United States v. Javier Chaparro-Luna ( 2019 )


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  •      Case: 18-50941      Document: 00515156661         Page: 1    Date Filed: 10/11/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 18-50941
    FILED
    October 11, 2019
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                       Clerk
    Plaintiff - Appellee
    v.
    JAVIER FERNANDO CHAPARRO-LUNA,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 4:18-CR-41-1
    Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.
    PER CURIAM:*
    A jury convicted Javier Chaparro-Luna of aiding and abetting
    importation of 50 to 100 kilograms of marijuana. On appeal, he challenges
    three district court evidentiary decisions and argues that prosecutorial
    misconduct requires reversal. We AFFIRM.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50941     Document: 00515156661     Page: 2   Date Filed: 10/11/2019
    No. 18-50941
    FACTUAL AND PROCEDURAL BACKGROUND
    On January 31, 2018, and in the early hours of February 1, 2018, United
    States Border Patrol Agent Arturo Carrillo operated a thermal viewing device
    near Van Horn, Texas.       That night, Agent Carrillo saw three individuals
    walking north in an area often used for smuggling drugs from Mexico. Based
    on the heat signatures, it appeared to Carrillo that the people were carrying
    large backpacks that must have been rather heavy because they were leaning
    forward due to the weight on their backs.         Agent Carrillo believed the
    backpackers were almost certainly carrying marijuana or other narcotics. He
    immediately called his supervisor.      Nearby Border Patrol agents began
    tracking the three backpackers.
    Agent Carrillo kept watching the three backpackers on the thermal
    device and guided the other agents to where the backpackers had crossed a
    road.    The agents found shoeprints and were able to begin tracking the
    backpackers. As the agents got close to them, the backpackers abandoned their
    loads and began running. The agents found bags of marijuana and stopped
    their chase to secure the drugs. Two of the three backpackers ran toward the
    mountains. The third backpacker lingered. Agent Carrillo determined that
    the third backpacker was the one hiding in the thick brush.
    After several hours of continued surveillance, an individual emerged
    from the brush where Agent Carrillo believed a backpacker had been hiding.
    Agent Carrillo radioed another Border Patrol Agent, Julio Chavez, who was
    then able to locate and arrest this backpacker, who was the defendant,
    Chaparro. The agent asked Chaparro for the location of the rest of the group.
    According to Agent Chavez, Chaparro replied, “They left me” and “[h]e couldn’t
    keep up no more. He was tired already.” Agent Chavez took Chaparro to an
    area where the three backpackers had been walking earlier that evening.
    Agent Chavez compared the shoes that Chaparro had on to the shoeprints in
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    the dirt. He believed the prints could have been made by Chaparro’s shoes.
    Chaparro was then taken to the Van Horn Station for further questioning.
    Border Patrol Agent George Talavera informed Chaparro of his rights,
    and Chaparro signed a waiver of rights. He answered several questions, but
    once Drug Enforcement Agency (“DEA”) agents joined in the questioning, he
    invoked his right to counsel. That invocation ended the questioning. Later
    that day, Chaparro asked to see Agent Talavera in order to talk further with
    him. Chaparro signed a second waiver before any further interrogation. Both
    Agent Talavera and Chaparro testified at trial, giving different accounts as to
    what was said during the interrogations.
    Chaparro was found guilty of aiding and abetting the importation of 50
    to 100 kilograms of marijuana. The district court sentenced him to three years
    of imprisonment and three years of supervised release. On appeal, Chaparro
    challenges three evidentiary rulings: the admission of Chaparro’s confession,
    the exclusion of foreign depositions, and the exclusion of testimony by his
    expert. Chaparro also argues that prosecutorial misconduct merits reversal.
    DISCUSSION
    I.    Chaparro’s motion to suppress his confession
    When analyzing a district court’s denial of a motion to suppress, we
    review factual findings for clear error; we review de novo the legal conclusion
    that a confession was voluntary. United States v. Escamilla, 
    852 F.3d 474
    , 480
    (5th Cir. 2017). “We view the evidence in the light most favorable to the
    prevailing party,” here, the Government. 
    Id. The Government
    must prove
    voluntariness by a preponderance of the evidence. United States v. Reynolds,
    
    367 F.3d 294
    , 297–98 (5th Cir. 2004). “The voluntariness of a confession
    depends on whether, under the totality of the circumstances, the statement is
    the product of the accused’s free and rational choice.” 
