                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 29 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-30179

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00149-JDS-2

  v.
                                                 MEMORANDUM*
MAURISIO RAMIREZ,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-30180

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00149-JDS-3

  v.

GILBERTO ACEVEDO,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-30194

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00149-JDS-1

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
DOMINGO BAEZ,

               Defendant - Appellant.




                    Appeal from the United States District Court
                            for the District of Montana
                 Jack D. Shanstrom, Senior District Judge, Presiding

                     Argued and Submitted November 14, 2011
                                Portland, Oregon

Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.

      Defendant-appellant Maurisio Ramirez appeals his conviction of conspiracy

to posses with intent to distribute cocaine in violation of 21 U.S.C. § 846. His co-

defendants Gilberto Acevedo and Domingo Baez appeal their related convictions

of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C.

§ 846 and two counts of possession with intent to distribute cocaine in violation of

21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm in all respects.

      A.     Maurisio Ramirez

      Ramirez contends the district court erred in admitting co-conspirator Ricardo

Collazo-Canales’s statements identifying him as the conspiracy’s supplier of

cocaine. To determine whether a particular statement was made in furtherance of

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the charged conspiracy, the district court must consider “[t]he broad context or

circumstances in which the statement was made. . . . [T]he foundation need be

sufficient only to infer the statement’s purpose; it need not be laid bare on the

pages of the trial transcript.” United States v. Larson, 460 F.3d 1200, 1211 (9th

Cir. 2006).

      Collazo-Canales testified that he sold and distributed cocaine on Baez’s

behalf. In light of this testimony, the district court could reasonably infer that Baez

identified Ramirez to assure Collazo-Canales that he had a secure, trusted source of

cocaine. See id. at 1212 (finding no error in admitting statements that “informed

[the co-conspirator] of certain steps taken in the process of reaching the ultimate

goal of distribution . . . [and] served to keep [the co-conspirator] informed as to the

[group’s] drug supply”). Although Collazo-Canales testified that he believed that

the challenged statements were mere chit-chat, the court must look “to the

declarant’s intent in making the statement, not the actual effect of the statement.”

United States v. Williams, 989 F.2d 1061, 1068 (9th Cir. 1993). Consequently, the

district court did not err in admitting Collazo-Canales’s statements implicating

Ramirez.

      Nor did the district court err in denying Ramirez’s motion for acquittal.

Viewing the evidence in the light most favorable to the government, see United


                                           3
States v. Sarkisian, 197 F.3d 966, 984 (9th Cir. 1999), a reasonable juror could find

Ramirez guilty beyond a reasonable doubt in light of Collazo-Canales’s

inculpatory testimony, the wiretap recorded conversations between Baez and

Ramirez arranging drug transactions, and the considerable volume of phone calls

between Baez and Ramirez during the charged conspiracy. See United States v.

Romero, 282 F.3d 683, 686-87 (9th Cir. 2002); United States v. Ruiz-Lopez, 234

F.3d 445, 447-48 (9th Cir. 2000).

      Finally, the district court did not err in sentencing Ramirez. Information

given supporting a drug quantity approximation must possess sufficient indicia of

reliability to support its probable accuracy. The testimony of co-conspirators given

under oath can contain sufficient indicia of reliability to support the calculation’s

probable accuracy. See United States v. Alvarez, 358 F.3d 1194, 1213 (9th Cir.

2004) (citing United States v. Vought, 69 F.3d 1498, 1502-03 (9th Cir. 1995)

(finding that witness testimony supported trial court’s calculation of drug

quantity)). Accordingly, the district court properly relied on Baez’s testimony

under oath before the grand jury, as well as his statements to government agents,

regarding the quantity of cocaine involved in the charged conspiracy.

      B.     Gilberto Acevedo




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      Acevedo contends that the district court abused its discretion in denying his

motion for appointment of an expert in voice analysis to aid his attorney in

impeaching government witnesses’ testimony identifying him as the speaker on

various wiretapped cell phone conversations with Baez. “It is an abuse of

discretion to deny a request for an expert . . . where (1) ‘reasonably competent

counsel would have required the assistance of the requested expert for a paying

client,’ and (2) the defendant ‘was prejudiced by the lack of expert assistance.’”

