U.S. v. Acosta

• Decision Date: 09 January 2007
• Docket Number: No. 05-51691.,05-51691.
• Citation: 475 F.3d 677
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert ACOSTA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

475 F.3d 677

UNITED STATES of America, Plaintiff-Appellee, v. Robert ACOSTA, Defendant-Appellant.

No. 05-51691.

United States Court of Appeals, Fifth Circuit.

January 9, 2007.

Joseph H. Gay, Jr., Mark Randolph Stelmach (argued), Asst. U.S. Attys., San Antonio, TX, for U.S.

David J. Kimmelman (argued), El Paso, TX, for Acosta.

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

Before SMITH, BENAVIDES and PRADO, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Robert Acosta claims a violation of his Sixth Amendment right to confront a hostile witness. We affirm.

I.

While conducting routine surveillance at an El Paso truck stop, police officer Jose Lucero observed a car with Chihuahuan license plates pull up to an empty flatbed truck.¹ Juan Marrufo exited the car's passenger seat, and he and the driver of the car unloaded two large bags from the car and handed them to someone inside the truck. The two then re-entered the car and drove to the truck stop's convenience store. Lucero followed and observed Marrufo enter the store, after which the car left the truck stop. Suspecting narcotics smuggling, Lucero requested assistance from border patrol agent Gilbert Almanza, who arrived approximately fifteen minutes later. The two officers observed Marrufo leave the store and enter the cab of the truck to which he had earlier delivered the two bags.

The officers approached the truck and displayed their police credentials. Marrufo was in the driver's seat and consented to a search of the truck, during which Almanza's canine alerted to the presence of narcotics. Marrufo summoned Acosta, who exited the truck's sleeper compartment. A hidden compartment was discovered that contained forty bundles of cocaine weighing just over eighty-six pounds and worth approximately $500,000.

Before Acosta's trial, Marrufo pleaded guilty. In addition to providing a statement articulating the factual basis of his guilty plea, Marrufo made an additional statement to qualify for a "safety valve" sentence reduction: He said he had been employed in June by the trucking company owned by Acosta's brother and had driven for the company without incident until October, when Acosta approached him with the proposition of making additional money by smuggling cocaine. Initially hesitant, Marrufo agreed when Acosta demonstrated the sophistication of the truck's hidden compartment.

After Marrufo agreed to help smuggle cocaine, he was assigned to drive with Acosta to El Paso. At the truck stop they were called, as planned, with instructions for picking up the drugs. Marrufo met the courier, whom he did not know, and helped transfer two large bags of cocaine from the courier's car to Acosta, who was waiting in the truck's cab. Marrufo purchased a wrench from the convenience store, which Acosta used to open the compartment where the drugs were concealed. The two were arrested shortly thereafter.

Marrufo was called as a government witness at Acosta's trial. Before testifying, he appeared outside the jury's presence and informed the court that, because he feared for the safety of his family, he did not want to testify. Although he did not state the source of his fear, it appeared, and the court inferred, that it was because of threats from Acosta. The court ordered Marrufo to testify, had Acosta confined following that day's proceedings, and had Acosta's communications monitored.

Marrufo testified that he was a team driver with Acosta and that the purpose of their visit to the truck stop was to pick up cocaine. He said Acosta was the only other person in the truck. After answering questions about his own involvement in the offense, he refused to answer several questions about Acosta's direct participation in the crime.² Several of these questions referenced Marrufo's safety valve statement and the statement that was the factual basis of his guilty plea.³ Acosta did not object to the questions.

On cross-examination Marrufo did not refuse to answer any of Acosta's questions. Acosta probed Marrufo's motives in making his prior statements. Acosta elicited testimony, over the government's objection, that Marrufo had believed that he would receive a more lenient sentence if he implicated Acosta. The court found that Acosta's questioning was designed to impeach Marrufo by illustrating a motive to lie. Marrufo was not cross-examined about the portions of his prior statements that implicated Acosta.

