United States v. Calderon-Lopez , 268 F. App'x 279 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 3, 2008
No. 05-20706 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
WILLIAM E. CALDERON-LOPEZ; JUAN CARLOS MARTINEZ-ORDONEZ;
VICTOR VICTORIA-MAGDALANO; ARMANDO GAONA; and RAFAEL E.
RIVAS-LOPEZ
Defendants-Appellants
Appeal from the United States District Court
for the Southern District of Texas
4:04-CR-145-3
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
This case involves a complex conspiracy to transport, harbor, and hold
hostage illegal aliens for pecuniary gain. Each defendant challenges varying
aspects of his conviction and/or sentence. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 05-20706
I. BACKGROUND FACTS
On December 13, 2004, a superseding indictment was filed charging
William Calderon-Lopez (“Calderon”), Juan Carlos Martinez-Ordonez
(“Martinez”), Victor Victoria-Magdalano (“Victoria”), Armando Gaona (“Gaona”),
Rafael Rivas-Lopez (“Rivas”), and Zabdiel Hernandez-Bonilla (“Hernandez”)1
with one count (Count 1) of conspiracy to commit hostage taking in violation of
18 U.S.C. § 1203(a); four counts (Counts 2-5) of hostage taking in violation of 18
U.S.C. § 1203(a) and 2; four counts (Counts 6-9) of aiding and abetting the
harboring of illegal aliens for the purpose of commercial advantage and private
financial gain in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii), 1324(a)(1)(B)(i), and
1324(a)(1)(A)(v)(II); and four counts (Counts 10-13) of aiding and abetting the
transportation of illegal aliens for the purpose of commercial advantage and
private financial gain in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(B)(i),
and 1324(a)(1)(A)(v)(II).2
The scheme consisted of smuggling illegal aliens across the Mexican
border and then holding them hostage until they could secure the smuggling fee
from family members. At trial, Special Agent Eleazar Perez, acting supervisor
for the alien smuggling unit with the United States Bureau of Immigration and
Customs Enforcement (“ICE”), testified that he received information from the
Houston Police Department on March 11, 2004 that aliens were being held
hostage at the GNW Audio Accessory Shop, located in Houston, Texas. SA Perez
reported this information to the Immigration and Naturalization Service (“INS”)
office. Approximately six federal agents and several Houston police officers were
1
Hernandez pleaded guilty to the conspiracy charge and testified as a Government
witness.
2
The victim aliens named in the indictment are Juan Contreras-Lopez (“Contreras”)
(Counts 2, 6, and 10); Josue Antonio Vaquedano (“Vaquedano”) (Counts 3, 7, and 11); Walter
Monrroy-Euseda (“Monrroy”) (Counts 4, 8, and 12); and Wilson Hernandez-Contreras
(“Hernandez-Contreras”) (Counts 5, 9, and 13).
2
No. 05-20706
dispatched to the location. During surveillance, the agents observed Calderon
leaving the shop and approaching a parked vehicle. The agents observed Gaona
and a female sitting inside the vehicle. Gaona told SA Perez that he came to
pick up someone to take them to lunch or breakfast. He provided the agents
with a driver’s license that listed his name as “Fernando Ortiz.”
SA Perez asked Calderon if he was the owner of the shop. Calderon
responded that he was not. The agents and Calderon entered the shop and saw
a checkbook and other documents with Calderon’s name on them. When
confronted with these items, Calderon admitted that he was in charge and gave
written consent to search the premises.
Upon entering the shop, the agents could see an open door leading to a
warehouse-type area and that people occupied the area. A few individuals ran
toward the back. A commotion then erupted and people ran everywhere. To
control the situation, the agents had everyone sit down and began asking
questions about their immigration status and countries of origin. Thirty-four
persons were undocumented aliens recently smuggled into the United States.
The agents placed them into federal custody and transported them to an INS
location nearby to conduct interviews.
Special Agent Kenneth Wayne Masters provided the jury with a diagram
of the shop that laid out the areas where specific pieces of evidence were
discovered. For example, the agents seized a pair of handcuffs, three “pollo”3
lists, which were described as ledgers listing the names of smuggled aliens, the
dollar amounts owed, and telephone numbers for the aliens’ contact person who
would pay the additional smuggling fee. Special Agent Jeff Hudson testified
that some of the aliens taken into federal custody were named on the pollo lists.
The agents also discovered a loaded Raven .25-APC caliber pistol and a loaded
3
“Pollo” means chicken in Spanish. In the smuggling context, smugglers are generally
known as “coyotes” and the people being smuggled are generally known as “pollos.”
3
No. 05-20706
Tec-9 submachine gun, along with several rounds of ammunition. Latent
fingerprints found on the pollo lists belonged to Martinez, Rivas, and Hernandez.
