* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 7 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-1124

v. (D. Colorado) SANTIAGO BALDERRAMA, also known as Raul Baldarama-Chavez, also known as Santiago Baldarama,

Defendant - Appellant. (D.C. No. 96-CR-436-Z)

ORDER AND JUDGMENT *

Before ANDERSON , HENRY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Santiago Balderrama was charged with one count of c onspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(B), 846 and one count of knowingly distributing and aiding and abetting the distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), (b) (1)(B) and 18 U.S.C. § 2. Balderrama waived his right to a jury trial, and th e district court found him not guilty on the conspiracy charge and guilty on the d istribution charge. Balderrama appeals the district court’s denial of his motion f or new trial based on prosecutorial misconduct. We affirm.

BACKGROUND At the bench trial, the government presented the te stimony of four witnesses. Bennie Lovato was the main government w itness to testify against Balderrama. Lovato agreed to cooperate with the go vernment after he was arrested for selling cocaine to an undercover agent , Charles Olachea. He testified at trial that Balderrama was the source of the coca ine he had sold to Special Agent Olachea on four occasions. R. Vol. II at 151 . Lovato testified about the first three transactions between himself and Olache a to support the government’s charges of conspiracy. See id. at 35-65. He testified about the fourth deal, involving approximately one pound of cocaine, to support both the conspiracy count and the count of a single distribution. Lovato testified that the night before-3-

he sold the cocaine to Olachea for the fourth time, Balderrama had come to his house with another person and had given him the coc aine to be sold. Id. at 180- 82, 200-02. After Lovato was arrested, the agents searched his house and found approximately one-half ounce of cocaine. Lovato te stified that that cocaine came from Balderrama, but not from the delivery the nigh t before. Id. at 164-65. Lovato helped the government to arrest Balderrama b y instructing the government agents to call Balderrama’s pager and to enter a co de that would tell Balderrama the sale was completed and that he could go to Lovato’s house to pick up the money. Id. at 152-53. Shortly after the pager was called and the code entered, Balderrama arrived at Lovato’s house and they discu ssed the transaction that had just taken place and then discussed another possibl e future transaction. The conversation, which was in Spanish and partly inaud ible, was recorded and admitted into evidence at trial. R. Supp. Vol. I; R. Vol. II at 155, 159. Special Agent Olachea also testified at trial. He testified that he had purchased cocaine from Lovato on four occasions. At the last deal, he arrested Lovato and asked him who his supplier was. Lovato told Olachea that he had gotten all of the drugs from Balderrama. R. Vol. I I at 34-56. After arresting Lovato, they went to Lovato’s house, and Olachea ca lled Balderrama’s pager and entered the code Lovato had told him to enter. Id. at 57-58. Approximately 20-4-

minutes later, Balderrama arrived at Lovato’s house , where Balderrama and Lovato conversed, and Balderrama was then arrested by Olachea and some other agents. Id. at 58-60. Special Agent Robert Turner testified that he parti cipated in the arrest of Balderrama at Lovato’s house. In searching Balderr ama, Turner found a pager which contained the code that Olachea had entered a fter dialing the pager number some 20 or 30 minutes earlier. R. Vol. II at 225-2 8. Turner testified that Balderrama denied the pager was his. Id. at 230-31. Balderrama lied to Turner about his identity and about his criminal history. A search of Balderrama’s apartment did not reveal anything. Id. at 231-36. Officer Jason Carrigan testified that a few days pr ior to Balderrama’s arrest at Lovato’s house, he had pulled over a car in whic h Balderrama was a passenger for an unrelated offense. In searching Balderrama, Carrigan found that he had a large amount of cash on his person. Id. at 212-16. After the government rested, counsel for Balderramamoved for a directed verdict, which the court denied. R. Vol. III at 24 6-48. After closing arguments, the district court found Balderrama guilty as to th e distribution charge and not guilty as to the conspiracy charge. Prior to sentencing, Balderrama filed a motion for new trial. He alleged that the government violated Fed. R. Crim. P. 16 be cause it had failed to provide-5-

