Petition for Writ of Certiorari — Aaron Ramirez Espinoza, Petitioner v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2023

AARON RAMIREZ ESPINOZA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RACHEL JULAGAY

Federal Defender

*R. Henry Branom Jr.

Senior Litigator

Federal Defenders of Montana

104 2nd Street South, Suite 301

Great Falls, MT 59401

(406) 727-5328

*Counsel for Petitioner

SUBMITTED: January 22, 2024

QUESTIONS PRESENTED

1. Whether a government informant and co-conspirators testimony of another’s

involvement in the conspiracy is sufficient evidence to sustain a conviction?

ii

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT

Petitioner is Aaron Ramirez Espinoza. Respondent is the United States. No party is a

corporation.

iii

RULE 14.1(b)(iii) STATEMENT

This case arises from the following proceedings in the United States District Court for the

District of Montana and the United States Court of Appeals for the Ninth Circuit:

United States v. Espinoza, No. 22-30200 (9th Cir. October 23, 2023)

United States v. Espinoza, No. 4:22-cr-00040-BMM-1 (D. Montana December 13, 2022)

No other proceedings in state or federal trial or appellate courts, or in this Court, are directly

related to this case.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................................. ii

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT ........................................ iii

RULE 14.1(b)(iii) STATEMENT .................................................................................................. iv

TABLE OF CONTENTS.................................................................................................................v

TABLE OF AUTHORITIES ......................................................................................................... vi

OPINION BELOW ..........................................................................................................................1

JURISDICTION AND TIMELINESS OF THE PETITION...........................................................1

STATUTORY PROVISIONS INVOLVED....................................................................................2

STATEMENT OF THE CASE ........................................................................................................2

BACKGROUND OF THE CASE ............................................................................................... 2-4

REASONS FOR GRANTING THE PETITION ......................................................................... 4-5

CONCLUSION ................................................................................................................................5

Appendix A – United States Court of Appeals

for the Ninth Circuit, 2023 U.S. APP, Lexis 28063

(9th Cir. October 23, 2023) ................................................................................ 1a-2a

v

TABLE OF AUTHORITIES

Supreme Court Opinions

Page(s)

Jackson v. Virginia,

443 U.S. 307 (1979) ................................................................................................................. 4

U.S. Constitution

U.S. Const. amend. V ..................................................................................................................... 2

Ninth Circuit Opinions

Ninth Circuit,

851 F. App'x 80 (9th Cir. June 24, 2021) ................................................................................. v

United States v. Earl,

27 F.3d 423 (9th Cir. 1994) ...................................................................................................... 4

United States v. Klimavicius-Viloria,

144 F.3d 1249 (9th Cir. 1998) .................................................................................................. 4

United States v. Lennick,

18 F.3d 814 (9th Cir. 1994) ...................................................................................................... 4

United States v. Schmidt,

947 F.2d 362 (9th Cir. 1991) .................................................................................................... 5

United States Code

18 U.S.C. § 2 .................................................................................................................................. 2

21 U.S.C. § 841 .............................................................................................................................. 2

21 U.S.C. § 846 .......................................................................................................................... 2, 4

28 U.S.C. § 1254(1) ....................................................................................................................... 1

Other

RULE 14 .................................................................................................................................. iv, v

RULE 29 .................................................................................................................................. iii, v

vi

No. _________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2023

AARON RAMIREZ ESPINOZA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Petitioner, Aaron Ramirez Espinoza (Espinoza), respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in

this case.

OPINIONS BELOW

The Ninth Circuit’s memorandum is unpublished and is included in the Petition Appendix

at 1a-3a.

JURISDICTION AND TIMELINESS OF THE PETITION

The Ninth Circuit issued its opinion on October 23, 2023. (2023 U.S. APP, Lexus 28063).

This Court has jurisdiction under 28 U.S.C. § 1254(1).

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides that no person shall be

deprived: “of life, liberty, or property, without due process of law[.]”

