United States v. Favela-Favela ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 10 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 00-6421
v. (D.C. No. 00-CR-38-W)
SALVADOR FAVELA-FAVELA (W. D. Oklahoma)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL , MCWILLIAMS , and HENRY , Circuit Judges.
Salvador Favela-Favela was convicted after a jury trial of two counts of
transporting illegal aliens in the United States, violations of 8 U.S.C. §
1324(a)(1)(A)(ii). On appeal, Mr. Favela advances the following arguments: (1)
that the district court erred in denying his motion to suppress evidence obtained
during a February 16, 2000 traffic stop; (2) that the evidence was insufficient to
support his convictions; (3) that the government violated Brady v. Maryland , 373
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S. 83 (1963), by failing to timely disclose evidence that would have allowed
impeachment of a government witness; (4) that the government violated his due
process and Sixth Amendment rights by allowing the deportation of material
witnesses prior to trial; (5) that the district court issued several erroneous
evidentiary rulings; and (6) that the district court’s cumulative errors warrant
reversal. We are not persuaded by Mr. Favela’s arguments and therefore affirm
his convictions. 1
I. BACKGROUND
At approximately 9:50 a.m. on February 16, 2000, Clinton, Oklahoma
police officer Michael Nabors observed a Ford van traveling northbound on a
road near Interstate-40. At the suppression hearing, Officer Nabors testified that
he could see that there were two people in the front seat of the van and that the
driver was an Hispanic male. Officer Nabors also noticed that there was a female
passenger who was sitting in between the front two seats in the van and was not
wearing a seatbelt. Officer Nabors explained that this passenger seemed to be
sitting on her knees. He therefore concluded that she was not wearing a seatbelt
1
We also grant the following motions: the government’s motion to
supplement the record (with the transcripts of the video depositions of Messrs.
Cabanzo-Sanchez and Castillo-Estrada); (2) the appellant’s motion to supplement
the record with exhibits.
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and was thus violating Oklahoma law. 2
Officer Nabors stopped the van. As he stood near the driver’s door, he
noticed that there were about twenty people inside. According to Officer Nabors,
the people in the van “really didn’t look at me, they looked straightforward as if
to not make eye contact, just kind of stared straight forward.” Rec. vol. II, at 12
(Tr. of Motions Hr’g, July 5, 2000). 3
Officer Nabors asked the driver for his license and insurance verification.
The driver produced a Texas license, which identified him as the defendant
Salvador Favela-Favela. Mr. Favela then stepped out of the van, and Officer
Nabors began to question him.
At the suppression hearing, Officer Nabors described the sequence of
questions as follows. First, he asked Mr. Favela if he was on a trip, and Mr
Favela responded affirmatively. Then, the officer asked if the van’s passengers
were family members or if they were on a church function. To both those
questions, Mr. Favela said. “No.” Then, he asked Mr. Favela “if everybody in the
van was ‘legal.’” Id. at 11. Mr. Favela responded, “No,” but he added that the
2
Oklahoma law provides that, with certain exceptions, “Every operator
and front seat passenger of a passenger car operated in this state shall wear a
properly adjusted and fastened safety seat belt system, required to be installed in
the motor vehicle when manufactured.” Okla Stat. tit. 47, § 12-417(A).
3
Officer Nabors further explained, “[U]sually you stop a vehicle and
people want to stare at you, find out what’s going on. These people didn’t seem
to do that.” Rec. vol. II, at 12.
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passengers were “good people” who “weren’t causing anybody any problems” and
“were just trying to . . . find work.” Id. at 13. Mr. Favela asked Officer Nabors
to give him a break and let the passengers go.
Officer Nabors replied that he needed to keep asking questions. He
inquired whether the passengers were paying Mr. Favela. Mr. Favela responded
that each passenger had paid him approximately $180.00.
At that point, Officer Nabors asked Mr. Favela to return to the van and
wait. Officer Nabors then called his supervisor, Sergeant Gene Kelly. At the
suppression hearing, Sergeant Kelly testified that, upon arriving at the scene, he
too questioned Mr. Favela. He said that in response to his question as to whether
the passengers were “legal,” Mr. Favela again responded negatively.
