U.S. v. Ortega-Chavez, ORTEGA-CHAVE

• Decision Date: 06 August 1982
• Docket Number: ORTEGA-CHAVE,D,No. 81-2177,81-2177
• Citation: 682 F.2d 1086
• Parties: 11 Fed. R. Evid. Serv. 463 UNITED STATES of America, Plaintiff-Appellee, v. Alfredoefendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1086

682 F.2d 1086

11 Fed. R. Evid. Serv. 463

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo ORTEGA-CHAVEZ, Defendant-Appellant.

No. 81-2177

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 6, 1982.

Elma T. Salinas, Laredo, Tex., for defendant-appellant.

James R. Gough, John M. Potter, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before GEE, RUBIN and GARWOOD, Circuit Judges:

GARWOOD, Circuit Judge:

Appellant Alfredo Ortega-Chavez appeals his conviction of conspiracy to bring or attempt to bring undocumented aliens into the United States, 8 U.S.C. § 1324(a)(1), 18 U.S.C. § 371, and aiding and abetting an attempt to bring undocumented aliens into the United States, 8 U.S.C. § 1324(a)(1), 18 U.S.C. § 2. Finding no merit in any of his claims, we affirm.

Substantial evidence was presented at trial that on November 21, 1980, Ortega-Chavez and Ramon Gonzalez Sanchez left the United States and entered Mexico at Nuevo Laredo. That same day, Sanchez applied for and received a permit to return to the United States with certain described merchandise. From Nuevo Laredo he and Ortega-Chavez proceeded to Sabinas Hidalgo, Mexico. The next day, November 22, these two met with Alejandro Gonzalez Delgado and five undocumented aliens at a restaurant in Sabinas Hidalgo. From the restaurant, all eight took a bus to Nuevo Laredo. The five undocumented aliens then took a taxi from the Nuevo Laredo bus terminal to a point close to the bridge leading into the United States. Appellant Ortega-Chavez, Sanchez, and Alejandro Gonzalez Delgado arrived at the bridge in a van. Ortega-Chavez instructed the five aliens to get into a hidden compartment in the van and to remain silent. The van was driven by Sanchez. Approximately halfway across the bridge, Ortega-Chavez got out of the van.

A Customs officer at the bridge, while inspecting the van's merchandise for compliance with the entry permit, noticed that the rear wall of the van on the inside appeared to be less deep than would be suggested by looking at the outside of the van. The van was inspected, the hidden compartment discovered, and Sanchez, Alejandro Gonzalez Delgado, and the five undocumented aliens were placed under arrest. Appellant Ortega-Chavez was arrested later. Ortega-Chavez was charged with conspiracy to bring or to attempt to bring undocumented aliens into the United States and five counts of aiding and abetting Sanchez's attempt to bring illegal aliens into the United States. The jury returned a verdict of guilty as to each offense.

On appeal, Ortega-Chavez raises several claims of prejudicial error not asserted below. It is well-established that the failure to timely and properly raise these contentions before the district court, either through objection, motion for mistrial, or other appropriate manner, precludes us from reviewing them unless they constitute plain error under Fed.R.Cr.P. 52(b). ¹ See United States v. Reed, 670 F.2d 622, 623 (5th Cir. 1982) (plain error applies to failure to object to evidence introduced at trial); United States v. Chaney, 662 F.2d 1148, 1151 (5th Cir. 1981) (plain error applies to failure to object to waiver of counsel hearing conducted in presence of jury venire); United States v. Sanders, 639 F.2d 268, 270 (5th Cir. 1981) (plain error applies to failure to object to inculpatory answer elicited during cross-examination); United States v. Okenfuss, 632 F.2d 483, 485 (5th Cir. 1980) (plain error applies to failure to object to alleged prosecutorial misconduct at trial). Plain errors are "limited to those harmful ones that were so rank that they should have been apparent to the trial judge without objection, or that strike at the fundamental fairness, honesty, or public reputation of the trial." United States v. Perez, 651 F.2d 268, 273 (5th Cir. 1981) (footnote omitted).

