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United States v. Torrez

United States Court of Appeals, Eighth Circuit

May 31, 2019

United States of America Plaintiff- Appellee
v.
Modesto Alfredo Torrez Defendant-Appellant

          Submitted: March 15, 2019

          Appeal from United States District Court for the District of North Dakota - Fargo

          Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

          GRASZ, Circuit Judge.

         Modesto Torrez appeals his conviction for murder in furtherance of a drug trafficking conspiracy and other related charges, challenging several of the district court's[1] evidentiary rulings as well as one juror substitution at trial. We affirm.

         I. Background

         In 2016, a grand jury indicted Torrez and several alleged coconspirators, charging Torrez in four of the counts: (1) conspiracy to possess with intent to distribute and conspiracy to distribute 500 grams or more of a mixture and substance containing methamphetamine; (2) murder in furtherance of a drug trafficking conspiracy; (3) causing death by use of a firearm during a drug trafficking crime; and (4) obstruction of justice. All of the other alleged coconspirators named in the indictment pled guilty to at least one count of the indictment. Only Torrez proceeded to trial, which began in late September 2017.

         According to evidence introduced at trial, the investigation into Torrez began in March 2016 at a Flying J Travel Center in Grand Forks, North Dakota. Police responded to an emergency call at the Flying J, where they found Austin Forsman dead in the front seat of a car, shot in the face. Two people who had arrived after the shooting told police to talk to Aaron Morado. He was one of Torrez's dealers, and he routinely sold methamphetamines to Forsman. In March 2016, a dispute developed between Morado and Forsman because Morado failed to timely supply meth that Forsman had purchased in advance. While the dispute between the two men did not turn violent, one of Torrez's associates ultimately shot Forsman at the Flying J and then drove Morado to meet up with Torrez and Lorie Ortiz.

         The investigation into this shooting also helped confirm Torrez's role in an ongoing drug investigation. In late 2015, police received a tip that a person on probation in North Dakota had been selling meth in Grand Forks. A probation search of the house where that person was staying revealed meth, and he later admitted he obtained the meth from Ryan Franklin. In turn, Franklin told investigators that Torrez had arranged his meth supply, coordinating two trips to Minnesota where Franklin obtained five pounds and six pounds of meth, respectively.

         After a five-day trial, a jury found Torrez guilty on three counts and guilty of aiding and abetting a fourth count (death caused by use of a firearm during a drug trafficking crime). The district court sentenced Torrez to life imprisonment, and he timely appealed.

         II. Analysis

         Torrez raises five arguments on appeal. First, he argues that evidence of his prior conviction and supervised release status was improperly admitted. Second, he argues the district court violated his Confrontation Clause rights when admitting a laboratory report and related testimony. Third, he argues Lorie Ortiz was not a co-conspirator and that her statements were inadmissible. Fourth, he argues Ryan Franklin's testimony about being motivated to cooperate by someone else's cooperation violated the rule on not admitting guilty plea negotiations. Finally, he argues the district court erred by substituting a juror with the alternate juror.

         A. Prior Conviction Evidence

         Torrez's challenge to evidence of his prior conviction and other alleged wrongdoings is unpersuasive because the testimony at issue satisfies Fed.R.Evid. 404(b). "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed.R.Evid. 404(b)(1). "This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. 404(b)(2). Because Torrez ...


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