United States v. Gomez-Fajardo ( 2022 )

Case: 21-40674 Document: 00516337644 Page: 1 Date Filed: 05/31/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 31, 2022
No. 21-40674
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Cristian Jose Gomez-Fajardo,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:20-CR-1618
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Cristian Jose Gomez-Fajardo appeals his conviction of unlawfully
transporting an undocumented alien within the United States and conspiracy
to do the same. He argues that the district court reversibly erred when it
excluded his “reverse 404(b)” evidence. We affirm.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-40674 Document: 00516337644 Page: 2 Date Filed: 05/31/2022
No. 21-40674
I.
On August 10, 2020, Cristian Jose Gomez-Fajardo drove a blue
Nissan Versa to a United States Border Patrol checkpoint near Laredo,
Texas. He had three passengers with him: Cristian Chanel Rosario, a United
States legal permanent resident, and two illegally present Mexican
immigrants.
One of the Mexican immigrants testified as follows. He paid $8,000
for someone to smuggle him into the United States; as part of his transport,
he was told to find a blue car in a parking lot of a pizza place. He arrived at
that parking lot to see the blue Nissan Versa with Rosario sitting in the
driver’s seat. Rosario asked him where the immigrants were from, and he told
Rosario they were from Mexico. After Gomez-Fajardo joined the trio,
Rosario moved to the backseat, Gomez-Fajardo got into the driver’s seat, and
he began to drive the car to San Antonio. On the way, the immigrants asked
Gomez-Fajardo “how the crossing was going to happen,” and Gomez-
Fajardo told them “to relax,” that he “was going to take care of it,” and that
he “would be doing the talking.”
When the four men arrived at the checkpoint, one of the immigrants
informed the border patrol agent conducting the inspection that he was
“illegal” and that agent removed the men from the car. Gomez-Fajardo was
subsequently interviewed by another border patrol agent and explained that
he had stopped at the store where the immigrants approached him and
offered to pay him “a lot” to drive them to San Antonio. He refused to
answer any more questions.
Gomez-Fajardo was subsequently charged with unlawfully
transporting an undocumented alien within the United States and conspiracy
to do the same in violation of 8 U.S.C. § 1324. Gomez-Fajardo’s argument
in his defense was that he did not know that his passengers were
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undocumented and that he was duped by Rosario into transporting them. In
support of that theory, Gomez-Fajardo filed a motion with the court to admit
“reverse 404(b)” testimony from a border patrol agent that, one month
before this incident, Rosario had been detained (though not charged) at that
same border patrol checkpoint as a passenger in a different vehicle
transporting undocumented persons. He explained this evidence supported
his theory of innocence because it showed that Rosario duped Gomez-
Fajardo into unwittingly driving the undocumented passengers.
The district court denied the motion to admit the testimony, finding
the connection between Rosario’s prior detention and the purported duping
of Gomez-Fajardo to be overly speculative and thus excluded the evidence
under Federal Rules of Evidence 401 and 403. At trial, Gomez-Fajardo again
attempted to admit the evidence of Rosario’s prior detention. While the
district court admitted evidence that Rosario had previously passed through
the checkpoint, it excluded the evidence regarding Rosario’s prior detention.
The jury proceeded to find Gomez-Fajardo guilty on both counts. Gomez-
Fajardo timely appeals.
II.
“Review of a trial court’s evidentiary rulings is for abuse of
discretion[.]” United States v. Alaniz, 726 F.3d 586, 606 (5th Cir. 2013)
(quoting United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011)). A trial
court abuses its discretion if it makes its ruling based on “an erroneous view
of the law or a clearly erroneous assessment of the evidence.” Id. (quoting
United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005)). “A ‘trial court
is afforded wide discretion in assessing the relevance and prejudicial effect of
evidence.’” Id. (quoting United States v. Seale, 600 F.3d 473, 494 (5th Cir.
2010)).
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III.
Gomez-Fajardo contends the district court legally erred first by
requiring that he establish Rosario’s guilt of the prior crime beyond a
reasonable doubt and second by applying the government-based 404(b)
standard rather than the defendant-based standard. See United States v.
McClure, 546 F.2d 670, 672–73 (5th Cir. 1977) (explaining that a court may
be more lenient when a defendant seeks to admit 404(b) evidence rather than
the government). Neither argument has merit. The district court did not
impose a beyond-a-reasonable-doubt requirement, but simply found Gomez-
Fajardo’s evidence too speculative. Nor did the court apply the government-
applicable 404(b) standard; it merely recognized that, by comparison, the
evidence would clearly fail the 404(b) test that is applied to the government.
Gomez-Fajardo’s primary argument is that the district court
improperly found that the evidence was too speculative to be admitted in
light of Rule 403. Rule 403 provides that “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues, [or]
misleading the jury.” Fed. R. Evid. 403. We have previously explained
that, under Rule 403, while “[e]vidence of third-party guilt is admissible if
the evidence by itself or along with other evidence demonstrates a nexus
between the third party and the crime charged,” that nexus cannot be merely
“speculative because ‘speculative blaming intensifies the grave risk of jury
confusion, and it invites the jury to render its findings based on emotion or
prejudice.’” United States v. Settle, 267 F. App’x 395, 398 (5th Cir. 2008)
(quoting United States v. Jordan, 485 F.3d 1214, 1219 (10th Cir. 2007)); see
also Holmes v. South Carolina, 547 U.S. 319, 327 (2006) (explaining that
evidence of third-party guilt “may be excluded where it does not sufficiently
connect the other person to a crime, as, for example, where the evidence is
speculative or remote, or does not tend to prove or disprove a material fact
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in issue at the defendant’s trial” (quoting 40A Am. Jur. 2d, Homicide
§ 286 (1999))).
Gomez-Fajardo argued that Rosario’s prior detention was relevant to
prove that Gomez-Fajardo lacked knowledge of his passenger’s status and
that Rosario was the mastermind behind the incident. He posited that,
because Rosario had previously been a passenger in a vehicle detained at the
border patrol checkpoint and was not charged with a crime related to that act,
Rosario learned that acting as a passenger would enable him to get away with
transporting undocumented immigrants again in the future. It follows,
according to Gomez-Fajardo, that Rosario used that knowledge to become a
“puppeteer” and trick Gomez-Fajardo into driving the undocumented
passengers without informing him that the passengers were undocumented.
But this chain of logic is precisely the sort of remote, speculative blaming that
we have found Rule 403 prohibits. Gomez-Fajardo does not submit any
evidence that suggests historical control by Rosario that would have been
repeated here, nor evidence that supports his being tricked by Rosario. He
simply states that, because Rosario was previously a passenger in a similar
situation, one could infer Rosario’s total control and trickery here. That
reaches beyond a reasonable inference, and thus, the district court properly
found the evidence too speculative to be admitted. Cf. Settle, 267 F. App’x at
398 (finding reverse 404(b) evidence inadmissible where the defendant
sought to use a third party’s prior presence at incidents where the victim was
harmed to establish that the third party was the real perpetrator of an assault
for which the defendant was convicted).
IV.
The district court’s judgment is therefore AFFIRMED.
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