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United States v. Alejandro Ceniceros , 555 F. App'x 408 ( 2014 )


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  •      Case: 13-10281      Document: 00512536856         Page: 1    Date Filed: 02/19/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-10281                       February 19, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALEJANDRO ARAGON CENICEROS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-96-39
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Alejandro Aragon Ceniceros (Aragon) appeals his
jury trial conviction of conspiracy to possess with intent to distribute five
kilograms or more of cocaine and possession with intent to distribute 500
grams or more of cocaine. Aragon contends that the district court violated his
due process rights by prohibiting him from presenting testimony from a
defense witness, Jose Flores. He asserts that the government substantially
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-10281     Document: 00512536856      Page: 2   Date Filed: 02/19/2014
No. 13-10281
interfered with Flores’s decision whether to testify by threatening that he
would be indicted for additional crimes and that his plea agreement would be
invalidated if he testified for the defense.
The existence of substantial governmental interference with a defense
witness’s free and unhampered choice to testify is a factual question that we
typically review for clear error. United States v. Thompson,
    130 F.3d 676
    , 686-
87 (5th Cir. 1997). As Aragon did not raise a claim of substantial interference
in the district court, however, our review is for plain error only. See Puckett v.
United States,
    556 U.S. 129
    , 134 (2009); United States v. Binker,
    795 F.2d 1218
    ,
1228 (5th Cir. 1986). And, he cannot succeed on plain error review because his
claim of substantial interference could have been resolved if he had properly
raised it in the district court. See United States v. Chung,
    261 F.3d 536
    , 539
(5th Cir. 2001).
In any event, Aragon cannot demonstrate error, plain or otherwise, with
regard to his claim of substantial interference. See Puckett,
    556 U.S. at 134
    ;
United States v. Viera,
    839 F.2d 1113
    , 1115 (5th Cir. 1998) (en banc);
Thompson,
    130 F.3d at 686-87
    . He has failed to show that the government
substantially interfered with Flores’s free decision to testify or that his defense
was prejudiced by any such interference. See Viera, 839 F.2d at 1115. The
record does not reflect that the government made any threats, express or
implied, directed at Flores or related to him. There is no indication that the
government’s discussion with Flores’s counsel or its arguments to the district
court about the likely consequences of Flores’s testimony were improper. See
id.; Thompson,
    130 F.3d at 687
    . Furthermore, the record reflects that Flores’s
decision not to testify was an informed choice based on his concerns about self-
incrimination and future prosecution and was not the result of impermissible
interference by the government. See United States v. Girod,
    646 F.3d 304
    , 312
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Case: 13-10281    Document: 00512536856     Page: 3   Date Filed: 02/19/2014
No. 13-10281
(5th Cir. 2011); United States v. Bieganowski,
    313 F.3d 264
    , 291 (5th Cir. 2002).
Neither has Aragon shown that Flores’s testimony would have been material
or exculpatory. See Viera,
    839 F.2d 1115
    ; Puckett,
    556 U.S. at 135
    .
AFFIRMED.
3