PEOPLE OF MI V HUGO MORAN-DOPICO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 13, 2008
Plaintiff-Appellee,
v
No. 276455
Macomb Circuit Court
LC No. 2005-004732-FC
HUGO MORAN-DOPICO,
Defendant-Appellant.
Before: Fort Hood, P.J., and Talbot and Borrello, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for possession with intent to
deliver 1,000 or more grams of cocaine, MCL 333.7401(2)(a)(i), and conspiracy to possess with
intent to deliver 1,000 or more grams of cocaine, MCL 750.157a and MCL 333.7401(2)(a)(i).
Defendant was sentenced to consecutive prison terms of 12 to 30 years for the possession
conviction and 13 to 30 years for the conspiracy conviction. We affirm.
I. Basic Facts
Defendant’s convictions arise from his participation with codefendants Jesus Ramon
Cottleon,1 Rigoberto Cardenas-Borbon, Antonio Perez-Chica, and others in trafficking cocaine
from Phoenix, Arizona, to the Detroit area. As a result of anonymous information received, the
Oakland-Macomb Interdiction Team set up surveillance at a Red Roof Inn in Roseville on April
26, 2005. In the hotel parking lot was a black Ford Explorer with an Arizona license plate. The
police discovered that the Explorer was not registered to Jose Martinez, who had paid for the
hotel room. During the surveillance, Detective-Sergeant Terence Mekoski observed Perez-Chica
coming in and out of the room and pacing near the Explorer. Shortly thereafter, Cottleon
arrived, greeted Perez-Chica and Martinez, and the men went into the room. Minutes later,
Cottleon and Perez-Chica came out of room and Perez-Chica handed a set of keys to Cottleon,
who got in the Explorer and quickly drove it out of the lot. Shortly thereafter, Mekoski stopped
the vehicle for traffic infractions, a drug-sniffing canine alerted the police to the presence of
1
Cottleon was known by several aliases, including “Candelario Herrera.”
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drugs, and ten kilograms of cocaine were found in a hidden compartment. Cottleon was arrested
at the scene, and Perez-Chica and Martinez were arrested at the hotel.
Cottleon agreed to cooperate with the investigation and informed the police of a
conspiracy involving men from Mexico delivering and selling cocaine through defendant, an
Arizona resident with connections in the Detroit area. Cottleon testified that in March 2005,
Jamie Cardenas-Borbon, a Mexican immigrant and codefendant Rigoberto Cardenas-Borbon’s
relative, needed clients to sell cocaine. Cottleon met defendant in his Arizona apartment in
March or April 2005, and defendant advised Cottleon that he could traffic a large quantity of
cocaine through his Detroit connections. Cottleon and defendant later met with Jamie, and
defendant confirmed that he could distribute the cocaine.
On April 20, 2005, Cottleon and defendant flew to Detroit to verify defendant’s customer
base.2 Defendant’s friend picked up the two men from the airport and took them to a restaurant
where they met defendant’s associates. The next morning, a deal was arranged between Jamie,
via Rigoberto’s phone, defendant, and defendant’s associates involving ten kilograms of cocaine
at a rate of $18,500 a kilogram to arrive within a few days. Defendant remained in Detroit and
Cottleon returned to Arizona on April 21, 2005. On April 24, 2005, Cottleon and Rigoberto left
Arizona en route to Michigan in a white Durango with a Mexico license plate. Cottleon and
Rigoberto were following Perez-Chica and Martinez in the Explorer that contained the cocaine.
Cottleon explained that Rigoberto used a cell phone to assure that there were no problems with
the Explorer’s travels. On the morning of April 26, 2005, the Durango was stopped in St. Louis
for a traffic violation, searched, and released. At the time, the Durango was “about an hour”
behind the Explorer. After arriving in Detroit, Cottleon and Rigoberto met defendant and his
associates at a gas station. Subsequently, one of defendant’s associates drove Rigoberto and
Cottleon to the Red Roof Inn, where Cottleon took control of the Explorer. Defendant remained
at the gas station waiting for Cottleon to return with the cocaine. Cottleon indicated that when he
was arrested, he was en route to meet defendant at the gas station and they were going to deliver
the cocaine to defendant’s associate’s house.
