USA v. Barth et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
United States of America, 	)
)
Plaintiff, 	) 	ORDER DENYING DEFENDANT’S
) 	PETITION FOR HABEAS CORPUS
vs. 	) 	RELIEF UNDER 28 U.S.C. § 2255
)
Rosalio Guitron Vargas, 	)
) 	Case No. 1:03-cr-046
Defendant. 	)
____________________________________)
)
Rosalio Guitron Vargas, 	)
)
Petitioner, 	)
)
vs. 	) 	Case No. 1:06-cv-063
)
United States of America, 	)
)
Respondent. 	)
Before the Court is the Defendant’s pro se petition under 28 U.S.C. § 2255 to vacate, set
aside, or correct sentence, filed on August 7, 2006. On August 9, 2006, the Court reviewed the
motion and ordered the Government to file a response. On October 6, 2006, the Government filed
a response requesting that the Court deny the Defendant’s motion for post-conviction relief. The
Defendant filed a reply brief on November 2, 2006. For the reasons set forth below, the motion is
denied.
I. 	BACKGROUND
On July 9, 2003, the defendant, Rosalio Guitron Vargas (“Vargas”), was charged in a nine-
count indictment with various drug and firearm offenses. Count One charged Vargas and four other
individuals with conspiracy to distribute and possess with intent to distribute methamphetamine.
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Count Seven charged Vargas with distribution of methamphetamine. Count Eight charged Vargas
with distribution of marijuana. 	Count Nine charged Vargas with possession of a firearm by an
illegal alien. See Docket No. 11. On December 18, 2003, a jury found Vargas guilty on all counts.
See Docket No. 131. As to Count One, the jury found that the conspiracy involved over 50 grams
of methamphetamine or over 500 grams of a mixture or substance containing a detectable amount
of methamphetamine. The jury also found that as to Count Seven, Vargas distributed 50 grams or
more of a mixture of substance containing a detectable amount of methamphetamine.
Vargas was sentenced on February 26, 2004. The Presentence Investigation Report (“PSR”)
calculated a total offense level of 42 and criminal history category V, yielding an advisory
Sentencing Guideline range of 360 months to life. See PSR, pp. 14-17. The total offense level of
42 was arrived at by starting with a base offense level of 34 because Vargas’ offenses involved
2,496.12 grams of methamphetamine (equivalent to 4,9992 kilograms of marijuana) and over 0.45
kilograms of marijuana. Eight levels were added to Vargas’ offense level for the following: (1) two
levels under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon during his drug crimes;
(2) four levels under U.S.S.G. § 3B1.1(a) for being a leader and organizer of criminal activity
involving five or more participants; and (3) two levels under U.S.S.G. § 3C1.1 for obstruction of
justice. As to the firearms conviction on Count Nine, it was calculated as an offense level of 24.
See PSR, ¶ 14-17. Vargas objected to the calculations. The Court rejected Vargas’ objections and
found that the sentencing enhancements were supported by the trial testimony. See Sentencing Tr.
5-9. The Court accepted the guideline calculations in the PSR and sentenced Vargas to a 360-month
term of imprisonment. See Docket No. 149.
On March 3, 2004, Vargas filed a notice of appeal. See Docket No. 151. Vargas appealed
his conviction and sentence. 	On appeal, Vargas argued (1) that he was prejudiced because the
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evidence established two conspiracies rather than one; (2) that his Sixth Amendment right to be
present at trial was violated when he was not present at a pretrial conference; (3) that the Court erred
when it occasionally failed to admonish the jury not to discuss the case amongst themselves; and (4)
that his sentence violated United States v. Booker, 543 U.S. 220 (2005), which was handed down
while Vargas’ appeal was pending. See United States v. Barth, 424 F.3d 753 (8th Cir. 2005). The
Eighth Circuit Court of Appeals rejected Vargas’ claims and affirmed his conviction and sentence.
Id.
On August 7, 2006, Vargas filed a motion under 28 U.S.C. § 2255. Vargas asserts that both
his trial and appellate counsel were ineffective. As to his trial counsel, Vargas asserts eight alleged
deficiencies: 	(1) he was denied counsel of his choice; (2) his counsel had an actual conflict of
interest; (3) counsel failed to object to inadmissible hearsay; (4) counsel failed to move for a
severance; (5) counsel failed to move to suppress Vargas’ statement to police; (6) counsel failed to
move to suppress testimony of Government witnesses based on unduly suggestive identification
process; (7) counsel failed to adequately cross-examine and impeach Government witnesses; and
(8) counsel failed to review the Presentence Investigation Report with Vargas. As to his appellate
counsel, Vargas asserts counsel failed to raise two issues on appeal: (1) the lack of findings to
support a four-level enhancement under Section 3B1.1(a) and (2) the lack of findings to support a
two-level enhancement under Section 2D1.1(b)(1).
II. 	LEGAL DISCUSSION
A. 	INEFFECTIVE ASSISTANCE OF COUNSEL
The burden of demonstrating ineffective assistance of counsel is on a defendant. United
States v. Cronic, 466 U.S. 648, 658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.
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2003). To be eligible for habeas relief based on ineffective assistance of counsel a defendant must
meet the two-part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). 	A
defendant must first establish that counsel’s representation was constitutionally deficient, which
requires a showing that counsel’s performance fell below an objective standard of reasonableness.
Id. at 687-88; see Wiggins v. Smith, 539 U.S. 510 (2003). This requires showing that counsel made
errors so serious that defense counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment. Strickland v. Washington, 466 U.S. 688, 687 (1984). 	In considering
whether this showing has been accomplished, “[j]udicial scrutiny of counsel’s performance must be
highly deferential.” 	Id. at 689. 	If the underlying claim (i.e., the alleged deficient performance)
would have been rejected, counsel’s performance is not deficient. Carter v. Hopkins, 92 F.3d 666,
671 (8th Cir. 1996). Courts seek to “eliminate the distorting effects of hindsight” by examining
counsel’s performance from counsel’s perspective at the time of the alleged error. Id.
A defendant must then show that the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). This requires proving that there is a reasonable
probability that, but for counsel’s ineffectiveness, the result would have been more favorable to the
defendant. Id. at 690-91. A reasonable probability is one “sufficient to undermine confidence in
the outcome.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). Merely showing a conceivable effect
is not enough. When evaluating the probability the result would have been different, a court views
the alleged error in light of the totality of all the evidence before the jury to gauge the effect of the
error. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Williams v. United States, 452 F.3d
1009, 1013 (8th Cir. 2006).
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1For the sake of simplicity, the Court will refer to the transcript from the November 13, 2002, hearing on
Vargas’ Motion for Attorney Substitution as the “Hearing Tr.”
5
Where a defendant raises multiple claims of ineffective assistance, each claim of ineffective
assistance must be examined independently rather than collectively. Hall v. Luebbers,296 F.3d 385,
692-93 (8th Cir. 2002); Griffin v. Delo, 33 F.3d 895, 903-04 (8th Cir. 1994).
1. 	INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
a. 	CHOICE OF COUNSEL
Vargas contends that he was denied counsel of his choice and asserts that a criminal
defendant has a Sixth Amendment right to counsel of his or her choice. The Government responds
by noting that an indigent defendant has no constitutional right to have a particular attorney
appointed to represent him and that Vargas did not state that he wanted to retain another attorney.
Vargas replies that any failure on his part to specifically inform the Court that he wanted to retain
an attorney was due to his inability to fully and proficiently understand and communicate in English.
On November 7, 2003, Vargas submitted a letter to the Court requesting that his court-
appointed counsel be dismissed from the case. See Docket No. 87. Vargas asserted that his attorney
had a “conflict of interest in the way he [was] handling [his] case.” See Docket No. 87. Vargas
asked for another attorney “to be appointed to [his] case.” See Docket No. 87. The Court treated
the letter as a Motion for Attorney Substitution. See Docket No. 87.
On November 13, 2003, the Court held a hearing regarding Vargas’ motion. 	A
Spanish/English interpreter was present throughout the hearing. 	See Transcript of Hearing on
November 13, 2003.1 On November 14, 2004, the Court issued an order denying Vargas’ request
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for substitute counsel. See Docket No. 90. Vargas now contends that he intended to retain his own
attorney and that his failure to clearly articulate this information was based on his limited ability to
understand English.
The record reflects that at all times during the hearing and during discussions with his
attorney, Vargas had access to an interpreter. 	Vargas submitted an affidavit from Wahnita
Hernandez who states that she was willing to hire an attorney for Vargas in October of 2003. See
Docket No. 209. However, Vargas failed to provide such information to the Court at the time he
requested substitute counsel.
