United States v. Ceballos

• Decision Date: 16 June 2015
• Docket Number: No. 13–50786.,13–50786.
• Citation: 789 F.3d 607
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Sandra Lisseth CEBALLOS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

789 F.3d 607

UNITED STATES of America, Plaintiff–Appellee

v.Sandra Lisseth CEBALLOS, Defendant–Appellant.

No. 13–50786.

United States Court of Appeals, Fifth Circuit.

June 16, 2015.

Joseph H. Gay, Jr., Ellen A. Lockwood (argued), Assistant U.S. Attorneys, U.S. Attorney's Office, San Antonio, TX, for Plaintiff–Appellee.

Richard Dennis Esper, Esq. (argued), El Paso, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH, PRADO, and OWEN, Circuit Judges.

Opinion

EDWARD C. PRADO, Circuit Judge:

Defendant–Appellant Sandra Lisseth Ceballos appeals her conviction for transporting, attempting to transport, and engaging in a conspiracy to transport an alien within the United States for private financial gain. She alleges a violation of her Sixth Amendment right of confrontation, the erroneous admission of evidence necessary to prove the financial-gain element of the offenses charged, and cumulative error that deprived her of a fair trial. We affirm.

I. BACKGROUND

On December 18, 2012, Customs and Border Protection (CBP) agents in El Paso discovered Abel Viera Mendez (Viera), a Mexican national, attempting to enter the United States without authorization. ¹

They detained Viera and, upon questioning, determined that he had entered the country by rappelling off of a bridge with the aid of a paid smuggler, “Chucky.”

On learning that Viera had also arranged for transport within the United States, the agents set up a sting operation. With Viera's consent, one of the agents, Humberto Torres, posed as Viera and answered a call on Viera's cell phone from the suspected smuggler—a Spanish-speaking male—and requested a ride. Agent Torres gave the smuggler a meeting location, and the smuggler told Agent Torres that a gray, four-door Mitsubishi with tinted windows would pick him up. Once at the designated site, Agent Torres continued to pose as Viera while fellow agents Brendan McCarthy and Orlando Marrero–Rubio set up surveillance. Agent Torres also surreptitiously initiated a phone call with Agent McCarthy, enabling Agent McCarthy to hear Agent Torres's activity.²

Shortly after Agent Torres's conversation with the smuggler, Ceballos arrived at the location in a vehicle matching the smuggler's description. Ceballos, who was speaking on a cell phone, asked the person on the line, “What was his name?” She then asked Agent Torres whether he was “Abel.” After Agent Torres replied in the affirmative and confirmed that Ceballos was aware of “Abel's” immigration status, Ceballos invited Agent Torres into the vehicle. At this time, Agent Torres dropped his cell phone, a coded signal to Agents McCarthy and Marrero–Rubio to apprehend Ceballos. The agents separately placed both Ceballos and Agent Torres, still posing as Viera, under arrest.

The agents issued Ceballos her Miranda warnings, and before invoking her right to counsel, Ceballos indicated that she had been at the location either to pick up her ex-husband José or to collect child support from him.³ The agents then placed Ceballos in a CBP vehicle with Agent Torres, who continued to present himself as Viera. Agent Torres repeatedly asked Ceballos why she had called “the migra.” Ceballos replied, “Who are you? I don't know you. Don't talk to me.” Agent McCarthy testified that Agent Torres was not aware that Ceballos had been Mirandized before she joined him in the CBP vehicle, and Agent Torres confirmed that he was unable to hear Ceballos's conversation with the other agents; all agree that once Ceballos requested an attorney, no agent other than Agent Torres—still posing as Viera—questioned Ceballos.

Following Ceballos's arrest, the agents inventoried the contents of the vehicle and discovered two cell phones as well as a notebook in Ceballos's purse that contained dates, the names “Enrique” and “José,” references to “girl[s],” “guy[s],” and a “couple,” dollar amounts, and notations in Spanish and English signifying “pick up,” “deliver,” and “food.” There were no entries in the notebook dated December 18, 2012, but there was one entry dated December 16, 2012. Agent Felix Amaya, who assisted his colleagues in processing Ceballos's arrest and handling her possessions, photocopied the pages of the notebook on the suspicion that it served as a ledger of Ceballos's smuggling activity. Another agent, Elias Contreras, searched Ceballos's cell-phone call history and noticed several calls to contacts named “Enrique” and “José ex” around the time of Ceballos's apprehension. In addition, Agent McCarthy interviewed Viera and obtained a sworn written statement describing the events of December 18 and detailing the arrangements he had made with “Chucky.”

