United States v. Munera-Gomez

70 F.4th 22

UNITED STATES of America, Appellee, v. Jesus Arley MUNERA-GOMEZ, Defendant, Appellant.

No. 22-1473

United States Court of Appeals, First Circuit

June 7, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge]

David Eric Burdette, with whom Murat Erkan and Erkan & Associates were on brief, for appellant.

Alexia R. De Vincentis, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

Before Gelpí, Lynch, and Howard, Circuit Judges.

GELPÍ, Circuit Judge.

Defendant-Appellant Jesus Arley Munera-Gomez ("Munera") appeals his conviction and subsequent sentence for attempting to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. Specifically, Munera contends that the district court erred by declining to order the government to provide use immunity to a defense witness, resulting in a violation of Munera's due process rights; precluding Munera's girlfriend from testifying about the undue pressure placed on Munera by a confidential source, thus undermining his entrapment defense; refusing to apply safety valve relief at sentencing, despite Munera satisfying the eligibility criteria; and impermissibly considering Munera's immigration status at sentencing. Finding his first three challenges lacking and his final argument waived, we affirm.

I. Background

We begin by laying out the basic facts and procedural history of the case, with elaboration as needed in our analysis of the legal issues.

A. Facts

In August 2019, a confidential source ("CS") for the U.S. Drug Enforcement Administration ("DEA") approached Munera in a Colombian billiards bar in East Boston after hearing someone refer to him as "Pikachu."¹ CS testified that he recognized the nickname as belonging to someone who had supplied cocaine to his former business partners, Fabio and Girado Quijano. After CS introduced himself to Munera, the two interacted on several occasions at the billiards bar -- none of these conversations were recorded. During one of these interactions, CS broached the subject of doing a drug transaction with Munera, and the two agreed to meet away from the bar to discuss the details.

The first recorded meeting occurred on October 23, 2019, where CS, at the DEA's direction, arranged to meet Munera at a restaurant to discuss the drug transaction. During the meeting, Munera told his friend (who had accompanied him) that he had talked to CS before but "didn't even know who he was." During the conversation, Munera acknowledged seeing the unusual round discs of cocaine (as opposed to typical bricks) that CS had distributed in East Boston at the beginning of 2019. Munera also told CS that, at that time, he was getting twenty to thirty kilograms of cocaine from a Mexican supplier. CS informed Munera that, if they closed a deal, Munera would have to cover the transportation cost for the cocaine up front, and Munera agreed, responding, "That's the way it is. Yes."

The next meeting between Munera and CS, which was also recorded, occurred on November 7, 2019, in a cafe. CS told Munera that he could get a few hundred kilograms of cocaine but that he did not want to "spread [him]self around" -- which he explained meant selling kilograms to multiple people, which is riskier -- and inquired what Munera thought of the risk. Munera responded, "I don't have a problem." Munera explained that his interest in the deal depended on the price because he was currently buying cocaine at "twenty-nine and a half" -- meaning $29,500 per kilogram. CS and Munera discussed pricing the cocaine at twenty-eight, meaning $28,000 per kilogram, and Munera told CS to give him eight days' notice before the cocaine arrived so that he could have $150,000 to $250,000 ready for him. When CS explained that his supplier preferred to sell 100 kilograms of cocaine at a time, Munera said, "I understand. It's better for them. They can't be all over the place with twenty, ten . . . ." Finally, they discussed the profits earned from selling a kilogram of cocaine, with Munera stating, "many times you're making six thousand, four thousand but with a lot of back and forth."

CS and Munera next met on January 21, 2020. During this recorded meeting, CS told Munera that the cocaine was set to arrive in February. When CS asked how much Munera wanted, Munera again reiterated that it depended on the price and stated that he was currently getting it at "two eight," meaning $28,000 a kilogram, and that he got around twenty kilograms of cocaine monthly. CS believed that Munera, in an attempt to get a better deal for himself, was giving him a fake price to try and get CS to sell to him even lower. Munera told CS that the cocaine also had to be good quality. After some back and forth, CS agreed to a price of $27,000 a kilogram. He informed Munera that if he could front $200,000 to cover the transportation cost of the cocaine, there would be no rush to pay back the rest of the money.