    Id. at 298.
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    Before trial, Chaparro moved to suppress Agent Talavera’s account of
    their second conversation. He also requested an evidentiary hearing. During
    the pretrial conference, the district court concluded that Chaparro incorrectly
    styled his motion to suppress as a motion in limine and was untimely in filing
    it. The district court also concluded that it was undisputed that Chaparro
    signed a second waiver before the second interrogation. The district court
    denied the motion to suppress.
    Chaparro argues that the district court erred in finding his motion
    untimely and in failing to hold an evidentiary hearing to determine whether
    his confession was voluntary. We “may affirm the district court’s ruling for
    any reason supported by the record.” 
    Escamilla, 852 F.3d at 480
    . It thus is
    not necessary to analyze timeliness. We will consider only the merits of the
    motion to suppress along with the denial of an evidentiary hearing.
    A district court must determine outside the jury’s presence that a
    confession was voluntary before it may be presented to jurors. Jackson v.
    Denno, 
    378 U.S. 368
    , 377, 395 (1964). A defendant may request an evidentiary
    hearing on the issue of voluntariness by moving to suppress the confession.
    The court will be required to hold an evidentiary hearing if the motion or
    affidavits supporting the motion allege “sufficient facts which, if proven, would
    justify relief.” United States v. Harrelson, 
    705 F.2d 733
    , 737 (5th Cir. 1983).
    The alleged facts must be “sufficiently definite, specific, detailed, and
    nonconjectural.”   
    Id. Even without
    a motion, “when the evidence clearly
    reflects a question of the voluntariness of a confession, the trial court must
    raise the issue on its own motion.” United States v. Guanespen-Portillo, 
    514 F.3d 393
    , 402 (5th Cir. 2008). We review a denial of an evidentiary hearing for
    abuse of discretion. 
    Harrelson, 705 F.2d at 737
    .
    We first consider Chaparro’s motion. It was brief, made no assertions of
    facts at all, and argued simply that the court had to exclude confessions that
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    violated Miranda v. Arizona, 
    384 U.S. 436
    (1966). Because the motion made
    no factual allegations and attached no affidavit or other form of evidence, it
    was insufficient to warrant an evidentiary hearing.
    As to whether the evidence before the district court clearly reflected a
    question of the voluntariness of Chaparro’s confession, the record reveals that
    the pretrial conference was the first time the district court was presented with
    arguments about voluntariness. Chaparro’s counsel orally argued the motion
    but presented no evidence.     Evidence, not mere allegations, must clearly
    present a question of voluntariness. 
    Guanespen-Portillo, 514 F.3d at 402
    . No
    evidence at the pretrial conference raised a question of voluntariness because
    there was no evidence. Counsel’s statements do not substitute. United States
    v. Vaccaro, 
    115 F.3d 1211
    , 1218 (5th Cir. 1997).
    We now examine the evidence presented at trial.          Agent Talavera
    testified about his first conversation. He handed Chaparro a written form of
    Chaparro’s Miranda rights. Chaparro read it and did not have any questions.
    Agent Talavera then asked Chaparro if he was willing to talk to him. Chaparro
    said he was and signed a waiver of rights.         Agent Talavera then asked
    Chaparro questions about how he entered the United States.
    According to Agent Talavera, Chaparro told him that he had separated
    from two other people who had left him once he crossed the border. A cousin
    recruited him to bring a backpack of marijuana into the United States. If he
    successfully imported the marijuana, Chaparro said he was promised a job in
    oil fields near Odessa, Texas. He could not afford to pay someone to get him
    over the border without having to carry drugs, so this was his only option to
    enter the United States.
    Chaparro also told Agent Talavera that, initially, 10 people had set out
    to cross the border. They later separated into smaller groups that crossed in
    staggered patterns to avoid capture. They planned to meet at some point to
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    drop off the marijuana in an area near Interstate 10, around the location where
    Chaparro was seized by the Border Patrol. Once they became aware of Border
    Patrol agents, they scattered.
    Chaparro also added details about drug operations in Mexico. He told
    Agent Talavera that he had secretly filmed a plane of narcotics landing in the
    Mexican city of Coyame. He said if the Border Patrol could find his bag that
    he dropped containing water and his cell phone, then they would find the video.