STATEMENT OF THE CASE

This case presents a fundamental issue regarding the constitutional propriety of a

conviction based on insufficient evidence.

BACKGROUND OF THE CASE

A.

District Court Proceedings

Mr. Espinoza was charged, convicted, and sentenced for offenses “against the laws of the

United States,” in case number CR-22-40-GF-BMM, of Count I: Conspiracy to Distribute and to

Possess With Intent to Distribute Controlled Substances, in violation of 21 U.S.C. § 846, and Count

II: Possession With Intent to Distribute Controlled Substances, in violation of 21 U.S.C. § 841 and

18 U.S.C. § 2.

At trial, the jury heard evidence Tribal police searched the residence of Gregory St. Pierre

on the Rocky Boy’s Indian Reservation and discovered fentanyl pills and a firearm. St. Pierre

eventually agreed to become a confidential human source for the Federal Bureau of Investigation

St. Pierre advised Special Agent Ryan Kacher his suppliers were Hugo Rodriguez and

Antonio “Uncle” Rodriguez. Aaron Espinoza’s name was not mentioned in the initial interview.

In a second interview with St. Pierre, Agent Kacher showed him a photo of Espinoza, St. Pierre

responded he did not remember his name. Agent Kacher arranged for multiple controlled buys

involving St. Pierre, Hugo and Uncle. Espinoza was not present or involved in those in any way.

2

Hugo, under federal indictment, and in order to get a reduced sentence, with an immunity

letter from the United States, testified Espinoza on possibly 5 occasions transported

methamphetamine and fentanyl to St. Pierre at his direction. Hugo testified Espinoza was paid by

the trip.

St. Pierre, a paid informant, hoping to avoid a federal indictment, testified Espinoza

occasionally transported drugs and cash negotiated between he and Hugo. St. Pierre was using

methamphetamine during the time he got paid by the federal government to be an informant. St.

Pierre testified he reached out to the FBI to begin cooperating out of some good will, however FBI

Special Agent Ryan Kacher testified to a dramatically different version of how the FBI contacted

St. Pierre. Hugo testified the second time he met Greg he was with Uncle and Espinoza. St. Pierre

testified he never saw Espinoza with Uncle.

In May of 2022, Espinoza and St. Pierre discussed the possible sale of narcotics. At this

time, St. Pierre was a confidential human source, actively working for the FBI. Espinoza and St.

Pierre never came to any agreement on price, meeting location, or structure of further distribution.

St. Pierre testified this was unlike his prior relationship with Hugo. Espinoza was arrested in Great

Falls, Montana, found to be in possession of methamphetamine and fentanyl pills.

Following his conviction on both counts, the district court sentenced Mr. Espinoza on

December 8, 2022, to 128 months on each count to run concurrently with one each other.

B.

Proceedings on Appeal to the Ninth Circuit

The Ninth Circuit affirmed Mr. Espinoza’s conviction in an unpublished memorandum.

Espinoza appealed his conviction only on Count I. The Ninth Circuit determined sufficient

evidence supported Espinoza’s conviction. They concluded that there was evidence showing

Espinoza engaged in the conspiracy to sell methamphetamine and fentanyl before St. Pierre

3

became a government informant. Concluding, “even assuming we may consider only the evidence

that pre-dated St. Pierre working as an informant, that evidence, viewed in the light most favorable

to the prosecution, is sufficient to support the conviction.”

REASONS FOR GRANTING THE PETITION

The 5th Amendment demands no person shall be deprived: “of life, liberty, or property,

without due process of law[.]” Mr. Espinoza was convicted of conspiracy under 21 U.S.C. § 846

in violation of due process. The evidence produced by the Government regarding the conspiracy

was from purported former co-conspirators turned government informant and cooperating

witnesses. The standard for sufficiency of the evidence is to view the evidence in the light most

favorable to the government, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979). While this is

certainly a deferential standard, this Court should grant the petition to rule there is an outer limit

to the quality of evidence that must be presented to sustain a conviction.

