credibility had he testified

at trial.     The district court found that Barraza was responsible

for more than 4000 kilograms of marijuana, and was a leader in

the conspiracy.        The court imposed a within-guideline sentence

of 290 months imprisonment.

            Shortly after judgment was entered, Barraza filed a

motion for new trial, claiming that the information in Garza’s

presentence      report      was     newly      discovered     evidence          which

contradicted the testimony of DEA Agent Patina that Barraza was

connected to the Charlotte drug traffickers.                       Barraza alleged

that his Sixth Amendment Confrontation Clause right was violated

                                         5
because Garza did not testify at trial and Patina and other

federal agents were permitted to testify about information they

obtained from “absentee witnesses.”                  Barraza also claimed that a

chart   of   telephone        calls    and       contacts      based       on    information

obtained from the defendants’ seized phones and introduced into

evidence     through       Agent     Patina       showed       a    connection       between

Barraza    and    the   Charlotte          defendants      that       was       dependent    on

information from Garza.               Barraza argued that a new trial was

necessary where both Garza and Patina would testify.

             The government responded that the page from Garza’s

presentence       report      was    not     newly    discovered            evidence,       and

produced copies of two pretrial emails from the prosecutor to

Barraza’s attorney describing Garza’s initial claim that he was

involved only with the Charlotte shipment and his subsequent

admission      that     he     was     involved        with         the     shipments        to

Indianapolis and Durham with both Barraza and Garcia,                              but would

not testify about those shipments.                    The district court denied

the   motion      for   new    trial,       finding     that         the    allegedly       new

evidence was not newly discovered and that testimony by Garza at

a new trial would be impeaching at best and probably damaging to

Barraza.

             On     appeal,         Barraza        first       contends           that      the

Confrontation      Clause,      which       protects       a       criminal      defendant’s

right “to be confronted with the witnesses against him,” see

                                             6
U.S.    Const.       amend.       VI,     was       violated       in    several        respects.

Barraza       argues      that    the     district          court’s      “missing        witness”

instruction         should      have    been     limited      to    co-defendant            Garcia.

“It    is    well    settled      that     the       rule   regarding         missing       witness

instructions is that if a party has it peculiarly within his [or

her] power to produce witnesses whose testimony would elucidate

the    transaction,        the     fact    that       he    [or    she]       does    not     do   it

creates the presumption that the testimony, if produced, would

be unfavorable.”             United States v. Brooks, 928 F.2d 1403, 1412

(4th Cir. 1991) (internal quotation marks omitted).                                     Barraza’s

argument is without merit because the district court did not

give a missing witness instruction and Barraza’s attorney agreed

that    one    would      not    be     warranted.          In     addition,         Barraza       has

produced no evidence that Delagarza was accessible only to the

government,         or    any     other       reason        that    he        could     not       have

subpoenaed Delagarza to testify at trial.

               Barraza’s         real     claim       appears      to     be     that       he     was

prejudiced by Garcia’s question to Agent Patina whether he knew

where       Delagarza      was,       which     allowed       Patina      to     testify          that

Delagarza      had       disappeared,         and     permitted         the    inference          that

Delagarza was afraid to testify.                      In a sidebar conference during

Garcia’s       cross      examination           of     Patina,      the        district          court

informed all defense counsel that Garcia was free to ask about

Delagarza,      even      if     the    other       defendants      disagreed         with        that

                                                 7
trial strategy.             The district court did not abuse its discretion

in permitting Garcia to inquire about Delagarza’s absence. 1

                  Barraza    also    apparently     believes   that    the   district

court should have given a limiting instruction excluding him

from       Patina’s      testimony    that   Juan   Garza   had   pled   guilty   and

agreed       to    testify    against    Barraza.      He   contends     that   Patina

mistakenly said Garza agreed to testify against Barraza instead

of against Garcia, given that it was Garcia who had opened the

door       to     Patina’s    testimony.         However,   Patina     provided    the

information         on    redirect    examination     after    Barraza    asked    him

about two charts of telephone calls that he had prepared, only

one of which included Garza.                 Barraza himself thus opened the

door to admission of the information.                    We discern no error on

the part of the district court.

                  Barraza further contests the admission of his recorded

conversations with Delagarza on the ground that Delagarza was

not present for cross-examination.                    He acknowledges that his

objection at trial was that the voice on the tape was not him. 2

He now claims that a constitutional error occurred because he

believes that he may benefit from the Supreme Court’s decisions

       1
        The court struck Patina’s testimony that                             witnesses
sometimes fail to appear because they are fearful.
       2
       Barraza’s attorney maintained that the tape had only one
voice on it, not two as the government and translator believed.



                                             8
in Giles v. California, 128 S. Ct. 2678 (2008), and Melendez-

Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).                            Both Giles and

Melendez-Diaz deal with testimonial hearsay.                        Barraza’s reliance

on   these    cases     is    inapposite         because         Delagarza’s       recorded

statements were not hearsay as they were not offered to prove

the truth of the matter asserted, but to provide a context for

Barraza’s statements.

