U.S. v. Alvarado-Valdez

• Decision Date: 12 March 2008
• Docket Number: No. 99-40370.,99-40370.
• Citation: 521 F.3d 337
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vicente ALVARADO-VALDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

521 F.3d 337

UNITED STATES of America, Plaintiff-Appellee, v. Vicente ALVARADO-VALDEZ, Defendant-Appellant.

No. 99-40370.

United States Court of Appeals, Fifth Circuit.

March 12, 2008.

Jeffery Alan Babcock (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Ryan Edward Bull (argued), Baker Botts, Washington, DC, for Defendant-Appellant.

Before HIGGINBOTHAM, DAVIS and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In 1998, Vicente Alvarado-Valdez, Ricardo Flores, Pablo Santos Chapa, and Julian Medrano were indicted for conspiracy to possess with intent to distribute more than five kilograms of cocaine. Alvarado-Valdez and Chapa were charged in a second count with aiding and abetting possession with intent to distribute more than five kilograms of cocaine. Chapa pleaded guilty. Alvarado-Valdez, Flores, and Medrano were convicted by a jury as charged. We affirmed the convictions of Medrano and Flores. United States v. Flores, No. 99-40367, 281 F.3d 1279 (table), 2001 WL 1692443 (5th Cir. Nov.26, 2001) (per curiam). We erroneously dismissed Alvarado-Valdez's appeal for want of prosecution and have reinstated it. In light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we vacate and remand for a new trial.

I.

On July 17, 1997, Border Patrol agents stopped a tractor-trailer owned by Zenon Cantu and driven by Eleazar Eggers near Laredo, Texas. Federal officials found approximately 1,436 kilograms of powdered cocaine inside.

Cantu surrendered the next morning to agents of the Drug Enforcement Administration, and federal agents conducted a warranted search of his house, seizing telephone and address books, ledgers, and other documents. Eggers and Cantu were indicted for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Cantu pleaded guilty pursuant to a plea agreement.

More than a year later, Alvarado-Valdez and Chapa were arrested by federal officials, and two days later Flores and Medrano were arrested. On July 21, 1998, the government obtained an indictment charging that (i) Alvarado-Valdez and the three co-defendants (Chapa, Medrano, and Flores) had conspired and agreed to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) in June and July 1997; and (ii) Alvarado-Valdez and Chapa had possessed with intent to distribute approximately 1,436.2 kilograms of cocaine in violation of the same provision.

Chapa entered into a plea agreement in September 1998, pleading guilty only to Count One of the indictment. Alvarado-Valdez, Medrano, and Flores were convicted by a jury.

II.

A.

The government's evidence against Alvarado-Valdez consisted of (i) testimony by Cantu and Chapa about a conspiracy to transport cocaine in June and July 1997 (ii) telephone records showing calls from Cantu and Chapa to Alvarado-Valdez during those months, and (iii) evidence about an alleged 1996 marihuana transaction involving Cantu and Alvarado-Valdez. Cantu testified at trial. Before trial, Chapa fled to Mexico, and the government was unable to locate him. The government had Officer Garcia read portions of Chapa's interrogation into evidence over the objection of Alvarado-Valdez's counsel.

1.

As the government acknowledges, it relied primarily on the testimony of Cantu, who owned a trucking business in Laredo. He testified to overseeing the transportation of fifty loads of narcotics, of which he personally drove thirty-five.

Cantu testified that Chapa recruited Alvarado-Valdez, who in turn recruited Cantu, who said he had known Alvarado-Valdez for about fifteen months before June 1997, when the first shipment of cocaine was transported. Cantu claimed Alvarado-Valdez approached him in May 1997 to transport a load of marihuana but that nothing came of that deal. Alvarado-Valdez then proposed Cantu transport cocaine at a rate of $300 per kilogram in June. Cantu recruited Medrano, Flores, and Eggers to drive the tractor-trailers.

Medrano and Flores drove the first load. Cantu testified he and Flores picked up 840 kilograms of cocaine from Alvarado-Valdez's house. To the contrary, however, Cantu also testified that he never saw cocaine at Alvarado-Valdez's house, from which Flores drove the cocaine to Cantu's house.

Medrano and Flores successfully transported the cocaine from Laredo to Port Washington, New York.¹ While there, Medrano called Cantu and told him that David Gomez, also known as "Chongo," their contact person, had not arrived, though they had called him numerous times. Cantu said he informed Alvarado-Valdez of this problem.

Thereafter, Medrano and Flores reported that Chongo had retrieved the trailer. Cantu claims he received $202,000 from Alvarado-Valdez on June 18, which he in turn gave to Medrano and Flores in exchange for a fee of $20,000.