It is well-established that an indigent criminal defendant has no constitutional right to have
a particular attorney. United States v. Gonzalez-Lopez, 399 F.3d 924, 928-29 (8th Cir. 2005) (“A
non-indigent criminal defendant’s Sixth Amendment rights encompass the right to be represented
by the attorney selected by the defendant” and “an accused who is financially able to retain counsel
of his own choosing must not be deprived of a reasonable opportunity to do so, the right to retain
counsel of one’s choice is not absolute.”); see also United States v. Espino, 316 F.3d 788, 798-99
(8th Cir. 2003). 	Vargas fails to appreciate the distinction between an indigent defendant and a
defendant with the financial ability to retain counsel. Vargas had no right to counsel of his choice.
Thus, the Court finds that Vargas’ assertion that his Sixth Amendment rights were violated must fail
as a matter of law.
As to Vargas’ claim that his failure to inform the Court that he wished to retain counsel
should be excused because of his poor understanding of English, the Court finds this claim to be
without merit. The record reflects that an interpreter was present at the hearing on November 13,
2003, and at various meetings between Vargas and his attorney. Near the end of the November 13,
2003, hearing, the Court gave Vargas an opportunity to address any other issues at the hearing, and
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Vargas declined. See Hearing Tr. 20. The record is devoid of evidence to support Vargas’ claim that
his failure to articulate his desire to retain counsel should be excused because he did not understand
English. Vargas has failed to establish that his Sixth Amendment right to counsel was violated.
b. 	CONFLICT OF INTEREST
Vargas contends that his trial counsel had a conflict of interest with the case and thus, he
received ineffective assistance of counsel at trial. Vargas sets forth three theories to support the
conflict of interest claim. First, Vargas contends that he and his attorney had a complete breakdown
of communications. Second, Vargas asserts that an irreconcilable conflict of interest arose when his
trial counsel opposed Vargas’ request for a new attorney. Finally, Vargas asserts that his counsel
previously represented two Government witnesses: Russell Lipp and Leslie L. Schmidt. Vargas
contends that his trial counsel secured immunity from prosecution for Lipp and that Lipp
subsequently testified before the grand jury and at trial. Vargas contends that his counsel’s failure
to cross-examine Lipp at trial was based on the conflict of interest. Vargas asserts that counsel’s
previous representation of Schmidt was also a conflict of interest.
Justifiable dissatisfaction sufficient to warrant that new counsel be appointed includes a
conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between
the attorney and the defendant. United States v. Exson, 328 F.3d 456 (8th Cir. 2003) (quoting Smith
v. Lockhart, 923 F.2d 1314, 1320 (8 th Cir. 1991)). 	The proper focus in evaluating claims of
dissatisfaction with counsel is on the quality of the advocacy. When a defendant makes a request
for substitute counsel, the Court should inquire into the reason(s) for the defendant’s dissatisfaction
with his attorney before ruling on the request. See McMahon v. Fulcomer, 821 F.2d 934 (3rd Cir.
1987).
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i) 	COMMUNICATION BREAKDOWN
At the November 13, 2006, hearing, the Court questioned Vargas as to why he wished to have
new counsel appointed. 	See Hearing Tr. 4-6, 9-10, 13. 	Vargas gave several reasons for his
dissatisfaction with appointed counsel including (1) his attorney became upset with him when he
repeatedly asked the same questions (Hearing Tr. 5-6); (2) Vargas felt he should have been offered
a more lenient plea from the government (Hearing Tr. 9-10); and (3) Vargas’ attorney had not
stopped the media coverage of the case (Hearing Tr. 14). Vargas acknowledged that he had met with
his attorney multiple times (Hearing Tr. 8); that his attorney was very familiar with the facts of the
case (Hearing Tr. 9, 13); and that his attorney had shared the discovery information with him
(Hearing Tr. 13). 	The Court also gave Vargas an opportunity to address any other issues at the
hearing, and Vargas declined. See Hearing Tr. 20.
On November 14, 2004, the Court issued an order denying Vargas’ request for substitute
counsel. 	See Docket No. 90. 	The Court found that Vargas had failed to show a justifiable
dissatisfaction with counsel and that there had been no evidence presented to show any conflict of
interest, an irreconcilable conflict, or a complete breakdown of communications between Vargas and
his counsel. The Court also noted that it was aware of the fact that Vargas’ attorney had recently
represented Vargas in a different criminal case in federal court with no complaints or concerns raised
by Vargas as to the handling of that matter.
It is well-established that frustration with counsel’s tactics, or antagonism between a
defendant and his counsel are not sufficient to warrant new counsel. United States v. Boone, 437
F.3d 829, 839 (8th Cir. 2006). 	The burden is on the defendant to establish “justifiable
dissatisfaction” with his attorney. United States v. Davidson, 195 F.3d 402, 407 (8th Cir. 1999).
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The reason(s) for Vargas’ dissatisfaction primarily relate to his concerns about plea negotiations
with the Government and the more favorable treatment shown to other defendants in other drug
cases. In addition, Vargas raised unfounded concerns about the adverse publicity generated in the
press, but such reasons are insufficient. Vargas has failed to establish any conflict of interest, an
irreconcilable conflict, or a complete breakdown of communications between the attorney and the
defendant. The Court finds that Vargas has failed to show a justifiable dissatisfaction with counsel
that would have permitted substitute counsel. 	Thus, the Court finds that Vargas has failed to
establish a conflict of interest as to this issue.
ii) 	OPPOSITION TO REQUEST FOR A NEW ATTORNEY
Vargas also contends that once his attorney opposed the request for substitution of counsel,
a conflict arose. Vargas asserts that his attorney told him that because of the complexity of the case
and the fast-approaching trial date, there was not sufficient time for a new attorney to handle the
case. The Government asserts that nothing in the record reflects that Vargas’ counsel opposed the
motion for substitute counsel. Rather, the Government contends that counsel was simply advising
Vargas that it would be unlikely a new attorney would be appointed. In addition, the Government
notes that Vargas did not consistently and vigorously object to the continued representation by his
appointed counsel.
Contrary to Vargas’ assertions, the record does not establish that Vargas’ counsel opposed
the motion for substitute counsel. A thorough review of the transcript of the November 13, 2003,
hearing reveals that Vargas’ counsel indicated he was prepared to proceed to trial and would do his
best to represent Vargas. See Hearing Tr. 11-12. The record is devoid of any evidence to support
Vargas’ assertion that his counsel opposed the motion for substitution of counsel. The Court finds
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that Vargas has failed to establish that trial counsel opposed the motion for substitute counsel. As
a result, Vargas has failed to establish a conflict of interest as to this issue.
iii) 	COUNSEL’S PRIOR REPRESENTATION OF TWO
GOVERNMENT WITNESSES
Vargas asserts that trial counsel’s prior representation of two Government witnesses shows
that counsel had a conflict of interest which rendered his assistance ineffective. The Government
acknowledges that Vargas’ counsel represented Government witness Russell Lipp and arranged
immunity for him to testify before a grand jury, and that Vargas’ counsel represented Government
witness Leslie Schmidt in a divorce proceeding in 1995. It is undisputed that the record reflects that
the Court was unaware of any of this information prior to trial.
The standard of review upon a claim of conflict of interest depends on the nature of the
alleged conflict and whether the conflict was brought to the attention of the trial court. The United
States Supreme Court had held that when defense counsel is appointed to represent multiple co-
defendants and one of the defendants objects to the multiple representation, a trial court is under a
duty to inquire into the potential conflicts and failure to make such an inquiry results in the
presumption of prejudice and automatic reversal. Holloway v. Arkansas, 435 U.S. 475, 488-90
(1978). However, when no objection to multiple representation is raised in the trial court, the United
State Supreme Court has held that a defendant was required to show that an “actual conflict of
interest adversely affected his lawyer’s performance” before habeas relief could be granted. Cuyler
v. Sullivan, 446 U.S. 335, 348-49 (1980). 	Even in a situation where the trial court knew or
reasonably should have known of a potential conflict (defense counsel had previously represented
the victim of an alleged crime in a separate criminal proceeding), the United States Supreme Court
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held that a defendant was still required to show that the conflict adversely affected counsel’s
performance before habeas relief could be granted. 	Mickens v. Taylor, 535 U.S. 162, 173-174
(2001).