SA Hudson testified that approximately 34 undocumented aliens were
detained at his request; that all defense lawyers were given an opportunity to
interview them; that approximately sixteen aliens were detained for deposition;
and that five depositions were actually taken, four of which were material
witnesses for the United States and one on behalf of one of the defendants. After
the depositions were taken, the aliens were processed through ICE and deported.
SA Hudson attempted to secure the return of these aliens to testify at trial, but
was unable to do so.
Indicted co-defendant Hernandez testified on behalf of the Government.
He indicated that he and a friend illegally entered the United States toward the
end of January 2004. He was told at the border that the smuggling fee would be
paid in the United States and that the fee would be $1,500, though in Houston,
the fee increased to $2,000. Upon crossing into the United States, his group met
with a “walker,” later identified to be Victoria. The group walked through the
brush for two days and were then transported to Houston in a car driven by an
unidentified person. Hernandez was dropped off in Houston at one location and
then picked up by Calderon and eventually driven to the shop. He was at the
shop for about one month and fifteen days before his arrest. He testified that
Calderon told him when they were arrested that if he kept silent, Calderon
would bring him back into the United States for free.
Hernandez testified that he was “locked in” and was “a prisoner for a week
or longer” during his first week in Houston. He was told that if no one would
pay for him, “they were going to give me a ‘pa vajo,’” which he interpreted to
mean that he would be “taken down.” He also testified that a similar threat was
made to another alien and “then they took him out and I don’t know what
happened with him.” Because he could not get the money to pay the smuggling
4
No. 05-20706
fee, Hernandez became involved in the conspiracy. He agreed to work for an
indefinite period of time and had free roam in the shop, though he was not
permitted to leave the premises. He described his role as watching the aliens so
they would not create a disturbance. He wrote down the names of family
members and telephone numbers. He heard people making calls to family
members and stating that the fee was $2,000. He testified that the aliens were
“bothered because they had collected the 1,500 and they could not get the 2,000.”
Hernandez identified Rivas and Martinez as the persons who wrote down
names, phone numbers, and amounts owed, and made telephone calls. He
described Victoria as working with Calderon and Gaona. According to him,
Calderon and Gaona appeared to be in charge and Calderon would hand any
collected money over to Gaona. Hernandez testified that Calderon would wave
his gun and make threatening gestures to the aliens and on one occasion, told
the aliens, “if anybody tried to escape, he [Calderon] was going to put a bullet in
their body.” He also testified that Martinez and another smuggler carried
weapons. Hernandez also carried a pistol and took turns guarding the aliens.
He received his orders from Calderon, who told him that he should threaten the
aliens with the gun if they became “boisterous” or “unruly.” On one occasion,
when the aliens became unruly, Calderon called Gaona, who arrived with a
weapon. Hernandez testified that one illegal alien, Contreras, did not have
anyone to pay the smuggling fee for him and that he:
wanted to be sent back to the border, he wanted to be thrown back,
and since he was already desperate, William [Calderon] said that he
was going to have someone call a person that was called “El Toro”
[Gaona] that he knew martial arts, that he knew boxing so that he
could put him in his place.4
4
Hernandez also testified about an incident involving Contreras and another alien,
Monrroy, in which he witnessed Contreras pull down Monrroy’s pants near the back of the
shop. Hernandez perceived the incident as a sexual-type encounter and saw Monrroy hit
Contreras with his fists. Hernandez related this information to Victoria and Gaona the
5
No. 05-20706
The four victim aliens named in the indictment testified through video
deposition: Contreras, Monrroy, Vaquedano, and Hernandez-Contreras. Prior
to playing the videotapes, the district court made a factual finding that at each
deposition all “parties were present and represented by counsel.”
The deposition testimony of Contreras, Monrroy, Vaquedano, and
Hernandez-Contreras indicates that each were part of a group that entered the
United States illegally and that Victoria guided them through the brush.
Contreras testified that, after entering the United States, he was locked up with
approximately 70 other illegal aliens in a house close to the border. Monrroy
testified that there were approximately 50 aliens at the house when he arrived.
He heard Victoria given an instruction over the telephone to send a van to drive
the group to Houston. Each alien was placed into the van “some lying on top of
others, some under the seat and some lying on top of the seat. And one was
seated up at the front.” Victoria then drove the aliens to Houston. Vaquedano
and Hernandez-Contreras were taken directly to the shop. Contreras and
Monrroy were transported to a different location for a few days and then taken
to the shop. During this time at the separate location, Martinez and five other
unidentified people watched over the group.
