APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING. (D.C. Nos. 1:11-CR-00193-NDF-1 and 1:11-CR-00193-NDF-5).
Ronald G. Pretty, Cheyenne, Wyoming for Appellant Eddie Serrato.
James H. Barrett, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, Interim, with him on the briefs), Cheyenne, Wyoming, for Appellant Sotero Negrete.
Jason M. Conder, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), Lander, Wyoming, for Appellee.
Before GORSUCH and BALDOCK, Circuit Judges, and JACKSON[*], District Judge.
JACKSON, District Judge.
Eddie Serrato and Sotero Negrete are drug dealers. In this case they both were found guilty of multiple counts related to their involvement in a methamphetamine trafficking conspiracy centered in Casper, Wyoming. On appeal, Mr. Serrato raises four challenges to his conviction and sentence: (1) the prosecutor engaged in misconduct that violated his Fifth and Sixth Amendment rights; (2) there was an unconstitutional variance between the crime charged (a single conspiracy) and the evidence presented at trial (two separate conspiracies); (3) the district court abused its discretion in its calculation of his offense level under the federal sentencing guidelines;  and (4) the district court erred in denying his motion to suppress evidence obtained from a traffic stop that constituted an unconstitutional seizure under the Fourth Amendment. Mr. Negrete raises arguments one and two above and adds that the evidence was insufficient to support his conviction of using or carrying a firearm in furtherance of a drug trafficking crime.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
A. Factual Background.
The somewhat complicated story that led to the defendants' convictions began in 2009 when Wyoming law enforcement began to scrutinize the activities of Mr. Negrete as a possible distributor of methamphetamine in Casper. During the next two years law enforcement kept track of Mr. Negrete through physical and video surveillance, authorized wiretaps, undercover work, controlled buys, and other means. This investigation revealed that Mr. Negrete was redistributing methamphetamine obtained from sources in Utah and Washington, namely, Eddie Serrato from Utah and Oscar Cervantes (who was charged but pleaded guilty in the case) from Washington. We will leave further discussion of the facts to our discussion below of the issues raised on appeal.
B. Procedural Background.
On July 22, 2011, Mr. Negrete and Mr. Serrato were charged in a multi-count, multi-defendant indictment. Both defendants pleaded not guilty. The defendants subsequently filed various pretrial motions, including a motion to suppress by Mr. Serrato challenging the constitutionality of an April 6, 2011 traffic stop, which the district court denied.
The combined trial against Mr. Serrato and Mr. Negrete, conducted between March 7 and 15, 2012, resulted in Mr. Serrato's conviction on two counts: conspiracy to possess with intent to distribute and to distribute methamphetamine; and attempt to possess with intent to distribute and aiding and abetting the distribution of
methamphetamine. Mr. Negrete was convicted on the same two counts plus nine others including conspiracy to launder money; the use and carrying of a firearm in furtherance of a drug trafficking crime; distribution of methamphetamine; possession with intent to distribute methamphetamine; and being a felon in possession of a firearm. He was acquitted on one count of possession of a firearm in furtherance of a drug trafficking crime.
The court subsequently held sentencing hearings on May 24, 2012. The government had filed, prior to the trial, notice of its intent to seek enhanced sentence penalties pursuant to 21 U.S.C. § 851. The recommended imprisonment range under the Guidelines for both defendants was 360 months to life in prison. The court sentenced Mr. Negrete to 360 months and Mr. Serrato to 300 months, each sentence to be followed by 10 years' of supervised release, plus fines and special assessments.
We address in turn the two issues raised by both defendants followed by the two additional issues raised by Mr. Serrato and the one additional issue raised by Mr. Negrete.
A. Prosecutor's Comments.
Both defendants challenge as prosecutorial misconduct two separate remarks made by government counsel during trial--one in the course of making an objection during the defendant's cross-examination of Drug Enforcement Administration Special Agent Ryan Cox (as to which the district court denied a motion for a mistrial), and the other in counsel's rebuttal closing argument (as to which the court denied defendants' objections). They contend that the misconduct violated their constitutional rights under the Fifth and Sixth Amendments.
The denial of a motion for a mistrial based upon prosecutorial misconduct is generally reviewed for abuse of discretion. United States v. Harlow, 444 F.3d 1255, 1265 (10th Cir. 2006); United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996). However, we recently held that when a defendant objects to a prosecutor's remark but does not move for a mistrial, and the district court erroneously overrules the objection, our standard of review is whether the error was harmless beyond a reasonable doubt. United States v. Begay, No. 12-2202, 2013 WL 6671208, at *7 (10th Cir. Dec. 19, 2013) (citing United States v. Pulido-Jacobo, 377 F.3d 1124, 1134 (10th Cir. 2004). Under either standard we first consider whether the prosecutor's conduct was in fact improper. If so, we examine whether any error committed by the district court in responding to the misconduct was harmless. In the latter regard we consider " the curative acts of the district court, the extent of the misconduct, and the role of the misconduct within the case as a whole." United States v. Martinez-Nava, 838 F.2d 411, 416 (10th Cir. 1988).
Turning to the first incident, during cross-examination of Special Agent Cox defense counsel asked whether the government had intercepted phone calls involving Mr. Serrato other than recordings from jail calls. Special Agent Cox responded that he believed they did have other such recordings. When defense counsel asked whether Agent Cox would play the recording, Agent Cox responded " I didn't prepare it today." Serrato App. Vol. III at 902. Defense counsel began to respond, " So you just believe --", at which point government counsel interrupted with a speaking objection: " Your Honor, ...