United States v. De Lopez
| Decision Date | 01 August 2014 |
| Docket Number | No. 13–2141.,13–2141. |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Maria Leticia GUTIERREZ DE LOPEZ, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Marc H. Robert, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of New Mexico, Albuquerque, NM, appearing for Appellant.
James R.W. Braun, Assistant United States Attorney (Steven C. Yarbrough, Acting United States Attorney, with him on the brief), Office of the United States Attorney for the District of New Mexico, Albuquerque, NM, appearing for Appellee.
Before KELLY, O'BRIEN, and MATHESON, Circuit Judges.
After a sting operation involving two confidential informants and substantial audio and video surveillance, federal law enforcement officers caught Jesus Cabral–Ramirez (“Mr. Cabral”) and Defendant–Appellant Maria Gutierrez de Lopez (“Ms. Gutierrez”) attempting to transport an undocumented alien from El Paso, Texas to Denver, Colorado. A federal grand jury indicted Ms. Gutierrez on one count of conspiring to transport undocumented aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I).1
At trial, the Government elicited testimony from Border Patrol Agent Brian Knoll about the immigration status of the individual Ms. Gutierrez allegedly conspired to smuggle. Agent Knoll also provided expert testimony that transporting undocumented aliens away from U.S./Mexicoborder regions to the interior of the United States significantly reduces the odds of apprehension by law enforcement.
The confidential government informants—who testified anonymously 2 to protect their safety—testified about several conversations they had with Ms. Gutierrez tending to support the charges against her. Although the Government provided the defense with the informants' general criminal backgrounds, compensation records from federal agencies, and immigration status, it did not disclose their actual identities. Defense counsel cross-examined both witnesses in light of the disclosures provided by the Government, but was unable to conduct adequate independent pre-trial investigation.
The jury convicted Ms. Gutierrez as charged, and the district court sentenced her to three years of probation. She now appeals, arguing (1) Agent Knoll's testimony about the smuggled individual's immigration status introduced inadmissible testimonial hearsay in violation of the Federal Rules of Evidence and the Confrontation Clause; (2) Agent Knoll's expert testimony about the alien-smuggling trade was not helpful to the jury under Federal Rule of Evidence 702(a); and (3) the Government's use of anonymous testimony violated the Confrontation Clause of the Sixth Amendment.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
In 2010, agents from the Federal Bureau of Investigation (“FBI”) and United States Border Patrol (“Border Patrol”) initiated “Operation Desert Tolls,” a joint investigation into alien-smuggling organizations operating in New Mexico, western Texas, and Colorado. According to the Government, the operation received its “break” in June 2011 when agents apprehended “John Smith” 4 while he was attempting to transport an undocumented alien. Mr. Smith, who was well-connected with the network of smugglers in the region, began working with the FBI as a confidential informant.
In November 2011, Mr. Smith received a call from Mr. Cabral, Ms. Gutierrez's co-defendant at trial. Mr. Cabral told Mr. Smith he would put him in touch with Ms. Gutierrez to “arrange for work” transporting undocumented aliens in exchange for payment. ROA, Vol. IV at 120. When Ms. Gutierrez called Mr. Smith, she informed him that she had found a person (later identified as Eneldo Valenzuela–Carrillo) seeking transport from El Paso, Texas to Denver, Colorado. The Government recorded various phone conversations between Ms. Gutierrez and Mr. Smith, as well as between Mr. Cabral and Mr. Smith, about the logistics for Mr. Valenzuela–Carrillo's paid transportation to Colorado. 5 Ms. Gutierrez told Mr. Smith that Mr. Valenzuela–Carrillo's family would send part of the money after he made it past the U.S. Border Patrol interior checkpoint (located just north of Las Cruces) 6 and that they would pay the rest when he arrived in Denver.
On November 21, 2011, Mr. Smith picked up Mr. Valenzuela–Carrillo in El Paso and drove him to a motel in Las Cruces, New Mexico. The following day, another confidential informant, “James Jones,” 7 picked up Mr. Valenzuela–Carrillo in an 18–wheel tractor-trailer 8 and drove him to Albuquerque, New Mexico. They successfully passed through the interior checkpoint just north of Las Cruces and met Mr. Smith, who had driven his own truck to an Albuquerque rest stop. From there, Mr. Valenzuela–Carrillo again switched vehicles and left with Mr. Smith to meet Ms. Gutierrez and Mr. Cabral.