Monrroy, Vaquedano, and Hernandez-Contreras testified that upon
arriving at the shop, they were told that the smuggling fee had increased. Upon
arrival, Martinez instructed the aliens to “give them our telephone numbers to
following morning. He then saw Victoria and Gaona kick and hit Contreras. He testified that
after the beating, Contreras could not eat or swallow. Contreras and Hernandez-Contreras
corroborated Hernandez’s testimony and testified that Victoria and Gaona beat Contreras
because he could not pay the smuggling fee. The defendants argued that Victoria and Gaona
beat Contreras to protect Monrroy from a future sexual assault. However, Contreras testified
that he did not attempt to sexually assault Monrroy and Monrroy testified that Contreras
pulled down his pants as a joke. Monrroy equivocated about whether Gaona and Victoria beat
Contreras to protect him from a future sexual assault, but he did state that after the beating,
Gaona and Victoria told Contreras, “You have that money ready by Monday, or I’m going to
put you down[;]” and that “they didn’t want him there anymore because he had been there too
many days.”
6
No. 05-20706
make the phone calls . . . so that we could get out of where they were holding us.”
Both Monrroy and Vaquedano identified Hernandez, Martinez, and Rivas as the
persons asking for numbers and making the calls. Hernandez-Contreras
identified Rivas and Hernandez as the persons making the calls. He gave his
cousin’s number to Hernandez and then heard Hernandez ask for money over
the telephone. When Contreras arrived, Martinez told him to call a relative for
money. Contreras gave Martinez his brother’s number and then heard Martinez
make this call: “[H]e said to send the money as soon as possible and they were
giving us two days’ time.”
Contreras, Monrroy, Vaquedano, and Hernandez-Contreras testified that
they were held captive at the shop and that the smugglers threatened to harm
them if they tried to escape. Contreras testified that Martinez and Hernandez
held weapons and that Victoria and Hernandez made threats. He identified
Gaona as threatening “to put us down” if they could not get the additional
money, which he was told meant that “they were going to kill us.” Monrroy
testified that Rivas and Hernandez received his group and that he understood
that if he did not pay, he could not leave. He further testified that Hernandez
held a weapon and that Martinez, Rivas, Victoria, and Hernandez were all
present when threats to kill were made. Upon his arrest, Rivas told him “to not
say anything” and “only to say that we didn’t have anything to say.” He
indicated a reluctance to testify because Martinez had the telephone numbers
of his relatives. Vaquedano testified that Victoria, Martinez, and Gaona made
threats and that Calderon, Martinez, Rivas, and Hernandez would switch using
weapons. According to him, the aliens were told to pay “so that we could get out
of where they were holding us” and that if they could not get the money, “we
wouldn’t be let go.” Hernandez-Contreras testified that the smugglers took his
shoes and shirt to prevent him from escaping and that “[w]e absolutely could not
go in and out.” He identified Rivas, Martinez, and Hernandez as the persons
7
No. 05-20706
carrying weapons and testified that Rivas and Hernandez specifically threatened
to shoot anyone who tried to escape.
On February 4, 2005, the jury returned a verdict of guilty on all counts
with respect to Calderon, Victoria, Rivas, and Gaona; and a verdict of guilty on
Counts 1-9 with respect Martinez, acquitting him on Counts 10-13. The district
court imposed the following sentences:
Calderon, Victoria, and Rivas: 188 months of imprisonment and
a 5-year term of supervised release on Counts 1-5; 120 months of
imprisonment and a 3-year term of supervised release on Counts 6-
9; and 120 months of imprisonment and a 3-year term of supervised
release on Counts 10-13; all to run concurrently.
Martinez: 188 months of imprisonment and a 5-year term of
supervised release on Counts 1-5; and 120 months of imprisonment
and a 3-year term of supervised release on Counts 6-9; all to run
concurrently.
Gaona: 324 months of imprisonment and a 5-year term of
supervised release on Counts 1-5; 120 months of imprisonment and
a 3-year term of supervised release on Counts 6-9; and 120 months
of imprisonment and a 3-year term of supervised release on Counts
10-13; all to run concurrently.
Each defendant filed a timely notice of appeal challenging varying aspects of his
conviction and/or sentence.
II. ANALYSIS
A. Sufficiency of the Evidence Issues
Calderon, Martinez, and Rivas argue that the evidence is insufficient to
support their convictions for conspiracy to commit a hostage taking (Count One)
and aiding and abetting a hostage taking (Counts 2-5). Calderon additionally
argues that the evidence is insufficient to support his conviction for aiding and
abetting the transportation and harboring of illegal aliens for the purpose of
commercial advantage and private financial gain (Counts 6-13).
8
No. 05-20706
This court must affirm a conviction if the evidence, viewed in the light
most favorable to the verdict, with all reasonable inferences and credibility
choices made in support of it, is such that a trier of fact reasonably could have
found the essential elements of the crime beyond a reasonable doubt. United
States v. Ramirez, 954 F.2d 1035, 1039 (5th Cir. 1992). Our inquiry is not
whether the verdict is correct, but whether the jury reasonably could have made
its decision based upon the record evidence. United States v. Jaramillo, 42 F.3d
920, 923 (5th Cir. 1995). “[T]he standard remains the same whether the
evidence is direct or circumstantial.” United States v. Ibarra-Zelaya, 465 F.3d
596, 603 (5th Cir. 2006).
