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.

Florida Attempted Aggravated Battery on LEO with LEO’s Firearm is § 2L1.2 Crime of Violence; Alien Smuggling and Illegal Reentry Grouped Together for § 3D1.2

United States v. Garcia-Figueroa, No. 13-40114 (5th Cir. June 12, 2014) (Dennis, Prado, Brown)

Garcia-Figueroa was convicted of three counts: conspiracy to bring aliens into the United States, bringing them into the United States, and being unlawfully present in the United States following his deportation.  He challenged the 12-level enhancement for a crime of violence (“COV”) and the sentencing court’s failure to group all counts together for § 3D1.2.

Garcia-Figueroa’s prior judgment used for the COV enhancement indicates he was convicted in 1991 for attempted aggravated battery on a law enforcement officer (“LEO”) with a LEO’s firearm in violation of Florida Statute §§ 784.07 (aggravated battery), 777.04 (attempt), and 775.0875 (third degree felony to take a firearm from a LEO lawfully engaged in law enforcement duties).  Garcia-Figueroa’s argument focuses on the divisible Florida aggravated battery statute, 784.045(1)(a), arguing that the Shepard documents do not specify that Garcia-Figueroa committed aggravated battery with a deadly weapon.  The panel disagrees and finds that the judgment establishes that Garcia-Figueroa used a deadly weapon, which would render the conviction a COV pursuant to United States v. Dominguez, 479 F.3d 345 (5th Cir. 2007).  The panel also analyzes the elements of taking a firearm from a LEO lawfully engaged in law enforcement duties and finds that such an offense creates a sufficient threatened use of force to qualify as a § 2L1.2 COV under the elements clause.

Garcia-Figueroa also argues that Florida attempt is broader than the generic definition of attempt and that his conviction therefore does not qualify as a § 2L1.2 COV.  Generic attempt follows the Model Penal Code’s substantial step test, which requires the substantial step to be “strongly corroborative of the actor’s criminal purpose.”  MPC § 5.01(2).  In contrast, Florida attempt includes “any act toward the commission” of an offense.  Fla. Stat. §77.04(1) (1991).  Nevertheless, the panel finds that Garcia-Figueroa failed to point to specific instances where Florida attempt was applied to conduct outside the ordinary meaning of attempt.  He cited two Florida cases, but the panel finds that they would be covered by generic attempt.  Thus, the panel affirms the 12-level enhancement. 

However, the panel finds that the district court erred in its grouping calculations.  Since the “victim” of both the alien smuggling and illegal reentry offenses is the societal interest protected by immigration laws, the immigration offenses should have been grouped together.  See U.S.S.G. § 3D1.2 cmt. n.2.  By grouping the alien smuggling counts together separate from the illegal reentry offense, the court applied an erroneous 2-level increase that resulted in a higher guideline range.  Garcia-Figueroa was sentenced within the higher, incorrect range, and the transcript revealed that the sentence “was strongly grounded in the erroneously calculated Guidelines range.”  The panel vacates Garcia-Figueroa’s sentence and remands for resentencing.

Degree of Causation Required for Aggravated Alien Transporting Unresolved

United States v. Alvarado-Casas, No. 12-40295 (May 14, 2013) (Davis, Graves, Higginson)

Pursuant to a plea agreement, Alvarado-Casas pled guilty to conspiring to transport unlawful aliens causing serious bodily injury to, or placing in jeopardy the life of, any person ("aggravated alien transporting"). The "serious bodily injury" element increases the maximum penalty from ten years of imprisonment to twenty. At the plea hearing, the Government read a factual basis that established that the driver of a truck loaded with seventeen undocumented immigrants went off an embankment and that the driver was transporting the individuals for Alvarado-Casas. On appeal, Alvarado-Casas argued that the factual basis was insufficient because, he argued, aggravated alien transporting requires proof that he personally and directly caused the serious bodily injury and the factual basis only established that the driver, not Alvarado-Casas, directly caused the serious bodily injury.

The panel found no plain error in the district court’s acceptance of his statement of guilt, stating

Admittedly, by its terms, § 1324(a)(1)(B)(iii) appears to limit liability for causing serious bodily injury to the specific defendant whose guilt is at issue. . . . But even if we were compelled by the language of § 1324(a)(1)(B)(iii) to conclude that the offense has a personal causation component, that would not resolve the issue before us; we would still need to decide the degree of causation required (e.g., direct causation, but-for causation, substantial-factor causation, command causation, proximate causation, etc.), an issue not resolved by the plain language of the statute or our construction hitherto of it.

The panel went on to note that the Fifth Circuit has affirmed convictions for aggravated alien transporting when the defendant was personally involved in the accident that resulted in serious bodily injury. "These decisions establish that direct, personal causation satisfies the causation element of the statute, but they do not foreclose the possibility that the causation element could be satisfied by a showing of other, more remote degrees of causation, such as proximate causation or command causation."