The Eighth Circuit has not squarely addressed whether the rule from Cuyler requiring a
defendant to show that the alleged conflict adversely affected counsel’s performance should be
applied outside of cases involving “multiple representation of codefendants or serial representation
of defendants.” Caban v. United Staets, 281 F.3d 778 (8th Cir. 2002). The Eighth Circuit noted that
other circuits had limited the application of Cuyler because not all cases involving a “conflict of
interest are well suited to resolution under the strict rule of Cuyler,” and at least one circuit has
applied the prejudice requirement of Strickland in conflict cases not involving multiple
representation. Id. The Eighth Circuit ultimately held that it need not determine whether to apply
the Strickland or Cuyler standard because the defendant’s claim failed under either standard. Id. at
783.
The Eighth Circuit recently clarified the standard a habeas petitioner must demonstrate to
meet the Cuyler standard that “an actual conflict of interest adversely affected his defense.”
Winfield v. Roper, 460 F.3d 1026, 1038-39 (8th Cir. 2006).
To be successful [a petitioner] would have to identify an actual demonstrable adverse
effect, not merely an abstract or theoretical one . . . . To establish that there was a
conflict in representation, the [petitioner] must show that the conflict caused the
attorney’s choice to engage or not to engage in particular conduct . . . . 	Such a
showing required the [petitioner] to identify a plausible alternative defense strategy
or tactic that defense counsel might have pursued; show that the alternative strategy
was objectively reasonable under the facts of the case; and establish that the defense
counsel’s failure to pursue that strategy or tactic was linked to the actual conflict.
Winfield v. Roper, 460 F.3d 1026, 1039 (8th Cir. 2006). The Eighth Circuit cautioned once again
that “the Cuyler rule presuming prejudice has not been extended by the Supreme Court beyond cases
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in which an attorney has represented more than one defendant, . . . and [the Eighth Circuit] has never
determined whether it should be applied to other cases.” Winfield v. Roper, 406 F.3d 1026, 1039
(8th Cir. 2006). Just as the Eighth Circuit concluded in Winfield, this Court need not decide whether
the Cuyler rule extends to cases beyond those involving joint representation, because Vargas’ claim
fails under both the Cuyler rule and the traditional Strickland test. Vargas fails to appreciate that
he must establish more than the simple fact that his defense counsel previously represented Lipp and
Schmidt.
As previously discussed, under the Cuyler rule a defendant is required to show that an actual
conflict of interest adversely affected his defense. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
Thus, to be successful, Vargas would have to identify an actual and demonstrable adverse effect,
“not merely an abstract or theoretical one.” United States v. Flynn, 87 F.3d 996, 1001 (8th Cir.
1996). “To establish that there was a conflict in representation, the defendant must show ‘that the
conflict caused the attorney’s choice’ to engage or not to engage in particular conduct.” Winfield
v. Roper, 406 F.3d 1026, 1039 (8th Cir. 2006)(quoting Covey v. United States, 377 F.3d 903, 906
(8th Cir. 2004)). Such a showing requires the defendant to “identify a plausible alternative defense
strategy or tactic that defense counsel might have pursued,” “show that the alternative strategy was
objectively reasonable under the facts of the case,” and “establish that the defense counsel’s failure
to pursue that strategy or tactic was linked to the actual conflict.” Winfield v. Roper, 406 F.3d 1026,
1039 (8th Cir. 2006) (quoting Covey v. United States, 377 F.3d 903, 908 (8th Cir. 2004)).
As to the alleged conflict with Government witness Russell Lipp, Vargas must identify a
plausible defense strategy that was objectively reasonable under the facts of the case, and further
establish that counsel’s failure to pursue that strategy was linked to the actual conflict. 	Vargas
asserts that defense counsel’s failure to cross-examine Lipp was a result of the conflict. However,
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a review of the trial transcript reveals that Lipp did not implicate Vargas in any manner or even
mention Vargas’ name at trial. See Trial Transcript, 714-737. Lipp also did not mention Vargas’
co -defendant Thomas Pinks, and Pinks’ counsel also declined to cross-examine Lipp. 	Vargas
contends that Lipp’s testimony did incriminate Vargas because prior testimony had identified Vargas
as the ring-leader and thus, any testimony about co-defendant Shawn Barth indirectly implicated
Vargas. 	Vargas asserts that his counsel should have cross-examined Lipp about his immunity
agreement and his knowledge of who was Barth’s source for the methamphetamine. Finally, Vargas
asserts that at the time of sentencing he was held accountable for all of the drugs distributed by Barth
and, as a result, Lipp’s testimony impacted his sentence.
Vargas has failed to establish that defense counsel’s decision not to cross-examine Russell
Lipp was linked to the alleged conflict. The Court finds that it is not unreasonable for an attorney
to forego cross-examining a witness if the witness does not implicate his client. Further, Vargas’
co-defendant’s counsel vigorously cross-examined Lipp as to the amount of drugs he received and
saw in the possession of co-defendant Barth and the extent of Lipp’s criminal history. Vargas’ co-
defendant’s counsel was able to elicit testimony from Lipp that he had lied to law enforcement
officers. See Trial Tr. 731-734. Under the circumstances, the Court finds that Vargas has failed to
establish a plausible defense strategy that was objectively reasonable under the facts of the case and
that counsel’s failure to pursue such a strategy was linked to the alleged conflict. Thus, the Court
finds that as to Government witness Russell Lipp, Vargas has failed to establish that under either
the Cuyler or Strickland standards that defense counsel had a conflict of interest which rendered his
assistance ineffective.
As to Government witness Leslie Schmidt, the record reveals that Vargas’ counsel had
represented Schmidt in a divorce proceeding in 1995. Defense counsel’s representation of Schmidt
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ended well before criminal charges against Vargas were pursued in federal court. The record is
devoid of any indication that information from the divorce case would be relevant or somehow
detrimental to Vargas. At trial, Schmidt testified regarding incidents occurring in 2000 and 2002,
long after the conclusion of the divorce proceedings. As a result, the Court finds that Vargas has
failed to establish a conflict.
Even if the Court were to conclude that a potential conflict of interest existed, Vargas would
still be required to demonstrate that he was prejudiced because of the potential conflict. Schmidt
testified that on two occasions in 2000, Vargas came into the business where she was employed
looking for co-defendant Shawn Barth and that she assisted Vargas in contacting Barth. Essentially,
Schmidt linked Vargas to Barth in 2002. Vargas has failed to identify an objectively reasonable
defense strategy that counsel failed to pursue because of the alleged conflict. 	The Court finds that
as to Government witness Leslie Schmidt, Vargas has failed to establish that under either the Cuyler
or Strickland standards that defense counsel had a conflict of interest which rendered his assistance
ineffective.
c. 	HEARSAY
Vargas contends that his counsel was ineffective for failing to object to the admission of
hearsay testimony and that the testimony violated his right to confrontation. Vargas argues that
Detective Roger Becker presented hearsay when he testified about a voicemail message he received
from co-defendant Nancy Ferneau. In the message, Ferneau stated that Vargas had crawled through
her daughter’s window, told Ferneau’s daughter that Ferneau had “fucked him over,” advised that
he was going to take care of it, and declared that he wanted to get a gun. 	See Trial Tr. 1240.
Detective Becker testified that Ferneau called the next day to tell him that Vargas and his friends
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were in town and that Vargas had told Ferneau’s daughter that Ferneau was to keep her mouth shut.
See Trial Tr. 1240-1241. As Vargas points out, there was no objection to this testimony.
Vargas asserts that his counsel was ineffective for failing to object to this testimony as
hearsay. 	Vargas also complains that the Government referred to the evidence in its closing and
rebuttal arguments. The Government asserts that the testimony was not hearsay, and even if it was,
Vargas has failed to show that he was prejudiced by his counsel’s failure to object.
Rule 801(c) of the Federal Rules of Evidence defines hearsay as:
a statement, other than one made by the declarant while testifying at the trial . . . ,
offered in evidence to prove the truth of the matter asserted.
Fed. R. Evid. 801(c). There is no question that the testimony regarding Ferneau’s voicemail and
subsequent contact with Detective Becker was not offered for the truth of the matter asserted. As
the Government noted in its closing and rebuttal arguments, the evidence was used to show
Ferneau’s involvement in the conspiracy, not to provide that Vargas had threatened Ferneau’s
daughter. See Trial Tr. 1391-1395; 1488-1489. Thus, Vargas’ counsel’s failure to object to the
testimony of Detective Becker cannot be considered ineffective because there was no basis for the
objection.