Ortega-Chavez claims the district court erroneously permitted the government to call two unannounced rebuttal witnesses, in contravention of Fed.R.Cr.P. 12.1(b). ² When its witnesses were sworn prior to trial, the government volunteered that one of them might be called "as a rebuttal." At trial, Ortega-Chavez did not testify and presented only one witness, Graciela Castaneda, whose sole testimony was that she and her husband had brunch with the appellant on November 22, 1980, at their home in San Antonio, Texas. Following Mrs. Castaneda's testimony, the trial was recessed for the day. The next morning, at a conference prior to the jury being brought in, government counsel informed the court and the defense that he "just found this out yesterday that I did have some rebuttal witnesses" and that he would call Ramon Gonzalez Sanchez's parents, neither of whom were among those previously sworn, to testify that appellant was in Sabinas Hidalgo on November 21 and 22, and thus rebut the alibi given by Mrs. Castaneda. Defense counsel then observed that at the beginning of trial the government "indicated that there would be just the possibility of maybe one rebuttal witness; which was" an individual other than either of Sanchez's parents. However, no objection or motion was then or thereafter made respecting the testimony of these witnesses. The jury was then brought in, and Sanchez's parents testified, his father placing the appellant in Sabinas Hidalgo on November 22, 1980, and his mother recalling having seen the appellant there on the evening of November 21, 1980.

Allowing these witnesses to testify was not plain error. See United States v. Vela, 673 F.2d 86, 89 (5th Cir. 1982). Rule 12.1(b) requires the government to provide the defendant written notice of "the witnesses upon whom the government intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses." This requirement, however, is only a reciprocal obligation triggered by the government's written demand, under Rule 12.1(a), of the notice to offer an alibi defense. United States v. Benton, 637 F.2d 1052, 1059 (5th Cir. 1981). See Vela, 673 F.2d at 88. Since the government made no written demand under Rule 12.1(a), it was under no duty to provide Ortega-Chavez with a list of rebuttal witnesses. Benton, 637 F.2d at 1059.

Appellant further argues that these government rebuttal witnesses, who were present in the courtroom during previous testimony, were allowed to testify despite a sequestration order made pursuant to Fed.R.Evid. 615. ³ Plain error is not established. While Rule 615 sequestration is mandatory, this Court has held that a trial court has discretion to allow the testimony of a witness who has violated the Rule and that a party must demonstrate an abuse of discretion and "sufficient prejudice" to warrant reversal on account of such testimony. United States v. Womack, 654 F.2d 1034, 1040 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1029, 71 L.Ed.2d 314 (1982); United States v. Warren, 578 F.2d 1058, 1076 (5th Cir. 1978) (en banc), modified on other grounds, 612 F.2d 887 (5th Cir.) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980); United States v. Eastwood, 489 F.2d 818, 821 (5th Cir. 1973). Ortega-Chavez is unable to demonstrate either an abuse of discretion or sufficient prejudice from the testimony of the two rebuttal witnesses. Their testimony merely confirmed that of four previous witnesses, that Alfredo Ortega-Chavez was in Sabinas Hidalgo on November 22, 1980. ⁴ Moreover, the government had no way of knowing that these rebuttal witnesses would be necessary until it heard the testimony of Mrs. Castaneda that Ortega-Chavez had been in San Antonio on the day in question.

Ortega-Chavez also objects to the manner in which a juror was questioned by both the trial judge and the government's attorney in regard to her friendship with defense counsel, Ms. Salinas. During the voir dire of the jury panel, the district judge inquired if anyone on the panel was a close personal friend of Ms. Salinas or "anything of that sort." ⁵ There was no response from any panel member or from Ms. Salinas. After the jury had been selected but prior to the commencement of any other proceedings in the case, it was revealed that one of the jurors knew Ms. Salinas. The district judge thereupon questioned the juror, Mrs. Guerrero, out of the presence of the other jury members, as to her ability to be impartial. During this conference, the government's attorney was allowed to ask the juror whether her friendship with another female lawyer in Laredo would unfairly affect her view of the case. Defense counsel made no objections. In fact, defense counsel never in any way even intimated the slightest displeasure with this proceeding or with the juror. The juror stated twice that she could be "fair and impartial."

The district judge handled this situation commendably. Appellant's suggestion on appeal that the in camera hearing in some way operated "to magnify the wrong," far from establishing plain error, is unsupported by a single shred of evidence. The decision to hold such a hearing is within the discretion of the trial judge. United States v. Chiantese, 582 F.2d 974, 978 (5th Cir. 1978), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979). This Court has recognized the district court's responsibility under Fed.R.Cr.P. 24(c) to inquire into a juror's ability to remain impartial. United States v. Spiegel, 604 F.2d 961, 967 (5th Cir. 1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980). The decision to remove a juror for impartiality is within the sound discretion of the trial court. Id. Judge Kazen conducted an inquiry that was both brief and sensitive to the concerns of both parties. He then gave counsel for both parties an opportunity to question Mrs. Guerrero. Defense counsel declined this...