him with a copy of a written statement given by Lov ato to the Drug Enforcement Agency, that the statement bore on the witness’s cr edibility, and that the absence of the statement violated his right to cross-examin ation under the Sixth Amendment. The government responded by asserting i t did not know what statement the defendant was referring to because he had not attached the statement to the motion and that, in any event, a s earch of its records revealed that it had sent a statement by Lovato to Balderrama’s c ounsel approximately one month before trial. Without a hearing, the court d enied the motion because the government was unaware of the statement and so it d id not violate Fed. R. Crim.
P. 16. Balderrama subsequently filed an amended motion fornew trial, attaching a copy of Lovato’s written statement. This motion dr opped the allegation that the government had failed to provide the defense with acopy of the statement, but it asserted that the statement contradicted Lovato’s t rial testimony, that the government intentionally misrepresented the facts at trial, and that the government failed to correct Lovato’s testimony. T he motion requested a new trial to avoid a severe miscarriage of justice. B efore the government filed a response and without a hearing, the court denied th e amended motion without

comment.1 Balderrama attempts to style this appeal as a de novo review of the government’s

conduct. SeeAppellant’s Br. at 1, 12. While it is true that we review de novo claims that the prosecution failed to disclose exculpatory evidence, United States v. Hughes , 33 F.3d 1248, 1251 (10th Cir. 1994), Balderrama argued such a failure only in his first motion for new trial and does not make the argument here. In addition, because we find that the court did not abuse its discretion, we need not address Balderrama’s contention that the government has a duty to reveal contradictions in testimony even when the defendant hasinformation available to him which would allow him to elicit the contradiction on crossexamination. -6- DISCUSSION We review a court’s denial of a motion for new tria l due to prosecutorial misconduct for abuse of discretion. 1 See United States v. Gabaldon , 91 F.3d 91, 93-94 (10th Cir. 1996); United States v. Hartsfield , 976 F.2d 1349, 1354 (10th Cir. 1992). “When prosecutorial misconduct deprive s a criminal defendant of a fair trial, the defendant’s due process rights are violated, Greer v. Miller , 483 U.S. 756, 765 (1987), and reversal is warranted, Be rger v. United States , 295 U.S. 78, 89 (1935); United States v. Lowden , 900 F.2d 213, 217 (10th Cir. 1990).” Gabaldon , 91 F.3d at 93. The trial court reviewing a motio n for new trial must focus on whether the prosecutor’s conduct had a pre judicial impact such that defendant did not receive a fair and impartial tria l because the conduct influenced the trier of fact. Id. at 93-94; United States v. Ivy , 83 F.3d 1266, 1288 (10th Cir.), cert. denied , 117 S. Ct. 253 (1996); United States v. Torres , 959 F.2d 858, 860 (10th Cir. 1992). That determination must be m ade in the context of the2 The offense for which Balderrama was convicted requires that the defendant

“manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). 21 U.S.C. § 802(11) equates distribution with delivery, which is defined as “actual, constructive, or attempted transfer (continued...) -7- entire record before the trier of fact. Ivy , 83 F.3d at 1288; United States v. Oles , 994 F.2d 1519, 1524 (10th Cir. 1993). Balderrama bases his argument that the government p resented false and substantially misleading testimony at trial on two statements given by Lovato to the DEA. First, Balderrama alleges that Lovato’s w ritten statement contradicts his testimony at trial that Balderrama had given hi m the cocaine the night before Balderrama was arrested. Balderrama points to the written testimony where Lovato says: Balderrama came to my house . . . with the same Mex ican male who brought 4 ozs. on October 16, 1996. They came insi de my house and Balderrama asked me when I was going to do this dea l. I told him probably tomorrow morning, because Steve was busy. Balderrama told me to page to him when I got the money. We we nt downstairs to the red car, the Mexican male lifted the hood and h e (Mexican male) got the cocaine out from under the hood and gave itto me. Balderrama was standing on the other side of the ca r when he did this. R. Vol. I at tab 21, at 10-11. Balderrama alleges that this statement directly contradicts Lovato’s trial testimony where he said that Balderramagave him the cocaine. See R. Vol. II at 151, 180-82, 200-02. Balderrama thu s argues that the Mexican male was the source of the cocaine. 22 (...continued)

