United States of America v. Ricardo Omar Hernandez

United States Court of Appeals
For the Eighth Circuit
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No. 13-3678
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ricardo Omar Hernandez
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: May 16, 2014
Filed: August 13, 2014
[Unpublished]
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Before RILEY, Chief Judge, BEAM and SHEPHERD, Circuit Judges.
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PER CURIAM.
Ricardo Hernandez was convicted of conspiring to possess and distribute
methamphetamine in violation of 21 U.S.C. § 846. On appeal, Hernandez challenges

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the sufficiency of the evidence, the district court's decision to allow three1
handwritten notes into evidence, and his sentence. We affirm.
I. BACKGROUND
After receiving information that suggested drug-dealing activity, Lincoln
Police Department ("LPD") investigator Anthony Gratz and other officers conducted
surveillance of an apartment building located at 1749 Euclid Street in Lincoln,
Nebraska. Hernandez and his girlfriend, Jessica Zabel, lived in one of the two
apartments in the building. On February 13, 2013, at approximately 10:45 p.m.,
Gratz observed a van pull up in front of the apartment building, and the driver, later
identified as Christopher Martinez, got out of the van, walked up to the building and
spoke with Hernandez. A passenger remained in the van. Martinez and Hernandez
walked inside the building. Martinez emerged about 30 minutes later, carrying a
small package. Officers observed Martinez drive down the street where he then
delivered the package to another house. When Martinez drove off, the officers
followed his vehicle. The officers stopped the van for traffic violations, determined
that Martinez had a suspended license, and took him into custody. Subsequently, the
officers conducted a search of the van and discovered a methamphetamine pipe and
a straw.
On February 23, 2013, Gratz again conducted surveillance on Hernandez's
home. On that date, he saw a female, later identified as Angie Shera, go into the
house, while a passenger waited in the car. Shera exited the house, about fifteen
minutes later, and drove away. The officers followed Shera to another apartment
building's parking lot and stopped Shera's vehicle. Shera admitted to the officers that
she was driving on a suspended license and when the officers asked her to step out
The Honorable Richard G. Kopf, United States District Judge for the District1
of Nebraska.
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of her vehicle, she attempted to conceal an item in her pocket. The officers seized a
plastic baggie containing a white substance, later determined to contain
methamphetamine. The officers also recovered a number of cell phones and
marijuana pipes.
Based on this evidence, Gratz obtained and executed a search warrant for
Hernandez's apartment. When the officers entered the apartment, Zabel was in the
living room and Hernandez was in the bedroom. The two elected to leave the
apartment while it was searched. Officers photographed and recovered
methamphetamine, cash, a small amount of marijuana, and "owe sheets."2
Hernandez was indicted with conspiring to possess and distribute 500 grams
or more of a substance containing a detectable amount of methamphetamine and five
grams or more of methamphetamine in violation of 21 U.S.C. §§ 841 and 846. The
indictment also included a forfeiture provision for $12,914.00 in cash. The case went
to trial and a jury found Hernandez guilty. Prior to sentencing, Hernandez filed a
motion for a variance from the Guidelines sentence based upon a terminal illness.
The district court denied the motion and sentenced Hernandez to 324 months'
imprisonment, the low end of the Guidelines range, which was 324 to 405 months.
Hernandez appeals.
According to Gratz, based on his experience as a narcotics officer, an "owe2
sheet" is a list of numbers next to names indicating the amount of money owed or
quantities of narcotics.
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II. DISCUSSION
A. Sufficiency of the Evidence
Hernandez challenges the sufficiency of the evidence supporting his
conviction. On such a challenge, "the standard of review is very strict, and the jury's
verdict is not to be lightly overturned." United States v. Hayes, 391 F.3d 958, 961
(8th Cir. 2004). We view the evidence in the light most favorable to the government,
resolve any evidentiary conflicts in the government's favor, accept all reasonable
inferences drawn from the evidence that support the jury's verdict, and we will uphold
that verdict as long as a reasonable-minded jury could have found the defendant
guilty beyond a reasonable doubt. Id. On a conspiracy charge, the jury is required
to find that (1) an agreement existed among two or more people to accomplish an
illegal purpose, (2) the defendant knew of the conspiracy, and (3) the defendant
knowingly joined and participated in the conspiracy. Id. Proof of a defendant's
involvement in a conspiracy may be demonstrated by direct or circumstantial
evidence. United States v. Cannon, 475 F.3d 1013, 1020 (8th Cir. 2007).
