U.S. v. Hernandez-Guevara

• Decision Date: 11 December 1998
• Docket Number: D,HERNANDEZ-GUEVAR,No. 97-50946,97-50946
• Citation: 162 F.3d 863
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesusefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 863

162 F.3d 863

UNITED STATES of America, Plaintiff-Appellee, v. Jesus HERNANDEZ-GUEVARA, Defendant-Appellant.

No. 97-50946.

United States Court of Appeals Fifth Circuit.

Dec. 11, 1998.

Joseph H. Gay, Jr., U.S. Atty., Diane D. Kirstein, San Antonio, TX, for Plaintiff-Appellee.

Henry Joseph Bemporad, Adrienne Urrutia Zuflacht, San Antonio, TX, for Defendant-Appellant.

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

Before KING, GARWOOD and HIGGINBOTHAM, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Jesus Hernandez-Guevara appeals his conviction for conspiracy to transport aliens, illegal transportation of aliens, and misprision of a felony. We affirm the conviction. Hernandez also appeals his sentence, arguing that the district court erred in requiring that the three-year supervised release term assessed for his conviction run consecutive to the supervised release term for an earlier conviction. We agree and modify the sentence accordingly.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 28, 1997, after receiving a telephone tip that a smuggler would be transporting a group of undocumented aliens in the area, United States Border Patrol agents set up surveillance on U.S. Highway 277 between the Texas towns of Eagle Pass and Carrizo Springs. Some agents were posted at two rest areas, approximately thirteen and twenty-four miles east of Eagle Pass; others were stationed along the highway closer to Carrizo Springs. About an hour and a half after the Border Patrol set up surveillance, Agent Jaime Kypuros, who was hiding in the brush near the second rest area, saw a blue van traveling west on Highway 277 toward Eagle Pass. The van slowed near the rest area and put on its turn signal, but Kypuros and his partner could not see whether it actually entered the rest stop. Between thirty and fifty minutes later, Kypuros saw the van again, this time traveling east on the highway. A white Lincoln Continental was following about a quarter-mile behind the van. Agent Mario Ramirez, who was stationed five miles east of Kypuros, saw both vehicles pass twice; he estimated that they were two to three miles apart when traveling west and five miles apart on the return trip.

As the vehicles proceeded toward Carrizo Springs, Agent Rodolfo Benavides, who was stationed east of Ramirez, saw the van turn left onto Highway 191, which leads to U.S. Highway 83 and Crystal City, Texas. Driving an unmarked truck, Benavides followed the van for eight miles, to the intersection of Highways 191 and 83, where he stopped it. The driver of the van was Mike Trevino; the eight other occupants were all undocumented aliens from Mexico. After other agents arrived to assist Benavides, the Lincoln, which Benavides estimated had been traveling three to four miles behind the van, approached. The Lincoln slowed when the driver saw the agents and the van, and Benavides flagged the car down, displaying his credentials. Joe Sanchez was driving the car; the passenger was defendant-appellant, Jesus Hernandez-Guevara (Hernandez), also known by the nickname "Chuy." The agents arrested Trevino, Sanchez, Hernandez, and the aliens.

The evidence against Hernandez at trial included testimony from the Border Patrol agents who stopped the vehicles, Sanchez, and two of the aliens. Sanchez, who had pleaded guilty and received a probated sentence, told the jury that he had agreed to give Hernandez a ride from his home to Eagle Pass to pick up a transmission. As they passed the first rest stop, Sanchez noticed people entering a blue van, and Hernandez remarked that these individuals were "his." They continued driving for another five miles, but then Hernandez told Sanchez to turn back. At that point, Sanchez testified, he realized for the first time that the people being picked up were undocumented aliens. He became angry at Hernandez and drove on in silence until stopped by the Border Patrol. Sanchez concluded that he had been brought along to look for Border Patrol agents, but claimed that he did no scouting. He did admit that Hernandez offered him money at some point during the trip, although it is not clear from his testimony whether the payment was to be compensation for scouting or for driving Hernandez to Eagle Pass. At any rate, when they saw that the van had been detained, Hernandez told Sanchez not to say anything to the agents.

