U.S. v. Cisneros

• Citation: 456 F.Supp.2d 826
• Decision Date: 28 September 2006
• Docket Number: Civil No. B-02-191.
• Parties: UNITED STATES of America v. Dora CISNEROS.
• Court: U.S. District Court — Southern District of Texas

Page 826

456 F.Supp.2d 826

UNITED STATES of America v. Dora CISNEROS.

Civil No. B-02-191.

United States District Court, S.D. Texas, Brownsville Division.

September 28, 2006.

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David L. Botsford, Attorney at Law, Austin, TX, J.A. Tony Canales, Canales & Simonson, Corpus Christi, TX, for Dora Cisneros.

James L. Turner, Paula C. Offenhauser, U.S. Attorneys Office, Houston, TX, for United States of America.

MEMORANDUM OPINION AND ORDER

ANDREW S. HANEN, District Judge.

Before the Court is the Report and Recommendation of the United States Magistrate Judge in which he recommended that Petitioner's Motion to Vacate, Set Aside, and Correct Judgment and Sentence [Docket No. 1] be denied. That report also recommended that the Government's Motion to Dismiss [Docket No. 5] be granted. Petitioner has filed lengthy and detailed objections to the Magistrate's rulings. [Docket No. 21] Aside from the more straight-forward legal issues, this case and Petitioner's objections to the Report and Recommendation present this Court with a somewhat unique opportunity. In addition to other bases for Petitioner's motion to vacate pursuant to 28 U.S.C. § 2255, he is, sometimes directly and sometimes more implicitly, requesting this District Court to hold that the Fifth Circuit Court of Appeals and subsequently the United States Supreme Court violated her constitutional rights and/or committed error. Rarely is a district court put in such a position and it is necessary to explain the procedural history of this matter to understand portions of the Petitioner's argument and how she has called upon this Court to rule on the actions of the Supreme and Circuit Courts.

I. Background Facts and Procedural History

This case arises out of the 1993 murder of Joey Fischer, a high school student at St. Joseph Academy in Brownsville, Texas. During the spring of 1992 Fischer began dating Cristina Cisneros, a fellow high school student, but ended the relationship shortly thereafter. Dora Cisneros, Cristina's mother, became upset about the break-up and, after attempting to reunite the teens, went to Maria Martinez, a local fortune teller (curandera), to arrange for Fischer's murder. Martinez asked one of her other clients, Daniel Garza, to hire someone to kill Fischer.

Garza discussed hiring a killer in several telephone conversations with Martinez. According to Garza's testimony at trial he made some of those calls from Mexico. Garza eventually hired Israel Olivarez and Heriberto "Eddie" Pizana, who worked for the Cuellar crime family. On the evening of March 2, 1993, a car with Mexican license plate number "821 THE7" crossed from Mexico into Brownsville, Texas. Later that night Pizana and Ramon Palomares, another hit man for the Cuellar family, checked into the La Quinta Inn in Brownsville and the receptionist registered their car as a white Grand Marquis with a Mexican license plate number of "821 TWEX" or "821 THE7" (the receptionist's handwriting was apparently difficult to decipher). Fischer was shot and killed as he left his house for school the next morning. Interestingly, a witness testified to passing a white four-door car with a Mexican license plate near Fischer's home at the time of the murder. Shortly thereafter, Garza and Pizana collected the money for the hit from Martinez. Garza attempted to leave the money with Pizana, but he insisted Garza return with him to the La Quinta Inn and give the money directly to Olivarez. After giving the money to Olivarez, Garza noticed that Olivarez and Pizana had two cars—a white pickup truck with a black stripe and a white Ford.

Cisneros was originally tried in state court, convicted of capital murder, and sentenced to life in prison. The Thirteenth Court of Appeals sitting in Corpus Christi overturned the conviction, holding that the evidence was insufficient to support a conviction. Cisneros v. State, 915 S.W.2d 217 (Tex.App.-Corpus Christi 1996) pet. ref'd 935 S.W.2d 789 (Tex.Cr.App. 1996) (en banc). The Court of Criminal Appeals affirmed, explaining that despite the fact that Cisneros "wanted her daughter's former boyfriend dead[,] engaged a fortune teller[] to find someone to kill him [and even] ... supplied money, information, and directions [to the fortune teller]," there was not sufficient evidence to prove the individuals hired by the fortune teller were actually the ones who committed the crime. State v. Cisneros, 935 S.W.2d 789 (Tex.Crim.App.1996).