             Barraza    also       relies   on    Crawford        v.   Washington,        541

U.S. 36, 68 (2004) (holding that the Sixth Amendment requires

that a witness be unavailable and that the defendant have had a

prior     opportunity        for    cross-examination             before      testimonial

hearsay    evidence    may     be    admitted).         This      claim    is   similarly

unavailing because Crawford applies only to testimonial hearsay

statements and Delagarza’s statements were neither hearsay nor

testimonial.         Crawford       recognized         that      statements        made   in

furtherance     of     a     conspiracy         are,        by    their    nature,        not

testimonial.      Id. at 56.             Therefore, tape-recorded statements

between a defendant and a confidential informant are admissible

because (1) the defendant’s own statements are neither hearsay

nor made in anticipation of a criminal prosecution, and (2) the

informant’s statements are not hearsay (and thus not covered by

Crawford)    because       they    are   offered       at    trial     only   to    provide

context for the defendant’s statements and not for the truth of

the matter asserted.              See United States v. Tolliver, 454 F.3d

                                            9
660, 665-66 (7th Cir. 2006).          Consequently, in this case, the

tape-recorded conversations between Barraza and Delagarza were

correctly admitted despite Barraza’s inability to cross-examine

Delagarza.

           Next, Barraza argues that the district court clearly

erred in finding him to be a leader in the conspiracy.                  U.S.

Sentencing Guidelines Manual § 3B1.1(a) (2008).               The district

court’s determination that the defendant had a leadership role

in the offense is a factual finding reviewed for clear error.

United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).

A   four-level     increase   is   provided   under   §    3B1.1(a)   for   a

defendant who is an organizer or leader of an offense which

involved more than five participants or was otherwise extensive.

To qualify, the defendant must have been the organizer or leader

of “one or more other participants.”             USSG § 3B1.1 cmt. n.2.

Factors to be considered include:

     the exercise of decision making authority, the nature
     of participation in the commission of the offense, the
     recruitment of accomplices, the claimed right to a
     larger share of the fruits of the crime, the degree of
     participation in planning or organizing the offense,
     the nature and scope of the illegal activity, and the
     degree of control and authority exercised over others.

USSG § 3B1.1 cmt. n.4.

           Here,    the   evidence   did   not   clearly    establish    the

relative positions of Barraza and Garcia within the conspiracy.

While Delagarza initially identified Barraza as his boss, he

                                     10
apparently received instructions from both Barraza and Garcia

relating to the actual delivery of marijuana on various trips he

made.      However, Barraza ostensibly owned the trucking company

for which Delagarza was driving when he was initially stopped in

Mississippi with $1.2 million in his truck.                     Barraza leased the

warehouse in Texas where the 2000 pounds of marijuana was loaded

for shipment to Charlotte.             Barraza operated the forklift to

load produce onto the truck, which his attorney argued showed

that he was a worker, not a leader.                  However, at sentencing,

having viewed the videotape of the loading, the district court

determined    that   Barraza    appeared     to     be       directing    the   others

present as well as operating the forklift.                     Barraza argues that

Garcia was the leader of the conspiracy, but does not offer

concrete    evidence   of    that,     nor   does    he       refute     any    of   the

information     indicating     that     he    had        a     more    authoritative

position.      On    the    evidence    before      the       district    court,     we

conclude that the court did not clearly err in deciding that

Barraza had a leadership role in the conspiracy.

            Finally, Barraza claims that the district court abused

its discretion in finding that he had not produced new evidence

warranting a new trial.         A motion for new trial under Rule 33

may be filed up to three years after the verdict.                      Fed. R. Crim.

P. 33(b).      The district court’s order granting or denying a

motion for new trial under Rule 33 is reviewed for abuse of

                                       11
discretion.       United States v. Fulcher, 250 F.3d 244, 249 (4th

Cir. 2001).        To receive a new trial based on newly discovered

evidence,    a    defendant     must    demonstrate:         (1)   the    evidence       is

newly discovered; (2) he has been diligent in uncovering it; (3)

it is not merely cumulative or impeaching; (4) it is material to

the   issues     involved;    and      (5)    it    would    probably      produce       an

acquittal.       Id.

            Barraza’s new trial motion was filed almost a year

after he was convicted.            He claimed that information in Garza’s

presentence       report    that    Garza      did     not    cooperate        with    the

government        constituted       newly          discovered      evidence           which

contradicted Agent Patina’s testimony that Garza did cooperate.

In    response,    the     government        produced    evidence        that,    before

Barraza’s trial, it had informed his attorney about Garza’s pre-

trial    debriefing,       including     his       initial   denial      that    he    was

involved in the conspiracy apart from the Charlotte shipment,

his subsequent admission that he had participated further, and

his refusal to testify.            The information in Garza’s presentence

report was thus not new to Barraza’s defense attorney.                           Because

Barraza failed to make a threshold showing of newly discovered

evidence, the district court did not abuse its discretion in

denying the motion for new trial.

            We    therefore     affirm        the    judgment      of    the    district

court.     We dispense with oral argument because the facts and

                                         12
legal    contentions   are   adequately    presented    in   the    materials

before   the   court   and   argument    would   not   aid   the   decisional

process.

                                                                     AFFIRMED




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