While an implicit agreement may be inferred from circumstantial evidence, proof that an

individual engaged in illegal acts with others is not sufficient to demonstrate the existence of a

conspiracy. See United States v. Lennick, 18 F.3d 814, 818 (9th Cir. 1994). Both the existence of

and the individual's connection to the conspiracy must be proven beyond a reasonable

doubt. United States v. Klimavicius-Viloria, 144 F.3d 1249, 1266 (9th Cir. 1998).

Uncorroborated testimony of an accomplice is enough to sustain a conviction unless it is

incredible or unsubstantial. United States v. Earl, 27 F.3d 423, 425 (9th Cir. 1994). But in this

case, the testimonies of the purported co-conspirators were incredible and unsubstantial. This

Court should grant the petition to ensure due process of the law is enforced throughout the United

States.

4

Finally,

the defendant

the

only

conspire

agreement

exists

Schmidt,

947 F.2d

362 (9th

Cir. 1991).

and Mr.

Espinoza

engaged

in a conspiracy

became

a confidential

governi'nent

when

must

human

is not prosecuting

other

source

with

person

While

at least

involved

evidence

conspiracies

coconspirator,

and no true

is a governi'nent

agent.

States

was produced

to distribute

for the FBI.

one bonafide

narcotics,

The Court

that itself

that a governinent

this occurred

should

grant

initiated.

CONCLUSION

The petition

for a writ

of certiorari

should

be granted.

Respectfully

submitted,

Counsel

January

22, 2024

5

United

of Record

infornnant

after Mr.

the petition

v.

St. Pierre

to ensure

the

APPENDIX A

United States Court of Appeals

for the Ninth Circuit

Memorandum Opinion

United States v. Aaron Ramirez Espinoza, 2023 U.S. APP, Lexis 28063 (9th Cir. October 23,

2023)

Filed October 23, 2023

Case: 22-30200, 10/23/2023, ID: 12813593, DktEntry: 26-1, Page 1 of 2

FILED

NOT FOR PUBLICATION

OCT 23 2023

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No.

Plaintiff-Appellee,

U.S. COURT OF APPEALS

22-30200

D.C. No.

4:22-cr-00040-BMM-1

v.

MEMORANDUM*

AARON RAMIREZ ESPINOZA,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Montana

Brian M. Morris, District Judge, Presiding

Submitted October 19, 2023**

Portland, Oregon

Before: GILMAN,*** KOH, and SUNG, Circuit Judges.

Defendant Aaron Espinoza appeals his jury conviction for conspiracy to

possess with intent to distribute controlled substances, in violation of 21 U.S.C.

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

***

The Honorable Ronald Lee Gilman, United States Circuit Judge for

the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

1a

Case: 22-30200, 10/23/2023, ID: 12813593, DktEntry: 26-1, Page 2 of 2

§ 846. We review challenges to the sufficiency of evidence de novo. See United

States v. Barragan, 871 F.3d 689, 705 (9th Cir. 2017). We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

Sufficient evidence supported Espinoza’s conviction. We “must consider the

evidence presented at trial in the light most favorable to the prosecution,” and then

“determine whether this evidence, so viewed, is adequate to allow ‘any rational

trier of fact [to find] the essential elements of the crime beyond a reasonable

doubt.’” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc)

(alteration in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Espinoza argues that statements he made to a co-conspirator, St. Pierre, cannot be

considered because St. Pierre was a government informant when those

conversations occurred. However, there is also evidence showing that Espinoza

engaged in the conspiracy to sell methamphetamine and fentanyl before St. Pierre

became a government informant. Even assuming we may consider only the

evidence that pre-dated St. Pierre working as an informant, that evidence, viewed

in the light most favorable to the prosecution, is sufficient to support the

conviction.

AFFIRMED.

2

2a