The government moved to admit Marrufo's safety valve statement, and the court admitted it with a limiting instruction, finding that Acosta's questioning had opened the door to the evidence. It was admitted to show that Marrufo's trial testimony was not, as Acosta had suggested, a recent fabrication.

Lucero was recalled to testify about statements Marrufo made during his safety valve debriefing. Acosta made his first Sixth Amendment objection at that point, which was overruled because the court found that Acosta had opened the door to the admission of those portions of the statements that bore directly on Marrufo's cross-examination testimony. On the final day of trial, Acosta made an unsuccessful Sixth Amendment objection to the government's initial questioning of Marrufo. He was convicted of conspiring to possess with the intent to distribute, and possession with the intent to distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(ii).

II.

The Confrontation Clause of the Sixth Amendment guarantees the right to confront hostile witnesses.⁴ We review, for plain error only, any Confrontation Clause issues that were not contemporaneously raised at trial.⁵ Confrontation Clause objections that were properly raised at trial are reviewed de novo, subject to harmless error analysis.⁶

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Court fundamentally altered the role of the Confrontation Clause. Twenty-four years before Crawford, the Court collapsed the Confrontation Clause into the hearsay rules of the Federal Rules of Evidence in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), holding that statements of unavailable witnesses could be admitted, consistent with the Confrontation Clause, if they were reliable. Reliability was established by showing that a statement either met a "firmly rooted hearsay exception" or bore "particularized guarantees of trustworthiness." Id. at 66, 100 S.Ct. 2531. In Crawford the Court replaced the Roberts standard with a bright-line rule: The Confrontation Clause prohibits the admission of an out-of-court testimonial statement unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 59, 124 S.Ct. 1354.

III.

Acosta claims three Confrontation Clause violations: the government's questioning of Marrufo, the admission of the safety valve statement, and Lucero's testimony about Marrufo's statements. We address each in turn.

A.

Acosta asserts that the government's questioning of Marrufo about his prior statements, during which Marrufo refused to answer some of the questions, violates the Confrontation Clause. Acosta did not object when these questions were asked, so we review for plain error.⁷ "[T]he plain-error exception to the contemporaneous-objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)).

Crawford bars the admission of testimonial statements unless the defendant had the opportunity to cross-examine the witness. Though the Crawford Court did not define "testimonial,"⁸ it listed several examples of statements that are testimonial under any definition: "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and ... police interrogations." Crawford, 541 U.S. at 68, 124 S.Ct. 1354. The government's questions to Marrufo referenced two prior statements: the factual basis of his guilty plea and his safety valve statement. Both were used at Marrufo's sentencing proceeding, so both are testimonial under Crawford.

The next step of the Crawford analysis asks whether Acosta had the opportunity to cross-examine Marrufo about his prior statements. Each party relies largely on a single case, and neither case is directly on point.

The government relies on In re Brown, 457 F.3d 392 (5th Cir.2006), for the proposition that as long as a witness is available for cross-examination Crawford's requirements are satisfied. Brown, an eve-of-execution habeas appeal, found, inter alia, that Crawford does not apply where cross-examination of a witness is available, even if it is limited. Id. at 395. Based on this, the government claims that Crawford's requirements are satisfied if a defendant has at least some ability to cross-examine.

For two reasons, this imputes a more sweeping interpretation than Brown can bear. First, the Confrontation Clause issue was not squarely before the Brown court. The court found three distinct procedural bars to Brown's Confrontation Clause claim, and thus even if there had been a Crawford violation the court was barred from considering it.⁹ Second, during the trial Brown was permitted to cross-examine the witness on nearly every aspect of her testimony; the sole limitation was on the witness's marital status, which the court found to be only marginally relevant.¹⁰ This is unlike Marrufo's testimony, which goes to the heart of the government's case. For these reasons, Brown provides little guidance.

Acosta relies on Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), in which a convicted defendant was called to testify at his codefendant's trial. Because he intended to appeal his conviction, the witness did not answer any questions, invoking his Fifth Amendment privilege, even after the judge ordered...