Meanwhile, Ms. Gutierrez picked up $1,500 (sent by Mr. Valenzuela–Carrillo's family) from a “MoneyCenter” at an Albuquerque Walmart.9 Ms. Gutierrez then met with Mr. Smith, Mr. Cabral, and Mr. Valenzuela–Carrillo in the parking lot of Little Anita's, an Albuquerque restaurant, to exchange the money and transfer Mr. Valenzuela–Carrillo to Mr. Cabral to transport him to Colorado. 10 She gave $1,200 to Mr. Smith and said that Mr. Cabral would take Mr. Valenzuela–Carrillo to Denver. Mr. Smith gave $100 to Mr. Cabral for gas. 11
Mr. Valenzuela–Carrillo then got into Mr. Cabral's pickup truck, and they drove to a private residence in the area. Once there, Mr. Cabral picked up some other individuals before heading north on Interstate 25. At the FBI's request, New Mexico state police stopped the vehicle south of Santa Fe. They took Mr. Valenzuela–Carrillo and another suspected alien into custody. The officers did not arrest Ms. Gutierrez on that date.
On May 8, 2012, a federal grand jury indicted Ms. Gutierrez on one count of conspiracy to transport an undocumented alien in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I).12 On June 7, 2012, FBI agents arrested Ms. Gutierrez. She pled not guilty.
At trial, the Government sought to prove Mr. Valenzuela–Carrillo, whom Ms. Gutierrez allegedly conspired to transport, was prosecuted for illegal reentry and therefore had been unlawfully present in the United States. Because the Government deported Mr. Valenzuela–Carrillo before trial, it could not call him as a witness. Instead, the Government elicited fact testimony from Senior Border Patrol Agent Knoll, who had been involved in the investigation, about Mr. Valenzuela–Carrillo's immigration status. Agent Knoll testified that authorities had processed Mr. Valenzuela–Carrillo as an undocumented alien, prosecuted him for illegal reentry, and deported him. Ms. Gutierrez objected on hearsay and Confrontation Clause grounds, but the district court overruled her objection.
Also at trial, the Government sought to prove that Ms. Gutierrez intended to “further” Mr. Valenzuela–Carrillo's illegal presence in the country by arranging transportation from El Paso, Texas, to Denver, Colorado. See8 U.S.C. § 1324(a)(1)(A)(ii). Over defense counsel's objections, Agent Knoll provided expert testimony on the alien smuggling trade. He testified that the Government allocates substantially more resources to enforcing the nation's immigration laws near the southern border than in the interior of the country. Agent Knoll testified that in his experience, a smuggler would want to transport an undocumented alien away from a border town to avoid detection and decrease the chances of deportation. When asked whether, in his experience, moving away from the border would “further” an illegal alien's presence in the country, Agent Knoll responded, “Yes.” ROA, Vol. IV at 359.
Finally, the Government offered testimony from the two confidential informants who had played a role in the sting operation. Because of a Mexican drug cartel's connection to the case, however, the Government asked the district court to allow them to testify anonymously to protect their personal safety. Over Ms. Gutierrez's Confrontation Clause objection, the district court agreed. The Government provided Ms. Gutierrez with background information on the confidential informants, including criminal history, compensation figures for cooperating with the FBI, and immigration status, but it refused to disclose their true identities. The two witnesses testified in open court under the aliases “John Smith” and “James Jones.” They testified about their role in the transportation and their conversations with Ms. Gutierrez and Mr. Cabral, as well as Ms. Gutierrez's role in both obtaining the money and paying Mr. Smith for his efforts. On cross-examination, defense counsel elicited testimony on their criminal history, incentive to cooperate with the Government, and ties to Mexico.13
The jury convicted Ms. Gutierrez as charged. The district court sentenced her to three years of probation, including eight months of required radio frequency (“RF”) monitoring. ROA, Vol. I at 113–14.
On appeal, Ms. Gutierrez argues the district court erred in allowing (A) Agent Knoll to testify about Mr. Valenzuela–Carrillo'simmigration status in violation of the Federal Rules of Evidence and the Confrontation Clause; (B) Agent Knoll to provide expert testimony on matters unhelpful to the jury in violation of Federal Rule of Evidence 702(a); and (C) the two confidential informant witnesses to testify under aliases in violation of the Confrontation Clause. We address each issue in turn.
At trial, Agent Knoll testified as a fact witness about the processing of the undocumented aliens found in Mr. Cabral's car. According to Agent Knoll, he personally retrieved from the state highway patrol office the two individuals Mr. Cabral was smuggling and escorted them to Border Patrol...
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