Ceballos was indicted for (1) conspiracy to transport aliens within the United States for private financial gain and (2) transporting and attempting to transport an alien within the United States for private financial gain.⁴ A jury found Ceballos guilty of both counts,⁵ and Ceballos timely appealed.

II. DISCUSSION

We have jurisdiction to review the district court's final judgment of conviction under 28 U.S.C. § 1291.

Ceballos raises three challenges to the evidence presented at her trial. First, she contends that the admission of Viera's testimony—both through Viera's sworn, written statement and through the testimony of CBP agents—violated her Sixth Amendment right of confrontation. Second, she avers that the notebook in her purse, which the Government alleged was a smuggling ledger, was inadequately authenticated and constituted inadmissible evidence of prior bad acts under Federal Rule of Evidence 404(b). Third, she claims cumulative error in inappropriate Government witness testimony, alleged pro-prosecution statements by the trial judge, and improper closing argument by the Government. We discuss each asserted error in turn.

A. The Confrontation Claim

Ceballos first argues that the district court violated her Sixth Amendment rights by admitting Viera's testimony into evidence without first establishing that he was unavailable and that Ceballos had a prior adequate opportunity to cross-examine him. As Ceballos failed to object to the testimony at trial, our review would ordinarily be for plain error. United States v. Vasquez, 766 F.3d 373, 378 (5th Cir.2014), cert. denied, –––U.S. ––––, 135 S.Ct. 1453, 191 L.Ed.2d 404 (2015). However, because we conclude that Ceballos waived her right of confrontation through her counsel's unchallenged stipulation to the admission of the testimony, her claim is “entirely unreviewable,” United States v. Musquiz, 45 F.3d 927, 931 (5th Cir.1995) ; see United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” (internal quotation marks omitted)).

The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant to confront the witnesses against her. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Specifically, the Clause bars the introduction of testimonial evidence against a criminal defendant unless the proponent shows both that the declarant is unavailable and that the defendant had “a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Nevertheless, counsel in a criminal case may waive his client's Sixth Amendment right of confrontation by stipulating to the admission of evidence, “so long as the defendant does not dissent from his attorney's decision, and so long as it can be said that the attorney's decision was a legitimate trial tactic or part of a prudent trial strategy.” United States v. Stephens, 609 F.2d 230, 232–33 (5th Cir.1980). The Government has the burden of proving that the defendant effected a valid waiver, and we “should indulge every reasonable presumption against waiver of fundamental constitutional rights.” United States v. Johnson, 954 F.2d 1015, 1020 (5th Cir.1992) (internal quotation marks omitted).

Prior to trial, the Government moved to have Viera, “a material witness,” declared unavailable so that it would be able to introduce Viera's videotaped deposition into evidence at trial. At a pretrial conference, however, the Government withdrew its motion and also expressed its intention not to call Viera as a live witness. The Government explained that Viera's testimony “is not essential to our case” but observed that defense counsel Fernando Chacon had intimated that he may make “an effort ... to offer some or all of the videotaped deposition.” Defense counsel made no remarks at this time.

The court then asked whether the parties had agreed on exhibits to be admitted. The Government stated that it had shared its eleven proposed exhibits with defense counsel and the court, and that “the defense doesn't have a problem with most of them, although they do oppose the ledger, which is Government's Exhibit Number 6.” After a discussion of Ceballos's motion in limine to exclude the ledger, the court asked: “[A]s to everything else ... you are in agreement as to the admissibility of the government's exhibits under those exhibit numbers?” Defense counsel responded affirmatively. The court then admitted all exhibits except Government's Exhibit 6 (the ledger) and Defendant's Exhibit 1 (Ceballos's cell phone records).

In response to a question from the court regarding “any major evidentiary issues” outstanding before trial, the Government advised the court that although defense counsel had raised no objection to several of the exhibits, Government's Exhibits 4, 5, 7, and 8 were “all documents from the ... alien file” of Viera, “the material witness in this case.” Exhibit 8 was Viera's sworn statement. Defense counsel explained that he had no objection to the admissibility of those exhibits, but he conditioned his...