Vargas makes a passing assertion that the admission of Detective Becker’s testimony was
also a violation of his confrontation rights. As to the issue of Vargas’ right to confrontation, the
Eighth Circuit has held that the existence of a conspiracy need not be proved before any of the
statements of a co-conspirator are admitted so long as it is shown during the Government’s case, by
a preponderance of the evidence, that a conspiracy existed; that the declarant was a participant in
that conspiracy; and that the declaration was made during the course of, and in furtherance of, the
conspiracy. United States v. Bell, 573 F.2d 1040, 1043 (8th Cir. 1978); United States v. Macklin,
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573 F.2d 1046, 1048 (8th Cir. 1978). There is no question that a preponderance of the evidence
established that a conspiracy existed; that Vargas was a participant in that conspiracy; and that
Vargas’ threat was made during the course of, and in furtherance of, the conspiracy. The Eighth
Circuit has held that threats made by co-conspirators to other co-conspirators or other cooperating
witnesses are admissible to show bias on the part of a cooperating witness and guilt on the part of
a co-conspirator. See United States v. Walter, 461 F.3d 1005, 1009 (8th Cir. 2006) (cooperating co-
conspirator’s threat admissible to show bias) United States v. Montano-Gudino, 309 F.3d 501, 505
(8th Cir. 2002) (“threat relevant to show the conspirators’ consciousness of guilt”); United States
v. Reddx, 106 F.3d 236, 239 (8th Cir. 1997)(“evidence of death threats against cooperative witnesses
is generally admissible against a criminal defendant to show an admission by conduct or knowledge
of guilt of the crime charged”). The Court finds that any objection to the testimony regarding the
threat made by Vargas would have likely failed and that the evidence would have been admitted.
Even if the Court were to assume that Detective Becker’s testimony was hearsay or a
violation of the confrontation clause, Vargas must also show that the deficient performance
prejudiced his defense. In other words, Vargas must show that there was a reasonable probability
that, but for counsel’s ineffectiveness, the result of the proceeding would have been different. When
evaluating the probability the result would have been different, a court views the alleged error in
light of the totality of all the evidence before the jury to gauge the effect of the error. Kimmelman
v. Morrison, 477 U.S. 365, 381 (1986); Williams v. United States, 452 F.3d 1009, 1013 (8th Cir.
2006).
As noted previously, after a jury trial during which dozen of witnesses testified, Vargas was
found guilty of four drug and firearm offenses. The Government provided a thorough summary of
the witnesses and evidence that implicated Vargas in the drug and firearm offenses.
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17
Rigaberto Fernandez provided substantial evidence implicating Vargas.
Fernandez, who admitted he was also known as “Beto” (Tr. 873), testified that
Vargas recruited him to haul drugs from Washington to Bismarck 	(Tr. 838-39).
Fernandez made eight successful trips but was caught in Montana on the ninth trip
(Tr. 840, 847). Upon arriving in Bismarck, Fernandez would deliver the drugs to
Ferneau’s trailer at Vargas’ direction (Tr. 843). Once there, Vargas, and Ferneau
would divide up the drugs. (Tr. 846). Ferneau would then call people who would
arrive and obtain methamphetamine (Tr. 848). Fernandez testified that one of the
persons who obtained drugs at Ferneau’s was James Rhone (Tr. 864). Barth was
another person who would go to Fernearu’s after the drugs arrived and obtain drugs
(Tr. 848-49, 878).
James Rhone’s testimony, which corroborated Fernandez’s testimony, also
implicated Vargas. Rhone testified that he was obtaining drugs from Ferneau at her
house, and it was there that he first saw “Poncho” and Fernandez (Tr. 912-16). At
trial, witnesses identified Vargas as “Poncho” (Tr. 843, 960-61). 	Vargas and
Fernandez approached Rhone about selling drugs for them (Tr. 915-16, 925). Rhone
was present when Vargas and Fernandez brought drugs to Ferneau’s, and he obtained
drugs from Vargas at Ferneau’s (Tr. 917, 920). 	This corroborated Fernandez’s
testimony about where the drugs were taken when Fernandez arrived in Bismarck
and what was done with the drugs. Rhone also testified that Vargas and Fernandez
told him the drugs were coming from Washington (Tr. 917), just as Fernandez
testified. Rhone’s wife, Patricia Rhone, also testified to obtaining drugs from Vargas
or Fernandez (Tr. 962-64).
Similarly, Blaine Martinez and Jennifer Wilke testified they first met Vargas
at Ferneau’s (Tr. 1071-72, 1109). According to Martinez, Vargas has drugs for sale
(Tr. 1111-12). Although Martinez did not initially buy any drugs from Vargas, he
contacted Barth who arrived with money to purchase drugs (Tr. 1111-12). Martinez
testified that after he first met Vargas, he began obtaining meth from Vargas, some
of which occurred at Ferneau’s trailer (Tr. 1116-17).
In April 2000, Martinez and Wilke were in possession of methamphetamine
and marijuana when they were arrested (Tr. 1062-63, 1101-02). Both Martinez and
Wilke testified that they had obtained the methamphetamine from Vargas at a Super
8 Motel in Bismarck a day or two earlier (Tr. 1062-63, 1101-02). Business records
from the Super 8 Motel indicated Vargas has stayed there in April 2000 (Tr. 1147-
48, 1151).
Fernandez also testified to a trip in which Vargas gave Barth and another man
a ride to Idaho. Fernandez was traveling to Washington while Vargas was giving
Barth and the other man, whose name Fernandez did not really know, a ride to Idaho
(Tr. 861). Fernandez traveled in a separate car (Tr. 862).
Jason Kramer testified that he took a trip to Idaho with Vargas, Barth, and
another man to obtain a vehicle, and that Fernandez was traveling in another vehicle
(Tr. 657-62). Kramer had previously met Vargas and Fernandez at Barth’s shop (Tr.
658). 	During the trip, Vargas talked of his importing drugs to Bismarck and
indicated that the drugs were in Fernandez’s vehicle (Tr. 660). In addition, Barth
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18
indicated to Kramer that the men they were traveling with were the source of his
drugs (Tr. 658-59).
Other witnesses also implicated Vargas on the drug charges. 	Charles
Chadwick testified that Patty Rhone put him in contact with Vargas, and that they
arranged for Chadwick to transport drugs from the west coast (Tr. 987-90).
Chadwick acknowledged he did so on two occasions (Tr. 987-90). Scott Messmer
testified that Vargas asked him to transport drugs for Vargas (Tr. 1198). Patricia
Walsh testified [that] she saw Vargas bring marijuana to Ferneau’s, and saw
Fernandez distribute methamphetamine to Patty Rhone (Tr. 1159-60, 1162-63).
Fernandez testified about Vargas obtaining a gun from Barth in exchange for
cocaine (Tr. 853-54). According to Fernandez, Vargas need the gun because a man
named Blaine owed Vargas money for drugs (Tr. 858-59). Blaine Martinez testified
that he owed Vargas for the methamphetamine which was seized when he was
arrested (Tr. 1118). According to Martinez, Vargas found Martinez and threatened
him with a gun (Tr. 1118).
. . .
Tim Sailer, an inmate at the Burleigh County Detention Center in 2001,
testified about a pistol he previously owned, an S&K .40 caliber semi-automatic (Tr.
1276). While he was incarcerated, Sailer stated he was locked up with a man by the
name of “Gregorio Velasco” who was there on an illegal immigration matter (Tr.
1275-76). Velasco was identified by a Border Patrol Agent and by a former Burleigh
County Detention Officer as Defendant Vargas (Tr. 579-83, 1280-85). 	Sailer
testified that Velasco a/k/a Vargas told him about a gun and a gun case that fit the
description of a handgun and case Sailer had once owned (Tr. 1276-78). 	Sailer
stated Velasco a/k/a Vargas indicated he had obtained the gun from Barth (Tr. 1277).
Sailer identified the gun at trial (Exhibit 117) as the one he previously owned (Tr.
1276). This gun had been seized during a traffic stop of a vehicle driven by Vargas
in Minnesota (Tr. 1263-66). 	Furthmore, there was a photo (Government Trial
Exhibit 64) of Vargas handling the firearm at the Super 8 Motel in Bismarck
introduced at trial (Tr. 784-86, 852-53).
See Government’s Response Brief, pp. 23-27.
