Opinion
No. 1:17-CR-02015-EFS-1
01-18-2018
UNITED STATES OF AMERICA, Plaintiff, v. JOHNNY ANDRES ASUNCION, III, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL
On November 13, 2017, the Court commenced jury trial in this matter. ECF No. 74. On November 16, 2017, the jury returned a guilty verdict. ECF No. 82. Before the Court is Defendant Johnny Andres Asuncion, III's Motion for New Trial, ECF No. 85. Having thoroughly considered the parties' briefing and the record, the Court finds oral argument to be unnecessary. For the following reasons, the Court denies Mr. Asuncion's Motion.
I. APPLICABLE LAW
Under Federal Rule of Criminal Procedure 33, a court may grant a motion for new trial if "the interest of justice so requires." District courts have broad discretion in deciding whether to grant or deny a new trial. See United States v. Steel, 759 F.2d 706 (9th Cir. 1985). Nonetheless, new trials are granted "only in exceptional cases in which the evidence preponderates heavily against the verdict." United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981).
II. DEPUTY PEPPER'S TESTIMONY
During trial, near the beginning of the Government's case, Deputy Pepper testified that he was performing surveillance in an effort to arrest Mr. Asuncion on a federal probation warrant. Deputy Pepper further testified that based on information he had received, he had set up surveillance at a certain residence in Selah and was looking for "Johnny Asuncion, a black passenger vehicle, and a black case that he would be carrying with him." Mr. Asuncion's first argument is that "Deputy Pepper's testimony made it appear as if the black case was connected somehow to the federal warrant," and that this caused him prejudice. See ECF No. 85 at 3.
Quotations and citations to the trial proceedings are taken from a preliminary transcript provided by the Court Reporter. Neither party requested an official trial transcript.
Unbeknownst to the jury, Deputy Pepper had received information from an informant that Mr. Asuncion was at the Selah residence, driving a black Cadillac, and carrying a black case with drugs inside. See ECF No. 62 at 2. Rather than seeking to introduce such hearsay statements — and in compliance with the Court's order, ECF No. 76 — the Government carefully directed Deputy Pepper to explain only what he was looking for while surveilling the Selah residence. Thus, the Cadillac and black case served as identifiers of Mr. Asuncion, akin to describing someone as "wearing a leather jacket" or "holding a green umbrella." See Fed. R. Evid. 801(c) (limiting prohibition against hearsay to statements "offered to prove the truth of the matter asserted"). Further, by telling the jury that he was on the lookout for those identifiers, Deputy Pepper was explaining to the jury why those particular facts stood out to him as being noteworthy.
In addressing Mr. Asuncion's related motion in limine before trial, the Court ruled as follows:
[T]he Government may elicit testimony that an agent "received information from a source, and that based on this information the agent conducted surveillance at a specific location and was looking for Defendant, in a dark Cadillac, carrying a suitcase." The Government is cautioned to refrain from arguing, or eliciting testimony, that Defendant is more likely to have possessed the briefcase — or the methamphetamine therein — because a confidential informant said as much."ECF No. 76 at 4.
Contrary to Mr. Asuncion's arguments, Deputy Pepper's testimony did not suggest there was any connection between the black case and the federal arrest warrant. The Government's arguments likewise made no connection between the warrant and the black case. Moreover, even if the jury somehow incorrectly inferred from Deputy Pepper's testimony that the black case was linked to the federal warrant, Mr. Asuncion does not show how this caused him any prejudice — let alone why justice requires a new trial. See Pimentel, 654 F.2d at 545 (reasoning that new trials are appropriate only in "exceptional cases").
In closing, the Government stated as follows:
Deputy Pepper . . . told you that on February 9th of this year he was assigned to look for the defendant because there was an outstanding warrant for the defendant's arrest. And based on some information he received, he went to a specific house in Selah, and he told you that he was looking at that house for the defendant, he was looking for a black car, and he was looking for a black case . . . ."