1. The Hostage Taking Act
Calderon, Martinez, and Rivas were each charged with conspiracy to
commit a hostage taking and aiding and abetting a hostage taking. See 18
U.S.C. § 1203(a). To prove the offense of hostage taking, the Government must
establish that the defendants “(1) seized or detained another person, and (2)
threatened to kill, injure, or continue to detain that person, (3) with the purpose
of compelling a third person or entity to act in some way as an ‘explicit or
implicit condition for the release of the person detained.’” Ibarra-Zelaya, 465
F.3d at 602 (quoting 18 U.S.C. § 1203(a)). “Conspiracy requires direct or indirect
agreement to commit hostage taking, knowledge that the purpose of the
agreement was unlawful, and joinder in the agreement to further its unlawful
purpose.” Id. at 603 (quoting United States v. De Jesus-Batres, 410 F.3d 154, 160
(5th Cir. 2005). To prove the crime of aiding and abetting, the Government must
establish that the substantive offense occurred and that the defendant (1)
associated with the criminal venture; (2) purposefully participated in the crime;
and (3) sought by his actions for it to succeed. United States v. Garcia, 242 F.3d
593, 596 (5th Cir. 2001). “Associate” means that the defendant shares in the
principal’s criminal intent. Jaramillo, 42 F.3d at 923. “Participate” means that
9
No. 05-20706
the defendant engages in some affirmative conduct designed to aid the venture
or assist the perpetrator of the crime. Id. “The evidence supporting a conspiracy
conviction is generally sufficient to support an aiding and abetting conviction as
well.” Ibarra-Zelaya, 465 F.3d at 603 (quoting United States v. Gonzales, 121
F.3d 928, 936 (5th Cir. 1997)).
With respect to Calderon, the evidence, viewed in the light most favorable
to the verdict, tends to show that he owned and managed the shop where the
aliens were held hostage. Hernandez specifically testified that Calderon drove
him to the shop, that Calderon and Gaona appeared to be in charge, and that
Calderon handled money, held a weapon, and threatened to shoot the aliens if
they tried to escape. Hernandez also testified that he took orders from Calderon
and that Calderon instructed him to threaten the aliens if they became unruly
or boisterous. Vaquedano testified that Calderon took turns holding a weapon.
With respect to Martinez and Rivas, the evidence, viewed in the light most
favorable to the verdict, tends to show that they each wrote down the names and
numbers of the aliens and made calls to secure the additional smuggling fees.
Latent fingerprints found on the pollo lists belonged to them. Several witnesses
testified that they carried weapons. Vaquedano testified that Martinez made
threats and Hernandez-Contreras testified that Rivas specifically threatened to
shoot anyone who tried to escape. Finally, Monrroy testified that both Martinez
and Rivas were each present when threats to kill were made. Based on this
evidence, a reasonable jury could have concluded that Calderon, Martinez, and
Rivas each conspired to commit a hostage taking and aided and abetted a
hostage taking.5
5
Although Rivas argues that there was insufficient evidence to sustain his conviction
as to all counts, he focuses exclusively on the counts involving conspiracy to commit a hostage
taking and aiding and abetting a hostage taking. Thus, with respect to the remaining counts,
we deem his insufficiency of the evidence challenge waived for inadequate briefing. See United
States v. Freeman, 434 F.3d 369, 374 (5th Cir. 2005).
10
No. 05-20706
Calderon, Martinez, and Rivas argue that there is no evidence that any
alien was detained or that the smuggling fee increased once the aliens crossed
the border. According to them, the aliens voluntarily remained at the shop until
the initial smuggling fee was paid. However, Hernandez, Contreras, Monrroy,
Vaquedano, and Hernandez-Contreras testified that they were each held captive
at the shop and that the smugglers threatened to harm them if they tried to
escape. Although the evidence regarding the beating of Contreras was
conflicting, the jury could have concluded that Gaona and Victoria beat
Contreras simply because he was unable to pay the additional smuggling fee.
Moreover, Hernandez, Monrroy, Vaquedano, and Hernandez-Contreras testified
that the smuggling fee increased once they arrived in Houston. Based on this
evidence, a reasonable jury could have concluded that the aliens were actually
detained and that a hostage taking occurred. Finally, Rivas argues that there
is no evidence of an intent to compel a third person to act in some way as an
explicit or implicit condition for the release of the aliens. However, there is
ample evidence in the record that the defendants called various friends and
family members of the illegal aliens and requested money as an implicit
condition for their release. Again, the sole inquiry is not whether the jury’s
verdict was ultimately correct but whether the jury made a reasonable decision
based upon the evidence introduced at trial. Jaramillo, 42 F.3d at 923.