As the record reflects, no less than nine witnesses implicated Vargas as to the drug charges
and the evidence as to the firearm charge was overwhelming. The Court finds that even if defense
counsel’s failure to object to Detective Becker’s testimony regarding Ferneau’s voicemail and
subsequent phone call was deficient, Vargas has failed to establish a reasonable probability that the
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2As the Government notes, other evidence of threats by Vargas was admitted at trial and Vargas has not
contested that such evidence was improper. See Government’s Response Brief, pp. 27-28
19
results of the trial would have been different.2 The Court finds that there was overwhelming
evidence of Vargas’ guilt on all four counts. The Court further finds that there is no reasonable
probability that the result would have been different. 	Vargas’ claims that the alleged hearsay
evidence played a significant role in his conviction must fail as a matter of law.
d. 	SEVERANCE
Vargas asserts that his trial counsel was ineffective in failing to file a motion to sever his
case from the other defendants. Vargas contends that his defense counsel should have moved for
a severance once he reviewed Detective Becker’s investigative report in regard to Ferneau’s
statements (i.e., the evidence discussed above). Vargas contends that if his trial were severed from
Ferneau’s the evidence of her voicemail and phone calls to Detective Becker would not have been
admissible. 	The Government argues that, because of the overwhelming evidence against him,
Vargas cannot show that he was prejudiced by trial counsel’s failure to move for a severance.
Vargas must first establish that a motion to sever would have been successful. A severance
under Rule 14 of the Federal Rules of Criminal Procedure should be granted “only if there is a
serious risk that a joint trial would compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States,
506 U.S. 534, 538 (1993). However, a defendant is “not entitled to severance merely because they
may have a better chance of acquittal in separate trials.” Id. As a general rule, persons charged with
a conspiracy will be tried together, especially where proof of the charges against each of the
defendants is based on the same evidence and acts. United States v. Foote, 920 F.2d 1395, 1398 (8th
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20
Cir. 1990) (citing United States v. O’Meara, 895 F.2d 1216, 1218 (8th Cir.) cert. denied, 498 U.S.
943 (1990)).
It is well-established that a defendant can demonstrate real prejudice to his right to a fair trial
by showing (a) his defense is irreconcilable with that of his co-defendant or (b) the jury will be
unable to compartmentalize the evidence as it relates to the separate defendants. United States v.
Washington, 318 F.3d 845, 858 (8th Cir. 2003). The risk of prejudice posed by joint trials is best
cured by careful and thorough jury instructions. United States v. Mickelson, 378 F.3d 810, 818 (8th
Cir. 2004). The defendant has the burden to establish that severance is warranted and necessary.
Bear Stops v. United States, 204 F. Supp.2d 1209, 1215-1216 (D. S.D. 2002).
The Court finds that Vargas has failed to establish that a motion for severance would have
been granted. Vargas has failed to show that his defense was irreconcilable with that of his co-
defendants. The acquittal of one of the co-defendants belies any claim by Vargas that the jury was
unable to compartmentalize the evidence. 	Thus, Vargas’ trial counsel’s failure to move for
severance cannot be considered ineffective because there was no basis for the motion.
Even if Vargas were able to show that severance was warranted under the circumstances,
Vargas has failed to establish that the results of a separate trial would have been different. 	As
detailed above, even without Detective Becker’s testimony about the voicemail and phone calls from
Ferneau, the evidence against Vargas was overwhelming. Vargas’ claim that his counsel’s failure
to move to sever his trial from that of his co-defendants played a significant role in his conviction
must fail as a matter of law. The Court finds that there is no reasonable probability that the result
would have been different.
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e. 	STATEMENTS TO POLICE
Vargas next asserts that his trial counsel was ineffective for failing to move to suppress
statements Vargas made to Morton County Deputy Sheriff Dion Bitz after his arrest. Vargas asserts
that the statements were incriminating, damaging, and prejudicial to his defense. Vargas asserts that
any allegedly incriminating statements he made were made after he was arrested, but before his
Miranda rights were read to him. Vargas argues that he requested that his trial counsel file a motion
to suppress, but counsel failed to follow Vargas’ directive. The Government contends that Vargas
cannot show that a motion to suppress would have been successful or that there was a reasonable
probability the outcome of the trial would have been different.
Morton County Deputy Sheriff Dion Bitz testified at trial regarding the traffic stop in
question. 	Deputy Sheriff Bitz arrested Vargas for driving with a suspended license and on an
immigration warrant for illegally being in the United States. See Trial Tr. 561-562. Vargas was
driving a black Fiero at the time of his arrest. See Trial Tr. 558-559. After Officer Bitz stopped
Vargas and obtained Vargas’ Washington State driver’s license, Bitz inquired about the owner of
the vehicle. Vargas indicated that the vehicle belonged to Vargas’ nephew, even though it was
registered to an individual named Kelly Froelich from Mandan. 	See Trial Tr. 558-560. 	After
transporting Vargas to the law enforcement center in Mandan, Officer Bitz informed Vargas of his
Miranda rights. See Trial Tr. 563. According to Officer Bitz’ testimony, Vargas gave essentially
the following information during questioning: (1) Vargas’ nephew Jaun Quintero had traded the
white van to Shawn Barth for the black Fiero that Vargas had been driving; (2) Vargas did not know
Shawn Barth; (3) Vargas was traveling from Avon, Minnesota, to Washington; (4) Vargas had
obtained his driver’s license, even though he was illegally in the United States, by simply going to
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22
the Department of Motor Vehicles; (5) that Vargas was in the United States illegally; and (6) Vargas
was in the United States because he had family in Washington. See Trial Tr. 563-565, 567-568.
After the questioning, Officer Bitz checked Vargas’ body for tattoos at the request of an
Immigration and Naturalization Services agent. See Trial Tr. 565-567. Vargas then began asking
Officer Bitz to give him a break. See Trial Tr. 567-568. Vargas asked Bitz several times to give
him a break. See Trial Tr. 567-568. After Officer Bitz advised Vargas that he could not do so,
Vargas spontaneously blurted out information regarding his past drug-related problems, stating that
he had a bad history with drugs and that he was “fucked.” See Trial Tr. 568.
In order to obtain relief, Vargas must show that his suppression claim is “meritorious and
that there is a reasonable probability that the verdict would have been different absent the excludable
evidence.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (where allegation of ineffective
assistance of counsel claim is based on a failure to litigate Fourth Amendment claim, defendant must
“prove that Fourth Amendment claim is meritorious and that there is a reasonable probability that
the verdict would have been different absent the excludable evidence”).
It is clear that the government may not use statements, whether exculpatory or inculpatory,
stemming from a custodial interrogation of a defendant, unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S.
436, 444 (1966). It is incumbent upon the government to demonstrate that the defendant voluntarily,
knowingly, and intelligently waived his privilege against self-incrimination and his right to have
retained or appointed counsel. 384 U.S. 436, 475. The government has the burden of proving the
validity of the Miranda waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S.
157, 168-169 (1986).
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23
The record before the Court contains the testimony of Officer Bitz that he read Vargas his
Miranda rights (Trial Tr. 563) and the statement in Vargas’ affidavit that he did not waive his
Miranda rights (Docket No. 1-14). The Court finds it unnecessary to resolve this dispute. Even if
the Court were to determine that Vargas’ statements were improperly admitted, Vargas has failed
to establish a reasonable probability that the outcome of the trial would have been different.
Although the statements were arguably inculpatory , the other evidence against Vargas was
overwhelming. In the absence of Vargas’ statement there were numerous witnesses who implicated
Vargas in connection with the drug trafficking offenses and there was ample evidence, wholly
independent from his statements, that established that Vargas was in the United States illegally and
in possession firearm(s). 	Thus, Vargas’ claim that his counsel failed to move to suppress his
statements played a significant role in his conviction must fail as a matter of law. The Court finds
that there is no reasonable probability that the result of the trial would have been different had the
statements been suppressed.
f. 	TESTIMONY OF GOVERNMENT WITNESSES
CONCERNING IDENTIFICATIONS
Vargas also claims that his trial counsel was ineffective for failing to seek suppression of
witness identifications of him, arguing that the witnesses had been subjected to suggestive pretrial
identification practices because they were only shown one picture during interviews by law
enforcement and this process violated his Fifth Amendment right to due process. The witnesses
Vargas identifies are William Canada, Jason Kramer, James Rhone, Leslie Schmidt, and Tim Sailer.
The Government argues that four of the witnesses Vargas complains about did not make an in-court
identification at trial and that, considering the totality of the circumstances, Vargas failed to show
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24
that there was a substantial likelihood that the one witness who made an in-court identification
misidentified Vargas.
