United States v. Cesar Obregon-Reyes , 507 F. App'x 413 ( 2013 )

Case: 11-50653 Document: 00512111547 Page: 1 Date Filed: 01/14/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 14, 2013
No. 11-50653
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CESAR OBREGON-REYES, also known as Chino; RAFAEL VEGA, also
known as Rafa,
Defendants - Appellants.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:10-cr-00599-DB-4
Before STEWART, Chief Judge, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
Appellants Cesar Obregon-Reyes (“Obregon”) and Rafael Vega (“Vega”)
were convicted by a jury of: (1) kidnapping, and aiding and abetting, in violation
of 18 U.S.C. § 1201(a)(1) and 18 U.S.C. § 2; (2) conspiracy to kidnap, kill or maim
in a foreign country, in violation of 18 U.S.C. § 956(a); (3) conspiracy to use an
interstate commerce facility in commission of murder for hire, in violation of 18
U.S.C. § 1958; and (4) interstate and foreign travel in aid of racketeering, and
aiding and abetting, in violation of 18 U.S.C. § 1952 and 18 U.S.C. § 2. Obregon
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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and Vega challenge their convictions and sentences of life imprisonment. We
AFFIRM.
I.
The facts of this case involve the kidnapping and murder of a drug runner
for the Sinaloa Cartel, an organized and violent Mexican drug-trafficking
organization. On September 3, 2009, Sergio Saucedo (“Saucedo”) and his wife,
Maria Longoria (“Longoria”), left their home to run errands and to pick up their
children. When they returned home at approximately 2:45pm, they encountered
three men inside who were brandishing guns and wearing black T-shirts, baggy
jean shorts, black tennis shoes and baseball caps. At least two of the men were
wearing black gloves.
One of the men instructed Longoria to put her children inside her son’s
room. One of the other men told Saucedo to get down on the floor. As Longoria
was taking the children to the room, she tried to dial 911 on her cell phone. One
of the men saw her, took the phone and instructed her to go into the living room.
He then told her to get on the floor. While she was on the floor, the men used
duct tape to tie her hands and feet and put tape over her mouth. They then
went over to Saucedo, tied his hands and put tape over his mouth. Longoria
heard one of the men make a phone call. During that call, the man said “Neuro,
we have them.” The men then told Saucedo to stand up, at which time two of the
men took him out the back door. The third man went into the room where the
children were located, grabbed Longoria’s purse and walked out the back door.
Longoria then heard a gunshot and her husband screaming for help.
Longoria dragged herself to the window near the door and looked outside.
Longoria saw the two men holding Saucedo and he was still screaming. As the
third man was about to hit Saucedo in the head with a gun, the man turned in
Longoria’s direction and appeared to see her at the window, at which time he
stopped. Longoria then closed the blinds and proceeded to remove the tape from
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her hands and feet. When she made it outside, the three men and her husband
were gone. At that time, Longoria saw her neighbor, “Erika,” who was already
calling 911. Longoria told Erika to tell them that her husband had been
kidnapped.
A sheriff’s officer arrived shortly thereafter and the investigation began.
During the investigation, Longoria could not identify Obregon or Vega as being
involved in the kidnapping. Multiple witnesses testified to seeing and hearing
events from the kidnapping. Only one witness—Olga Martinez (“Martinez”), a
school bus-driver in that neighborhood—was able to identity Obregon as being
involved in the kidnapping. Martinez testified that when she reached a nearby
intersection on the date and time of the kidnapping, she saw three men trying
to put another man into a maroon Expedition that did not have any license
plates. Martinez heard the man yelling for help, and observed that the man’s
head was bleeding and his hands were taped. Martinez identified Obregon as
one of the two men who were holding the man as they tried to put him into the
vehicle.
Saucedo was subsequently killed and his body was found in Juarez,
Mexico, five days after his kidnapping. Saucedo’s hands had been amputated.
