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United States v. Pineda-Rodriguez ( 2021 )


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  • Case: 20-51031      Document: 00516125222         Page: 1    Date Filed: 12/10/2021
United States Court of Appeals
for the Fifth Circuit                         United States Court of Appeals
Fifth Circuit
FILED
December 10, 2021
No. 20-51031                     Lyle W. Cayce
Summary Calendar                        Clerk
United States of America,
Plaintiff—Appellee,
versus
Juan Manuel Pineda-Rodriguez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-755-2
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Juan Manuel Pineda-Rodriguez was convicted by a jury of one count
of conspiracy to transport illegal aliens and three counts of transportation of
illegal aliens for the purpose of commercial advantage and private financial
gain. The district court sentenced him to 30 months in prison, with credit
*
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opinion should not be published and is not precedent except under the limited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: 20-51031      Document: 00516125222           Page: 2   Date Filed: 12/10/2021
No. 20-51031
for time served, and three years of supervised release as to each count and
ordered the sentences to be served concurrently. He appeals his conviction.
Pineda-Rodriguez contends that he was convicted in violation of the
Confrontation Clause. He maintains that the Government improperly was
allowed to offer at trial videotaped depositions of material witnesses—three
aliens whom he allegedly transported. He argues that the Government failed
to demonstrate that the witnesses, who were removed from the United States
after their depositions, were unavailable to appear at trial. We review his
claim de novo, subject to harmless-error analysis. United States v. Tirado-
Tirado,
    563 F.3d 117
    , 122 (5th Cir. 2009).
The aggregate efforts of the Government to obtain the presence of the
material witnesses at Pineda-Rodriguez’s trial were reasonably sufficient. See
United States v. Gaspar-Felipe,
    4 F.4th 330
    , 338-39 (5th Cir. 2021); United
States v. Aguilar-Tamayo,
    300 F.3d 562
    , 565-66 (5th Cir. 2002); United States
v. Allie,
    978 F.2d 1401
    , 1407-08 (5th Cir. 1992). The record establishes that,
before the witnesses were removed, the Government undertook actions that
were indicative of a bona fide effort to have the witnesses appear at trial. See
Gaspar-Felipe, 4 F.4th at 338-39. Also, after the witnesses were removed, the
Government made legitimate and credible attempts to obtain their presence
at trial. See id. at 338-39. The failure of the Government to offer work
permits to the witnesses does not alone render its efforts unreasonable, see id.
at 338, and Pineda-Rodriguez otherwise has not shown that the various steps
and practical measures that the Government took did not satisfy the good-
faith standard to establish the unavailability of the witnesses. See id. at 338-
39; Aguilar-Tamayo,
    300 F.3d at 565-66
    ; Allie,
    978 F.2d at 1407-08
    .
Pineda-Rodriguez additionally asserts that the district court admitted
impermissible profile evidence. He contends that the Government presented
a witness, Agent Jesus Partida, who offered certain testimony suggesting that
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Case: 20-51031      Document: 00516125222           Page: 3     Date Filed: 12/10/2021
No. 20-51031
Pineda-Rodriguez was guilty of the charged offenses because his actions were
consistent with the typical behavior of a foot guide for an alien trafficking
organization. Pineda-Rodriguez argues that the testimony violated Federal
Rule of Evidence 704(b) and our caselaw prohibiting testimony that amounts
to an opinion on whether the defendant had a mental state or condition that
is an element of a crime. Because he did not present this claim in the district
court, we review for plain error. See United States v. Montes-Salas,
    669 F.3d 240
    , 247 (5th Cir. 2012).
Most of the testimony disputed by Pineda-Rodriguez appears to be on
the safe side of the line between testimony as to methods of operation unique
to the business of alien trafficking and testimony comparing his conduct to a
generic profile of a participant in that business. See
    id. at 250
    ; United States
v. Gonzalez–Rodriguez,
    621 F.3d 354
    , 364 (5th Cir. 2010). However, even if
some of Agent Partida’s testimony was problematic, and assuming that any
error in allowing the testimony was clear or obvious error, Pineda-Rodriguez
has not met his burden of showing that his substantial rights were affected.
See United States v. Morin,
    627 F.3d 985
    , 998-1000 (5th Cir. 2010); Gonzalez–
Rodriguez,
    621 F.3d at 367-68
    . Even setting aside any improper elements of
Agent Partida’s testimony and references thereto, the record supports that
the jury was presented with substantial other evidence of Pineda-Rodriguez’s
participation in an alien trafficking operation and of his role in trafficking the
aliens at issue in this case. Because there is no reasonable probability that his
conviction hinged on the challenged testimony, he has not shown reversible
plain error. See Morin,
    627 F.3d at 998-1000
    ; Gonzalez–Rodriguez,
    621 F.3d at 367-68
    .
The judgment of the district court is AFFIRMED.
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