U.S. v. Contreras, 91-2021

• Decision Date: 23 December 1991
• Docket Number: No. 91-2021,91-2021
• Citation: 950 F.2d 232
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio CONTRERAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 232

950 F.2d 232

UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio CONTRERAS, Defendant-Appellant.

No. 91-2021.

United States Court of Appeals Fifth Circuit.

Dec. 23, 1991.

Gregory K. Zaney, Austin, Tex., for defendant-appellant.

Lisa J. Stark, Dennis J. Dimsey, U.S. Dept. of Justice, Appellate Sec., Washington, D.C., Paula Offenhauser, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Houston, Tex., John David Lenoir, Asst. U.S. Atty., Southern District of Texas, Peter W. McCloskey, Trial Atty., Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before GOLDBERG, SMITH, and DUHE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Juan Antonio Contreras contends that there is insufficient evidence to sustain his conviction for conspiring and attempting to kill Patricia Orozco in order to prevent her from testifying against him. He also challenges the sufficiency of the evidence with regard to his use of a weapon during and in relation to two crimes of violence and argues that the district court committed plain error when it instructed the jury as to attempt. Finally, he contends that Orozco was not an "inhabitant" of the United States within the meaning of the applicable civil rights statute and that therefore his conviction for violating her civil rights should be reversed. Finding no error, we affirm.

I.

At about 11:00 p.m. on January 10, 1990, Contreras, an on-duty police officer in Laredo, Texas, stopped a car containing Orozco and Librado Galvan. ¹ After questioning Galvan briefly, Contreras asked Orozco for identification demonstrating her citizenship, which she could not provide. Contreras told Galvan that he could leave, then directed Orozco into the back of his police cruiser for the purpose of transporting her to the Immigration and Naturalization Service.

Instead, Contreras drove to a dark, isolated area on the edge of the Laredo Junior College campus, stopped the car, and told Orozco to get out and take off her clothes. When she refused, he forcefully unbuttoned her blouse and grabbed her upper body. Although Contreras put his gunbelt on the roof of the car at that point, Orozco testified that she "had to obey him because of fear" and that she thought he "would kill [her] or hit [her]" if she attempted to run away. Contreras ordered Orozco to take off her pants and lay down on the back seat. Then, with his gun in reach, he sexually assaulted her. ²

Afterwards, Contreras drove Orozco back to the area where he had initially stopped the car. Orozco immediately reported the incident to the police, telling officers that she had been sexually assaulted by a uniformed police officer who carried a weapon.

On January 16, 1990, a Webb County grand jury returned an indictment charging Contreras with aggravated kidnapping and aggravated sexual assault of Orozco, with trial set for May 14. On the afternoon of May 2, Contreras met with a friend, Gerardo Valdez. Contreras told Valdez that he needed to prevent Orozco from testifying against him at trial, and Valdez agreed to help Contreras find and kill her.

Contreras and Valdez looked for Orozco in Nuevo Laredo, Mexico, that day, but did not locate her. Valdez suggested to Contreras that his former co-worker, David Koenig, could help them find Orozco. On May 4, Valdez telephoned Koenig and set up a May 5 meeting among Koenig, Valdez, and Contreras.

When the three met on May 5, Valdez and Contreras told Koenig that they wanted to kill Orozco to prevent her from testifying and asked Koenig to show them Orozco's home. During the meeting, Contreras held up his pistol and said, "I'll talk to her with this." ³

Valdez returned to see Koenig the next day, May 6, stressing that he and Contreras wanted Koenig to lead them to Orozco's residence. Koenig agreed to meet them later that day. When he arrived at the appointed meeting place, Valdez and Contreras had not arrived yet. Koenig then left the meeting place for a few moments to search for his boss, whom he found. Koenig told his boss about the discussions with Valdez and Contreras, and then asked him to convey the information to the police. Koenig's boss then called the FBI, which planned to witness the meeting among Koenig, Valdez, and Contreras.

Later that day, the three reconvened and, riding in Valdez's truck and following Koenig's directions, located Orozco's supposed residence in Nuevo Laredo, Mexico. After Koenig pointed out the house, Contreras commented, "That's it. I saw it. I saw the sign, familia [O]rozco." When Koenig asked how the other two would carry out their plan, Contreras responded that he would "come back in civilian clothes in a new vehicle, go up to her house, knock on the door, and just shoot her."