The officers took Mr. Favela and the passengers to the Clinton police
station and contacted the Immigration and Naturalization Service (INS). Mr.
Favela volunteered the following information to Sergeant Kelly: that he had
made twenty other trips from Arizona to Georgia and Florida, that they were
going to the latter two states because the fruit crop and construction business
were doing well, that this was the first time he had been stopped, and that another
person told him where to pick up his passengers.
INS Agents Rodney McDonald and Eugene Graham arrived at the police
station shortly thereafter. They told Mr. Favela that he was under arrest and read
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him the Miranda warnings in Spanish. The INS agents also presented Mr. Favela
with two “Lujan-Castro” waiver forms, one in English and one in Spanish. See
United States v. Lujan-Castro, 602 F.2d 877 (9th Cir. 1979). Mr. Favela signed
the waiver form that was written in Spanish. 4
After Mr. Favela signed the Lujan-Castro waiver, eighteen out of the
twenty passengers were returned to their country of origin. As to the other
two—Manual Cabanzo-Sanchez and Jorge Alberto Castillo-Estrada, the
government took video depositions.
Prior to trial, Mr. Favela filed a motion to suppress the evidence obtained
by the government following Officer Nabors’ stop of the van. He presented the
following arguments: (1) that Officer Nabors lacked probable cause to stop van
initially; (2) that Officer Nabors’ questions were unduly intrusive; (3) that the
questioning conducted by Sergeant Kelly at the Clinton police station before
Miranda warnings were given violated Mr. Favela’s Fifth Amendment rights; (4)
4
The Lujan-Castro form advised Mr. Favela that: (1) he had the right to
require temporary detention of illegal aliens who might serve as witnesses; (2) if
he did not require the witnesses to stay, they would be returned to their country of
origin and could not later be returned for trial; (3) if the witnesses remained in the
United States at his request, they would do so under the supervision of the United
States and at the cost of the United States; (4) these witnesses could be called to
testify for him or for the government; (5) he had the right to have a lawyer assist
him in making the decision to retain or release witnesses and that, if he could not
afford a lawyer, one would be appointed for him; and (6) he and his lawyer had
the right to speak to the witnesses before his trial.
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that the testimony of Mr. Cabanzo-Sanchez and Mr. Castillo-Estrada (the two
passengers who were not deported) should not be admitted at trial because the
government permitted them to avoid permanent detention in exchange for their
trial testimony; and (5) that the deportation of the eighteen other passengers
violated his constitutional rights.
The district court rejected the first, second, fourth, and fifth arguments. It
concluded that there was probable cause for the initial stop, that the scope of
Officer Nabors’ questions was reasonable, that Mr. Cabanzo-Sanchez and Mr.
Castillo-Estrada could testify at trial because “[n]o evidence was presented that
the will of either [man] was overborne or that their statements were the product of
impermissible government acts or threats,” and that Mr. Favela had signed the
Lujan-Castro form waiving his right to present testimony from the eighteen other
passengers. See Rec. vol. I, doc. 77, at 15-16 (District Court Order, filed July 12,
2000).
However, the court also concluded that Sergeant Kelly had questioned Mr.
Favela about ownership of the van before Miranda warnings were issued and that,
at the time of this questioning, Mr. Favela was in custody and under interrogation.
Thus, “[a]ny statements made by [Mr.] Favela to Sergeant Kelly at the police
station were obtained in violation of Miranda and [Mr.] Favela’s Fifth
Amendment right against self-incrimination and will therefore be suppressed.”
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Id. at 14-15.
At trial, the government presented video depositions from Mr. Cabanzo-
Sanchez and Mr. Castillo-Estrada. Mr. Sanchez testified that he crossed the
border from Mexico without permission of the United States government, that he
walked from the border to Phoenix, and that friends made arrangements for his
transportation with Mr. Favela. Mr. Estrada gave similar testimony.
Agent McDonald provided testimony about unlawful entry into the United
States. He testified that the area at which Mr. Sanchez crossed the border was a
common staging area for illegal immigrants. He added that Mr. Favela had a
phone book with a phone number for Altar Sonora, Mexico. According to Agent
McDonald, this location is also a staging area for Mexican aliens to cross into the
United States.