Defendant was then tried and convicted under the federal murder-for-hire statute, 18 U.S.C. § 1958, in the United States District Court for the Southern District of Texas. Cisneros appealed, arguing that: (1) there was not "sufficient evidence to show that Cisneros met the interstate/foreign commerce requirement for a federal murder-for-hire conviction," (2) a new trial was necessary because the government elicited testimony about the state court murder convictions, (3) the district court erred in rejecting five of Cisneros', proposed jury instructions, (4) "the district court erred in admitting the evidence of Fischer's murder under Fed.R.Evid. 403," (5) "the conviction should be reversed because the district court failed to maintain an appearance of impartiality in its questioning of witnesses and comments made during the trial," and (6) the district court abused its discretion by "admitting Moreno's testimony under the co-conspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E)." United States v. Cisneros, 194 F.3d 626 (5th Cir.1999). The Fifth Circuit affirmed the judgment of the district court, rejecting each of Cisneros arguments. Id. The court held that there was sufficient evidence for a jury to find that Garza made phone calls from Mexico and that this was enough to meet the interstate/foreign commerce requirement. Id. at 635-36. The court rejected arguments that Cisneros did not cause the telephone to be used "in furtherance" of the murder, explaining that mere "but for" causation was all that was required. Id. at 636. The court also pointed out that "[b]ecause these telephone calls satisfy the interstate nexus requirement, we need not address the more complicated issue, the car travel between Mexico and Texas." Id. at 637. Turning to Cisneros' arguments that the government elicited testimony regarding the state court proceedings, the Fifth Circuit held that "[t]he admission of this testimony was not an abuse of discretion, since there was no chance of any `significant impact' on the jury verdict." Id. Evaluating each of the jury instructions individually, the Fifth Circuit rejected each objection lodged by Cisneros.¹ Addressing Cisneros' argument that the district court erred in admitting evidence of Fischer's murder, the court stated that Cisneros'"offer to stipulate to the shooting of Fischer did not reduce the probative value of evidence of how Fischer's parents found their son, the pathologist's testimony about Fischer's autopsy, or the photographs of Fischer's corpse." Id. at 639. "The probative value of the challenged evidence, therefore, was not substantially outweighed by the danger of unfair prejudice." Id. In response to Cisneros' arguments that "the district court failed to maintain an appearance of impartiality," the Fifth Circuit explained that "[a] trial court has the discretion to clarify testimony, even if that elicits facts harmful to the defendant." Id. at 640. The court further explained that any potential impartiality the jury might have suspected was cured by the court's instruction that the it had no opinion on the case and the jury should disregard any statements that would indicate otherwise. Id. at 641. Finally, the court held that admitting Moreno's testimony under the co-conspirator exception to the hearsay rule was not error because "[t]he government met its burden of proving the co-conspirator exception to the hearsay rule by a preponderance of the evidence" by showing Moreno was a member of the Cuellar organization in which Palomares and Olivarez worked as hit men. Id.

On petition for rehearing, the Fifth Circuit panel applied different reasoning to certain arguments advanced by Cisneros, but reached the same conclusion, affirming the district court. United States v. Cisneros, 203 F.3d 333 (2000). In addressing Cisneros' argument that "the evidence did not establish that she caused the telephone to be used `in furtherance' of the murder-for-hire," the court abandoned its previous holding that "but for" causation was all that was required, holding that Martinez' constant reminders during the telephone calls "facilitated" in bringing the murder to fruition. Id. at 344-45. The court also expanded on its previous holding that the district court did not err in failing to instruct the jury "that the use of the facility in foreign commerce had to have been `in furtherance' of the murder-for-hire," explaining that the standard in the Fifth Circuit is "facilitated" or "made easier." Id. at 346. Thus, even though Garza's phone calls to Martinez arguably may not have been "in furtherance" of the murder-for-hire, the calls "facilitated" the murder because they allowed Martinez, to advance the plot to kill Fischer. Id. Finally, the panel elaborated on its holding that the standard for causation argued by Cisneros was inconsistent with Fifth Circuit precedent. It ultimately decided Cisneros' proposed instruction was incorrect, finding no error on the part of the district court. Id. at 347. Thus, although the court's decision to grant a rehearing had the effect of vacating the opinion found at 194 F.3d 626, the only pertinent substantive changes were those discussed above.

On February 24, 2000, the Fifth Circuit, sua sponte, granted a rehearing en banc. United States v. Cisneros, 206 F.3d 448 (5th Cir.2000). Although Cisneros had filed a motion for rehearing en banc on virtually every point...