    This bag was never recovered.
    At some point, the first conversation ended, and DEA agents arrived to
    question Chaparro about the marijuana. Chaparro refused to speak with those
    agents. Agent Talavera and the DEA agents then stopped all questioning. The
    DEA agents left, and Agent Talavera went back to his office in the same facility
    in which Chaparro was held.
    Agent Talavera also testified as to the second interrogation, stating that
    later that same day, Chaparro told another agent that he wanted to talk again
    with Agent Talavera. Agent Talavera asked Chaparro, “What’s going on?”
    Chaparro responded, “I want to talk to you some more.” Agent Talavera then
    typed an addendum in both English and Spanish that acknowledged that
    Chaparro “had invoked [his] right to request an attorney” with the DEA, but
    that he “agree[d] to speak with Border Patrol without the presence of a lawyer.”
    Chaparro signed the addendum. In recounting what Chaparro said, Agent
    Talavera did not clearly differentiate between the first and the second
    interrogations.
    Chaparro also gave his own account of both interrogations. As to the
    first, Chaparro testified that he agreed to speak with Agent Talavera, but that
    he told him only about what happened in Mexico. As to the second, he testified
    that when Agent Talavera returned, he gave Chaparro the new waiver of
    rights. Chaparro insisted he said nothing to Agent Talavera after signing the
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    waiver. Chaparro did not contradict the testimony that Agent Talavera gave
    a Miranda warning, that Chaparro signed the first waiver, and that he
    initiated the second conversation.     Chaparro admitted that he signed the
    second waiver. What Chaparro did dispute was confessing to any actions in
    the United States.
    When a defendant disputes having made a confession at all, the focus is
    no longer on voluntariness. 
    Guanespan-Portillo, 514 F.3d at 404
    . We conclude
    that nothing in the record raises the specific issue of voluntariness, and
    therefore there was no basis to claim error when the district court did not sua
    sponte decide to hold a hearing on that question. See 
    id. Instead, jurors
    were
    the ones who needed to decide whether to believe Agent Talavera’s testimony
    that Chaparro had confessed at all. See United States v. Williams, 
    343 F.3d 423
    , 438 (5th Cir. 2003).
    On appeal, Chaparro says there is a fact question as to who initiated the
    second conversation. He then argues that because a detainee who has invoked
    the right to counsel cannot later waive that right unless the detainee initiates
    further interrogation, the confession should have been suppressed.             See
    Edwards v. Arizona, 
    451 U.S. 477
    , 484–85 (1981). The problem with that
    argument is that there was no evidence or even assertion at the pretrial
    conference or at trial to contradict Agent Talavera’s account that Chaparro
    initiated the second conversation. That fact remained undisputed until appeal.
    It is too late to raise the Edwards issue, as I cannot be raised for the first time
    on appeal. 
    Guanespen-Portillo, 514 F.3d at 402
    . It was not.
    Chaparro also makes a one-sentence argument that Agent Talavera’s
    testimony as to the second conversation contradicts a report he wrote about his
    interview with Chaparro. The report does not indicate Chaparro and Talavera
    spoke twice. Instead, the report contains the core of the factual allegations to
    which Chaparro allegedly confessed. The report is better characterized as
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    incomplete as opposed to contradictory. Regardless, the district court was not
    put on notice of a question of voluntariness.
    The district court did not abuse its discretion by not holding an
    evidentiary hearing.
    II.    Chaparro’s motion for foreign depositions
    According to the Federal Rules of Criminal Procedure, “[a] party may
    move that a prospective witness be deposed in order to preserve testimony for
    trial. The court may grant the motion because of exceptional circumstances
    and in the interest of justice.” FED. R. CRIM. P. 15(a). Circumstances may be
    sufficiently exceptional when a witness cannot be served, is unlikely to return
    to the United States, and the prospective testimony is material to the moving
    party’s case. United States v. Dillman, 
    15 F.3d 384
    , 389 (5th Cir. 1994).
