United States v. Orellana-Castellanos ( 2021 )

Case: 20-40179 Document: 00515703098 Page: 1 Date Filed: 01/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 12, 2021
No. 20-40179 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Elder Orellana-Castellanos,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:19-CR-1943-1
Before Wiener, Costa, and Willett, Circuit Judges.
Per Curiam:*
After a one-day trial, a jury found Elder Orellana-Castellanos guilty of
transporting Suamy Lemuz-Oviedo within the United States despite
knowing—or in reckless disregard of the fact—that Lemuz-Oviedo had
“entered, or remain[ed] in the United States in violation of law.” 8 U.S.C.
§ 1324(a)(1)(A)(ii). There is no question the defendant was transporting
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-40179
Lemuz-Oviedo; he was driving Lemuz-Oviedo and Lemuz-Oviedo’s
girlfriend, Kayla Bueso-Morel, in a vehicle that arrived at the Falfurrias
immigration checkpoint in south Texas. Nor is there a question about
Lemuz-Oviedo’s immigration status; he is a Honduran national without
lawful status in the United States (the same is true of Bueso-Morel). It is also
undisputed that the defendant’s transporting of Lemuz-Oviedo furthered
that unlawful presence by helping him get north. The only arguable element
of the crime is whether the defendant knew about Lemuz-Oviedo’s unlawful
status. On appeal, the defendant argues that certain evidence was admitted
to prove this disputed element in violation of the Confrontation Clause.
On the knowledge element, Lemuz-Oviedo testified at trial that the
defendant knew Lemuz-Oviedo lacked lawful status because the defendant
coached both passengers on what lies to tell Border Patrol agents if they were
questioned. But the defendant argues the jury heard other evidence—
specifically, the out-of-court statement of the other passenger, Bueso-
Morel—that tainted his conviction in violation of the Confrontation Clause.
The out-of-court statement is the law enforcement report summarizing what
Bueso-Morel told Border Patrol agents at the checkpoint. Bueso-Morel was
deported before trial, so she did not testify and thus was not subject to cross-
examination.
The government concedes that introduction of the report
summarizing Bueso-Morel’s statement violated the Confrontation Clause
but contends that defense counsel either invited or waived the error because
at times it appeared the defense was seeking to elicit the statement. What
about Bueso-Morel’s statement was helpful to the defense? Although Bueso-
Morel told Border Patrol agents that the defendant knew both passengers
were illegally in the United States, Bueso-Morel said that the person who
coached them on what to tell law enforcement was not the defendant but the
person who performed the previous step in the smuggling operation: picking
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them up at a stash house near the border and driving them to a Whataburger
in Edinburgh, where defendant then picked them up for the drive north to
Houston that was cut short with the arrest at the checkpoint. So part of
Bueso-Morel’s hearsay statement helped the government—she corroborated
Lemuz-Oviedo’s in-court testimony that the defendant knew they entered
the country unlawfully—but part of it helped the defendant because it
contradicted Lemuz-Oviedo’s testimony that the defendant, not another
person, coached them to lie to Border Patrol.
We need not decide whether defense counsel waived or invited the
Confrontation Clause error because the government has proved beyond a
reasonable doubt that the error was harmless. See United States v. Sarli, 913
F.3d 491, 496 (5th Cir. 2019). It is not easy to prove that a Confrontation
Clause violation is harmless. The government must do much more than
show that the properly admitted evidence would have been sufficient to allow
a jury to convict the defendant. Lowery v. Collins, 988 F.2d 1364, 1372 (5th
Cir. 1993) (finding error when court considered only whether the properly
admitted evidence would have allowed a rational jury to convict under a
“‘sufficiency of the evidence’ analysis”). It instead must show “there is [no]
reasonable possibility that the evidence complained of might have
contributed to the conviction.” United States v. Kizzee, 877 F.3d 650, 661
(5th Cir. 2017) (alternation in original) (quoting Chapman v. California, 386
U.S. 18, 24 (1967)). This standard is a “demanding but not insurmountable”
hurdle. Sarli, 913 F.3d at 496; see also United States v. Ogba, 526 F.3d 214,
227–30 (5th Cir. 2008) (concluding that Confrontation Clause error was
harmless because the other evidence was so strong); United States v. Pryor,
483 F.3d 309, 312–13 (5th Cir. 2007) (same). The government gets over that
hurdle here.
Lemuz-Oviedo told the jury that the defendant knew the passengers
were unlawfully in the United States. No direct evidence to the contrary was
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presented. The circumstantial evidence strongly corroborated Lemuz-
Oviedo’s testimony. The defendant picked up two people whom he had
never met at a Whataburger near the border for a lengthy, nighttime drive to
Houston. This was the final leg in a smuggling operation that had taken
Lemuz-Oviedo and Bueso-Morel across three national borders. They paid
$12,000 to the smugglers. It would be “implausible” to believe that the
person performing the last, critical act in transporting the aliens from
Honduras to Houston was an unknowing participant who just decided to help
two strangers by taking them on a 300+ mile journey. See Sarli, 913 F.3d at
497.
The prosecutor did mention Bueso-Morel’s out-of-court statement in
closing. But the defense focused on it more in closing as well as during the
testimony. This brings us back to the double-edged nature of the statement.
Although we do not decide whether defense counsel’s use of the hearsay
statement to raise doubts about Lemuz-Oviedo’s credibility rose to the level
of waiver or invited error, it is relevant to whether introduction of the
statement contributed to the guilty verdict. Cf. Hafdahl v. Johnson, 251 F.3d
528, 540 (5th Cir. 2001) (recognizing that counsel’s “opening the door” to
out-of-court testimony can be a factor in harmlessness analysis). Allowing
the jury to hear Bueso-Morel’s statement created the only inconsistency in
the government’s case—about whether defendant or the person who brought
the passengers to the Whataburger coached them on what to tell Border
Patrol. Defense counsel sought to exploit the inconsistency given the dearth
of other evidence favorable to the accused. Indeed, if Bueso-Morel’s
statement had been properly excluded under the Confrontation Clause, it is
hard to see what defense counsel could have argued. So the hearsay
statement provided the defense’s main line of attack.
Because the challenged evidence was the defense’s only way to poke
a hole in the government’s case and the nonhearsay evidence of guilt was so
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compelling, the government has shown beyond a reasonable doubt that the
error was harmless.
The judgment is AFFIRMED.
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