By superceding indictment, together with a third co-defendant, Omar
Obregon-Ortiz (“Taylor”), Obregon and Vega were charged and found guilty of:
(1) kidnapping, and aiding and abetting, in violation of 18 U.S.C. § 1201(a)(1)
and 18 U.S.C. § 2; (2) conspiracy to kidnap, kill or maim in a foreign country, in
violation of 18 U.S.C. § 956(a); (3) conspiracy to use an interstate commerce
facility in commission of murder for hire, in violation of 18 U.S.C. § 1958; and (4)
interstate and foreign travel in aid of racketeering, and aiding and abetting, in
violation of 18 U.S.C. § 1952 and 18 U.S.C. § 2. The district court sentenced both
Obregon and Vega to life imprisonment. Obregon and Vega timely appealed
their judgments of conviction and sentences.
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II.
Obregon raises two claims on appeal. First, Obregon contends that the
district court’s admission of extrinsic evidence of a prior home invasion that he
committed to prove identity in the instant case was error. Second, he argues
that the district court’s jury instruction on similar acts was improper. Vega
raises three different claims on appeal. First, Vega challenges the sufficiency of
the evidence to support his convictions. Second, he argues that the district court
improperly excluded statements that his former attorney made to him as
hearsay. Third, Vega claims that the district court’s denial of his motion to
remove a juror for bias after the commencement of trial was error. We address
each of these arguments in turn.
A.
Obregon’s first claim on appeal is that it was error for the district court to
admit evidence of a prior home invasion that he committed to prove his identity
in the home invasion at issue in this case (“the September 3, 2009, home
invasion”). The district court overruled Obregon’s objection to the admission of
this extrinsic evidence under Rule 404(b) of the Federal Rules of Evidence.
“We review the district court’s admission of extrinsic evidence over a
[Rule] 404(b) objection under a ‘heightened’ abuse of discretion standard.”
United States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003). Under this
heightened standard, “we do not reverse for erroneous admissions under Rule
404(b) if the error was harmless.” United States v. Templeton, 624 F.3d 215, 221
(5th Cir. 2010). “An error is harmless when it does not affect the substantial
rights of a party. The government has the burden of establishing harmlessness
beyond a reasonable doubt.” United States v. McCall, 553 F.3d 821, 827 (5th Cir.
2008).
Under Rule 404(b), “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
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occasion the person acted in accordance with the character,” but “[t]his evidence
may be admissible for another purpose, such as proving [identity].” Fed. R. Evid.
404(b). We analyze Rule 404(b) admissions under the two-step test articulated
in United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978). First, we must
determine whether “the extrinsic evidence is relevant to an issue other than the
defendant’s character.” Id. at 911. Second, we must evaluate whether the
evidence possesses “probative value that is not substantially outweighed by its
undue prejudice.” Id. at 911.
The district court did not abuse its discretion in admitting extrinsic
evidence of the prior home invasion that Obregon committed. The first step of
the Beechum analysis is satisfied because extrinsic evidence of the prior home
invasion was relevant to prove identity, which Obregon put at issue by disputing
his involvement in the September 3, 2009, home invasion. See Beechum, 582
F.2d at 912 n.15 (“[T]he identity of the defendant may be established by evidence
of offenses extrinsic to the indictment.”); Fed. R. Evid. Rule 404(b) (providing
that “evidence of a crime, wrong, or other act” may be admissible to prove
“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.”); United States v. Torres-Flores, 827 F.2d 1031,
1034 (5th Cir. 1987) (holding that prong one of the Beechum test was satisfied
when the government offered extrinsic evidence to prove identity, which the
defendant contested, because the extrinsic evidence was “relevant to an issue
other than propensity”).
Turning to step two of the Beechum analysis, we make a “commonsense
assessment of all the circumstances surrounding the extrinsic offense” to
determine whether its probative value is not substantially outweighed by undue
prejudice. Id. at 914. When making this assessment, we consider several
factors, including: (1) the government’s need for the extrinsic evidence, (2) the
similarity between the extrinsic and charged offenses, and (3) the amount of
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time separating the two offenses. United States v. Sanchez, 988 F.2d 1384, 1394
(5th Cir. 1993) (citing Beechum, 582 F.2d at 915).