    Chaparro sought to depose members of his family who would testify that
    he borrowed money from them to pay someone to guide him to the United
    States illegally. The district court found that although Chaparro’s family was
    probably unavailable, the testimony would not be material. The court denied
    the motion. Chaparro argues that this denial was in error because the evidence
    was “critical” to his defense. He argues that his family’s testimony would
    indicate that he had a motive and means to come to the United States with the
    assistance of a smuggler and would not have had to carry the marijuana to
    enter the United States.
    In the precedent on which Chaparro principally relies, we reversed a
    district court’s refusal to permit a foreign deposition. United States v. Farfan-
    Carreon, 
    935 F.2d 678
    , 681 (5th Cir. 1991). The defendant, Farfan-Carreon,
    was arrested after marijuana was found concealed in his truck.           Farfan-
    
    Carreon, 935 F.2d at 679
    . He contended that he had no knowledge of the
    marijuana. 
    Id. To prove
    this, he sought to depose the man who gave him the
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    truck.     
    Id. The man
    allegedly would say that Farfan-Carreon had no
    knowledge of the marijuana when he was given the truck. 
    Id. We held
    that
    the potential testimony bore directly on Farfan-Carreon’s knowledge and was
    therefore material. 
    Id. at 680.
             In contrast, Chaparro sought depositions to bolster only one part of his
    story, namely, that he asked for and received money from his family. Unlike
    Farfan-Carreon, where the defendant alleged a single fact that would
    contradict an element of his charged crime and had a single witness who could
    testify to it, Chaparro sought deposition testimony that even if true would not
    categorically exculpate him.
    Moreover, even if this prospective testimony were material, any error
    committed by the district court was harmless. The confession and the accounts
    of the Border Patrol agents were sufficient to outweigh any deposition alleging
    that Chaparro had received money from his family.              This overwhelming
    evidence of guilt makes it highly unlikely that the prospective testimony would
    have had any impact on the verdict. See United States v. Bello, 
    532 F.2d 422
    ,
    423 (5th Cir. 1976).
    III.     Chaparro’s expert witness
    Chaparro sought to introduce a photogrammetry expert to analyze
    photographs taken by a Border Patrol agent of shoeprints found the morning
    of February 1, 2018. According to the record, photogrammetry is the analysis
    of data extracted from photographs and other images. When Agent Chavez
    encountered Chaparro, he compared the soles of Chaparro’s shoes to the
    shoeprints in the dirt and determined they were the same. Chaparro’s expert
    would testify that Chaparro’s shoes were not the ones that made the prints in
    the photograph. The Government argued for excluding the testimony, saying
    it first learned of the photogrammetry expert five days before the start of trial.
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    No expert report had yet been provided, though defense counsel orally
    summarized the testimony.        The district court in its oral ruling seemed
    primarily to rely on the late notice of the testimony as a basis for its exclusion,
    but the court also apparently accepted the Government’s argument that the
    witness was not shown to be an expert in analyzing photographs.
    On appeal, Chaparro makes two arguments challenging the exclusion.
    First, he asserts that his constitutional right to present a defense was infringed
    by the exclusion of his expert. Second, Chaparro contends that the district
    court erred in failing to qualify Chaparro’s expert.
    We see no constitutional issue here.        Chaparro failed to follow the
    requirements of Federal Rule of Criminal Procedure 16, which include
    providing at request a summary of expert testimony if the Government
    complies with a similar defense request, and the Rule also allows exclusion of
    evidence that has not been properly disclosed. FED. R. CRIM. P. 16(b)(1)(C),
    (d)(2)(C). We have upheld the exclusion of expert testimony for a defendant’s
    failure to provide a written summary of the testimony. United States v. Lundy,
    
    676 F.3d 444
    , 451 (5th Cir. 2012). The district court’s additional determination
    that the witness was not shown to be qualified to give expert testimony is an
    invocation of the demands of Federal Rule of Evidence 702, which requires
    such a determination before allowing testimony of a proposed expert.
    There is much in the briefing about these rules. We will not address the
    parties’ arguments because any error by the district court would be harmless.
    After Agent Chavez gave his testimony about his perception that the shoeprint
    and Chaparro’s shoes matched, jurors were informed of significant problems
    with the comparison. On cross-examination, Agent Chavez testified he could
    not remember what the shoeprints looked like. Agent Talavera testified he
    never looked at Chaparro’s shoes or tried to confirm the prints. Agent Carrillo
    testified he never looked at the shoeprints. Thus, the jury heard significant
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    evidence about weaknesses in the Government’s shoeprint-identification
    theory.
