(D.C. No. 5:11-CR-00234-HE-1) W.D. Oklahoma
Before HOLMES, MURPHY, and MATHESON, Circuit Judges.
ORDER AND JUDGMENT [*]
Michael R. Murphy Circuit Judge.
A jury convicted Rafael Quintero-Rivas on multiple counts of violating federal drug laws. After the district court submitted the case to the jury, Quintero-Rivas moved for a mistrial, asserting counsel for a co-defendant "call[ed] him a drug dealer" during closing arguments, "much to [his] prejudice." The district court denied the motion. On appeal, Quintero-Rivas asserts the district court erred in denying his motion for a mistrial and in failing to sua sponte reconsider a previously denied motion to sever. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.
In 2010, the Drug Enforcement Administration ("DEA") contacted Immigration and Customs Enforcement Homeland Security Investigations ("HSI") for assistance with an investigation of methamphetamine distribution in Oklahoma City. As an outgrowth of this collaboration, HSI started investigating Quintero-Rivas. HSI employed traditional physical surveillance, wiretap TT3, a pen register, and a pole camera that overlooked Quintero-Rivas's apartment complex. This investigation established copious evidence Quintero-Rivas both distributed methamphetamine to other dealers and facilitated drug deals between other distributors.
Based on evidence obtained from this investigation, a grand jury returned a multi-count indictment charging Quintero-Rivas and others with various drug offenses. Campos filed a pre-trial motion for severance; Quintero-Rivas joined the motion. The motion principally asserted a joint trial would be unfair because most of the evidence pertained solely to Campos's co-defendants, whose alleged culpability far exceeded his own asserted wrongdoing. The district court denied the motion, concluding the trial would be neither unusually lengthy nor so complex a jury would be unable to segregate the evidence as to each defendant. See United States v. Pack, 773 F.2d 261, 267 (10th Cir. 1985) (concluding trial court did not abuse its discretion in denying severance motion when "the trial was neither unusually lengthy nor complex and the jury could compartmentalize the evidence as to each of the defendants and properly apply it to the court's instructions").
Eventually, Quintero-Rivas, Campos, Gonzalez-Gondarilla, and Figueroa-Labrada proceeded to trial. During its opening statement, the government told the jury the evidence would demonstrate each of the four defendants, "[a]lthough varying in degrees, " played a necessary role in the drug conspiracy set out in the first count of the indictment. Nevertheless, the government stated the evidence would show "there was one common factor in each and every transaction, and that person who was at the center of this organization was Rafael Rivas." Consistent with its opening statement, the overwhelming bulk of the government's extensive trial evidence centered around the drug trafficking activities of Quintero-Rivas.
During closing arguments, counsel for Gonzalez-Gondarilla, Michael Johnson, stated the evidence demonstrated Quintero-Rivas sold drugs, but asserted there was no evidence Gonzalez-Gondarilla participated in any drug trafficking. After the remarks, and after Figueroa-Labrada's counsel gave his closing, and after the government made its final closing, and after the district court submitted the matter to the jury, Quintero-Rivas objected to Johnson's comments and moved for a mistrial. In support of the motion, Quintero-Rivas argued as follows:
We had previously filed a motion to sever in this case. That motion was overruled. In that motion we set out that there's the possibility of the inconsistent defenses. In closing arguments those things came to life with Mr. Johnson pointing at Mr. Rivas and calling him a drug dealer, much to Mr. Quintero-Rivas's prejudice. We would move for a mistrial.
The district court denied the motion. The jury convicted Quintero-Rivas on all twelve counts.
On appeal, Quintero-Rivas "sets forth one proposition of error with two prongs." Appellant's Br. at 7. He asserts Johnson's conduct entitles him to a new trial under two separate legal theories: the district court erred (1) in failing to grant his motion for a mistrial; and (2) in failing to sua sponte reconsider and grant ...