of a controlled substance.” 21 U.S.C. § 802(8). This includes action that was merely supervisory in capacity and does not require the defendant to physically carry the drugs to the buyer or distributer. See, e.g. , United States v. Sepulveda, 102 F.3d 1313, 1317 (1st Cir. 1996); United States v. Brunty , 701 F.2d 1375, 1381 (11th Cir. 1983) (collecting cases); United States v. Oquendo , 505 F.2d 1307, 1310 (5th Cir. 1975). -8- Second, Balderrama alleges that Lovato’s trial test imony is contradicted by his written statement about the source of the one-h alf ounce of cocaine that the agents recovered from Lovato’s house. In his writt en statement, Lovato states: [Balderrama and the Mexican male] left and I went i nside with the cocaine. The cocaine was packaged in two (2) zip l ock bags one inside the other. I took a couple spoonfuls of coc aine out of the bag and put it into a clear plastic bag. I put it in my bedroom and hid it in the ceiling. I took the rest of the cocaine and placed it with the zip lock bags inside a plastic bag and placed it in the refrigerator . . . . R. Vol. I at tab 21, at 11. This statement, Balder rama alleges, contradicts Lovato’s trial testimony that the one-half ounce of cocaine found by the agents at his house did not come from Balderrama’s delivery o f the night before, but that it was from an earlier Balderrama delivery. See R. Vol. II at 164-65. Balderrama also argues that the government’s closin g argument was improper. The government stated:

The second count in the indictment alleges a specif ic distribution on October 21. The evidence that supp orts that distribution is the testimony of Bennie Lovato thatthe 17 ounces or one pound of cocaine that he tried to sell to Olach ea on the 22nd had been delivered to him at his house by Balderrama th e night before. That’s what Mr. Lovato said about where he got it.3 We note that Balderrama did not object to the prosecutor’s closing argument, so

the standard on appeal could be a review for plain error. SeeUnited States v. Russell , 109 F.3d 1503, 1514 (10th Cir.), cert. denied , 117 S. Ct. 2525 (1997). However, even applying the abuse of discretion standard, Balderrama’s argument fails. Because of our disposition, it is unnecessary to address Balderrama’s contention that the prosecutor has a duty to reveal contradictions in testimony and that he or she cannot capitalize on the misleading testimony in closing argument. -9-

I admit and concede there is no surveillance at that time. I do not recall any other specific evidence about how itis that pound of cocaine got into Lovato’s possession; but we know i t did because it’s in evidence in this court, and we know through Mr. Lovato that Balderrama came over the night before and gave it t o him. R. Vol. IV at 12. Balderrama argues that the gover nment should have revealed the two contradictions at trial and that it was pro secutorial misconduct to conceal them and to exploit the misleading testimony in clo sing argument. 3 We are not persuaded the trial court abused its dis cretion in denying Balderrama’s motions for new trial. The statements pointed to by Balderrama may be inconsistent with Lovato’s trial testimony, but we are not persuaded they show that the trial testimony was patently false orthat the trier of fact found them misleading. Furthermore, the court did not rely on Lovato’s tes timony, so even assuming Lovato’s testimony was false or misleading , we do not find that the court would have come to a different conclusion had the testimony been corrected. See Ivy , 83 F.3d at 1288. Of Lovato’s trial testimony, th e court, who was the trier of fact, observed:-10- Mr. Lovato is not a good witness. Now, I’m not say ing whether he’s not a good witness because he’s purpos ely lying, or because he’s old and ill and confused, or because h e just has a memory that perhaps is shot because of his use of d rugs, or all of the above. . . .

. . . . Lovato’s testimony is not really going to help the Government, because it’s not strong enough to carry the day bey ond a reasonable doubt; and so the question comes up as to is there enough other corroborative evidence as to Count 1 and as to Coun t 2. R. Vol. III at 270-72. The court then found that there was not enough corroborating evidence as to the conspiracy count, but that several things corroborated the single distribution charge. Id. at 272-73, 276-77. The court cited the fact that it was Balderrama who came to L ovato’s house when the agents called the pager, Balderrama had the pager on him w hen he came to the house, and the recorded conversation between them indicate d a deal with Olachea involving 16 ounces. Id. at 273-77. Because Lovato’s trial testimony was neither false nor misleading, and because the court gave the testimony little weight, we hold that the court did not abuse its discretion in denying the motions.
AFFIRMED. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge