FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 14-30056 Plaintiff-Appellee, D.C. No. v. 3:12-cr-00373- HZ-1 SAMUEL NAVARRETTE-AGUILAR, AKA Guayabo, Defendant-Appellant. OPINION Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding Argued and Submitted March 3, 2015—Portland, Oregon Filed December 28, 2015 Before: Raymond C. Fisher, Richard A. Paez, and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Paez 2 UNITED STATES V. NAVARRETTE-AGUILAR SUMMARY* Criminal Law The panel affirmed in part, reversed in part, and vacated in part a criminal judgment in a case in which a jury (1) found the defendant guilty of conspiracy to distribute heroin, distribution of heroin, and possession of heroin with intent to distribute; and (2) made a special finding that the quantity of heroin was at least one kilogram, triggering a mandatory minimum twenty-year sentence under 21 U.S.C. § 841(b)(1)(A)(i). The panel concluded, as did the district court, that the testimonial and physical evidence cannot support a finding of one kilogram. The panel held that the district court erred, however, in determining that the pattern of transactions permitted the jury to conclude that members of the conspiracy would have eventually distributed one kilogram of heroin. The panel wrote that it would be speculative to infer that the defendants agreed to any future transactions such that they would reach the one kilogram mark. The panel held that the error was not harmless, and therefore reversed the jury’s quantity finding, vacated the sentence on all counts, and remanded for re-sentencing. Affirming the convictions, the panel held that the district court did not abuse its discretion when it permitted the government to ask the defendant’s sister, a defense witness, about the defendant’s prior convictions, where the witness * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. NAVARRETTE-AGUILAR 3 opened the door to impeachment. The panel concluded that even if the district court did abuse its discretion, the error was harmless. COUNSEL Per C. Olson (argued), Hoevet Boise Olson Howes, Portland, Oregon, for Defendant-Appellant. Kelly A. Zusman (argued), Appellate Chief, Assistant United States Attorney and S. Amanda Marshall, United States Attorney for the District of Oregon, Portland, Oregon, for Plaintiff-Appellee. OPINION PAEZ, Circuit Judge: Samuel Navarrette-Aguilar (“Navarrette”) appeals his conviction and sentence. A jury found him guilty of conspiracy to distribute heroin, distribution of heroin, possession of heroin with intent to distribute, and made a special finding that the quantity of heroin was at least one kilogram. Navarrette argues that substantial evidence did not support the jury’s quantity finding. The evidence of historical transactions adduced did not amount to one kilogram. Navarrette maintains that when the district court denied his motions for judgment of acquittal, it erred in determining that the pattern of transactions permitted the jury to conclude that members of the conspiracy would have eventually distributed one kilogram of heroin. Navarrette further argues that the district court abused its discretion when it permitted the 4 UNITED STATES V. NAVARRETTE-AGUILAR government to ask a defense witness on cross-examination about his prior convictions for drug trafficking and escape. Although we affirm Navarrette’s convictions on the conspiracy and distribution counts, we reverse the district court’s ruling on the jury’s quantity finding, vacate his sentence, and remand for re-sentencing. I. Navarrette was charged with Conspiracy to Traffic Heroin in a quantity of one kilogram or more; Distribution of Heroin Resulting in Death; and Possession with Intent to Distribute Heroin. 21 U.S.C. §§ 841, 846. He was also charged with the penalty provision for distributing a kilogram or more of heroin, 21 U.S.C. § 841(b)(1)(A)(i), which provides for a mandatory minimum twenty-year sentence for a defendant who, like Navarrette, has a prior felony drug conviction. The government also charged him with the penalty provision for distributing a schedule I controlled substance resulting in death or serious injury, 21 U.S.C. § 841(b)(1)(C). The government charged two co-defendants along with Navarrette: Saul Guzman-Arias, who proceeded to trial with Navarrette, and Antonio Equihua-Ramirez, who pled guilty and became a witness for the prosecution. A jury trial commenced on June 4, 2013. Because this appeal turns on whether there was substantial evidence to support the jury’s finding that Navarrette and his co- defendants conspired to distribute at least one kilogram of heroin, we discuss the evidence produced at trial in detail. UNITED STATES V. NAVARRETTE-AGUILAR 5 The government investigated and prosecuted Navarrette as a “Len Bias”1 case—that is, they sought to prove a supply chain directly linking the top of the chain, Navarrette, to the heroin overdose death of a woman named Erin Freeman. Distribution of a schedule I or II narcotic resulting in a death or serious injury carries a twenty-year mandatory minimum sentence, and a mandatory life sentence for those with a prior felony drug conviction. 21 U.S.C. § 841(b)(1)(C). Seeking this heavy penalty, the government sought to prove the connections among the members of the supply chain. As the evidence at trial showed, the investigation proceeded by using information from lower-level dealers to pursue higher-level distributors. The government presented the jury with a narrative of the investigation process through the testimony of several officers, including Portland Police Officer Tim Manzella. Officer Manzella testified that, with the assistance of Freeman’s boyfriend, he set up a controlled purchase of heroin from her immediate supplier, Bruce McDaniel. While watching McDaniel’s house, Officer Manzella saw Josef Burns arrive; after he left, Manzella conducted a traffic stop 1 Many of the provisions of 21 U.S.C. § 841, including the twenty-year minimum prison term for causing a heroin overdose death, are often referred to as the Len Bias laws after a popular college basketball star. Len Bias played basketball for the University of Maryland until a drug overdose caused his untimely death in 1986. Congress enacted the provisions of 21 U.S.C. § 841 under the theory that but for their purchase of drugs the overdose victims would not have died. Katherine Daniels & Carol M. Bast, Difficulties in Investigating and Prosecuting Heroin Overdose Cases, 41 Crim. L. Bull. 513, 517 (2005). 6 UNITED STATES V. NAVARRETTE-AGUILAR of Burns. During their encounter, Burns admitted that he was McDaniel’s heroin supplier. Officer Manzella then engineered another controlled purchase of heroin using Burns, which led local law enforcement officers to the next supplier up the chain, Antonio Equihua-Ramirez. Equihua- Ramirez was arrested at the buy location, and officers found sixty-two grams of heroin and between $7,600 and $7,800 in cash in his vehicle. Equihua-Ramirez agreed to cooperate with the police and consented to a search of his home, where police found approximately thirteen grams2 of heroin. Officer Manzella testified that Equihua-Ramirez had told him that the cash in his car was the profits from his sale of 150 grams of heroin, which he planned to turn over to his supplier, who had “fronted” him the drugs. Additionally, upon seizing Equihua- Ramirez’s phone, Officer Manzella found a text message, sent to a number later determined to be Navarrette’s, in which Equihua-Ramirez attempted to place an order for eight more pieces of heroin (200 grams) once he finished selling what he had. Using Equihua-Ramirez, officers set up another controlled buy, this time from Equihua-Ramirez’s supplier, whom he knew as “Califas,” for the 200 grams that Equihua- Ramirez had already attempted to order. Officers arrested Saul Guzman-Arias, who appeared at the appointed time. Equihua-Ramirez identified him as the go-between who delivered the drugs that Equihua-Ramirez ordered from “Califas.” Officers searched Guzman-Arias’s car and 2 Throughout their testimony, witnesses used different measurements – ounces, pieces, and grams – to describe the quantities of their transactions. An ounce is approximately twenty-eight grams; a “piece” is approximately twenty-five grams. We have converted all measurements to grams using this scale. UNITED STATES V. NAVARRETTE-AGUILAR 7 recovered 199.03 grams of heroin (the eight piece order) from a hidden compartment, capable of holding up to forty pounds of contraband, in his car. The police officers obtained cell site information relating to the phone Equihua-Ramirez used to place orders for heroin and used GPS to find the location of the phone he called, belonging to “Califas.” Police arrested “Califas,” revealed to be Navarrette, at his home. They did not find any drugs, but they did recover $1,860 in cash, and also discovered a large hidden compartment in his vehicle that could have held up to thirty pounds of contraband. Thus, the total amount of heroin recovered and presented as physical evidence at trial was approximately 274 grams. In addition to the physical evidence, the government presented several defendants’ phone records, as well as a few wiretapped calls from a federal investigation that had also ensnared Guzman-Arias, but none of these yielded evidence of the specific quantity of heroin transacted. Instead, the phone records presented, which included the records of Equihua-Ramirez, Navarrette, and Guzman-Arias, showed the number and frequency of calls and text messages among several members of the conspiracy. Local law enforcement officers also testified that they used a call placed from Equihua-Ramirez to Navarrette to triangulate the location of Navarrette, in order to arrest him, as evidence of Navarrette’s