Mr. Favela’s defense was that he had a legitimate transportation company
and that he did not know of the illegal status of his passengers. He offered
testimony from the Assistant Manager of the Union Bus Station in Oklahoma City
that Greyhound did not have a policy of checking into the immigration status of
passengers.
Mr. Favela also sought to minimize the import of his statements to Officer
Nabors and Sergeant Kelly. He offered testimony from a social worker and
family friend that his knowledge of English was limited.
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Finally, Mr. Favela offered expert testimony from a former police officer,
Theodore Montgomery. Mr. Montgomery testified that, if a person was sitting
between the front seats of the van, Officer Nabors could not have seen that
person.
II. DISCUSSION
A. Denial of Motion to Suppress
In reviewing the denial of a motion to suppress, we examine the district
court’s factual findings for clear error. United States v. Le , 173 F.3d 1258, 1264
(10th Cir.1999). We view the record in the light most favorable to the
government. Id. The ultimate question of whether the government’s conduct was
reasonable under the Fourth Amendment is a legal question that we consider de
novo. Id.In this appeal, Mr. Favela challenges both the initial traffic stop and the
questioning by Officer Nabors leading up to Mr. Favela’s statement that the
occupants of the van were not “legal.” We examine each argument separately.
1. Initial Stop
Under the Fourth Amendment, a traffic stop constitutes a seizure and
therefore must be “reasonable.” Delaware v. Prouse , 440 U.S. 648, 653 (1979).
-8-
A stop is reasonable if it is based on an observed traffic violation or a reasonable
articulable suspicion that such a violation has occurred or is occurring. United
States v. Botero-Ospina , 71 F.3d 783, 787 (10th Cir. 1995) (en banc). Reasonable
suspicion is “a particularized and objective basis” for suspecting the person
stopped of criminal activity. United States v. Cortez , 449 U.S. 411, 417-418
(1981); see also United States v. Callarman , 273 F.3d 1284, 1286 (10th Cir. 2001)
(“While either probable cause or reasonable suspicion is sufficient to justify a
traffic stop, only the lesser requirement of reasonable suspicion is necessary.”).
Mr. Favela first argues that “[n]o reasonable officer could have observed a
seatbelt violation under the scenario suggested by [Officer] Nabors.” Aplt’s Br.
at 27. He maintains that the record establishes that the traffic stop was made
because of Mr. Favela’s Hispanic heritage rather than because of Officer Nabor’s
observations of a seatbelt violation. In support of this argument, Mr. Favela lists
various inconsistencies between Officer Nabors’s statements at the preliminary
hearing, the motion to suppress hearing, and the trial. He points to differences in
the officer’s account of the order in which he asked questions and in whether the
questions were asked when Mr. Favela was still in the van or when he stepped out
of it. Mr. Favela also notes that Sergeant Kelly admitted on cross-examination
that “the nationality of the people sitting in front of the van” was “a predominant
factor in [his] decision to ask whether or not they were legal.” Aplt’s Br. at 21
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(citing Rec. vol II, at 104).
We are not convinced by Mr. Favela’s challenge to the initial stop. Here,
the district court made the factual finding that Officer Nabors observed an
unrestrained passenger in the front seat area of the van. None of the evidence
noted by Mr. Favela establishes that this finding was clearly erroneous. In light
of this factual finding, the accompanying legal conclusion is justified: Officer
Nabors had “a particularized and objective basis,” see Cortez , 449 U.S. at
417-418, for suspecting a violation of the Oklahoma seatbelt law. 5
Like the district court, we are not convinced that statements by Officer
Nabors and Sergeant Kelly that they noticed the ethnic appearance of Mr. Favela
and the passengers rendered the traffic stop unreasonable under the Fourth
Amendment. The fact that both officers noticed the ethnic appearance of Mr.
Favela and his passengers does not establish that it was that appearance—rather
than the reasonable suspicion of a traffic violation—that led to the initial stop.