A DEA agent testified that as a result of information provided by Cottleon, the police
requested assistance in locating the Durango, because it was likely traveling the same route to
return to Arizona. On April 28, 2005, the St. Louis police stopped the Durango. Rigoberto was
driving and defendant was a passenger. Both men were arrested.
II. Right to Cross-Examination
Defendant argues that his constitutional right to confront witnesses was violated when the
trial court limited defense counsel’s cross-examination of Cottleon regarding his motives for
cooperating in this case. We disagree. We review de novo constitutional questions regarding a
defendant’s right of confrontation. People v Beasley, 239 Mich App 548, 557; 609 NW2d 581
2
Jamie gave Cottleon $1,500 to purchase the plane tickets. Airline ticket information confirmed
that the two men flew together from Arizona to Detroit.
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(2000). “A trial court’s limitation of cross-examination is reviewed for an abuse of discretion.”
People v Sexton, 250 Mich App 211, 221; 646 NW2d 875 (2002) (citation omitted).
Cottleon’s trial testimony was the principal evidence implicating defendant in the
conspiracy. Before taking the stand, the court advised Cottleon of his right not to testify and
placed on the record his plea agreement with the prosecution, which included a recommendation
of a minimum sentence of seven years. Cottleon acknowledged that no other promises had been
made in exchange for his testimony against defendants, and Cottleon’s attorney acknowledged
that the agreement as stated was accurate. Codefendant Rigoberto Cardenas-Borbon’s attorney
queried Cottleon regarding his understanding of his plea agreement. Cottleon initially indicated
an understanding that he might still be eligible to receive probation if he continued to cooperate.
The trial court then interposed and stated it would not give Cottleon probation. When questioned
whether he understood that the court would not give him a sentence “less than seven years,”
Cottleon acknowledged that he understood that imprisonment for a period of seven years to be
the minimum sentence he would receive. At this juncture, the trial court stated on the record:
The Court is making a ruling right now as far as this case is concerned that
for this gentlemen’s testimony he is going to get a minimum on the maximum,
minimum of seven years. End of story.
The following exchange then occurred between codefendant Cardenas-Borbon’s attorney
and the trial court:
[Cardenas-Borbon’s attorney]:
I want to be able to question him as to his
state of mind at the time he agreed to cooperate because he agreed to
cooperate more than a year ago, and if more than a year ago he says, well, I’m
going to agree to cooperate because I think I can get probation, and that turns
out to be different later, it’s still the motivation that provided the impetus for
the cooperation.
[The trial court]:
Now we are getting into speculation.
***
It’s been over a year since the exam was held, this is November 30th, nothing
has happened, and I’m saying on the record right now that from this court on
this case, he will get no less than seven years.
[Cardenas-Borbon’s attorney]:
Right, your Honor, but we are talking about
motive, motive for the testimony.
[The trial court]:
No, it could have been a motive then but it is no longer a
motive since he clearly understands that this Court is going to give him seven
years. I’m not going to allow it.
A defendant’s constitutional right to confront his accusers is secured by the right of crossexamination guaranteed by the Confrontation Clause. US Const, Am VI; Const 1963, art 1, § 20;
People v Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993). “A witness may be cross-3-
examined on any matter relevant to any issue in the case,” People v Federico, 146 Mich App
776, 793; 381 NW2d 819 (1985), but neither the Confrontation Clause nor due process confers
an unlimited right to admit all relevant evidence or cross-examine on any subject. Adamski,
supra at 138. Rather, a court has wide latitude to impose reasonable limits on cross-examination
based on concerns such as prejudice, confusion of the issues, or questioning that is irrelevant or
only marginally relevant.3 Id.; People v Canter, 197 Mich App 550, 564; 496 NW2d 336 (1992).
The trial court did not abuse its discretion by limiting the cross-examination of Cottleon
to the scope of the sentencing agreement under which he testified. Cottleon clearly stated that he
understood that he would receive a minimum sentence of seven years in exchange for his
testimony, and that he did not expect any further reduction or sentencing consideration. The jury
was plainly aware of Cottleon’s motive for testifying. Evidence that a year earlier, Cottleon may
have thought that he possibly could get probation for his cooperation was tenuous and immaterial
at this later juncture. Therefore, we are not persuaded that the trial court abused its discretion by
limiting cross-examination.