The balance of these factors supports the conclusion that the probative
value of extrinsic evidence of the prior home invasion was not substantially
outweighed by undue prejudice. As to the first factor, the government needed
the extrinsic evidence to corroborate Martinez’s testimony, which Obregon
“fiercely contested” because it identified him at the scene of the September 3,
2009, home invasion. As to the second factor, the facts of the prior home
invasion and the September 3, 2009, home invasion were substantially similar.
Both home invasions involved entry into the residence through a window, three
men who wore wearing black clothing, and the brandishing of a pistol. Both
homes were also ransacked in a similar fashion: the bottom dresser drawers
were left open; the upper drawers were closed or almost closed; the contents of
the drawers were thrown on the floor; air vents were removed; furniture was
overturned; and the lining under the furniture was cut or removed. A three-liter
bottle of Coke was also found in both homes, and the victims testified that the
bottle was not there before the invasion. A plastic glove containing Obregon’s
DNA was found in the prior home invasion, and Longoria testified that she saw
two of the kidnappers wearing gloves. In both home invasions, the adult victims
were separated from their children inside of the house before being tied with
tape. Both home invasions also involved an adult male victim who was involved
in drug trafficking and believed to have lost or stolen a quantity of marijuana.
Finally, as to the third factor, the prior home invasion took place only one month
prior to the September 3, 2009, home invasion. Therefore, the district court did
not abuse its discretion in admitting extrinsic evidence of the prior home
invasion.
Obregon’s second claim on appeal challenges the district court’s jury
instruction on similar acts. Because “[d]istrict courts enjoy substantial latitude
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in formulating a jury charge . . . we review all challenges to . . . jury instructions
for abuse of discretion. United States v. Webster, 162 F.3d 308, 321–22 (5th Cir.
1998). Under this standard, “we consider whether the instruction, taken as a
whole, is a correct statement of law and whether it clearly instructs jurors as to
the principles of law applicable to the factual issues confronting them.” Ebron,
683 F.3d at 151.
First, Obregon argues that the jury instruction on similar acts was an
improper statement of law because, in his view, the instruction conveyed to the
jury that it must find that he committed the September 3, 2009, home invasion
because he committed the prior home invasion. The language of the jury
instruction does not support Obregon’s argument. The instruction stated
explicitly that the jurors “may”—not “must”—use extrinsic evidence of the prior
home invasion to help them decide whether Obregon was involved in the
September 3, 2009, home invasion.1
Second, Obregon argues that the jury instruction was improper because
it veered from the Fifth Circuit’s pattern instruction on similar acts. The
pattern instruction on similar acts, however, does not address identity, which
was at issue in the instant case. Therefore, the district court did not abuse its
discretion in veering from the pattern instruction to instruct jurors as to the
“principles of law applicable to the factual issues confronting them.” Id.
B.
1.
Vega’s first claim on appeal challenges the sufficiency of the evidence in
1
The jury instruction stated: “You heard testimony that Defendant Cesar Obregon-
Reyes committed acts other than the ones charged in the superceding indictment. If you find
that Defendant Cesar Obregon-Reyes did commit those other acts you may use this evidence
to help you decide whether the similarity between the acts previously committed and the ones
charged in this case suggest that the same person committed all of them. However, you may
not consider this evidence for any other purpose.”
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support of each of his convictions. We review Vega’s challenges de novo because
he properly preserved them in the district court. United States v. Grant, 683
F.3d 639, 642 (5th Cir. 2012). Our review of the sufficiency of the evidence is
“highly deferential to the verdict.” United States v. Harris, 293 F.3d 863, 869
(5th Cir. 2002). “[V]iewing the evidence in the light most favorable to the
prosecution,” we consider whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Delgado, 672 F.3d 320, 358 (5th Cir.