Hernandez's arguments do not support his appeal. Hernandez first asserts that
many of the witnesses who testified at trial were cooperating witnesses and/or drug
addicts or convicted felons. Accordingly, Hernandez claims that they were not
credible. However, "[t]he jury is the final arbiter of the witnesses' credibility, and we
will not disturb that assessment." Hayes, 391 F.3d at 961. Challenging witness
credibility, here, does not provide relief for Hernandez.
Hernandez next contends that the evidence that emerged from the search does
not indicate Hernandez's involvement in a drug conspiracy, but this argument is
unavailing. Officer Gratz, who searched Hernandez's apartment, testified at trial that
he recovered methamphetamine, cash, a small amount of marijuana and "owe sheets."
Also, at trial, multiple witnesses testified that they purchased methamphetamine from
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Hernandez. For example, Shera specifically testified that she purchased a gram of
methamphetamine on one occasion and 1/16 ounce of methamphetamine on another
occasion from Hernandez. She also generally stated that she purchased
methamphetamine from him "every couple weeks." Another witness, Ana Carlisle,
testified that she dated Hernandez and that he lived with her from the beginning of
2012 until April or May of that year. According to Carlisle, while they lived together,
other people came to their residence to get methamphetamine from Hernandez. She
further testified that she obtained methamphetamine from Hernandez to sell to other
people. Given this evidence, and after a thorough review of the testimony in the
record, we conclude that the jury was positioned to properly find, beyond a
reasonable doubt, that Hernandez was involved in a conspiracy to sell
methamphetamine.
B. Three Handwritten Notes Admitted Into Evidence
During trial, the court received into evidence three notes alleged to have been
handwritten by Hernandez. Hernandez asserts that these notes were not properly
authenticated, and accordingly, were improperly admitted into the trial record. We
review the district court's admission of evidence for an abuse of discretion. United
States v. Glassgow, 682 F.3d 1107, 1110 (8th Cir. 2012).
To authenticate an item of evidence, Federal Rule of Evidence 901(a) provides
that "the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is." "Proponents of evidence may authenticate
an item through several methods including, '[t]he appearance, contents, substance,
internal patterns, or other distinctive characteristic of the item, taken together with all
the circumstances.'" United States v. Young, 753 F.3d 757, 773 (8th Cir. 2014)
(alteration in original) (quoting Fed. R. Evid. 901(b)(4)). The contents of a writing
may be considered in the authentication of the writing, and the proponent of the
evidence may also use circumstantial evidence to satisfy the authentication standard.
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Id. "Notes . . . may be admitted despite the author's anonymity, especially when the
writings demonstrate the author's intimate familiarity with the events in question."
Id. Once this threshold is satisfied, the jury determines any further questions as to the
evidence's authenticity. Id.; Kaplan v. Mayo Clinic, 653 F.3d 720, 726 (8th Cir.
2011).
To authenticate the notes at trial, the government offered testimony from
Lonnie Obst, who was involved in drug distribution with Hernandez. Obst testified
that he received the notes while he was in custody at the Diagnostic and Evaluation
Center in Lincoln, Nebraska. Prior to receiving the notes, Obst testified that he saw
Hernandez, who was also in custody at the same facility, through a window. At that
time, Hernandez mouthed to Obst, "You're telling on me," to which Obst replied,
"Can you show me my name on paper?" The next day, another inmate delivered a
piece of paper containing multiple names and information relating to Hernandez's
case, which included Obst's name. Then, Obst received the three handwritten notes
at issue on appeal, which contain statements such as "what I need u [sic] to do is don't
go to testafy [sic] saying all them lies about the guns + dope" and "keep ur [sic] lips
sealed." Obst testified that he knew that the notes came from Hernandez because the
language in the notes reflected to Obst how Hernandez speaks and because the notes
referenced Obst's potential testimony against Hernandez. No one else knew Obst was
going to testify against Hernandez. Given this testimony, the notes were properly
authenticated, and the district court did not abuse its discretion in accepting the three
notes into evidence.
C. Hernandez's Sentence
Finally, Hernandez also challenges the district court's decision to deny his
motion for a downward variance based on his terminal illness. We review the
imposed sentence under a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 41 (2007). The sentencing range was 324 to 405 months in
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prison. The district court sentenced Hernandez to the low-end of the Guidelines–324
months' imprisonment. We afford a within-Guidelines range sentence a "presumption
of reasonableness." United States v. Wanna, 744 F.3d 584, 589 (8th Cir. 2014). "But
even without that presumption, the record shows that the court carefully explained the
reasons for its sentence and its refusal to vary downward, and we see no indication
that the court improperly weighed the sentencing factors." Id. (quotation omitted).
There was no abuse of discretion here.
III. CONCLUSION
For these reasons, we affirm the district court.
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