U.S. v. Perez

• Decision Date: 29 June 2000
• Docket Number: No. 99-20500,99-20500
• Citation: 217 F.3d 323
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LOUIS VICTOR PEREZ, also known as Louis Victor Perez Chairez, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 323

217 F.3d 323 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LOUIS VICTOR PEREZ, also known as Louis Victor Perez Chairez, Defendant-Appellant.

No. 99-20500

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

June 29, 2000

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

Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.

POLITZ, Circuit Judge:

Louis Victor Perez appeals his conviction and sentence on two counts of aiding and abetting the harboring of an undocumented alien in violation of 8 U.S.C. § 1324(a) and 18 U.S.C. § 2. For the reasons assigned, we affirm.

BACKGROUND

On March 19, 1998, the Houston Police Department (HPD) received a telephone call from Sandra Flores who reported that her daughter, Merced Caletre-Flores, and two grandchildren were being held hostage at a house in Houston. Caletre-Flores and her children had been smuggled into the United States, and Flores claimed that they would not be released until the smugglers had received payment for their services. Flores admitted that she was in the country without authorization and provided the HPD with a telephone number of the house where her daughter and grandchildren were being held. HPD notified the Immigration and Naturalization Service. INS agents traced the telephone number to the residence located at 8505 Lenore Street,¹ set up a surveillance, and observed people freely leaving and entering with grocery bags. They saw codefendant Francisco Perez-Ordones mowing the lawn. At one point Perez came out of the house and conversed briefly with Perez-Ordones.

At about 5:00 p.m. the INS and HPD executed a search warrant of the house and arrested 24 undocumented aliens, 20 of whom were found inside the house. As the officers approached the house, Perez-Ordones attempted to flee, but was quickly detained. Many of the aliens were "very dirty" and "dressed poorly." Perez, the only United States citizen arrested, was found near a sleeping pallet in the garage located off the living room of the house. As Perez was handcuffed, he stated "I don't let them over here." Prior to execution of the search warrant, codefendant Elma Glorisabel Umanzor had been observed leaving the house with another Hispanic female. INS agents followed Umanzor to a local grocery store where she conducted business at the moneygram counter. The agents confronted Umanzor as she and the other female returned to the parking lot and arrested her after determining that she too was an undocumented alien. Umanzor possessed some cash and Western Union receipts which were later determined to be connected with the alien smuggling operation.

Agents concluded that the Lenore Street residence was a "drop house," a house holding aliens pending their full payment for smuggling services and transportation to their final destination. Several notebooks containing the names of aliens, the telephone numbers of their relatives who could be contacted for money, and records of completed wire transfers were found in the house. One of the notebooks contained writing on the inside cover addressed to "Louis." This notebook was found in Perez's living quarters and contained several entries, dated February 1998, indicative of an alien smuggling operation. One entry read, "took new truck with Georgia, 7 people and 1 guia."² Another read, "2 people picked up at Falfurrias at 9:30 p.m. on Road 425."³ The notebook also contained a number of similar entries.⁴ The next day, March 20, 1998, a criminal complaint was filed charging Perez, Umanzor, and Perez-Ordones with aiding and abetting each other in the harboring of "an alien" in violation of 8 U.S.C. & #167; 1324(a)(1) and 18 U.S.C. § 2. The affidavit attached to the complaint reflected that 24 undocumented aliens had been arrested, but the complaint did not charge the defendants with harboring a specific alien.

The INS immediately took custody of the aliens. On March 25, 1998, after preliminary and detention hearings, the INS gave defense counsel a list of names and locations of the detained aliens. At that time, only four had been released on their own recognizance, including Merced Caletre-Flores and her two children. The INS deported six of the detained aliens the next day; five more on March 31; and another on April 1. One had been released on bond on March 31. As a result, the defense was able to interview only five of the 24 undocumented aliens taken from the house.