In addressing a claim of an improper identification process, the court applies the two-part
test the United States Supreme Court adopted in Manson v. Brathwaite, 432 U.S. 98 (1977). See
United States v. Murdock, 928 F.2d 293, 297 (8th Cir. 1991). 	First, the court must determine
whether the challenged confrontation was impermissibly suggestive. The factors to be considered
in determining if a pretrial identification procedure was impermissibly suggestive include: (1) the
opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of
attention, (3) the accuracy of any prior description of the criminal, (4) the level of certainty
demonstrated at the confrontation, and (5) the time between the crime and the confrontation. United
States v. Gipson, 383 F.3d 689, 698 (8th Cir. 2004). The Eighth Circuit has held that a single photo
array is impermissibly suggestive. United States v. Murdock, 928 F.2d 293, 297 (8th Cir. 1991).
If the court determines that the pretrial identification procedure was impermissibly suggestive, the
court must then determine whether, under the totality of the circumstances, the suggestive
procedures created “a very substantial likelihood of irreparable misidentification.” 	See United
States v. Murdock, 928 F.2d 293, 297 (8th Cir. 1991) (citing Manson v. Brathwaite, 432 U.S. 98
(1977)).
As to witness William Canada, the record reveals that Canada made an in-court identification
of Vargas. See Trial Tr. 405-406. The reports of a May 22, 2003, interview of Canada submitted
by Vargas, (Docket No. 1-9, Exhibit G), provide that after a period of frequent contact with Vargas’
co-defendant Shawn Barth, Barth arranged for two Mexicans to stay at Canada’s house. During the
interview, Canada discussed his encounters with the two Mexicans. After Canada made the previous
statements, the investigators showed Canada a photo of a person Canada identified as Vargas. At
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trial, Canada relayed the same information. See Trial Tr. 404-405. When asked to describe what
the two Mexicans looked like, Canada spontaneously pointed to Vargas and stated, “There’s one of
them sitting right over there.” See Trial Tr. 406.
Vargas has arguably satisfied the first prong of the Manson test based on the Eighth Circuit’s
holding that a single photo array is impermissibly suggestive. See United States v. Murdock, 928
F.2d 293, 297 (8th Cir. 1991). 	However, that does not end the inquiry. 	The Court must also
determine whether, under the totality of the circumstances, the suggestive procedures created a very
substantial likelihood of irreparable misidentification. See United States v. Murdock, 928 F.2d 293,
297 (8th Cir. 1991) (citing Manson v. Brathwaite, 432 U.S. 98 (1977)). Canada’s trial testimony
and the investigative reports indicate that the two Mexicans spent a minimum of a couple hours at
Canada’s home and that Canada also saw them the next day. Canada clearly had an extended time
to view Vargas. See United States v. Murdock, 928 F.2d 293, 297 (8th Cir. 1991) (holding that bank
tellers had a “substantial amount of time to view the robber”). 	Under the circumstances, the Court
finds that Vargas has failed to establish a substantial likelihood of misidentification. 	To the
contrary, the circumstances under which Canada interacted with Vargas lend credibility to his
identification. Unlike the numerous cases cited by both parties, Canada was not a victim of a crime
who observed Vargas for a limited period during a stressful time. Rather, Canada was introduced
to Vargas, and Vargas spent a considerable length of time as a guest in Canada’s home.
The four other witnesses mentioned by Vargas did not identify Vargas in court. As with
Canada, during pretrial interviews each of these witnesses was shown a single photo and they
identified the individual as Vargas. Again assuming this procedure was impermissibly suggestive,
the Court will examine whether, under the totality of the circumstances, the suggestive procedure
created a very substantial likelihood of irreparable misidentification.
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As to witness Jason Kramer, the record reveals that in an interview held on November 11,
2000, Kramer told officers that Barth dealt drugs with a couple of Mexicans. See Docket No. 1-9,
Exhibit H. In August of 2000, Kramer and Barth rode with the two Mexicans to Idaho. Kramer also
reported that he had previously seen the Mexicans at Barth’s residence. Kramer told the officers that
a person owed Rosalio money for drugs. Kramer reported that he had seen Rosalio on one occasion
and that he first met “Berto” (Rigaberto Fernandez) and Rosalio in late July or early August 2000.
Kramer informed officers that Rosalio had told Kramer they make weekly drugs trips through
Bismarck. When shown photographs of Vargas and Fernandez , Kramer identified the persons
depicted in the photos as Rosalio and “Berto.”
At trial, Kramer testified that in July or August of 2000, he and Barth traveled with Rosalio
Vargas and “Beto” on a trip to Idaho. See Trial Tr. 657-661. Barth asked Kramer to go along to
retrieve a car. See Trial Tr. 658. During the trip, Kramer rode in a Surburban with Vargas, Barth,
and another individual, while “Beto” drove another vehicle. See Trial Tr. 659-666. During the trip,
Kramer heard Vargas speak about transporting drugs on the trip, specifically that “Beto” had the
drugs in the car he was driving and that Vargas was carrying the money. See Trial Tr. 659-660. It
is undisputed that Kramer did not identify Vargas at trial.
Similar to Canada, Kramer had an extended opportunity to interact with Vargas on the trip
to Idaho and back. Kramer’s identification of Vargas took place within three to four months of his
encounters with Vargas. Kramer’s testimony was corroborated in large part by cooperating co-
defendant Rigoberto “Beto” Fernandez. 	The Court finds that based on the totality of the
circumstances, Vargas has failed to establish a substantial likelihood of misidentification.
As to witness James Rhone, the record reveals that at trial Rhone testified that the first time
he met an individual referred to as “Poncho” was when Poncho and “Beto” approached him at
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27
Nancy Ferneau’s house and spoke to him about selling methamphetamine. See Trial Tr. 951, 920.
Rhone stated that he had previously seen Poncho and “Beto” on two occasions, but had not spoken
to them. See Trial Tr. 915-916. Rhone testified that it was Poncho who spoke with him about
selling drugs. See Trial Tr. 916. Poncho and “Beto” told Rhone they were getting their drugs from
Seattle. See Trial Tr. 916-917. Rhone testified that he was present on more than one occasion when
Poncho and “Beto” would deliver drugs to Ferneau’s home. See Trial Tr. 917. Rhone testified that
Poncho and “Beto” would break up the methamphetamine and give him (Rhone) some to sell. See
Trial Tr. 918-919, 924-925). After selling the methamphetamine, Rhone gave the proceeds of the
sales to Poncho or “Beto”. 	See Trial Tr. 919. 	Rhone testified that later he would obtain
methamphetamine from Poncho or “Beto” at a Bismarck hotel. See Trial Tr. 922-923. Rhone’s
dealings with Poncho and Beto began in the spring of 2000 and continued about five or six months
until he went to prison in September 2000. See Trial Tr. 926. In a pretrial interview on February
2, 2001, Rhone recounts some of the same information he testified to at trial. See Docket No. 1-11.
During the interview, Rhone identified a photo of Vargas as “Poncho” and a photo of Rigoberto
Fernandez as “Beto.” It is undisputed that Rhone did not identify Vargas at trial.
Similar to Canada and Kramer, Rhone had an extended opportunity to interact with Vargas
during the numerous times he obtained methamphetamine from Vargas. Rhone’s identification took
place six or more months after Rhone’s last encounter with Vargas. 	Nevertheless, the record
establishes that Rhone had numerous opportunities to observe Vargas in close settings. The Court
finds that under the totality of the circumstances, Vargas has failed to establish a substantial
likelihood of misidentification.
As to witness Leslie Schmidt, the record establishes that she had met Vargas three or four
times, with the first meeting occurring in the summer of 2000. See Trial Tr. 602. Vargas came to
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Schmidt’s place of work (Auto Air & Cruise) to pick up a vehicle and to drop off another vehicle.
See Trial Tr. 598, 601-602. 	Schmidt testified to paperwork from Auto Air & Cruise signed by
Rosalio Vargas. 	See Trial Tr. 598-599. 	In one of those meetings, Schmidt looked at Vargas’
driver’s license in order to correctly spell Vargas’ name. See Trial Tr. 602. In the latter part of
2002, after Barth was released from state prison, Vargas returned to Auto Air & Cruise looking for
Barth or for a way to contact Barth. See Trial Tr. 603, 605. Schmidt provided Barth’s telephone
number to Vargas. See Trial Tr. 604. It is undisputed that Schmidt did not identify Vargas at trial.
In a February 22, 2001, interview with law enforcement, Schmidt provided information
similar to her trial testimony, including Vargas’ name. See Docket No. 1-12. During the interview,
Schmidt was shown a photo of a person whom she identified as Vargas.
Like the other witnesses, Schmidt had multiple opportunities to interact with Vargas,
including an occasion to examine his driver’s license. 	Schmidt’s identification took place six or
more months after Schmidt’s first two encounters with Vargas. The record establishes that Schmidt
had several opportunities to observe Vargas in close settings. The Court finds that under the totality
of the circumstances, Vargas has failed to establish a substantial likelihood of misidentification.