Working with Koenig, the FBI obtained enough information to arrest Valdez three days later (May 9). FBI agents conducted the arrest at around 7:00 a.m. About an hour after his arrest, Valdez agreed to cooperate with the FBI. ⁴

At the direction of the FBI, Valdez telephoned Contreras at around 5:00 p.m. that day. During that conversation, Contreras said "tonight, ... we can go ... and finish this once and for all." ⁵ Around 9:00 p.m., Valdez again called Contreras to see whether he was ready and to ask him whether he needed any bullets. Contreras said that he had bullets and asked Valdez to pick him up.

Valdez, who carried a hidden microphone, arrived to pick up Contreras soon thereafter. In Valdez's truck, Contreras asked Valdez whether he had a mask and gloves. Contreras then tested ("dry-fired") his gun. The FBI arrested Contreras at the border, about ten minutes from the Orozco home, and found bullets and a handgun in the truck. ⁶

On May 31, 1990, a federal grand jury returned a six-count indictment against Contreras. Count one charged him with willfully depriving Orozco of her constitutional rights, while acting under color of law, by unlawfully detaining her, in violation of 18 U.S.C. § 242. Count two charged him with willfully depriving Orozco of her constitutional rights, while acting under color of law, by sexually assaulting her, in violation of section 242. Count three charged him with using and carrying a weapon during and in relation to a crime of violence (the sexual assault alleged in count two), in violation of 18 U.S.C. § 924(c)(1). Count four charged him with conspiracy to tamper with a witness by attempting to kill her, in violation of 18 U.S.C. §§ 371 and 1512. Count five charged him with tampering with a witness by attempting to kill her in violation of section 1512(a)(1)(C). Count six charged him with using and carrying a weapon during and in relation to a crime of violence (witness tampering alleged in count five) in violation of section 924(c)(1). The jury returned a verdict of guilty on all six counts.

II.

Contreras first argues that there is insufficient evidence to sustain his conviction on count five (tampering with a witness by attempting to kill her). When considering the sufficiency of the evidence, we view the evidence in the light most favorable to the government, drawing all reasonable inferences in favor of the jury's verdict, and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Lemons, 941 F.2d 309, 314 (5th Cir.1991) (per curiam).

Count five charged Contreras with violating 18 U.S.C. § 1512(a)(1)(C), which makes it illegal to "kill[ ] or attempt[ ] to kill another person, with intent to ... prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense...." Contreras argues that there is insufficient evidence to sustain his conviction because he "engaged in no conduct which constituted a substantial step toward commission of a crime." Instead, he argues, his actions amounted to no more than "mere preparation."

In United States v. Mandujano, 499 F.2d 370 (5th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975), we articulated a two-part test for determining whether a defendant engaged in a criminal attempt. "First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting." Id. at 376. "Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime." Id. See also United States v. Cartlidge, 808 F.2d 1064, 1068 (5th Cir.1987) (Mandujano 's two-prong test "remains this circuit's test"). We have held that "[a] substantial step must be conduct strongly corroborative of the firmness of the defendant's criminal intent." Mandujano, 499 F.2d at 376.

Our review of the record leads us to conclude that there was sufficient evidence demonstrating both Contreras's intent to carry out the plan to kill Orozco (satisfying Mandujano 's first requirement) and his commission of a substantial step toward that end (satisfying Mandujano 's second requirement). Contreras manifested his intent to kill Orozco in several ways. First, he solicited the help of both Valdez and Koenig by telling them that he wanted to kill Orozco to prevent her from testifying against him. Second, he announced his intent to return and shoot Orozco after identifying her home with Valdez and Koenig. Finally, he expressed his intent to "finish this once and for all" when conversing with Valdez on the phone the afternoon of May 9.

Contreras's activities constituted a substantial step toward the commission of the crime as well. First, he enlisted the help of Valdez to find and kill Orozco. Then he enlisted the help of Koenig to find her. Next, he searched for her and conducted surveillance of her home. He also obtained a gun and bullets. Finally, he drove toward Orozco's home with the...