2012) (en banc) (quoting Jackson, 443 U.S. at 319). “It is not necessary that the
evidence exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.” United States v. Lage,
183 F.3d 374, 382 (5th Cir. 1999). However, “a verdict may not rest on mere
suspicion, speculation, or conjecture, or on an overly attenuated piling of
inference on inference.” Delgado, 672 F.3d at 362 (citations and internal
quotations omitted). We “accept[ ] all credibility choices and reasonable
inferences made by the trier of fact which tend to support the verdict,” United
States v. Asibor, 109 F.3d 1023, 1030 (5th Cir. 1997), and resolve “any conflicts
in the evidence . . . in favor of the verdict.” United States v. Duncan, 919 F.2d
981, 990 (5th Cir. 1990).
We first look to Vega’s conviction for kidnapping in violation of 18 U.S.C.
§ 1201(a)(1). To establish this offense, the government must show: “(1) the
transportation in interstate [or foreign] commerce, (2) of an unconsenting person
who is, (3) held for ransom or reward or otherwise, (4) such acts being done
knowingly and willfully.” United States v. Garza-Robles, 627 F.3d 161, 166 (5th
Cir. 2010); § 1201(a)(1). Vega disputes only the fourth element.2
2
Vega was also convicted of aiding and abeting, in violation of 18 U.S.C. § 2, with
respect to the kidnapping. To prove the crime of aiding and abetting under 18 U.S.C. § 2, the
government must show that: (1) the individual associated with the criminal venture, (2)
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Vega primarily argues that the government cannot satisfy this fourth
element because he was allegedly in custody at Dismas Charities halfway house
on the day and time of Saucedo’s kidnapping. The halfway house records
indicate that Vega was present at the 3:00pm headcount on September 3, 2009.
The government countered with evidence that the halfway house records
contained numerous discrepancies, and that some employees had been fired
previously for making false record entries. The government also proffered
evidence showing that an employee of the halfway house forged the initials of
another employee on the sheet for the 3:00pm headcount on the day that
Saucedo was kidnapped. Moreover, several witnesses testified about the lax
monitoring procedures at the halfway house and the different ways that
residents could leave the halfway house and return without their absence being
detected. A former resident testified that he had seen Vega leave the premises
surreptitiously more than once. Resolving all credibility determinations and
conflicts in the evidence in favor of the jury’s verdict, we defer to the jury’s
apparent determination that the halfway house records were unreliable. See
Asibor, 109 F.3d at 1030; Duncan, 919 F.2d at 990.
Viewing the record as a whole, we conclude that there is sufficient
evidence from which a rational trier of fact could infer that Vega “knowingly and
willfully” participated in Saucedo’s kidnapping. “James Smith” (“Smith”)
testified that he had been friends with Saucedo since childhood and that both of
them had worked in the drug business together. Both Smith and Saucedo’s
stepfather testified that immediately prior to his kidnapping, Saucedo received
threats resulting from a dispute with members of the Sinaloa Cartel over a load
of marijuana that law enforcement had seized, but the cartel members thought
purposefully participated in the crime, and (3) sought by his actions for it to succeed. See
United States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001). On appeal, Vega does not dispute
any of these elements.
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he had stolen. Saucedo’s stepfather further testified that he observed Saucedo
speaking to Sinaloa Cartel members—once on the cell phone, and another time
in person—at two separate barbecues before the kidnapping. On both occasions,
Saucedo appeared nervous. A third witness, “Alan White” (“White”), testified
that he overheard a conversation between two Saucedo Cartel members about
whether Vega would carry out a “mission” for the cartel. Sometime after, White
saw Vega driving a Jeep.