III. TEXT MESSAGES
During trial, the Government presented the jury with evidence of text-messages found on a phone linked to Mr. Asuncion. The first group of text messages consisted of an exchange between Mr. Asuncion and someone named Kandi, as summarized below:
Incoming: This is Kandi look I'm not trying to kick it or be ur friend I'm just trying to get some dope can u hook me up or no I got moneySee Government's Exhibit 15 (errors in original) (emphasis added).
Outgoing: Yes how much
Incoming: A ball
Incoming: I don't have a ride tho
Outgoing: Where you at
Incoming: On nobhill across from the dollar store
Incoming: R u coming ?
Incoming: Hello
Outgoing: On way
Incoming: I already got some thanks tho unless u wanna front me til Thursday
Incoming: Aye it's Kandi can I get something er what?
Outgoing: Like what
Incoming: Ball lol
The Government likewise introduced a similar text-message exchange between Mr. Asuncion and someone named Brasker:
Incoming: Bro I need oz shit
Incoming: There's a bracelet and ring here if your interested plus I need a oz weed
Outgoing: K
Incoming: Ok
Incoming: This girl is the one with the jewelry its pretty nice
Outgoing: How much
Incoming: She just wants some shit she said haha
Incoming: Bro I need to ozs of shit i got some one coming from out of town
Incoming: What happened. Bro
Outgoing: To many cops
Outgoing: U still want
Incoming: How much best deal u can do 2 ounces smoke and qtr oz new shit
Outgoing: 225$
Incoming: Ok I got $180 till later today
Incoming: Is that cool
Outgoing: K
Incoming: Ru coming back bro
Incoming: Cop has someone pulled over across the street
Incoming: I need to get some shot to qtr oz then another qtr oz in a bit plus the smoke
Incoming: I can come there in bu myself I need shit and weed
Incoming: Ha I need oz weed and qtr oz
Incoming: Shit
Outgoing: In selah be over soon u need weed
Incoming: Ya I have enough for one oz smoke qtr oz shit
Incoming: Then I'm going to need another oz weed and qtr oz shit later yodaySee Government's Exhibit 16 (errors in original) (emphasis added).
Incoming: I need another qtr
Incoming: Oz
Outgoing: K
According to Mr. Asuncion, the Court should not have admitted the above text messages into evidence. Mr. Asuncion argues that "his statements or responses in the texts were a mere pretext to consideration of the incoming texts from Kandi and Brasker, and for the truth of the matter asserted." ECF No. 85 at 5. At trial, however, the Government introduced sufficient evidence to show that Mr. Asuncion authored the bold outgoing text messages, meaning they constituted party admissions. As is common with responsive statements, the bolded texts lack meaning without understanding what gave rise to them in the first place; statements such as "K" or "U still want" will have wholly different meanings depending on what preceded and prompted them. Thus, the incoming texts were admitted, not to prove the truth of those particular texts' content, but rather to inform the meaning of Mr. Asuncion's responses.
Despite Mr. Asuncion's claims otherwise, the disputed text messages were not admitted to show "that Mr. Asuncion was approached by at least two separate people seeking to buy drugs from him." See ECF No. 85 at 4. Instead, they were used to show that Mr. Asuncion made statements agreeing to sell drugs to two separate people. Accordingly, the Court finds it did not err in admitting the text messages and their admission does not weigh in favor of granting a new trial.
IV. PRIOR CONVICTION
Near the end of trial, the Court allowed the Government to present evidence showing that Mr. Asuncion was convicted in 2007 for distributing over an ounce of methamphetamine in 2006. When the Court admitted the prior-conviction evidence, it gave a limiting instruction pursuant to Federal Rule of Evidence 105, telling the jury to consider the evidence only for its bearing on Mr. Asuncion's "intent, opportunity, plan, knowledge, and/or absence of mistake and for no other purpose." See Fed. R. Evid. 404(b); see also Jury Instruction No. 14, ECF No. 78 at 15. Additionally, during closing arguments, the Government itself emphasized the limited role of such evidence and explained why it tended to show both knowledge and intent:
The fact of the defendant's prior conviction is relevant in understanding his knowledge and his intent to distribute. It is not character evidence. What does that mean? That means that you don't use that evidence of his prior conviction to think, well, he did it in the past, he must be doing it again. The law does not allow that. And if you find your mind trying to think of that evidence in that way, please stop. But that his prior conviction is relevant for this reason: When he looked in the black case and he saw the bags of the white crystals, there's no mistake that that's some kind of bath salt. He knows it's methamphetamine. How does he know it's methamphetamine? Because he has sold methamphetamine before. It's also relevant to prove his intent to distribute. . . . [I]n 2006 when defendant was convicted he had sold one ounce of methamphetamine. That shows that an ounce is a distributable amount. Well this was 756 grams, . . . it's 32 times what he had distributed in the past so clearly [an] amount for distribution.