On February 12, 2020, CS and Munera met again in anticipation of the drug transaction set to occur the following day. They discussed logistics, including how much money Munera was going to pay up front and where the transaction would occur. Munera mentioned that he had been shorted on cocaine in the past. During the meeting, undercover DEA agents, posing as CS's cocaine suppliers, showed Munera fake kilogram packages of cocaine, as well as a photo of an open kilogram package.²

CS and Munera met the following day, February 13, 2020, at Munera's apartment building to complete the transaction. Munera did not want to conduct the deal on the street, so CS, wearing a recording device, went up to his apartment to check that Munera had the promised $200,000 in cash. CS observed the cash, which was packaged in bundles of $10,000 and $50,000, and testified at trial that drug money is usually packaged like that. Munera told CS to take a photo of the cash as proof for the drug suppliers. CS then left the apartment, without the money, and returned to the undercover agents. Eventually, CS reentered the apartment building with the undercover agents to conduct the transaction. The agents carried in the bag containing the fake cocaine, and Munera reassured them that "[t]he money [is] all good. It's there." After the agents handed Munera the bag, he left the lobby to bring it back to his apartment and to retrieve the $200,000. Munera was arrested in the stairwell, still carrying the bag of sham cocaine, and $200,000 was later recovered from his apartment.

B. Procedural History

Following his arrest, a grand jury indicted Munera on one count of attempting to possess with intent to distribute five kilograms or more of cocaine. During pretrial proceedings, the government, at Munera's request, interviewed CS to learn more about why he decided to approach Munera at the billiards bar. CS explained that when he worked with Fabio Quijano ("Quijano") in 2016 and 2017, Quijano purchased kilograms of cocaine from a man called "Pikachu," whom he had grown up with in Colombia. CS stated that he never met Pikachu in person. After CS heard someone refer to Munera as Pikachu in the bar, CS approached him.

Subsequently, the government interviewed Quijano, who was then under indictment for drug trafficking and money laundering offenses committed between 2018 and 2020. During his proffer, Quijano acknowledged that he knew Munera but did not conduct drug activity with him. Anticipating that Quijano would assert a Fifth Amendment privilege if called to testify, Munera requested use immunity for Quijano. After the government refused to provide said immunity, Munera requested that the district court order the government to do so. The district court denied Munera's request at the final pretrial conference, explaining that "there [wa]s no evidence that the prosecution withheld immunity in an attempt to distort the factfinding process."

At trial, Munera admitted to the underlying offense conduct but advanced an entrapment defense. Munera called his girlfriend, Estefania Holguin Builes ("Holguin"), to testify about the pressure CS placed on Munera leading up to the transaction in February 2020. During her testimony, the government objected to various responses based on her lack of personal knowledge or on hearsay grounds. Most of the government's objections to Holguin's testimony were sustained. After a four-day trial, the jury convicted Munera on the sole count.

At sentencing, Munera argued that he met the eligibility criteria for safety valve relief based on his trial testimony. The district court disagreed, finding that the safety valve adjustment did not apply because Munera failed to prove by a preponderance of the evidence that his testimony at trial was truthful and because "he certainly did not give all of the background information with respect to his participation in this offense during the trial." Munera received a sentence of 120 months' imprisonment. This appeal followed.

II. Discussion

A. Use Immunity

We begin with Munera's claim of error related to use immunity. Munera contends that the district court's refusal to order the government to grant Quijano use immunity resulted in a denial of due process and an unfair trial. Specifically, Munera argues that, had Quijano testified, his testimony would have directly contradicted CS as to Munera's predisposition to engage in drug trafficking -- thereby corroborating Munera's own testimony in support of his entrapment defense -- and would have called the credibility of CS, the main government witness, into question.

On appeal, we review the denial of immunity de novo and the factual findings underpinning the district court's decision for clear error. See United States v. Catano, 65 F.3d 219, 224, 226 (1st Cir. 1995); see also United States v. Straub, 538 F.3d 1147, 1156 (9th Cir. 2008) (explaining that "[t]he question of whether a...