Further, the record contains testimony from several witnesses who heard
Vega make incriminating statements about Saucedo’s kidnapping. White
testified to hearing Vega say “we picked him up,” and that he was given “7,000,
a Jeep, and some cocaine” by a Sinaloa Cartel member in charge of the Juarez
territory, during a conversation in which Obregon was only a few feet away at
a New Year’s Eve party in 2009. White also testified that while riding with Vega
in the car the following day, Vega said that he was not afraid to do anything to
anyone and that he had already done it once. A fourth witness, “John Brown”
(“Brown”), testified to overhearing Vega say that he had “busted a mission,”
“picked someone up,” “went for him,” and “took [him] out,” at different party at
Obregon’s trailer in October or November 2009 that Vega attended. Brown
further testified that Vega then pointed or motioned to Obregon and the third
co-defendant Taylor, and said something to the effect of “Right, guys? We went
for him.” Vega disputes the credibility and accuracy of White and Brown’s
testimony, but we accept all credibility choices and resolve any conflicts in the
evidence in favor of the jury’s verdict. Asibor, 109 F.3d at 1030; Duncan, 919
F.2d at 990. Based on these incriminating statements, in combination with the
evidence stated above, a rational trier of fact could have inferred that the
government satisfied the fourth element of the kidnapping offense under
§ 1201(a)(1) beyond a reasonable doubt. Therefore, we conclude that the
evidence was sufficient to support his conviction under § 1201(a)(1).
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Next, we turn to Vega’s conviction for conspiracy to kill, kidnap, or maim
in a foreign country in violation of 18 U.S.C. § 956(a). To obtain a conviction for
conspiracy to kill, kidnap, or maim in a foreign country, the government must
prove: “(1) the defendant agreed with at least one person to commit murder [or
to kidnap or maim another person]; (2) the defendant willfully joined the
agreement with the intent to further its purpose; (3) during the existence of the
conspiracy, one of the conspirators committed at least one overt act in
furtherance of the object of the conspiracy; and (4) at least one of the
conspirators was within the jurisdiction of the United States when the
agreement was made.” United States v. Wharton, 320 F.3d 526, 537–38 (5th Cir.
2003).
Vega claims that the evidence was insufficient to support his conviction for
conspiracy to kill, kidnap, or maim in a foreign country on the grounds that the
evidence does not show his agreement to kidnap Saucedo.3 We disagree. There
is ample evidence in the record from which a rational trier of fact could infer that
Vega agreed to kidnap Saucedo. As detailed above, White and Brown testified
that Vega made incriminating statements on separate occasions about Saucedo’s
kidnapping. Moreover, a witness who was familiar with the Sinaloa Cartel,
Alvaro David Rosales (“Rosales”), testified that if a marijuana load had been
stolen, as opposed to seized, then the life of the person responsible for it would
be in danger. Smith testified that Saucedo was concerned that members of the
Sinaloa Cartel had turned against him because they believed that he had stolen
3
Vega also argues that the evidence was insufficient to support his conviction for
conspiracy to kill, kidnap, or maim in a foreign country because the evidence does not show
a conspiracy to commit murder. This argument is irrelevant because the government can
satisfy the elements of conspiracy to kill, kidnap, or maim in a foreign country without
evidence showing a conspiracy to commit murder—the plain terms of § 956(a) punish
conspiracy to commit kidnapping. See 18 U.S.C. § 956(a)(1) (punishing conspiracy “to commit
at any place outside the United States an act that would constitute the offense of murder,
kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the
United States.”).
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the load of marijuana that he was responsible for, which was seized by law
enforcement. Saucedo’s stepfather also testified that Saucedo told him that
Sinaloa Cartel members were after him because of the seized marijuana load,
and that Saucedo did not want to go to Juarez because he was afraid that cartel
members would kill him. Based on this testimony from several witnesses, we
conclude that a rational trier of fact could infer that Vega conspired to kidnap
Saucedo. Therefore, the evidence was sufficient to support Vega’s conviction for
conspiracy to kill, kidnap, or maim in a foreign country.
We turn then to Vega’s conviction for conspiracy to commit murder-for-hire
in violation of 18 U.S.C. § 1958(a). To obtain a conviction for murder-for-hire,
the government must show: “(1) traveling or causing another to travel in
interstate or foreign commerce . . . , (2) with intent that murder be committed
. . . , (3) as consideration for the receipt of pecuniary value.” United States v.