Finally, as to witness Tim Sailer, Sailer testified that while he was incarcerated at the
Burleigh County Detention Center in 2001, he met a man by the name of “Gregorio Velasco” who
was there on an illegal immigration matter. See Trial Tr. 1275-1276. Sailer testified that Velasco
described a gun and a gun case that Sailer thought fit the description of a handgun and case that
Sailed had once owned. See Trial Tr. 1276-1278. It is undisputed that Sailer did not identify Vargas
at trial and did not testify that Velasco and Vargas were the same person.
The Court finds that Vargas’ assertion that his rights were violated by an impermissibly
suggestive identification by Tim Sailer are wholly without merit because the record reflects that
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29
Sailer never identified Vargas at trial. 	Even if Sailer had made an identification of Vargas as
“Velasco,” the Court finds that Sailer as a cell mate of Velasco’s would have had substantial time
to observe Velasco. The Court finds that under the totality of the circumstances, Vargas has failed
to establish a substantial likelihood of misidentification had an identification occurred.
In summary, the Court finds that, although the use of a single photo array has been
determined to be impermissibly suggestive, Vargas has failed to establish that under the totality of
the circumstances, the suggestive procedures created a very substantial likelihood of irreparable
misidentification. 	Even if the Court were to find that the identifications of the witnesses were
inadmissible, the remaining evidence against Vargas was substantial. As a result, the Court finds
that Vargas’ claim that his counsel was ineffective for failing to move to suppress witness
identifications of him must fail as a matter of law. 	The Court finds that there is no reasonable
probability that the result of the trial would have been different had the identifications been
suppressed.
g. 	CROSS-EXAMINATION 	AND 	IMPEACHMENT 	OF
GOVERNMENT WITNESSES
Vargas next asserts that he received ineffective assistance of trial counsel when counsel
failed to adequately cross-examine and impeach several of the Government’s witnesses. Vargas
specifically challenges the testimony of Blaine Martinez and Tim Sailer. The Government asserts
that there is no reasonable probability that the results of the trial would have been different had
Vargas’ counsel cross-examined Martinez and Sailer in the manner Vargas suggests.
A trial counsel’s cross-examination techniques, like other matters of trial strategy, are
entrusted to the professional discretion of counsel. United States v. Villalpando, 259 F.3d 934, 939
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(8th Cir. 2001). Counsel’s cross-examination may, in some instances, be so unreasonable that it may
constitute ineffective assistance of counsel. Id. The Eighth Circuit has found a counsel’s cross-
examination techniques to be ineffective in instances where counsel “failed to cross-examine a
witness who made grossly inconsistent prior statement.” Whitfield v. Bowersox, 324 F.3d 1009,
1017 (8th Cir. 2003)(citing Hadley v. Groose, 97 F.3d 1131, 1135-1136 (8th Cir. 1996) and Driscoll
v. Delo, 71 F.3d 701, 709-711 (8th Cir. 1995)).
As to Blaine Martinez, Vargas asserts that his trial counsel was ineffective for not
impeaching Martinez with certain inconsistencies between his trial testimony and his grand jury
testimony. Specifically, Vargas claims the following inconsistencies should have been explored on
cross-examination: (1) the date Martinez first met Vargas; (2) the amount of methamphetamine
Martinez obtained from Vargas at the Super 8 Motel in April 2000; (3) the total amount of
methamphetamine Martinez obtain from Vargas; (4) the amount of methamphetamine Barth had in
his possession when he picked up Martinez from jail; and (5) whether Barth purchased drugs the
first time he met Vargas.
The record reveals that at trial Martinez testified that he met Vargas around April of 2000,
and Martinez’ grand jury testimony states he met Vargas four months before he was arrested in April
of 2000. See Trial Tr. 1109; Grand Jury Tr. 9. The Court finds the discrepancy between the trial
testimony and grand jury testimony on this point does not rise to the level of a grossly inconsistent
prior statement.
At trial Martinez testified that he purchased one pound of methamphetamine from Vargas
at the Super 8 Motel in April of 2000, and during his grand jury testimony, Martinez stated the
amount was two pounds. See Trial Tr. 1101; Grand Jury Tr. 7. At trial Martinez testified that he
received a total of four to five pounds of methamphetamine from Vargas and his grand jury
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31
testimony reveals that Martinez testified he received 15 - 20 pounds of methamphetamine from
Vargas. See Trial Tr. 1117; Grand Jury Tr. 14. The Court is perplexed as to why Vargas would
have wanted his counsel to solicit more damaging testimony from Martinez as to the amount of
drugs purchased from Vargas. While such evidence may have shown Martinez’ trial testimony was
inconsistent with his grand jury testimony, its obvious effect would have been to incriminate Vargas
in the distribution of even larger quantities of methamphetamine. 	The Court finds that trial
counsel’s tactical decision to not elicit additional incriminating testimony from Martinez was
reasonable and did not amount to ineffective assistance.
At trial Martinez testified that he did not see Barth buy drugs at their initial meeting, but that
he believed Barth purchased drugs from Vargas at this time. See Trial Tr. 1111-1112. During his
grand jury testimony, Martinez stated that Barth purchased cocaine at their initial meeting. See
Grand Jury Tr. 10. Finally, at trial Martinez testified that he could not remember the amount of
methamphetamine Barth had with him when he picked Martinez up from jail in April 2000, but
during his grand jury testimony, Martinez indicated Barth had 12 ounces of methamphetamine in
his possession when he picked Martinez up from jail. See Trial Tr. 1119-1120; Grand Jury Tr. 16-
17. None of the testimony as to Barth implicated Vargas, and on that point alone, the Court finds
that it was not ineffective assistance for Vargas’ trial counsel to decline to further explore this
testimony. 	To the extent that Vargas is asserting a general failure of his counsel to attack
Martinez’ credibility and bias, the record reveals that trial counsel questioned Martinez about the
amount he paid Vargas each time he (Martinez) received methamphetamine from Vargas. Trial
counsel impeached Martinez with his grand jury testimony on this topic. See Trial Tr. 1134-1135.
After carefully reviewing the grand jury testimony and the trial testimony of Martinez, including the
cross-examination by Vargas’ counsel, the Court finds that the cross-examination was not so
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32
unreasonable as to constitute ineffective assistance of counsel. Even if the Court were to find that
trial counsel’s performance fell below an objective standard of reasonableness, Vargas has failed
to establish a reasonable probability that the outcome of the trial would have been different if the
cross-examination he suggested had taken place. Had counsel followed Vargas’ suggested tactics,
it most likely would have resulted in the admission of additional incriminating testimony.
As to the testimony of Tim Sailer, at trial Sailer testified that he did not know whether
Vargas still had the gun he (Sailer) once owned, adding that Vargas did not say he (Vargas) still had
the gun. See Trial Tr. 1277. In his grand jury testimony, Sailer stated that Vargas had given the gun
to “one of his drivers or cousins.” 	See Grand Jury Tr. 8. 	This is not testimony so grossly
inconsistent that failure to cross-examine is deficient performance. As the previously discussed, the
evidence against Vargas as to the firearm charge was overwhelming. Thus, even if the Court were
to find that trial counsel’s performance was unreasonable, Vargas has failed to establish a reasonable
probability the results of the trial would have been different had counsel cross-examined Sailer as
to the difference between his trial testimony and grand jury testimony.
h. 	REVIEWING PSI PRIOR TO SENTENCING
Vargas contends that his counsel was ineffective for failing to review the Presentence
Investigation Report (“PSR”) with him prior to sentencing and that counsel erroneously led the Court
to believe that counsel had reviewed the PSR with Vargas. The Government argues that this claim
must fail because Vargas has failed to demonstrate prejudice.
Rule 32(i)(1)(A) of the Federal Rules of Criminal Procedure states that, at sentencing, a court
must verify that the defendant and the defendant’s attorney have read and discussed the PSR and any
addendum thereto. The record reveals that at Vargas’ sentencing hearing on February 26, 2004,
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33
Vargas’ counsel stated the following in response to the Court’s inquiry as to whether he had received
the PSR and reviewed it with Vargas:
Your Honor, we have had opportunity to do both, and I did it with the interpreter, and
we went through initially and we made a number of corrections, and then the —
that’s what led to the addendums, and we’ve gone through everything with my client.
See Sentencing Tr. 3-4. The PSR also includes an addendum addressing several objections. Thus,
it appears that Vargas’ assertion that he did not review the PSR prior to sentencing are improbable
at best. In any event, Vargas has failed to establish that any failure on his attorney’s part resulted in
prejudice. In other words, Vargas has failed to establish that the results of the sentencing hearing
would have been different absent his counsel’s alleged error. The Court finds this claim must fail.