2. The Transportation and Harboring of Illegal Aliens
Calderon was charged with aiding and abetting the transportation and
harboring of illegal aliens for the purpose of commercial advantage and private
financial gain. See 18 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(A)(iii). To prove
the offense of transporting an illegal alien the Government must establish that
“(1) an alien entered or remained in the United States in violation of the law, (2)
[the defendant] transported the alien within the United States with intent to
further the alien’s unlawful presence, and (3) [the defendant] knew or recklessly
11
No. 05-20706
disregarded the fact that the alien was in the country in violation of the law.”
United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002) (citing 8 U.S.C.
§ 1324(a)(1)(A)(ii) and United States v. Diaz, 936 F.2d 786, 788 (5th Cir. 1991)).
To prove the offense of harboring an illegal alien the Government must establish
that “(1) [an] alien entered or remained in the United States in violation of the
law, (2) the defendant concealed, harbored or sheltered the alien in the United
States, (3) the defendant knew or recklessly disregarded that the alien entered
or remained in the United States in violation of the law, and (4) the defendant’s
conduct tended to substantially facilitate the alien remaining in the United
States illegally.” De Jesus-Batres, 410 F.3d at 160; see also 18 U.S.C. §
1324(a)(1)(A)(iii). Circumstantial evidence alone can establish a defendant’s
knowledge or reckless disregard that the people being transported and/or
harbored are in the United States illegally . See id. at 161 (citing United States
v. Rubio-Gonzalez, 674 F.2d 1067, 1071 (5th Cir. 1982)).
Here, there is no dispute that illegal aliens had entered the United States,
were transported and harbored in the United States, and that Calderon knew
or recklessly disregarded that the transported and harbored aliens entered or
remained in the United States in violation of the law. Instead, Calderon argues
that there is no evidence that he specifically transported or harbored an illegal
alien. However, the evidence, viewed in the light most favorable to the verdict,
tends to show that Calderon owned and managed the shop where the aliens were
held hostage. Hernandez specifically testified that Calderon drove him to the
shop, that Calderon and Gaona appeared to be in charge, and that Calderon
handled money, held a weapon, and threatened to shoot the aliens if they tried
to escape. Hernandez further testified that he took orders from Calderon and
that Calderon instructed him to threaten the aliens if they became unruly or
boisterous. Vaquedano testified that Calderon took turns holding a weapon.
Based on this evidence, a reasonable jury could have concluded that Calderon
12
No. 05-20706
aided and abetted the harboring of illegal aliens. Although there is no evidence
that Calderon specifically transported Contreras, Monrroy, Vaquedano, and
Hernandez-Contreras, a reasonable jury could have concluded that by managing
the place to which the aliens were transported, substantially participating in the
overall hostage taking conspiracy, and, according to Hernandez, being in charge
of the operation with Gaona, Calderon aided and abetted the transportation of
illegal aliens to the shop. We understand that most of this evidence comes from
the testimony of an indicted co-defendant. However, when evaluating whether
the evidence is sufficient to support a jury verdict, we are required to view all of
the evidence -- including the testimony of a potentially biased witness -- in a
light most favorable to that verdict. See Ramirez, 954 F.2d at 1039.
B. Sixth Amendment Issues
Calderon and Rivas argue that the district court violated their Sixth
Amendment confrontation rights by permitting the use of video deposition
testimony in lieu of live testimony. Rivas argues that the district court violated
his Sixth Amendment confrontation right by limiting his cross-examination of
SA Hudson. Finally, Gaona argues that the Government violated his Sixth
Amendment confrontation right and right to compulsory process by deporting
material alien witnesses.
We review alleged violations of a defendant’s Sixth Amendment
confrontation right de novo. United States v. Bell, 367 F.3d 452, 465 (5th Cir.
2004). We also review alleged violations of a defendant’s Sixth Amendment right
to compulsory process de novo. See United States v. Soape, 169 F.3d 257, 267
(5th Cir. 1999). Such claims, however, are subject to harmless error review. See
Bell, 367 F.3d at 465; United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.
2006). If there is no constitutional violation, then we review a district court’s
limitations on cross-examination for an abuse of discretion, which requires a
13
No. 05-20706
showing that the limitations were clearly prejudicial. Jimenez, 464 F.3d at 558-
59 (citing United States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993)).
1. The Use of Videotaped Deposition Testimony
Calderon and Rivas argue that the district court violated their Sixth
Amendment confrontation rights by permitting the use of video deposition
testimony in lieu of live testimony. According to Title 8 of the United States
Code, Section 1324(d):
Notwithstanding any provision of the Federal Rules of Evidence, the
videotaped (or otherwise audiovisually preserved) deposition of a
witness to a violation of subsection (a) who has been deported or
otherwise expelled from the United States, or is otherwise unable to
testify, may be admitted into evidence in an action brought for that
violation if the witness was available for cross examination and the
deposition otherwise complies with the Federal Rules of Evidence.
We have held that “this provision must be read in conjunction with other rules
governing the admission of deposition testimony in a criminal proceeding.”