Sharpe, 193 F.3d 852, 863 n.6 (5th Cir. 1999); § 1958(a). Moreover, to establish
the conspiracy, the government must show: “‘(1) an agreement by two or more
persons to achieve the unlawful purpose of [interstate] murder-for-hire; (2) the
defendant’s knowing and voluntary participation in the agreement; and (3) an
overt act committed by any one of the conspirators in furtherance of the
conspiratorial object.’” United States v. Blackthorne, 378 F.3d 449, 453 (5th Cir.
2004) (quoting United States v. Hernandez, 141 F.3d 1042, 1053 (11th Cir. 1998))
(alteration in original).
Vega argues that the evidence is insufficient to support his conviction for
conspiracy to commit murder-for-hire on the grounds that there was no evidence
showing an agreement to commit murder. We reject this argument. Several
witnesses testified to incriminating statements that Vega made on separate
occasions. In particular, Brown testified to hearing Vega say that he had
“busted a mission,” “picked someone up,” “went for him,” and “took [him] out.”
White also testified to overhearing Vega say that a Sinaloa Cartel member in
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charge of the Juarez territory had given him “$7,000, a Jeep, and some cocaine.”
Moreover, Smith, White, and Saucedo’s stepfather testified to Saucedo’s
involvement with the cartel, his conflict with its members over the seized
marijuana load, and his fear that he would be killed because cartel members
thought he had stolen it. Smith further testified that members of the cartel who
were responsible for drug trafficking in Juarez were involved in Saucedo’s
specific drug trafficking operation. Saucedo’s body was found in Juarez
approximately five days after he was kidnapped. From these facts, we conclude
that a rational trier of fact could infer Vega’s agreement to commit murder.
Accordingly, the evidence was sufficient to support his conviction for conspiracy
to commit murder-for-hire.
Vega’s last conviction was for interstate and foreign travel in aid of
racketeering, and aiding and abetting, in violation of 18 U.S.C. § 1952 and 18
U.S.C. § 2. To obtain this conviction, the government was required to show:
(1) Vega, or a person aided and abetted by Vega, traveled in foreign commerce
or used a facility in interstate or foreign commerce, (2) with the intent to commit
any crime of violence to further the unlawful activity of narcotics and controlled
substance trafficking, and that (3) Vega, or a person aided and abetted by Vega,
thereafter performed or attempted to perform a crime of violence. See § 1952;4
4
Title 18 U.S.C. § 1952 reads in pertinent part:
(a) Whoever travels in interstate or foreign commerce or
uses the mail or any facility in interstate or foreign
commerce, with intent to –
(1) distribute the proceeds of any unlawful activity;
(2) commit any crime of violence to further an
unlawful activity;
(3) otherwise promote, manage, establish, carry on,
or facilitate the promotion, management,
establishment, or carrying on, of any unlawful
activity, and thereafter performs or attempts to
perform –
(A) an act described in paragraph (1) or
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United States v. Yamin, 868 F.2d 130, 134 (5th Cir. 1989) (citing United States
v. Stovall, 825 F.2d 817, 827 (5th Cir. 1987)) (affirming that to convict a
defendant as an aider and abetter, the government must show that the
defendant committed an act that contributed to the execution of the criminal
activity and that he intended to aid in its commission).
Vega raises two meritless challenges to the sufficiency of the evidence in
support of his conviction for interstate and foreign travel in aid of racketeering,
and aiding and abetting. First, he argues that there is insufficient evidence to
show his involvement with Saucedo’s kidnapping. As we concluded above, a
rational trier of fact could infer Vega’s involvement with Saucedo’s kidnapping
based on the record. Second, Vega contends that the Dismas Charities halfway
house records show that he was present at the halfway house on the day and
approximate time of Saucedo’s kidnapping. The government, however, proffered
evidence from which a rational trier of fact could infer that the records were
unreliable.