III. Sufficiency of the Evidence
Defendant next argues that the evidence was insufficient to sustain his convictions. We
disagree. When ascertaining whether sufficient evidence was presented at trial to support a
conviction, this Court “must view the evidence in a light most favorable to the prosecution and
determine whether a rational trier of fact could find that the essential elements of the crime were
proven beyond a reasonable doubt.” People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992),
amended 441 Mich 1201 (1992). This Court will not interfere with the trier of fact’s role of
determining the weight of evidence or the credibility of witnesses. Id. at 514. Rather, “a
reviewing court is required to draw all reasonable inferences and make credibility choices in
support of the jury verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
A. Conspiracy to Deliver 1,000 or More Grams of Cocaine
Under MCL 333.7401(2)(a)(i), it is unlawful for a person to deliver 1,000 or more grams
of cocaine. A “person who conspires together with 1 or more persons to commit an offense
prohibited by law . . . is guilty of the crime of conspiracy[.]” MCL 750.157a; People v Mass,
464 Mich 615, 629; 628 NW2d 540 (2001). Conspiracy is a specific intent crime, requiring “the
intent to combine with others and the intent to accomplish an illegal objective.” Id. To prove the
intent to combine with others, it must be shown that the intent, including knowledge, was
possessed by more than one person. People v Blume, 443 Mich 476, 482, 485; 505 NW2d 843
(1993). For intent to exist, the defendant “must know of the conspiracy, must know of the
objective of the conspiracy, and intend to participate cooperatively to further that objective.” Id.
Direct proof of a conspiracy is not essential. Rather, a conspiracy may be proven by
circumstantial evidence or by reasonable inference, and no formal agreement is required. People
3
Evidence is deemed relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” MRE 401.
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v Justice (After Remand), 454 Mich 334, 347-348; 562 NW2d 652 (1997); People v Cotton, 191
Mich App 377, 393; 478 NW2d 681 (1991).
Viewed in a light most favorable to the prosecution, the evidence was sufficient to enable
a rational trier of fact to conclude beyond a reasonable doubt that defendant conspired with
others to deliver 1,000 or more grams of cocaine. Defendant and the charged coconspirators
came to Michigan from Arizona. While in Arizona, through Cottleon, defendant met with Jamie
Cardenas-Borbon, a Mexican immigrant who was seeking clients to traffic a large quantity of
cocaine, and defendant assured him that he could distribute the cocaine in the Detroit area. At
Jamie’s expense, defendant and Cottleon flew from Arizona to Detroit together and met with
defendant’s associates to verify defendant’s ability to traffic the cocaine. Airline information
corroborated the testimony that defendant and Cottleon traveled from Arizona to Detroit. In
Detroit, the men arranged a deal for the delivery of ten kilograms of cocaine to be delivered
within a few days. Defendant remained in Detroit, while Cottleon returned to Arizona. Soon
thereafter, the Explorer containing the cocaine left Arizona. Cottleon and Rigoberto were about
an hour behind the Explorer in a Durango. Once in Detroit, Cottleon and Rigoberto met
defendant and his associates. Defendant’s associate drove Rigoberto and Cottleon to the hotel,
where Cottleon took control of the Explorer in order to deliver the cocaine to defendant, and then
to defendant’s associates. When Cottleon was arrested, he was en route to meet defendant. Two
days after the police seized the cocaine in the Explorer, the Durango was stopped heading toward
Arizona. Defendant was in the vehicle with Rigoberto. Defendant’s cell phone was seized, and
records showed 14 phone calls between his phone and Cottleon’s phone.
This evidence established a basis for the jury to conclude that defendant conspired with
others to deliver the cocaine found in the Explorer. Defendant’s and his associates’ interaction
and concordant behavior was evidence of concert of action, which created an inference of
conspiracy. See Justice (After Remand), supra at 347, and Cotton, supra at 393-394. The jury
was entitled to accept or reject any of the evidence presented. See People v Perry, 460 Mich 55,
63; 594 NW2d 477 (1999). The evidence was sufficient to sustain defendant’s conviction of
conspiracy to deliver 1,000 or more grams of cocaine.
