Counsel’s Stipulation to Testimonial Evidence Waived Client’s Confrontation Right Even Absent Evidence that Client Agreed to Stipulation

United States v. Ceballos, No. 13-50786, (5th Cir. June 16, 2015) (Smith, Prado, Owen)  

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.

Ceballos’ allegations 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.