Two of the aliens, Juan Padron-Silva and Jose Norberto Ortega-Martinez, provided additional evidence against Hernandez in the form of post-arrest statements admitted by stipulation at trial. Padron-Silva stated that he entered the United States the day before his arrest; he had been told to wait for a smuggler, and the van had picked him up. He was to be charged $600.00 for his transportation. Ortega-Martinez described similar events. He added that the smuggler's name was "Chuy," a name he recognized because he had been transported to Oklahoma by a man named Chuy two years earlier. From a photo lineup, Ortega-Martinez identified Hernandez as the "Chuy" who had smuggled him before.

In addition to testimony about the offenses with which Hernandez was charged, the evidence at trial included references to his past misconduct. The government's first witness, Agent Kypuros, testified that the multiple-agent surveillance was established in response to a telephone call. Consistent with his pretrial motion in limine, Hernandez objected that this was irrelevant and prejudicial hearsay. The district court overruled the objection, and Kypuros stated that "[b]ased on the phone call," the agents "prepared to go out to the highway and set up in an effort, in an attempt to apprehend an alien smuggler." After describing the logistics of the stakeout, he added that in setting up surveillance, he and another agent hid in the brush. The following exchange ensued:

Q [by Assistant United States Attorney Robert Cadena] Why did you hide in the brush?

A Because in the past, on several occasions--

MR. VILLARREAL [defense counsel]: Your Honor, I'm going to object on relevancy grounds to anything that may have happened in the past. It's speculative. It has no relevance to the facts before the jury in this case.

THE COURT: Overruled.

MR. CADENA: You may answer.

THE WITNESS: Okay. Based on Border Patrol experience and intelligence reports many--

MR. VILLARREAL: I'll object to any testimony concerning intelligence reports as offering hearsay.

THE COURT: Sustained. Sustained as to intelligence report.

BY MR. CADENA:

Q Based on your training and intelligence why were you hiding in the brush?

A I had seen, on several occasions, Mr. Hernandez travel on that highway.

Defense counsel objected to this answer and moved for a mistrial, arguing that an instruction would not cure the error. The trial court agreed that "to instruct on it just exacerbates and magnifies it" but denied the motion for mistrial.

Border Patrol Agent Robert Edwards also testified about Hernandez's past misconduct. Over objection, Edwards stated that in 1996, he arrested Hernandez driving thirteen aliens in a truck. At the bench before Edwards gave this testimony, defense counsel objected that the prosecutor had not offered a theory to support the introduction of the evidence. The trial court overruled that objection, and in response to Hernandez's request for an on-the-record balancing of the probative value of Edwards's testimony against its prejudicial effect, it stated: "But at least the Court has the impression that the defensive theory, slash, argument would be that Mr. Hernandez-Guevara was just out looking for car parts and happened to be in the wrong place at the wrong time. And, therefore, the probative value outweighs any improper prejudicial effect." The district court did not give a limiting instruction immediately after Edwards's testimony.

After Edwards took the stand, United States Probation Officer Victor Calderon also testified to Hernandez's prior misconduct, stating that Hernandez had been convicted in 1979 and 1996 of transporting aliens. After admitting this evidence, the court instructed the jury that it could consider the convictions for the "very limited" purposes of

determin[ing] whether the defendant had the state of mind or intent necessary to commit the crime charged in the indictment in this case or whether this defendant had a motive or opportunity to commit the acts charged in this indictment, or whether this defendant acted according to a plan or in preparation for the commission of a crime, or whether the defendant committed the acts for which he is on trial by accident or mistake or not.

And these are the very limited purposes for which evidence of these other similar acts may be considered by you.

Hernandez then moved for a mistrial "in view of the limited instruction." The court overruled the motion.

During his closing argument, the prosecutor repeatedly referred to Hernandez's past misconduct. He suggested, for example, that the jury "start by looking at the past" to determine whether Hernandez "is responsible for this crime." The prosecutor then told the jury that the evidence about the past was called "Rule 404(b) evidence" and could be used for a "very limited purpose":

Basically, that evidence was presented so that you can see, was this some kind of mistake? Was somebody there at the wrong place at the wrong time? Was it innocent behavior out there that was being exhibited by the defendant, Chuy Hernandez, when he just happened to be going past when the aliens were being picked up and driving back following the alien load? Is that all innocent behavior?

The district court overruled Hernandez's objection to this argument. Later, the prosecutor urged the jury to "look at it in the context of 404(b) material. Look at it in the context of intent. Look at it in the context of lack of mistake." Hernandez did not object or move for a mistrial on this basis. Finally, the prosecutor asserted:

The...