B. Possession with Intent to Deliver 1,000 or More Grams of Cocaine
Defendant only asserts that there was insufficient evidence that he possessed the cocaine,
arguing that there was no evidence that he knew about a cocaine transaction.4 Possession of a
controlled substance may be either actual or constructive, and may be joint as well as exclusive.
Wolfe, supra at 519-520. “[C]onstructive possession exists when the totality of the
circumstances indicates a sufficient nexus between the defendant and the contraband.” Id. at
520. “The essential question is whether the defendant had dominion or control over the
controlled substance.” People v Konrad, 449 Mich 263, 271; 536 NW2d 517 (1995).
4
The elements of possession with intent to deliver 1,000 or more grams of cocaine are (1) the
recovered substance was cocaine, (2) the cocaine was in a mixture weighing more than 1,000
grams, (3) the defendant was not authorized to possess the cocaine, and (4) the defendant
knowingly possessed the cocaine with the intent to deliver it. MCL 333.7401(2)(a)(i); Wolfe,
supra at 516-517.
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“[C]ircumstantial evidence and reasonable inferences arising from the evidence are sufficient to
establish possession.” People v Fetterley, 229 Mich App 511, 515; 583 NW2d 199 (1998).
At trial, the prosecutor advanced the theory that defendant was guilty as a principal or an
aider and abettor. A person who aids or abets the commission of a crime may be convicted and
punished as if he directly committed the offense. MCL 767.39. “To support a finding that a
defendant aided and abetted a crime, the prosecution must show that (1) the crime charged was
committed by the defendant or some other person, (2) the defendant performed acts or gave
encouragement that assisted the commission of the crime, and (3) the defendant intended the
commission of the crime or had knowledge that the principal intended its commission at the time
he gave aid and encouragement.” People v Izarraras-Placante, 246 Mich App 490, 495-496;
633 NW2d 18 (2001) (citation omitted).
“‘Aiding and abetting’ describes all forms of assistance rendered to the perpetrator of a
crime and comprehends all words or deeds that might support, encourage, or incite the
commission of a crime.” People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999); People v
Rockwell, 188 Mich App 405, 411-412; 470 NW2d 673 (1991). “The quantum of aid or advice
is immaterial as long as it had the effect of inducing the crime.” People v Lawton, 196 Mich
App 341, 352; 492 NW2d 810 (1992). An aider and abettor’s state of mind may be inferred from
all the facts and circumstances, including a close association between the defendant and the
principal, and the defendant’s participation in the planning or execution of the crime. Carines,
supra at 758.
Viewed in a light most favorable to the prosecution, the same evidence that enabled the
jury to conclude that defendant conspired with others to possess and deliver the cocaine also
established a basis for the jury to conclude beyond a reasonable doubt that defendant possessed
the cocaine. A jury could reasonably infer from defendant’s actions and associations that he
constructively possessed the cocaine or assisted others in possessing the cocaine found in the
Explorer. There was sufficient evidence linking defendant to the cocaine found in the Explorer
to sustain his conviction of possession with intent to deliver 1,000 grams of cocaine.
IV. Defendant’s Supplemental Brief
Defendant raises several issues in a pro se supplemental brief, filed pursuant to Supreme
Court Administrative Order No. 2004-4, Standard 4, none of which have merit.
A. Complaint
Defendant argues that that the trial court lacked jurisdiction because the complaint did
not include a factual basis to establish probable cause, a victim, an affidavit, or supplemental
sworn testimony. Because defendant failed to raise this issue below, we review this claim for
plain error affecting substantial rights. Carines, supra at 763-764. The complaint contained the
substance of the accusations against defendant and the name and statutory citation for the
charged offenses, which is all that is required. MCL 764.1d; MCR 6.101(A). Consequently,
there was no plain error.
B. Obstruction of Justice by the Trial Court
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Defendant argues that the trial court obstructed justice and impeded his right to prove his
innocence by failing to adjudicate his motions, which were crucial to proving his innocence.
Because defendant failed to raise this claim below, we review it for plain error affecting
substantial rights. Carines, supra at 763-764.