Therefore, we conclude that the evidence was sufficient to support Vega’s
convictions for kidnapping; conspiracy to kill, kidnap, or maim in a foreign
country; conspiracy to commit murder-for-hire; and interstate and foreign travel
in aid of racketeering, and aiding and abetting.
2.
Vega’s second claim on appeal challenges the district court’s exclusion of
statements made to him by his former attorney as hearsay. We review the
(3) shall be fined under this title,
imprisonment not more than 5 years, or
both; or
(B) an act described in paragraph (2)
shall be fined under this title, imprisoned
for not more than 20 years, or both, and if
death results shall be imprisoned for any
term of years or for life.
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district court’s evidentiary rulings for abuse of discretion. United States v. De
Leon, 170 F.3d 494, 497 (5th Cir. 1999). If abuse of discretion occurred, then the
exclusion of evidence is subject to harmless-error analysis. United States v.
Haese, 162 F.3d 359, 364 (5th Cir. 1998). Under harmless-error review, reversal
is not required unless there is a reasonable probability that the improperly
excluded evidence contributed to the conviction. See United States v. El-Mezain,
664 F.3d 467, 526 (5th Cir. 2011); United States v. Williams, 957 F.2d 1238, 1242
(5th Cir. 1992).
Vega’s former attorney would have testified that he had disclosed details
of the offenses at issue to Vega based on information in the search warrant and
the investigative reports. According to Vega, his former attorney’s testimony
rebuts the government’s claim that Vega’s knowledge of the offenses could only
derive from his actual involvement. In support of its position, the government
proffered a recorded conversation between Vega and Obregon in a police van
that occurred after Vega’s discussions with his former attorney. In the prison
van, Vega discussed the evidence in the instant case with Obregon, instructed
Obregon on how to coordinate their stories to law enforcement, and referenced
specific members of the Sinaloa Cartel.
Rule 801(c) of the Federal Rules of Evidence defines hearsay as “a
statement, other than one made by the declarant while testifying at trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.
Evid. 801(c). In offering his former attorney’s testimony, Vega attempted to
show his source of knowledge of the details of the offenses at issue. He did not
offer the testimony to prove the truth of the matter asserted, namely the truth
of the details of the offenses that his former attorney disclosed to him.
Therefore, we agree with Vega that the district court improperly excluded his
former attorney’s testimony as hearsay. See United States v. Parry, 649 F.2d
292, 295 (5th Cir. 1981) (“Using an out-of-court utterance as circumstantial
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evidence of the declarant’s knowledge of the existence of some fact, rather than
as testimonial evidence of the truth of the matter asserted, does not offend the
hearsay rule.”); see also 2 McCormick on Evidence § 249 (6th ed. 2006) (“A
statement that D made a statement to X is not subject to attack as hearsay when
its purpose is to establish the state of mind thereby induced in X, such
as . . . having knowledge.”).
Vega argues that this error was not harmless, alleging that his knowledge
of the offenses was an important piece of evidence supporting his guilt for the
offenses in the instant case. His knowledge of the offenses, however, was not the
only evidence supporting his guilt. As detailed above, several witnesses testified
to incriminating statements that Vega made about Saucedo’s kidnapping. White
testified to hearing Vega say “we picked him up,” and that a Sinaloa Cartel
member in charge of the Juarez territory gave him “7,000, a Jeep, and some
cocaine,” at a New Year’s Eve Party in December 2009. White also testified that
on the following day, Vega said that he was not afraid to do anything to anyone
and that he had already done it once. Brown testified to overhearing Vega say
at a different party in November 2009 that he had “busted a mission,” “picked
someone up,” “went for him,” and “took [him] out.” Brown further testified that
Vega then pointed or motioned to Obregon and the third co-defendant, Taylor,
and said “Right, guys? We went for him.”