In his Motion, Mr. Asuncion, argues that the jury should never have learned about his 2007 conviction. See ECF No. 85 at 6. Mr. Asuncion made similar arguments previously, which the Court rejected. See ECF No. 62. Before trial, the Court ruled that the Government could introduce the prior conviction to prove something other than Mr. Asuncion's criminal propensity, "such as motive, intent, knowledge, or absence of mistake." ECF No. 62 at 19 (citing Fed. R. Evid. 404(b)(2)). After all, the Government was entitled to introduce evidence — so long as it was otherwise admissible — if it tended to show knowledge or intent, even if Mr. Asuncion did not raise those issues in his defense. See United States v. Mayans, 17 F.3d 1174, 1182 (9th Cir. 1994) (reasoning that knowledge and intent are material issues, which the government must prove, regardless of whether those issues are disputed by the defendant).
In its prior order, ECF No. 62, the Court ruled that the 2007 conviction was admissible after analyzing it under the applicable four-part test:
Such evidence may be admitted if: (1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged.
Mr. Asuncion's prior conviction showed that he was familiar with the methamphetamine trade and knew how it was generally stored, transported, and sold. Especially given the testimony at trial that Mr. Asuncion was seen handling the black case and even admitted that he "may have looked in the [case]," his prior conviction was evidence of knowledge. Further, the prior-conviction evidence suggested Mr. Asuncion had the requisite intent, as it suggested that he knew that the amount of methamphetamine in the black case went far beyond a personal-use amount. See Fed. R. Evid. 401.
The Court therefore finds the evidence of Mr. Asuncion's 2007 prior conviction was properly admitted. Given both the Court's limiting instruction and the manner in which the Government used the evidence, the Court further finds any prejudicial impact did not outweigh the probative value of Mr. Asuncion's 2007 conviction. See Fed. R. Evid. 403. The admission of evidence relating to Mr. Asuncion's prior conviction for distributing methamphetamine does not weigh in favor of a new trial.
V. CONCLUSION
The Court finds that it properly admitted Deputy Pepper's testimony, the text messages from Kandi and Brasker, and limited evidence regarding Mr. Asuncion's 2007 conviction. Moreover, even assuming arguendo that one or more of these evidentiary rulings did constitute error, Mr. Asuncion suffered no substantial prejudice as a result of those rulings. See Fed. R. Crim. P. 33. The jury's verdict was supported by the weight of the evidence and the interest of justice does not require a new trial. Id.; see also Pimentel, 654 F.2d at 545.
Accordingly, IT IS HEREBY ORDERED:
1. Defendant's Motion for New Trial, ECF No. 85, is DENIED.////// ///// //// /// // /
2. As Defendant has already obtained the Rule 17(c) subpoena requested therein, Defendant's Ex Parte Motion, ECF No. 70, is DENIED AS MOOT.
IT IS SO ORDERED. The Clerk's Office is directed to enter this Order and provide copies to all counsel.
DATED this 18th day of January 2018.
s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge Q:\EFS\Criminal\2017\17-CR-2015;Asuncion.Deny.New Trial.LC1.docx
United States v. Bailey, 696 F.3d 794, 799 (9th Cir. 2012) (quoting United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002)). The Court also determined that, under Rule 403, the probative value was not substantially outweighed by any prejudicial impact. See ECF No. 62 at 20.