Ceballos appealed her
conviction for “transporting, attempting to transport, and engaging in a
conspiracy to transport an alien within the United States” by alleging a
violation of her Sixth Amendment right, improper admission of evidence, and that
cumulative error deprived her of a fair trial. The panel rejected each of her claims,
affirming the conviction.
First, Ceballos challenged
the admission of a material witness’s sworn statement as a violation of her
Sixth Amendment right of confrontation. Her defense attorney did not object to its
admission. The Fifth Circuit has upheld
waivers of the right of confrontation without evidence that the defendant [herself] expressed agreement with the
stipulation. See United States v. Reveles,
190 F.3d 678, 683 (5th Cir. 1999); United
States v. Stephens, 609 F.2d 230, 232-33 (5th Cir.
1980). Since Ceballos did not dissent from the attorney’s
failure to object and the stipulation could have been a legitimate trial strategy
according to the panel, her counsel’s waiver of her right was valid. The panel found Crawford did not overrule this precedent and declined Ceballos’
invitation to revisit Stephens.
This holding is of
particular concern given how the “stipulation” occurred in this case. The defense attorney never said, “We
stipulate to the admission of the alien’s sworn testimony and waive the right
to confront the alien.” Rather, the
district court asked if the parties had agreed on exhibits to be admitted. Aside from an objection to the notebook
described below, defense counsel responded affirmatively to the court’s
question if he was “‘in agreement as to the admissibility of the government’s
exhibits under those exhibit numbers?’”
In other words, the only way Ceballos could have preserved her right to
confront the alien is if she knew the alien’s sworn affidavit was Exhibit 8 and
during this oblique exchange with the court said that she disagreed with the
admissibility of that exhibit. The court
never asked Ceballos if she was willing to waive her confrontation right, and
Fifth Circuit precedent does not require the court to do so.
that the notebook, identified by the government as a smuggling ledger, was not
properly authenticated and was inadmissible under Federal Rule of Evidence
404(b) were denied. While a “close”
issue, the panel found that the district court did not abuse its discretion by
finding the notebook properly authenticated even though the Government did not
present a handwriting expert. The
notebook was found in Ceballos’ purse, and the contents of the notebook
provided some corroboration of the illegal activity. The panel affirmed the admission of the
notebook, on plain error review, because there was a strong basis to determine
it was intrinsic evidence and, alternatively, it would have served a
permissible evidentiary purpose under Rule 404(b).
The final claim, that
there was cumulative error in inappropriate government witness testimony commenting
on Ceballos’ invocation of her right to counsel and silence coupled with
improper closing arguments deprived her of a fair trial, was also rejected for failure
to demonstrate plain error.
Thanks to FPD Intern
Samantha Canava for her contributions to this post.
Labels: 1324, 404(b), Confrontation Clause