Moreover, “[w]hen determining whether an officer possessed a reasonable
articulable suspicion, the subjective motivations of an arresting officer are
5
At oral argument, the parties noted that there was some dispute as to the
proper legal interpretation of the Oklahoma seatbelt law, as applied to facts at
issue here (i.e., a passenger in the middle of the front seat). However, Mr.
Favela’s counsel explained that, in this appeal, he is not challenging Officer
Nabors’s interpretation of the statute. Instead, counsel stated, Mr. Favela’s
argument is that the record does not support the district court’s finding that
Officer Nabors actually saw a woman kneeling in the front seat of the van.
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irrelevant.” Callarman, 273 F.3d at 1286 (citing Botero-Ospina, 71 F.3d at 787);
see also Whren v. United States, 517 U.S. 806, 813 (1996) (adopting an objective
approach). Thus, even if the officers’ statements were some evidence of a bias
against Hispanics (an inference the record does not support), the fact that Officer
Nabors had a reasonable basis to suspect a violation of the Oklahoma seatbelt law
establishes that the stop of the van was reasonable under the Fourth Amendment.
2. Continuing Detention
Mr. Favela further argues that, once Officer Nabors made the initial stop,
he had no legitimate basis for the questioning about the identity of the passengers
or their immigration status. Again, he maintains that Officer Nabors’s motivation
was race-based, and that the continuing detention therefore violated the Fourth
Amendment. We analyze this argument under the framework set forth in Terry v.
Ohio, 392 U.S. 1, 20 (1968), asking whether Officer Nabor’s continuing detention
of Mr Favela “was reasonably related in scope to the circumstances which
justified the interference in the first place.” see Botero-Ospina, 71 F.3d at 786.
Under the Fourth Amendment, a police officer conducting a traffic stop
may request vehicle registration and a driver’s license, run a computer check, and
issue a citation. United States v. Hunnicutt, 135 F.3d at 1345, 1349 (10th Cir.
1998). He or she may also ask about “travel plans . . . and the ownership of the
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car.” United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989). However,
after the officer has issued the citation and the driver has produced a valid license
and proof that he is entitled to operate the car, the officer must allow him to
proceed on his way without further delay. United States v. Holt, 264 F.3d 1215,
1221 (10th Cir. 2001) (en banc). In two circumstances, the officer may engage in
additional questioning: (1) if he or she “has an objectively reasonable and
articulable suspicion that illegal activity has occurred or is occurring;” and (2) if
the subject of the additional interrogation consents to it. United States v.
Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994) (citation omitted).
In assessing what constitutes an objectively reasonable suspicion of illegal
activity, we defer to “the ability of a trained law enforcement officer to
distinguish between innocent and suspicious actions.” See United States v.
McCrae, 81 F.3d 1528, 1534 (10th Cir. 1996) (internal quotation marks omitted).
We assess the officer’s conduct in the light of common sense and ordinary human
experience, considering the totality of the circumstances. United States v.
Melendez-Garcia, 28 F.3d 1046, 1051 (10th Cir. 1994).
This traffic stop jurisprudence does not support Mr. Favela’s argument.
Officer Nabor’s initial questions to Mr. Favela concerned his travel plans (i.e. “if
[Mr. Favela was on a trip, . . . if [the passengers] were all his family[,] . . . [and]
if it was a church function [or] church group”). See Rec. vol. II, at 11. As part
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of the initial inquiry during a legitimate traffic stop, these questions were not
unduly intrusive. See United States v. West, 219 F.3d 1171, 1176 (10th Cir.
2000) (“[Q]uestions about travel plans are routine and may be asked as a matter
of course without exceeding the proper scope of a traffic stop”) (internal
quotation marks omitted).
The next question asked by Officer Nabors—whether the passengers were
“legal”—cannot be so easily characterized as a routine question about travel
plans. However, at the time that he asked that question, Officer Nabors had
several grounds for suspecting illegal activity.
First, Mr. Favela’s negative answers to the questions about whether the
passengers were family members or a church group eliminated two lawful
activities that could explain the presence of such a large number of people in the
van. Second, Officer Nabors testified that he had learned of several instances in
which vans or other large vehicles had been stopped and officers had discovered
illegal aliens being transported across the country. See Rec. vol II, at 6. Some
of these stops had been made by the Clinton, Oklahoma Police Department.