United States v. Aguilar-Tamayo, 300 F.3d 562, 565 (5th Cir. 2002). Rule 15(e)
of the Federal Rules of Criminal Procedure provides that deposition testimony
“so far as [it is] otherwise admissible under the rules of evidence, may be used
if the witness is unavailable, as unavailability is defined in Rule 804(a) of the
Federal Rules of Evidence.” Rule 804(a)(5) of the Federal Rules of Evidence
defines “unavailability” as being “absent from the hearing and the proponent of
[his] statement has been unable to procure [his] presence by process or other
reasonable means.” We have emphasized that “[u]navailability must ordinarily
also be established to satisfy the requirements of the Confrontation Clause,
which generally does not allow admission of testimony where the defendant is
unable to confront the witness at trial.” Aguilar-Tamayo, 300 F.3d at 565 (citing
Ohio v. Roberts, 448 U.S. 56 (1980)). However, this rule is not absolute and the
lengths to which the Government must go to secure a witness to establish his or
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No. 05-20706
her unavailability is a question of reasonableness. Roberts, 448 U.S. at 74. The
Government need not make futile efforts to secure the presence of a witness at
trial. Id. Instead, “[t]he ultimate question is whether the witness is unavailable
despite good-faith efforts undertaken prior to trial to locate and present that
witness.” Id. The burden of proof rests with the Government. Id. at 74-75.
We have previously found reasonable the following measures taken by the
Government to secure the presence of a deported witness: (1) giving the witness
the option of remaining in the United States with work permits; (2) providing
witness fees and travel cost reimbursements; (3) giving the witness a subpoena
and letter to facilitate his or her reentry into the United States; (4) calling the
witness in his or her home country; (5) getting repeated assurance from the
witness that he or she would return; (6) apprising border inspectors of the
witness’s expected arrival into the United States; and (7) issuing checks to be
given to the witness upon his or her reentry into the United States. United
States v. Allie, 978 F.2d 1401, 1407 (5th Cir. 1992). We have further recognized
that the Government need not take all of these steps to establish that it acted
reasonably to secure a witness’s presence. Aguilar-Tamayo, 300 F.3d at 566.
Here, SA Hudson filed an affidavit indicating the efforts made to secure
the presence of Contreras, Vaquedano, Monrroy, and Hernandez-Contreras for
trial. Specifically, SA Hudson issued subpoenas and letters to each witness
translated into Spanish indicating the trial date and that the witness might be
required to testify at trial. The letters also provided explicit instructions for
obtaining the necessary documents to enter the United States and provided each
witness with the travel distance to the American Embassy from his respective
place of residence, along with the addresses and telephone numbers for the
American Embassies located in Mexico and Honduras. SA Hudson further
informed each witness that the Government would pay for the trip and
reimburse the witness for any other incidental travel needed for the purpose of
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No. 05-20706
testifying. SA Hudson provided Contreras with a contact number, but Contreras
failed to contact SA Hudson after his deportation. SA Hudson made several
attempts to contact Vaquedano, but failed to locate him in Mexico. With respect
to Monrroy and Hernandez-Contreras, SA Hudson remained in contact with
them and requested Significant Public Benefit Paroles in order to facilitate their
reentry into the United States. However, Monrroy refused to testify unless he
could stay in the United States permanently and Hernandez-Contreras simply
failed to show up. Based on these good-faith efforts, we agree that the
Government made reasonable attempts to secure the presence of each witness
at trial sufficient to satisfy the Confrontation Clause.6
Rivas argues that the use of the videotaped deposition testimony violated
the Confrontation Clause because the defendants did not have an opportunity
to cross-examine the deported witnesses on the issue of hostage taking. On the
day that the first deposition was taken, the Government notified the defendants
that “[it] will be superseding the indictment to include hostage taking. It won’t
include all defendants, but it will probably include most of them. So you may
want to take that into consideration in your questioning.” Although providing
notice on the day of the first deposition that a superseding indictment will be
filed to include a new count that might involve a particular defendant is not
necessarily ideal, we agree with the district court that the defendants were
nonetheless able to evaluate to what extent each deponent’s testimony would
implicate them with regard to a potential hostage taking count and cross-
examine each witness on that issue. Indeed, the defendants were able to elicit
favorable evidence from the deponents regarding that very issue. Moreover, the
6
With respect to Calderon, even if we did find a Confrontation Clause violation, any
such error was harmless beyond a reasonable doubt. Indeed, almost all of the evidence
implicating Calderon came through the testimony of indicted co-defendant Hernandez, who
provided live testimony before the jury and was subject to cross-examination. Thus, the
videotaped deposition testimony was not even material to Calderon and, at best, provided
cumulative evidence. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
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No. 05-20706
deponents were deported more than a month after the first superseding
indictment was filed on June 10, 2004. The defendants could have easily
requested that the district court order that these witnesses be deposed a second
time in light of the new charges and failed to do so.7
2. The Limitations on the Cross-Examination of SA Hudson
Rivas argues that the district court violated his Sixth Amendment
confrontation right by limiting his cross-examination of SA Hudson. “While the
scope of cross-examination is within the discretion of the trial judge, this
discretionary authority to limit cross-examination comes into play only after
there has been permitted as a matter of right sufficient cross-examination to
satisfy the Sixth Amendment.” United States v. Elliott, 571 F.2d 880, 908 (5th
Cir. 1978).8 This right “is particularly important when the witness is critical to
the prosecution’s case.” Jimenez, 464 F.3d at 559 (quoting United States v.