For the second load, which was expected to be approximately 1,145 kilograms, Cantu met Alvarado-Valdez and Chapa in early July. This time Chapa was in possession of the cocaine. Cantu could not hire Medrano and Flores again, so he turned to Eggers.

Cantu and his son drove to a mall to meet a van with the cocaine. The van was driven by the same man who had delivered the cocaine the previous month. Alvarado-Valdez told Cantu the truck belonged to him even though it was registered to Chapa. Cantu drove the cocaine to his home and noticed that it had branding similar to the June shipment, indicating that they came from the same source.

Eggers met with Chapa, Alvarado-Valdez, Cantu, and a long-haired stranger, Chongo, to whom the cocaine was to be delivered. Alvarado-Valdez gave Cantu, who in turn gave Eggers, Chongo's cellular phone and pager numbers.

Cantu acquired legitimate bills of lading. from Flores's business, Panamex, claiming the trailer would be loaded with furniture. Eggers took possession of the trailer on July 17. After Eggers departed, Cantu testified that he notified Alvarado-Valdez. Eggers, driving the trailer, was arrested that day at the Border Patrol checkpoint. He was in possession of Cantu's loaned cell phone, the one used by Medrano on the previous trip. Agents seized 1,436.2 kilograms of cocaine.

Cantu had followed Eggers to the checkpoint and saw all this. He testified to driving to Alvarado-Valdez's house immediately to inform him.

Eggers implicated Cantu and Chapa but not Alvarado-Valdez. Chapa fled to Mexico. The following day, Chapa called Alvarado-Valdez and suggested Cantu and Alvarado-Valdez rendezvous with him in Mexico. Alvarado-Valdez feared repercussions from superiors if he went to Mexico. Cantu turned himself in on the advice of counsel.

2.

Because Chapa had fled to Mexico, the government called Garcia to testify as to what Chapa had told him in interrogation. Garcia stated the following over objection of counsel:

Mr. Chapa stated that in early May 1997, Chapa was introduced to Francisco Paco; that is, Paco, by a friend of Chapa identified as Juan. Chapa stated that Francisco Paco propositioned Chapa to transport approximately 800 kilograms estimated by gross weight of cocaine from Laredo Texas to Port Washington, New York. Chapa added that Chapa was to getting [sic] paid $350 per kilograms of cocaine that Chapa transported. Chapa stated that due to financial reasons Chapa agreed, advising Francisco Paco that Chapa would need to find a driver that could get a legitimate load as a cover load to Port Washington, New York.

* * *

Chapa stated that approximately one week later, after the first load of cocaine was delivered, Chapa was once again propositioned by Francisco Paco while in Laredo, Tamaulipas, Mexico to transport 1,[4]36.2 kilograms estimated gross weight of cocaine, which was seized — or were seized on 07-17-97.

* * *

Chapa also stated that during this period of time Chapa was under constant pressure" from Paco — or Francisco, excuse me, Paco to have the cocaine delivered. Chapa would constantly call Cantu and pressure Cantu into finding a driver to deliver the cocaine.

B.

The government introduced other evidence, though it admits to relying primarily on the above testimony. Authorities obtained a search warrant for Cantu's and Chapa's properties; there was no search of Alvarado-Valdez's residence. Agents seized telephone and address books, ledgers, documents, communication devices, radios, and cellular phones from Cantu's property. The search also uncovered a yellow notebook with notations indicative of drug activity. The phone numbers of other conspirators were found. Though the government says it found two documents bearing Alvarado-Valdez's name, the record is inconclusive. The search of Chapa's residence uncovered various phone numbers of the co-conspirators but not Alvarado-Valdez's.

The phone records indicate a flurry of calls among the conspirators, including to and from numbers allegedly belonging to Alvarado-Valdez, around the time of the two deliveries. Alvarado-Valdez contends that one of the numbers attributed to him, which was in his son's name, was not his. Panamex organized deliveries to Port Washington on the dates alleged, but Medrano and Flores admitted to at least making furniture deliveries.

III.

Alvarado-Valdez claims his Sixth Amendment Confrontation Clause right was violated by the introduction of Chapa's testimony. We review Confrontation Clause objections de novo, subject to harmless error analysis. United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006). Both sides agree that Alvarado-Valdez properly objected to the subject testimony and preserved the issue for de novo review.

Crawford, 541 U.S. at 68, 124 S.Ct. 1354, instituted a categorical rule barring the admission of out-of-court testimonial statements against the accused absent opportunity for cross-examination. The bar applies "irrespective of whether the statement falls within a firmly rooted exception or bears particularized guarantees of trustworthiness." United States v....