Based on the totality of the circumstances confronting him, we conclude
that Officer Nabors’s question about the immigration status of the passengers was
justified by his observations. See United States v. Santana-Garcia, 264 F.3d
1188, 1193 (10th Cir. 2001) (holding that motorists’ negative response to the
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question “whether they were ‘legal’” established probable cause to arrest them
“for suspected violation of federal immigration law”) ; United States v. Salinas-
Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984) (stating that “[a] state trooper
has general investigatory authority to inquire into possible immigration
violations”). We therefore conclude that Officer Nabors’s questioning and the
continuing detention of Mr. Favela did not violate the Fourth Amendment.
B. Sufficiency of the Evidence
Mr. Favela argues that the evidence is insufficient to support his
convictions. This is a question of law that we examine de novo. United States v.
Magleby, 241 F.3d 1306, 1311 (10th Cir. 2001). We must determine “whether
taking the evidence—both direct and circumstantial, together with the reasonable
inferences to be drawn therefrom—in the light most favorable to the government,
a reasonable jury could find the defendant guilty beyond a reasonable doubt.”
United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir. 1999). We will
disturb the jury’s verdict only if our review leads us to conclude that no
reasonable jury could have found beyond a reasonable doubt that the defendant
was guilty of the crimes charged. Id.Mr. Favela was charged with and convicted of violating 8 U.S.C. §
1324(a)(1)(A)(ii), which makes it illegal for “[a]ny person who . . . knowing or in
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reckless disregard of the fact that an alien has come to, entered, or remains in the
United States in violation of law, transports, or moves or attempts to transport or
move such alien within the United States by means of transportation or otherwise,
in furtherance of such violation of law.” In order to establish a violation of §
1324(a)(1)(A)(ii), the government must prove: (1) that the defendant transported
or moved an alien within the United States, (2) that the alien was present in
violation of law, (3) that the defendant was aware of the alien’s status, and (4)
that the defendant acted willfully in furtherance of the alien’s violation of the
law. See United States v. Barajas-Chavez, 162 F.3d 1285, 1289 (10th Cir. 1999)
(en banc).
Here, Mr. Favela concedes that the government established the first two
elements. See Aplt’s Br. at 38. However, he argues that the government did not
prove beyond a reasonable doubt that he knew of the passengers’ illegal status or
that he acted willfully.
In support of this contention, he first argues that his answer to the question
whether the passengers were “legal” was ambiguous. According to Mr. Favela, he
could have been referring to the passengers not wearing seatbelts or to there being
too many people in the van. Similarly, he maintains that his reference to the
passengers being “good people” was evidence that he believed that they were in
the country legally. Aplt’s Br. at 37. In general, he asserts that, in light of his
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limited understanding of English, little weight should be given to his responses to
the Clinton police officers’ questions.
Mr. Favela also points to evidence supporting an inference of a good faith
belief that the passengers were legally in the country. He observes that he picked
up his passengers far north of the border, that he had no previous contact with
them, that many people were traveling lawfully during this time in order to obtain
work, and that it was customary for people to travel in groups. Mr. Favela also
points to several factors that support the inference that he ran a legitimate
transportation business: the van was not constructed to hide passengers, he
traveled during the day, he obtained a liability policy providing extensive
coverage in case of an accident, and the van was registered properly.
We are not convinced by Mr. Favela’s arguments. The facts to which he
directs us establish only that the evidence is conflicting as to his state of
knowledge. As the government observes, there are also facts that controvert Mr.
Favela’s interpretation. For example, the alien witnesses testified that, only a few
days after their arrival in the United States, Mr. Favela picked them up, along
with the other passengers, at a unfurnished two-to-three room trailer in Phoeniz,
Arizona, some 1,231 miles away from Huntsville, Texas (where Mr. Favela
usually resided). Additionally, Mr. Favela’s van contained a subscriber
agreement for a cellular telephone, which listed a false address in Florida as Mr.