Mizell, 88 F.3d 288, 293 (5th Cir. 1996)). However, “the Confrontation Clause
guarantees an opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense might
wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in
original); see also Bigby v. Dretke, 402 F.3d 551, 573 (5th Cir. 2005) (“[T]he
Confrontation Clause does not guarantee defendants cross-examination to
whatever extent they desire.”). The district court has “wide latitude insofar as
the Confrontation Clause is concerned to impose reasonable limits on such
cross-examination based on concerns about, among other things, harassment,
7
Rivas also argues that the videotapes were facially deficient because they did not
always function properly and the audio and visual were not always synchronized. We see no
reason to disturb the district court’s finding that any lack of synchronization was
inconsequential and thus, did not somehow implicate the Confrontation Clause.
8
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend.
VI.
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No. 05-20706
prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679. Thus, the
Confrontation Clause is generally satisfied when the defendant has been
“permitted to expose to the jury the facts from which jurors, as the sole triers of
fact and credibility, could appropriately draw inferences relating to the
reliability of the witness.” Restivo, 8 F.3d at 278 (quoting Davis v. Alaska, 415
U.S. 308, 318 (1974)).
In order to establish a violation of the confrontation right, the defendant
need not establish that the jury would have reached a different result. Van
Arsdall, 475 U.S. at 679-80. Instead, the focus is on the particular witness. Id.
at 680. Thus, to establish a violation of the confrontation right, the defendant
need only establish that “[a] reasonable jury might have received a significantly
different impression of [the witness’s] credibility had [defense] counsel been
permitted to pursue his proposed line of cross-examination.” Id. Finally, any
violation of the confrontation right is subject to harmless error review by
analyzing the following factors: “the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of the witness
on material points, the extent of cross-examination otherwise permitted, and, of
course, the overall strength of the prosecution’s case.” Id. at 684.
Rivas attempted to cross-examine SA Hudson regarding written notes
taken during interviews of the remaining illegal aliens found at the shop but not
deposed. The purpose of this line of questioning was to illustrate that none of
the remaining illegal aliens identified Rivas. The district court sustained an
objection to this line of questioning because SA Hudson did conduct all of the
interviews and did not prepare the written notes; it would be hearsay for SA
Hudson to testify as to whether the remaining illegal aliens identified or failed
to identify Rivas during their interviews; and the proffered evidence was hardly
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No. 05-20706
exculpatory because it did not negate the fact that three alien witnesses
specifically identified Rivas. The district court nonetheless permitted Rivas to
elicit testimony that all of the illegal aliens were interviewed, certain aliens
misidentified a defendant when viewing the photo spread, that the aliens were
subsequently deported, and that a handwriting expert failed to match Rivas’s
handwriting with the handwriting contained in the pollo lists. In so doing, we
agree that the district court imposed reasonable limitations on the cross-
examination of SA Hudson sufficient to comport with the Federal Rules of
Evidence and the Confrontation Clause. See Van Arsdall, 475 U.S. at 679. We
further agree that these limitations did not constitute an abuse of discretion.
Jimenez, 464 F.3d at 558-59 (citing Restivo, 8 F.3d at 278).
3. The Deportation of Material Witnesses
Gaona argues that the Government violated his Sixth Amendment
confrontation right and right to compulsory process by deporting material alien
witnesses. The Sixth Amendment guarantees a criminal defendant the right “to
have compulsory process for obtaining witnesses in his favor.” U.S. Const.
amend. VI. The mere fact that the Government deported a material witness,
standing alone, is insufficient to establish a violation of the right to compulsory
process. United States v. Gonzales, 436 F.3d 560, 578 (5th Cir. 2006). Instead,
to establish such a violation, the defendant must “make[] a plausible showing
that the testimony of the deported witnesses would have been material and
favorable to his defense, in ways not merely cumulative to the testimony of
available witnesses.” United States v. Valenzuela-Bernal, 458 U.S. 858, 873
(1982). This court has not addressed the issue of whether the defendant must
also establish that the Government deported the witness in bad faith. See
Gonzales, 436 F.3d at 578 (declining to address the issue).9 We need not do so
9
The Seventh, Ninth, and Tenth Circuits have held that the defendant must establish
that the Government acted in bad faith in deporting a witness to establish a violation of the
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No. 05-20706
today because even if Gaona established that the Government acted in bad faith,
he has made no attempt to establish that any of the deported alien witnesses
would have been material and favorable to his defense.