2. 	INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Vargas has also challenged the effectiveness of his appellate counsel. Vargas asserts that his
counsel failed to raise two issues on appeal, both of which relate to the application of the United
States Sentencing Guidelines. Specifically, Vargas asserts that his appellate counsel should have
challenged the sentencing court’s alleged failure to make sufficient findings to support the
application of Section 3B1.1(a) and Section 2D1.1(b)(1) of the United States Sentencing Guidelines.
a. 	U.S.S.G. § 3B1.1(a) – AGGRAVATING ROLE
Vargas asserts that the Court failed to identify the five or more specific individuals involved
in the criminal activity, that this failure was an error, and that Vargas’ counsel should have raised this
issue on appeal. The Government responds by asserting that Vargas did coordinate the criminal
activities of five or more individuals and thus, the application of Section 3B1.1(b) was appropriate
and warranted.
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Under U.S.S.G. § 3B1.1(a), a four-level sentencing enhancement is warranted “[i]f the
defendant was an organizer or leader of a criminal activity that involved five or more participants
or was otherwise extensive . . . .” The Sentencing Guidelines explain that
To qualify for an adjustment under this section, the defendant must have been the
organizer, leader, manager, or supervisor of one or more other participants. 	An
upward departure may be warranted, however, in the case of a defendant who did not
organize, lead, manage, or supervise another participant, but who nevertheless
exercised management responsibility over the property, assets, or activities of a
criminal organization.
U.S.S.G. § 3B1.1, comment n.2. An appellate court reviews a district court’s factual findings under
Section 3B1.1 for clear error. 	United States v. Willis, 433 F.3d 634, 637 (2006). 	In order to
establish prejudice on this issue, Vargas must show that the Eighth Circuit Court of Appeals would
have found the district court’s findings clearly erroneous. Becht v. United States, 403 F.3d 541, 545
(8th Cir. 2005).
At the sentencing hearing the Court addressed the application of Section 3B1.1 and stated
the following:
It’s the Court’s finding on this particular issue that the evidence was
overwhelming at trial that Mr. Vargas was, in fact, the organizer and the ringleader
– one of the ringleaders in this drug trafficking operation. There was testimony, as
I recall, from both Mr. Fernandez and from Charles Chadwick that Mr. Vargas
directed them to transport meth from Washington to North Dakota for distribution
to others. 	There was also testimony that demonstrated that Mr. Vargas had
coordinated those drug-trafficking activities with Nancy Ferneau and others who
testified at the trial. 	The court particularly finds that the testimony of those
witnesses, namely, Rigoberto Fernandez and Charles Chadwick, that established
Vargas’s role as a ringleader was credible, accurate testimony at trial.
See Sentencing Tr. 7-8. 	It is apparent from the trial testimony of Fernandez and Chadwick that
Vargas was an organizer or leader of criminal activity that involved five or more individuals or was
otherwise extensive. There is no question that Vargas and his co-defendants Ferneau, Barth, and
Fernandez (who pled guilty) were all involved in the drug conspiracy. There was ample evidence
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3Vargas asserts that he was prejudiced because he was denied the opportunity to raise a claim under United
States v. Booker, 543 U.S. 220 (2005), once his sentence was vacated and remanded for re-sentencing. Given the
Court’s conclusion that Vargas’ counsel was not unreasonable in failing to advance the application of Section 3B1.1
to the appellate court, the Court finds it unnecessary to address Vargas’ assertions as to Booker.
35
at trial establishing the participation of other individuals in the conspiracy, including Charles
Chadwick, James Rhone, Patty Rhone, Blaine Martinez, and Jason Kramer.
In addition, there was also a plentitude of evidence to establish that Vargas was the
organizer, leader, manager, or supervisor of one or more other participants. Fernandez testified to
being recruited by Vargas to carry drugs by vehicle to Bismarck, for which Vargas offered to pay
Fernandez $1,000 per trip. See Trial Tr. 838-840. Fernandez also testified that Vargas told him to
deliver the drugs to Ferneau’s residence. See Trial Tr. 842-843. Charles Chadwick testified that
he transported methamphetamine for Vargas. See Trial Tr. 986. It is well-established that a trial
court may rely on testimony of confederates or co-conspirators that it finds credible. United States
v. Plancarte-Vazquez, 450 F.3d 848, 852 (8th Cir. 2006); United States v. Ortiz, 125 F.3d 630, 633-
634 (8th Cir. 1997).
The Court find that Vargas has failed to establish that an appellate court would find the
Court’s findings at the sentencing hearing to be clearly erroneous. 	There was overwhelming
evidence to establish that Vargas was an organizer or leader of criminal activity involving five or
more participants. Thus, Vargas has failed to establish either deficient performance by appellate
counsel or prejudice.3 The Court further finds that Vargas’ claim as to the failure to raise the
application of Section 3B1.1 of the United States Sentencing Guidelines on appeal must fail.
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36
b. 	U.S.S.G. 	§ 	2D1.1(b)(1) 	– 	POSSESSION 	OF 	A
DANGEROUS WEAPON
Vargas also contends that his attorney was ineffective for failing to challenge the Court’s two
-level enhancement under Section 2D1.1(b)(1) of the United States Sentencing Guidelines for
possession of a dangerous weapon. Vargas asserts that the Court failed to make sufficient findings
as to whether the possession of the firearm was in connection with the drug trafficking activity. The
Government argues that the record establishes without a doubt that the application of Section
2D1.1(b)(1) was appropriate and warranted.
Section 2D1.1(b)(1) of the United States Sentencing Guidelines requires a two-level increase
if a dangerous weapon was possessed in connection with drug trafficking. Application note 3 to
Section 2D1.1(b)(1) provides that the two-level enhancement for a dangerous weapon applies
“unless it is clearly improbable that the weapon was connected with the offense.” As with Vargas’
other challenge to the application of the Sentencing Guidelines, Vargas must show that the Eighth
Circuit Court of Appeals would have found the district court’s findings clearly erroneous. Becht v.
United States, 403 F.3d 541, 545 (8th Cir. 2005).
At the sentencing hearing, the Court found that the facts set forth in the PSR concerning the
possession of the handgun were accurate. The Court further stated:
Most of that evidence was addressed by Rigoberto Fernandez, who the Court has
previously noted to have been a credible witness at trial. 	Any attempt to deny
possession of the handgun, I think, is frivolous in this case in light of the
photographs that were offered and received into evidence, several of which depicted
both Mr. Vargas and Mr. Fernandez displaying these handguns in a hotel room in
Bismarck in different poses. I believe most of the photographs were taken at a hotel
or hotel rooms in Bismarck, several of their girlfriends in the room at the time.
That’s difficult evidence to refute. Photographs pretty much speak for themselves.
See Sentencing Tr. 13-14. In addition, the trial testimony of Fernandez established that Vargas
obtained the handgun from co-defendant Barth in exchange for cocaine. See Trial Tr. 853-854.
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4The Court of Appeals for the Eighth Circuit has opined that the district courts possess the authority to issue
Certificates of Appealability under Section 2253(c). Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).
37
The Court finds that Vargas has failed to establish that the Eighth Circuit Court of Appeals
would conclude that the district court’s findings were clearly erroneous. The record contains more
that adequate evidence to support the Court’s findings that Vargas’ possession of the firearms was
in connection to the drug trafficking charges. The Court finds that Vargas’ claim as to the failure
to raise the application of Section 2D1.1(b)(1) of the United States Sentencing Guidelines on appeal
must fail.
III. 	CONCLUSION
For the reasons set forth above, the Court DENIES the Defendant’s Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255. (Docket No. 193).
In addition, the Court certifies that an appeal from the denial of this motion may not be taken
in forma pauperis because such an appeal would be frivolous and cannot be taken in good faith.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Upon the entire record before the Court,
dismissal of the motion is not debatable, reasonably subject to a different outcome on appeal, or
otherwise deserving of further proceedings. 	Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983).
Therefore, a certificate of appealability will not be issued by this court.4
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If Vargas desires further review of his Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255, he may request the issuance of a certificate of appealability by a circuit
judge of the Eighth Circuit Court of Appeals in accordance with Tiedeman v. Benson, 122 F.3d 518,
250-22 (8th Cir. 1997).
IT IS SO ORDERED
Dated this 17th day of January, 2007.
/s/ Daniel L. Hovland
Daniel L. Hovland, Chief Judge
United States District Court
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