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Favela’s home address. A jury could reasonably view these facts as supporting
the government’s contention that Mr. Favela knew that he was transporting illegal
aliens.
More importantly, Mr. Favela gave incriminating answers to the Clinton
police officers’ questions about the passengers, admitting that they were not
“legal” and asking the officers to give the “good people” a break. Although these
answers are arguably ambiguous, any such ambiguities merely presented factual
questions for the jury to resolve. United States v. Horn, 946 F.2d 738, 743 (10th
Cir. 1991) (noting that a rational jury could interpret ambiguous testimony in
favor of the government).
Because we must view the record in the light most favorable to the
government, see Hanzlicek, 187 F.3d at 1239, we conclude that the evidence is
sufficient to support Mr. Favela’s convictions.
C. Brady Claim
Mr. Favela argues that the INS withheld material, exculpatory evidence in
violation of Brady v. Maryland , 373 U.S. 83 (1963) . The evidence in question is
a false resident alien card and a false social security card possessed by Mr.
Estrada, one of the passengers whose video deposition was taken and played at
trial. Mr. Favela states that he did not learn of these false documents until the
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July 5, 2000 suppression hearing, well after Mr. Estrada had been returned to
Mexico and was no longer available.
According to Mr. Favela, this evidence was material because it would have
shown that he lacked knowledge that the passengers were illegal aliens (i.e., if
they appeared to have legitimate documents, then Mr. Favela could not have
committed the charged offenses knowingly and willingly). Mr. Favela also
asserts that he could have used the evidence to impeach Mr. Estrada (by
suggesting that, because he had false documents, he may have testified falsely
about other matters).
In order to establish a Brady violation, a defendant must demonstrate that
(1) the prosecution suppressed evidence, (2) the evidence was favorable to the
defendant, and (3) the evidence was material. United States v. Quintanilla, 193
F.3d at 1139, 1149 (10th Cir. 1999); see also Brady, 373 U.S. at 87. Evidence is
material under Brady if there is a “reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
different.” United States v. Bagley, 473 U.S. 667, 682 (1985).
Here, the evidence in question (the false identification documents) was
introduced at trial—through INS Special Agent Stephen Merrill. Thus, the only
difference in what would have happened if the INS had timely disclosed these
documents before Mr. Estrada’s video deposition is that Mr. Favela’s counsel
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could have confronted the witness with them directly, rather than indirectly, by
challenging Mr. Favela’s credibility in closing argument. See Aples’ Br at 44-45
(noting that Mr. Favela’s lawyer mentioned in his closing argument that none of
the passengers “had . . . papers”).
Mr. Favela has failed to demonstrate a reasonable probability that this
difference in the means of impeachment would have affected the result of the
trial. Thus, the withheld evidence lacks materiality and his Brady argument is
without merit.
D. Deportation of Potential Witnesses
Mr. Favela argues that the immediate deportation of eighteen out of the
twenty passengers violated his due process and Sixth Amendment rights by
depriving him of material evidence and by failing to provide him with an attorney
before he waived the right to delay deportation.
Mr. Favela’s argument is undermined by the language of the waiver form
that he signed. See Rec. vol. I, doc. 77, at 6-7 n.11 (District Court Order, filed
July 12, 2000). That form, presented to Mr. Favela in Spanish and signed by him,
states that Mr. Favela waives his right to delay the witnesses’ deportation and also
informs him that he has a right to a government appointed lawyer to advise him
on the decision: See id. (noting that the form stated, “You have the right to have
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a lawyer assist you at this time in making this decision to retain or release these
witnesses; if you cannot afford a lawyer, the United States government will
provide you one at no cost to you.”).
Mr. Favela argues in conclusory fashion that the waiver is invalid. See
Aplt’s Br. at 44. His conclusory statements are not sufficient to overcome the
waiver. See Lujan-Castro, 602 F.2d at 878 (affirming the district court’s finding
that a similar waiver was knowingly and voluntarily executed and stating that
“[t]he district court’s conclusion that the waiver was knowingly and intelligently
executed is a finding of fact that may not be disturbed unless clearly erroneous”).