Gaona argues that he was not given a sufficient opportunity to interview
these witnesses to determine whether they would have provided favorable
material evidence. However, the record belies this argument. In fact, Gaona
concedes that he was able to interview several of these witnesses. If the ten-day
time frame allotted by the district court was insufficient to interview all of them,
he could have easily requested the district court to temporarily detain the
remaining aliens until he had an opportunity to interview them. Indeed, the
district court granted a similar request by Victoria to temporarily detain nine
aliens until the completion of trial or until further order from the district court.
Nonetheless, because Gaona has failed to establish that any of the deported alien
witnesses would have been material and favorable to his defense after having an
opportunity to collect such information, we reject his argument that the
Government violated his Sixth Amendment confrontation right and right to
compulsory process by subsequently deporting these aliens. See United States
v. Villanueva, 408 F.3d 193, 200-01 (5th Cir. 2005).
C. Sentencing Issues
1. Substantive Reasonableness
Martinez and Rivas challenge the reasonableness of their sentences, both
of which fall within the properly calculated Guidelines ranges for their offenses.
This court accords a presumption of reasonableness to sentences that fall within
a properly calculated Guidelines range and the Supreme Court has recently
upheld this practice. See United States v. Rita, 127 S. Ct. 2456, 2459 (2007);
right to compulsory process. See United States v. Chaparro-Alcantara, 226 F.3d 616, 624 (7th
Cir. 2000); United States v. Pena-Gutierrez, 222 F.3d 1080, 1085 (9th Cir. 2000); United States
v. Iribe-Perez, 129 F.3d 1167, 1173 (10th Cir. 1997).
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No. 05-20706
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The Supreme Court
has also recently reiterated that “[r]egardless of whether the sentence imposed
is inside or outside the Guidelines range, the appellate court must review the
sentence under an abuse-of-discretion standard.” Gall v. United States, 128 S.
Ct. 586, 591 (2007).
With respect to Martinez, the district court granted his objection to the six-
level ransom enhancement under U.S.S.G. § 2A4.1(b), leaving a Guidelines
range of 188-235 months. The district court considered the Guidelines range and
then sentenced Martinez to 188 months’ imprisonment, finding that a sentence
at the lower end of that range “is consistent with . . . the factors identified in 18
U.S.C. § 3553(a).” Martinez argues that his sentence is “extraordinarily”
unreasonable in comparison to the applicable Guidelines ranges for the offenses
of alien smuggling and aggravated assault. However, Martinez was not found
guilty of alien smuggling or aggravated assault; he was found guilty of hostage
taking and there is no suggestion that the district court improperly calculated
the Guidelines range for this offense. Martinez contends that this particular
hostage taking was less serious than the typical hostage taking scenario. The
district court appeared to be sympathetic to this argument by granting
Martinez’s objection to the ransom enhancement and sentencing him at the
lower end of the Guidelines range. In doing so, we are unable to say that the
sentenced imposed is unreasonable or that the district court abused its
discretion, especially given the presumption of reasonableness afforded to
sentences that fall within a properly calculated Guidelines range.
With respect to Rivas, he challenges only the “presumptive
reasonableness” of his sentence. However, both the Supreme Court and this
court have upheld the use of a presumption of reasonableness for sentences that
fall within a properly calculated Guidelines range. Rita, 127 S. Ct. at 2459;
Alonzo, 435 F.3d at 554. Thus, this argument lacks merit.
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No. 05-20706
2. Downward Departure for Minor Participation
Victoria argues that the district court erred in failing to apply a two-level
downward adjustment for his minor participation in the offense of conviction.
See USSG § 3B1.2(b). We review such factual determinations for clear error.
Villaneuva, 408 F.3d at 203. “A factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole.” Id. (citing United States v.
Valencia, 44 F.3d 269, 272 (5th Cir. 1995)).
Section 3B1.2 only applies when a defendant is “substantially less culpable
than the average participant.” U.S.S.G. § 3B1.2, cmt. n.3(A). “It is not enough
that a defendant ‘does less than other participants; in order to qualify as a minor
participant, a defendant must have been peripheral to the advancement of the
illicit activity.’” Villaneuva, 408 F.3d at 204 (quoting United States v. Miranda,
248 F.3d 434, 446-47 (5th Cir. 2001)). Victoria’s argument that his conduct was
merely peripheral to the overall hostage taking conspiracy is not supported by
the record evidence. Indeed, Victoria guided the aliens through the brush and
then drove them to Houston, Texas. Several witnesses testified that he
threatened the aliens at the shop and was present when threats to kill were
made. Finally, there was evidence that he participated in beating Contreras
because Contreras could not pay the smuggling fee. Thus, we are unable to say
that the district court clearly erred in failing to apply the two-level downward
adjustment for minor participation in the offense of conviction.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s judgments of
conviction and sentences.
22