Moreover, Smith testified that he and Saucedo had worked in the drug
business together. Smith also testified that members of the Sinaloa Cartel who
were responsible for drug trafficking in Juarez were involved in Saucedo’s
specific drug trafficking operation. Saucedo’s body was found in Juarez
approximately five days after he was kidnapped. Both Smith and Saucedo’s
stepfather testified that prior to his kidnapping, Saucedo received threats
resulting from a dispute with members of the Sinaloa Cartel over a load of
marijuana that law enforcement had seized, but that cartel members thought he
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had stolen. Saucedo’s stepfather further testified that he observed Saucedo
speaking to Sinaloa Cartel members at two separate barbecues, and that
Saucedo seemed nervous during and after both conversations. White also
testified that he heard a conversation between two Saucedo Cartel members
about whether Vega would carry out a mission. Sometime after the
conversation, White saw Vega driving a Jeep.
We conclude that a rational trier of fact could have viewed the testimony
of the several witnesses—many of whom testified to events that occurred before
the alleged conversations between Vega and his former attorney—as credible to
support the charges against him beyond a reasonable doubt. Therefore, the
district court’s exclusion of Vega’s former attorney’s testimony was harmless
error in light of the other evidence presented at trial. See United States v. Bell,
367 F.3d 452, 468 (5th Cir. 2004) (noting that the appellate court “‘must be
convinced beyond a reasonable doubt that the error was harmless in light of the
other evidence presented at trial’”) (quoting United States v. Vejar-Urias, 165
F.3d 337, 340 (5th Cir. 1999)).
3.
Vega’s last claim on appeal is that the district court’s denial of his motion
to excuse a juror for potential bias after the commencement of trial was error.
After several witnesses had testified, the government advised the district court
that Saucedo’s mother knew one of the jurors. The government also notified the
court that the juror was the neighbor of the Saucedo family for a brief time when
Saucedo was one year old, and that since then, the juror had exchanged
greetings with Saucedo’s mother. The government further advised the court that
it appeared that the juror recognized Saucedo’s sister when the juror entered the
courtroom, and might have had a conversation with her a few months before
trial.
Soon after being advised of this information, the district court held a bench
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conference in which the juror in question was brought before the court. Under
questioning by the court, the juror stated that she knew the Saucedo family by
face and by name, and denied ever being neighbors with the Saucedo family.
When defense counsel asked the juror about her familiarity with Saucedo’s
sister, the juror, who was an employee of the Medicaid office, stated that she
went through Saucedo’s sister application for Medicaid a few months before trial.
The district court asked the juror whether her familiarity with the Saucedo
family would influence her ability to be fair and impartial, and the juror
responded that it would not. At the conclusion of the bench conference, the
district court stated that it would consider defense counsel’s motion to remove
the juror for bias, and ultimately denied the motion.
The district court “is afforded broad discretion in determining the
impartiality of jurors; it is in the best position to observe their demeanor and
credibility.” United States v. Graves, 5 F.3d 1546, 1554 (5th Cir. 1993) (citing
United States v. Hinojosa, 958, F.2d 624, 631 (5th Cir. 1992)). “Accordingly, a
rule respecting such impartiality will not be set aside ‘absent a clear abuse of
discretion.’” Id. (quoting Hinojosa, 958 F.2d at 631). The record shows that the
district court carefully considered the juror’s potential bias after holding a bench
conference in which both the government and defense counsel had ample
opportunity to question the juror. Moreover, our precedent supports the district
court’s conclusion that the relationship between the juror and Saucedo’s family
was too attenuated to mandate the removal of the juror. See, e.g., Celestine v.
Blackburn, 750 F.2d 353, 358 (5th Cir. 1984) (affirming a trial judge’s refusal to
strike a juror for bias in a murder trial when the juror knew both the
prosecuting attorney and was friends with the granddaughter of the murder
victim). In light of these facts and our precedent, we cannot say that the district
court’s consideration and ultimate denial of Vega’s motion to exclude the juror
was a clear abuse of discretion.
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III.
For the foregoing reasons, Obregon and Vega’s convictions and sentences
are AFFIRMED.
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