identity as “Califas.” As none of these other pieces of evidence would permit the jury to find that the conspiracy involved at least a kilogram of heroin, the government’s main evidence of quantity came from the testimony of Equihua- Ramirez and Burns. Burns testified that, during the time period alleged (approximately two and a half months, from mid-March to 8 UNITED STATES V. NAVARRETTE-AGUILAR early June), he only purchased heroin from Equihua-Ramirez, and Equihua-Ramirez testified that he only purchased heroin from Navarrette. Equihua-Ramirez further testified that Burns was his biggest customer, and his “[a]bout five” other customers only bought about a gram of heroin at a time, without specifying in greater detail how much heroin they purchased. Therefore, the government had to prove an agreement to distribute a kilogram of heroin from either a) Equihua-Ramirez’s testimony as to how frequently he purchased heroin from Navarrette; b) Equihua-Ramirez’s testimony as to how frequently he sold heroin to Burns; or c) Burns’s testimony as to how frequently he purchased heroin from Equihua-Ramirez. A. Testimony of Josef Burns Josef Burns could not state with certainty how many times and in what quantities he had purchased heroin from Equihua-Ramirez. For example, Burns initially stated that he had purchased heroin “more than a dozen times,” but later said that he “[did]n’t know [how many times].” When pressed on cross-examination, he agreed that a more realistic range was twelve to sixteen transactions, and stated “I mean, whatever. I mean, I’m not sure. I can’t exactly say.” On cross-examination, Burns also waffled on how long he had been buying from Equihua-Ramirez: Q. Yeah. Is it possible your relationship started sometime in late April? A. In April? Q. Correct. So it would have been about a month and a half? UNITED STATES V. NAVARRETTE-AGUILAR 9 A. March, April, something like that. April, May, June, yeah, something around there. Q. You don’t really have a definite memory of that? A. I don’t have a definite—I don’t have a definite time on that. Describing his purchasing practices, Burns stated that he began by buying “one piece [twenty-five grams] and then two or three.” He testified that he could not estimate the total amount of heroin that he purchased, but that it took him “a month or two” to “wor[k] up to two or three pieces.” We note again that the entire time period of the conspiracy alleged was approximately two and a half months. When questioned about the frequency with which he purchased heroin, Burns stated that it could be one or two times a week, but also “maybe a few more times . . . maybe three or four max.” He went on to explain that the frequency with which he purchased and the amount he purchased “would all just depend” on the level of demand, which was “different all the time.” The variation in the amount Burns purchased is borne out by other record evidence. Notably, on May 26, Burns received a text message from Equihua-Ramirez asking him why he was not purchasing more heroin. When presented with this evidence, Burns responded Yeah. I think I just—I just hadn’t called them in a little bit or whatever. I was not very—I didn’t really want to sell heroin. I did it because I didn’t know what else to do, really. I couldn’t do what I used to do, any of the 10 UNITED STATES V. NAVARRETTE-AGUILAR jobs I used to do. But I didn’t want to do it. I just did it because—I don’t know. Burns testified several times that he had difficulty remembering details of the time period in question. For example, when questioned more specifically about his practice of selling heroin, Burns answered, “I’m trying to think. I’m not prepared for all this. I can’t really remember.” And, later, Burns stated in response to further questioning: “I’m not really on it. . . . I just had a lot going on in the last year since this happened so I haven’t been dealing with any of this.” In sum, Burns’s testimony was vague; he could not provide an estimate as to how much heroin he sold or purchased, and could not clearly remember or describe his practices during the time in question. B. Testimony of Antonio Equihua-Ramirez Like Burns, Equihua-Ramirez gave equivocal testimony regarding the frequency with which he bought and sold heroin. Officer Manzella’s testimony revealed that, before trial, Equihua-Ramirez contradicted himself in his statements to the police. For example, he initially told Officer Manzella that he had been dealing for a period of six months, but later stated that he had only been dealing since mid-March. It “seemed to [Officer Manzella] that he was pretty confused about the exact start and end date.” Equihua-Ramirez also gave different statements to police at different times regarding the amount that he sold to Burns. At trial, Equihua-Ramirez testified that he began selling heroin in March of 2012, upon taking over the business of a