Although defendant makes several accusations against the trial court, most are based on
his claim that the trial court failed to review any of his motions and instead treated “each motion
as moot, before ever reviewing the motion on the merits and evidence.” Defendant does not
identify or discuss any specific motion, but has merely submitted a docket printout from the
lower court. The record discloses that defendant filed five motions: (1) Motion for Severance;
(2) Motion for Discovery of all aliases and criminal convictions for Cottleon; (3) Motion to
Dismiss based on violation of due process (arrest); (4) Motion to Suppress defendant’s prior
criminal convictions; and (5) Motion to Quash.
The record indicates that the trial court set a hearing date of June 6, 2006, to address the
motions. In a June 6, 2006, hearing disposition, the court noted its intent to issue a written
opinion. On September 14, 2006, the court issued an opinion and order denying the motions to
quash and for severance. In a November 14, 2006, hearing disposition, the trial court indicated
that it would issue a ruling on the motion to dismiss on November 28, 2008, which was the first
day of trial. On that day, the trial court issued a detailed oral ruling, denying the motion to
dismiss based on due process. With regard to the motion to suppress defendant’s prior
convictions, defendant concedes in his appellate brief that the motion “was granted.”
With regard to the remaining motion concerning Cottleon’s aliases and prior convictions,
it is apparent that defendant’s request was satisfied. Cottleon’s aliases were disclosed at the
preliminary examination and at trial. The prosecutor stated on the record at trial that Cottleon’s
aliases and prior convictions had been researched and provided to the defense attorneys. The
court noted that the information was provided as a result of a discovery motion. We also note
that on November 28, 2006, the first day of trial, the court indicated that it had ruled on all of
defendant’s motions, except the motion to dismiss. Defense counsel did not challenge the
court’s statement.
In sum, the record does not support defendant’s claims that the trial court did not
adjudicate his motions. As a result, defendant’s related claims based on that false premise, i.e.,
that the trial court obstructed justice, exhibited bias, and impeded his ability to prove his
innocence, are also unfounded.
C. Brady Violation
Defendant argues that he was denied his right to due process because the prosecutor
failed to provide discovery, contrary to Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d
215 (1963). We disagree. “A criminal defendant has a due process right of access to certain
information possessed by the prosecution.” People v Lester, 232 Mich App 262, 280; 591 NW2d
267 (1998), citing Brady, supra. “In order to establish a Brady violation, a defendant must
prove: (1) that the state possessed evidence favorable to the defendant; (2) that he did not possess
the evidence nor could he have obtained it himself with any reasonable diligence; (3) that the
prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to
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the defense, a reasonable probability exists that the outcome of the proceedings would have been
different.” Lester, supra at 281-282.
Here, defendant has not established a Brady violation. First, defendant does not indicate
what evidence the prosecution withheld. A defendant must provide a factual basis to sustain his
position, otherwise an issue may be deemed waived. People v Traylor, 245 Mich App 460, 464;
628 NW2d 120 (2001). Second, the trial court stated at the preliminary examination that the
prosecutor had confirmed that “everything that he has . . . has been turned over the defense
attorneys.” Third, defendant only claims that the prosecution withheld “inculpatory” evidence.
Because defendant does not assert that evidence favorable to him was withheld, there is no basis
for finding a Brady violation.
D. Transcripts
Defendant argues, in passing, that the record is inadequate for appellate review because
he was denied the entire trial court record. Defendant does not identify what transcripts he was
denied. Additionally, he has failed to explain how the absence of any transcript impeded his
constitutional right to appeal. The defendant bears the burden of demonstrating “prejudice
resulting from missing transcripts.” Bransford v Brown, 806 F2d 83, 86 (CA 6, 1986). “If the
surviving record is sufficient to allow evaluation of defendant’s claims on appeal, defendant’s
right is satisfied.” People v Audison, 126 Mich App 829, 835; 338 NW2d 235 (1983). We
therefore reject this claim of error.
E. Sufficiency of the Evidence
Throughout his supplemental brief, defendant challenges the sufficiency of the evidence
to sustain his convictions. As discussed, supra, the evidence was sufficient to support
defendant’s convictions.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Michael J. Talbot
/s/ Stephen L. Borrello
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