Moreover, Mr. Favela has failed to establish that any of the eighteen passengers
who were deported could have provided exculpatory evidence.
We therefore conclude that the deportation of the eighteen witnesses did
not violate Mr. Favela’s right to counsel or his due process rights.
E. Evidentiary Rulings
Mr. Favela sets forth a list of alleged evidentiary errors: (a) allowing the
government to use “buzzwords” like “smuggler,” “safehouse,” and “staging area,”
see Aplt’s Br.at 47; (b) allowing testimony from INS agent McDonald as to a
widespread smuggling problem; (c) allowing the jury to be informed of the grand
jury indictment; (d) using a financial affidavit, in which Mr. Favela stated that he
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was indigent, to impeach his statements about having a legitimate business; (e)
refusing to allow him to use a videotape that concerned the relative speed of the
vehicles at the time of the traffic stop.
We review a district court’s rulings on evidentiary matters for abuse of
discretion. United States v. Weller, 238 F.3d 1215, 1220 (10th Cir. 2001). “In
order to reverse a district court judgment on account of an evidentiary ruling, [an
appellant] must make a clear showing [he] suffered prejudice, and the ruling was
inconsistent with substantial justice or affected h[is] substantial rights.” Coletti v.
Cudd Pressure Control, 165 F.3d 767, 773 (10th Cir. 1999) (internal quotation
marks omitted).
Upon review of the record, we discern no grounds for reversal. As the
government notes, many of Mr. Favela’s arguments are conclusory and provide no
citations to the record and no explication of the legal authority supporting the
claims of error. In any event, Mr. Favela has not established that any of these
rulings was “inconsistent with substantial justice or affected h[is] substantial
rights.” Id. (internal quotation marks omitted). 6
6
We do view one evidentiary issue with some concern: the government’s
introduction of a financial affidavit (signed by Mr. Favela in order to have
counsel appointed for him). The government introduced this affidavit in order to
rebut Mr. Favela’s contention that he ran a legitimate business. The district court
ruled that the affidavit was part of the court record and could be used for
impeachment. See Rec. vol. VI, at 807.
(continued...)
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F. Cumulative Error
Finally, Mr. Favela argues that the cumulative errors of the government and
the trial judge warrant a new trial. “[C]umulative-error analysis should evaluate
only the effect of matters determined to be error, not the cumulative effect of
non-errors.” United States v. Rivera , 900 F.2d 1462, 1471 (10th Cir.1990).
Because Mr. Favela has not shown any individual errors, he cannot prevail on his
claim of cumulative error.
6
(...continued)
In United States v. Hardwell, 80 F.3d 1471, 1483 (10th Cir. 1996), this
court held that the government violated the defendant’s Fifth Amendment right
against self incrimination by offering, as part of its case in chief, statements made
the defendant to establish eligibility for appointed counsel.
In this case, the government attempts to distinguish Hardwell by arguing
that it used the affidavit only to impeach witnesses who testified that Mr. Favela
had a legitimate transportation business. For several reasons, we need not decide
in this case whether the government’s attempt to distinguish Hardwell is
persuasive.
First, Hardwell involves a Fifth Amendment right. In his opening brief,
Mr. Favela argues that the admission of the financial affidavit was an evidentiary
error, but he does not raise a Fifth Amendment claim. Thus, we need not consider
the argument that the admission of the affidavit violated his Fifth Amendment
rights. See United States v. Murray, 82 F.3d 361, 363 n. 3 (10th Cir. 1996)
(declining to consider arguments raised for the first time in a reply brief).
Moreover, any Fifth Amendment violation arising out of the introduction
of the financial affidavit is still subject to review for harmless error. See
Hardwell, 80 F.3d at 1483 (noting that the financial affidavit had little relevance
to one of the charges and therefore affirming that conviction). Here, the
government presented other evidence to rebut Mr. Favela’s contention that he ran
a legitimate business. Thus, the admission of the affidavit was harmless.
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III. CONCLUSION
For the reasons set forth above, we AFFIRM Mr. Favela’s convictions and
sentences.
Entered for the Court,
Robert H. Henry
Circuit Judge
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