U.S. v. Ibarra-Zelaya

• Decision Date: 20 September 2006
• Docket Number: No. 05-20115.,05-20115.
• Citation: 465 F.3d 596
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Marlon IBARRA-ZELAYA; Jose Efrain Linares-Tabora; Marvin Arturo Peralta-Ramirez; Henry Gutierrez-Andrade; Edy Guardado-Mezen; Elbin Geovany-Mezen, Defendants-Appellants,
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.3d 596

UNITED STATES of America, Plaintiff-Appellee, v. Jose Marlon IBARRA-ZELAYA; Jose Efrain Linares-Tabora; Marvin Arturo Peralta-Ramirez; Henry Gutierrez-Andrade; Edy Guardado-Mezen; Elbin Geovany-Mezen, Defendants-Appellants,

No. 05-20115.

United States Court of Appeals, Fifth Circuit.

September 20, 2006.

James Lee Turner and Renata Ann Gowie (argued), Asst. U.S. Attys., Houston, TX, for U.S.

Adrian Almaguer (argued), Houston, TX, for Ibarra-Zelaya.

Lee Wilson (argued), Garcia & Wilson, Houston, TX, for Linares-Tabora.

Yolanda Daniel Coroy (argued), Houston, TX, for Peralta-Ramirez.

Kevin Matthew Hall (argued), Houston, TX, for Gutierrez-Andrade.

Mervyn M. Mosbacker, Jr. (argued), Mosbacker Law Office, Houston, TX, for Guardado-Mezen.

Marjorie A. Meyers, Fed. Pub. Def., Michael L. Herman (argued), Houston, TX, for Geovany-Mezen.

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

Before SMITH, WIENER, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The six appellants in this case appeal their convictions and sentences for hostage taking, 18 U.S.C. § 1203(a), and smuggling of illegal aliens, 8 U.S.C. § 1324. All of the appellants appeal on various sufficiency of the evidence grounds, and some of them appeal on additional grounds, ranging from challenges to sentencing, improper denials of motions to suppress, and improper voir dire and jury instructions. For the following reasons, we affirm the convictions, modify Elbin Geovany-Mezen's sentence on Counts Two and Three, and otherwise affirm the appellants' sentences.

I. FACTUAL AND PROCEDURAL HISTORY

In March of 2004, a group of illegal immigrants arrived at an apartment in Houston, Texas, with a group of "coyotes" who the aliens and their friends and relatives paid to help smuggle them into the United States. On March 11, 2004, Jose Marlon Ibarra-Zelaya, Jose Efrain Linares-Tabora, Marvin Arturo Peralta-Ramirez, Henry Gutierrez-Andrade, Edy Guardado-Mezen, and Elbin Geovany-Mezen arrived at the apartment where the aliens were; all six of the men were armed. They announced that they wanted 15 of the male aliens whose fees had not yet been paid.

The appellants then began motioning at particular aliens with the guns, indicating which ones they would take with them. Guttierrez-Andrade and Geovany-Mezen went into another room in the apartment, still armed, threatened the aliens in that room, and selected a few of the aliens to go with them. The appellants then split the aliens into groups and loaded them into cars. While on the way to their destination, Gutierrez-Andrade gave his cell phone to the aliens in his car and told them to call their family members and tell them not to send the money to the original coyotes. No specific amount of money was mentioned as the appellants' new fee at this time.

About fourteen aliens were brought from the first apartment to a new one, also in Houston, with the appellants. They arrived at about 6 p.m. on March 11. All of the appellants were armed at all times in the new apartment and took turns guarding the aliens. While all the aliens and all the appellants were in a room together, Linares-Tabora, while armed, told the aliens not to "screw up, because otherwise [they'd] end up lying there." In addition to the aliens and the appellants, Griselda Barnica-Mazariegoz and her ten-year-old daughter, among others, were also in the apartment for at least some of the time the aliens were there.

The appellants then gave the aliens food, clothing, and alcohol. Linares-Tabora took one of the aliens, Miguel Pacheco-Manchame, to Wal-Mart to buy some clothes. Linares-Tabora followed Pacheco-Manchame around the store and asked him where he was going. Linares-Tabora was armed and at one point told Pacheco-Manchame to "behave" or he could "hurt" him. They paid for the clothes and then returned to the apartment.

While at the apartment, Geovany-Mezen and Linares-Tabora told the aliens to call their families to arrange for money to be sent to them instead of the initial coyotes. Linares-Tabora spoke to one of the alien's relatives and made calls about monetary arrangements for some of the other illegal aliens as well. Guardado-Mezen and Gutierrez-Andrade also made one alien call a friend of his to ask for more money despite the fact that the friend had already paid $2100 to the initial coyotes. All of the appellants were present when Guardado-Mezen told the alien to call his friend for more money.