United States v. Rodriguez-Lara, 421 F.3d 932, 940 (9th Cir. 2005) (quoting

United States v. Nelson, 137 F.3d 1094, 1101 n. 2 (9th Cir. 1998)). “Prejudice

must be shown by clear and convincing evidence.” Id.

      Here, the government presented considerable evidence implicating Acevedo

in the charged conspiracy other than the wiretap recordings. Collazo-Canales

testified that he observed Acevedo deliver a kilogram of cocaine to Baez, and that

Baez identified Acevedo as a supplier. Moreover, Acevedo’s attorney vigorously

cross-examined the government’s witnesses about their limited interactions with

Acevedo, as well as the language barrier between them, without expert assistance.

Under these circumstances, Acevedo failed to adduce clear and convincing

evidence of prejudice sufficient to establish that the district court abused its

discretion in denying his motion.


                                           5
      C.     Domingo Baez

      Baez contends that it was prejudicial error for the district court to permit the

jury to replay wiretap recordings of his conversations with Ramirez and Acevedo

in the privacy of the jury room, in his absence. “[A] defendant has a right to be

present when tape-recorded conversations are replayed to a jury during its

deliberations.” United States v. Felix-Rodriguez, 22 F.3d 964, 967 (9th Cir. 1994).

The government concedes that the district court erred, but argues that the error

was harmless because the government adduced ample evidence implicating Baez in

the charged conspiracy. This evidence included Collazo-Canales’s testimony that

he observed Baez in possession of three to four kilograms of cocaine during the

course of the conspiracy, and the testimony of six additional witnesses—including

street-level dealers, drug users, and an undercover government agent—who

purchased cocaine from Baez. In light of this evidence, we conclude that Baez has

failed to show that he suffered prejudice as a result of any error in allowing the

replay. See United States v. Sacco, 869 F.2d 499, 502 (9th Cir. 1989) (district

court did not abuse its discretion in allowing the replay of a videotaped deposition

where there was “ample physical evidence, aside from the videotape, of [the

defendant]’s criminal conduct,” such that showing the deposition was not a




                                          6
“repetition of the government’s case against [the defendant]” (internal quotation

marks omitted)).

      Nor did the district court err in calculating Baez’s sentence. The drug

quantity at issue did not involve “break points,” and therefore the district court’s

estimate did not result in a quantity “barely above” an amount corresponding to a

significantly lower sentencing range. See United States v. Scheele, 231 F.3d 492,

499 (9th Cir. 2000). The district court also properly applied a leadership role

enhancement under § 3B1.1(c) of the Sentencing Guidelines to Baez’s sentence.

The evidence adduced at trial established that Baez directed Collazo-Canales to

deliver cocaine to certain customers, and instructed Conner Urion to house a safe

containing drugs at his residence. These acts were sufficient to establish that Baez

exercised supervisory authority. See United States v. Salcido-Corrales, 249 F.3d

1151, 1154 (9th Cir. 2001).

      We decline to address the merits of Baez’s ineffective assistance of counsel

claim. “Claims of ineffective assistance of counsel are generally inappropriate on

direct appeal.” United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003)

(citing United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000)). Here, the record

is insufficiently developed as to why Baez’s attorney made the strategic decision to

admit Baez’s limited involvement in cocaine sales during his opening argument.


                                          7
See id. (“McKenna urges us to review her claim of ineffective assistance of counsel

on direct appeal because the record is sufficiently developed. But . . . [t]he record

is . . . not developed with respect to why her attorneys felt that the motions

McKenna wanted filed were not warranted by the evidence. . . . Accordingly, we

decline to review McKenna’s claim of ineffective assistance of counsel.”). Baez’s

claim would properly be raised in a motion under 28 U.S.C. § 2255.

      The conviction in No. 10-30180 (Acevedo) and the convictions and

sentences in No. 10-30179 (Ramirez) and No. 10-30194 (Baez) are AFFIRMED.




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