The three defendants were indicted for one count of aiding and abetting the harboring of an undocumented alien, Merced Caletre-Flores. Shortly before trial the government discovered that Caletre-Flores and her two children, along with her mother Sandra Flores, had "disappeared" after being released on bond. A superseding indictment charged Perez and the codefendants with two counts of aiding and abetting the harboring of Jose Amado Aguilar-Jimenez and Jose Chevez-Nolasco. Both undocumented aliens were listed in the affidavit attached to the original complaint.

On the eve of trial Perez's codefendants pled guilty to both counts in the superseding indictment. The first trial resulted in a hung jury. On retrial, the jury returned guilty verdicts on both counts. The Presentence Investigation Report characterized Perez's role in the offense as one of a manager/supervisor. Perez's objections to the information contained in the PSI were rejected and the court imposed concurrent sentences of 51 months' imprisonment and three years' supervised release. Perez timely appealed.

Perez raises several issues on appeal. He first contends that the indictments should have been dismissed because the swift deportation of the alien witnesses violated his right to compulsory process under the sixth amendment and his right to due process under the fifth amendment. Perez further contends that the superseding indictment should have been dismissed because it was filed five months after the filing of the complaint in violation of the Speedy Trial Act.⁵ Perez also claims that the district court abused its discretion by excluding the deported aliens' out-of-court statements to the INS agents and by restricting defense counsel's cross-examination of a government witness. Perez also contends that the trial court's limitation on cross-examination violated the confrontation clause of the sixth amendment. Perez's final complaint is that the district court erroneously imposed a two-level upward adjustment for his role as a manager/supervisor in the offense. We address each of these issues in turn.

ANALYSIS

1. Deportation of undocumented aliens:

Perez unsuccessfully moved to dismiss both indictments, alleging that the deportation of the alien witnesses before they could be interviewed by the defense deprived him of his sixth amendment right to compulsory process and his fifth amendment right to due process. The defense theory in both trials was that Perez was not involved in the alien smuggling operation and did not harbor any of the undocumented aliens but, rather, he merely resided in the garage apartment attached to the residence where the aliens were being housed. He claimed that on the day of his arrest he was alone in his room recovering from an illness. Perez contends that the deported witnesses could have corroborated his claim of mere presence. Additionally, he claims that their statements would have contradicted directly the testimony of Jose Aguilar-Jimenez and Jose Chevez-Nolasco, both of whom testified that Perez ordered them into the house upon their arrival and instructed them to remain in the bedrooms hidden from view. We review the constitutional challenge de novo.⁶

Because of its duty to execute the immigration policy adopted by Congress, the government may deport undocumented alien witnesses upon a good-faith determination that they possess no information favorable to a criminal defendant.⁷ To establish a compulsory process or due process violation, a criminal defendant must make a "plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses."⁸ The sanction of dismissal is warranted "only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact."⁹ Our review of the record persuades that the claimed constitutional violations did not occur herein.

Upon their arrest, the aliens were interviewed by the INS to determine whether they had any information relevant to the criminal trial. Of the eight aliens deported before the indictment was returned, six could not identify Perez from a photo spread. Several stated that they did not see Perez until everyone at the house was arrested. Additionally, two of the deported witnesses stated that no one at the house asked them for money; one told the INS agent that no guias were at the house at the time it was searched; and another stated that no one in the house was a "coyote."¹⁰ As Perez was not charged with smuggling aliens across the border or transporting them within the United States, the statements that there were no guias or coyotes in the house and that no one asked them for money is irrelevant to the issue whether Perez harbored or concealed from detection Aguilar-Jimenez and Chevez-Nolasco.¹¹

Although the deported aliens who could not identify Perez or did not see him until their arrest may have provided testimony favorable to his defense, we reject his compulsory process and due process challenges because he has failed to show that their testimony was not merely cumulative of the testimony of available witnesses. Defense counsel was able to detain and depose six material witnesses, including Aguilar-Jimenez and Chevez-Nolasco. The district court did not err in denying these challenges by Perez.

2. Speedy Trial Act:

Perez next contends that his statutory right to a speedy trial was violated because the superseding...