At around 1:30 a.m. on March 12, 2004, Houston police dispatch received a call about a hostage situation with weapons at the apartment where the aliens and the appellants were staying. Uniformed officers arrived on the scene at around 2 a.m. They saw four people exit the apartment and get into a car with an expired registration. They stopped the car based on the traffic violation.

When none of the occupants of the car were able to produce valid identification, the officers began an investigatory detention. The driver was Guardado-Mezen, and the passengers were Linares-Tabora, Pacheco-Manchame, and Barnica-Mazariegoz. When none of the men could produce valid ID, they were placed in the patrol car. Barnica-Mazariegoz stated that she had ID back at her apartment. An officer asked her if she wanted to go get it and if he could come with her, and she said yes.

As they approached her apartment, Barnica-Mazarigoz stated that there were a few people in her apartment and knocked on the door. No one answered, and Barnica-Mazarigoz stated that she didn't have keys to the apartment. The officer heard people moving inside the apartment while they were waiting. Inside the apartment, Ibarra-Zelaya was moving the aliens from one room to another, directing them with his pistol. Guardado-Mezen told the aliens to tell the police they were at a party.

The door was opened three to five minutes later, and the officer saw three men fleeing the apartment via the balcony. There were many people in the living room. The officer then entered the apartment and began a sweep of the premises. He stated that he was worried about being "set up" and that safety was a concern. He found many people in various rooms in the apartment and moved them all into the living room. He then asked Barnica-Mazarigoz if he could search the apartment for weapons, and she told him that he could. No weapons were found at this point.

The officers then called immigration officials and were told it would be a few hours before they could get there. The officers began noticing that at least one of the appellants was constantly in one of the apartment's two bathrooms. They also noticed that the appellants would run their hands up and down Barnica-Mazarigoz and her daughter whenever they walked by. There was a second bathroom in the apartment that was off-limits to the appellants. However, Barnica-Mazarigoz asked to take her daughter to that bathroom, and the officers let her, although they did not let her close the door. An officer heard the daughter tell her mother "no"; he then entered the bathroom to find Barnica-Mazarigoz pulling her daughter's shirt up. He noticed the lid of the toilet was crooked, and when he looked in the tank, he found three loaded handguns. The officers at this point inspected the first bathroom as well and noticed that it looked like someone had tried to push through the wall separating the two bathrooms.

When this was discovered, an officer went to handcuff Barnica-Mazarigoz. Ibarra-Zelaya and Guardado-Mezen began to move toward the officer guarding the door of the apartment, and all the officers drew their weapons. The appellants were ordered to move against the wall, and they complied. After this, the appellants were moved to patrol cars, and immigration officials arrived a short time later.

Based on these events, the appellants were charged with alien smuggling and hostage taking. At a jury trial, they were found guilty of all counts and sentenced by the judge to various terms of imprisonment. The six appellants timely filed the current appeal alleging various grounds of error discussed below.

II. DISCUSSION

A. SUFFICIENCY OF THE EVIDENCE

All six of the appellants appeal their convictions under the Hostage Taking Act ("HTA"), 18 U.S.C. § 1203(a), on various sufficiency of the evidence grounds. In reviewing a challenge to the sufficiency of the evidence, this court views all evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt. United States v. Carrion-Caliz, 944 F.2d 220, 222 (5th Cir.1991). In conducting this review, we accept all credibility choices and reasonable inferences made by the jury, and the standard remains the same whether the evidence is direct or circumstantial. United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.1987).

To prove the offense of participating in a hostage taking under the HTA, the government must establish that the appellants (1) seized or detained another person, and (2) threatened to kill, injure, or continue to detain that person, (3) with the purpose of compelling a third person or entity to act in some way as an "explicit or implicit condition for the release of the person detained." 18 U.S.C. § 1203(a); see also Carrion-Caliz, 944 F.2d at 223.

The appellants in this case were charged with a hostage taking conspiracy and with aiding and abetting hostage taking. "Conspiracy requires direct or indirect agreement to commit hostage taking, knowledge that the purpose of the agreement was unlawful, and joinder in the agreement to further its unlawful purpose." United States v. De Jesus-Batres, 410 F.3d 154, 160 (5th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1022, 163 L.Ed.2d 865 (2006). To aid and abet a crime, a defendant must associate with the criminal venture, participate in it, and seek by his actions to...