Alvarado-Casas also asserted that the district court erred by misadvising him of the statutory maximum sentence for the offense since the district court informed him that he faced only a ten-year maximum sentence. The panel found that this error was clear and obvious but that Alvarado-Casas did not establish "a reasonable probability that but for the error, he would not have pleaded guilty." The record did not show that he was prepared and willing to go to trial, the PSR stated the correct twenty-year maximum sentence, and he received a favorable plea deal.

Lastly, Alvaro-Casas argued that the application of both the transportation of a minor adjustment (U.S.S.G. § 2L1.1(b)(4)) and the use of a minor adjustment (U.S.S.G. § 3B1.4) was impermissible double-counting. Indeed, "[t]he commentary to the use of a minor adjustment instructs that the adjustment should not be applied ‘if the Chapter Two offense guideline incorporates this factor.’" U.S.S.G. § 3B1.4 cmt. n.2." This issue, however, was foreclosed by the Government’s invocation of Alvarado-Casas’ appeal waiver.

Good Unpublished Opinion Rejecting Speculative Reasoning Underlying Reckless Endangerment Bump in Alien Transporting Case

United States v. Balderas-Gonzalez, No. 07-20533 (5th Cir. Feb. 1, 2008) (revised Feb. 8, 2008) (unpublished) (Wiener, Barksdale, Dennis)

It's too bad this opinion is unpublished. The actual fact pattern isn't likely to come up all that often, but the opinion is still valuable for its rejection of the type of speculative reasoning that is used all too often to justify Guidelines enhancements.

Balderas was one of a group of aliens who had been smuggled into the U.S. One day the smugglers offered to discount his smuggling fee if he would drive a car containing some of the other aliens. Balderas agreed and, following a lead car driven by the coyotes, drove north in a Ford Taurus with three other aliens in the passenger compartment. Unbeknowst to Balderas, there were also three aliens concealed in the trunk. Balderas and the other aliens were caught after a Texas DPS trooper pulled the car over for speeding on U.S. Highway 59.

Balderas later pleaded guilty to alien transportation for gain. The probation officer recommended a 2-level reckless endangerment enhancement due to the aliens in the trunk. Balderas objected, asserting that he was given the keys to an already-loaded car, and that he didn't know the aliens were in the trunk. The probation officer responded "by stating that '[s]ince the defendant traveled with this group of aliens, it is possible that the defendant was present when the aliens were being loaded and that he would have seen some aliens get into the trunk. Additionally, during an alien smuggling offense, it is not uncommon and it is reasonably foreseeable, that aliens would travel in any available space, including the trunk.'" At sentencing, "[t]he district court rejected Balderas's objection and stated that it was 'relying on the presentence report' to establish that he knew or should have known that aliens were in the trunk of the Taurus."

Balderas challenged the enhancement on appeal. The Government countered that Balderas knew or should have known the aliens were in the trunk based on the following circumstances: "(1) Balderas traveled with a group of aliens for several days prior to driving the vehicle, (2) he was present during daylight hours at the location where the aliens were loaded into the Taurus, . . . (3) there is no evidence that he was not present when the three males got into the trunk of the car[,]" and (4) "even if Balderas did not witness the entry of the aliens into the trunk of the Taurus, he should have known that aliens were in the trunk because three of the aliens who had been traveling in his group were not with him in the passenger compartment of the Taurus."

The court rejected the Government's arguments, pointing out that there was no direct evidence of Balderas's knowledge. There was also some evidence tending to support Balderas's credibility and version of events. Ultimately, the court's "review of the evidence in the record reveal[ed] only the mere possibility that Balderas knew or should have known that aliens were loaded in the trunk of the Taurus. And, a mere possibility is insufficient to meet the government’s burden of proving, by a preponderance of the evidence, that Balderas intentionally or recklessly created a substantial risk of death or serious bodily injury under 2L1.1(b)(6)."

The court also rejected the Government's alternative argument "that Balderas should be held accountable for transporting aliens in the trunk of the Taurus because, under U.S.S.G. 1B1.3(a)(1)(B), a defendant is responsible for 'all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,' regardless of whether the defendant was charged with conspiracy." As the court pointed out, that provision only applies to conduct that occurs after the defendant joins the conspiracy. Here, there was no evidence that Balderas agreed to drive the car before the aliens were loaded into the trunk, so the relevant conduct guideline didn't apply.

You can't cite this opinion as binding authority, of course. But you can certainly rely on it as persuasive authority when arguing that speculative possibilities aren't enough to carry the Government's burden of establishing guideline-enhancing facts by a preponderance of the evidence. Especially anytime the probation officer or the Government is relying on the argument that, "There's no evidence he didn't know."