    Even more importantly, Chaparro undoubtedly had been walking either
    by himself or with others in this remote area near the border. He confessed to
    his purpose. Regardless of whether the discovered shoeprint was from his
    shoes or someone else’s, he was in that general location. Consequently, this
    overwhelming evidence of guilt makes it highly unlikely that the exclusion of
    the expert’s testimony would have had any impact on the guilty verdict. 
    Bello, 532 F.2d at 423
    .
    IV.     Prosecutorial misconduct
    Chaparro argues that the prosecutor at trial made prejudicial comments
    in a cross-examination and in closing argument. Because Chaparro did not
    object to the prosecutor’s statements at trial, we review for plain error. United
    States v. Aguilar, 
    645 F.3d 319
    , 323 (5th Cir. 2011).
    On cross-examination, the prosecutor asked Chaparro if Agent Talavera
    “had made up all that stuff you heard about yesterday.”           That was error
    because a prosecutor is not to question a defendant about another witness’s
    veracity.   See 
    Williams, 343 F.3d at 437
    .        To reverse for plain error, the
    comment must have “affected the substantial rights of the defendant.” 
    Id. Our analysis
    considers “(1) the magnitude of the prejudicial effect of the
    prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the
    judge, and (3) the strength of the evidence supporting the conviction.” 
    Id. First, the
    magnitude of the remark is small. The prosecutor’s cross-
    examination had led Chaparro to contradict directly the testimony of Agent
    Talavera. Chaparro had already implicitly called the agent a liar. We have
    previously held that the prejudicial effect of a remark like this is small. 
    Id. Second, the
    district court correctly instructed jurors that questions of
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    credibility were theirs to decide. See 
    Williams, 343 F.3d at 438
    . Third, the
    evidence against Chaparro was strong. We conclude that the prosecutor’s
    remark did not impact Chaparro’s substantial rights.
    Chaparro also challenges a question and two fact statements made by
    the prosecutor in closing arguments.          After the prosecutor recounted
    Chaparro’s side of the story, he rhetorically asked: “Does that story make any
    sense, ladies and gentlemen?” Chaparro contends the question amounts to a
    suggestion that Chaparro’s story was a “government conspiracy.”              The
    prosecution is not allowed to make such claims. United States v. Gracia, 
    522 F.3d 597
    , 602 (5th Cir. 2008).     A prosecutor, though, is allowed to argue
    “inferences and conclusions she wishes the jury to draw from the evidence so
    long as those inferences are grounded upon evidence.” United States v. Munoz,
    
    150 F.3d 401
    , 414–15 (5th Cir. 1998). In this case, the prosecutor recounted
    the story that Chaparro himself told and asked jurors to decide if it was
    believable. We see no similarity between those statements and a prosecutor’s
    assertion that “in order to find appellants not guilty, the jury would have to
    believe that several governmental agencies and even perhaps federal judges
    had engaged in a malevolent and illegal conspiracy to convict them.” United
    States v. Goff, 
    847 F.2d 149
    , 164 (5th Cir. 1988).
    Chaparro also challenges two fact statements made by the prosecutor.
    First, the prosecutor said, “There is no evidence that there is any surveillance
    video.” Second, the prosecutor argued that one of the photos of Chaparro
    showed markings that looked like they were from a backpack. Chaparro says
    that both comments were improper because they were not based on facts
    admitted into evidence. United States v. Mendoza, 
    522 F.3d 482
    , 491 (5th Cir.
    2008).
    Indeed, there was no surveillance video taken the night of February 1,
    2018, in the record.     The witness to whom Chaparro points concerning
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    surveillance video had suggested only that surveillance video could be taken
    by the thermal imaging device.        The witness did not suggest that the
    Government had such video or deleted it.            In post-trial hearings, the
    Government stated that these videos are deleted by Border Patrol no later than
    one week after being recorded. At trial, though, there was no evidence of
    surveillance video.    Moreover, the photos could have shown backpack
    markings. It was up to the jury to decide, but it is not error for a prosecutor to
    highlight evidence and suggest the inferences and conclusions she wishes the
    jury to draw from that evidence.        
    Munoz, 150 F.3d at 414
    –15.          These
    statements and the question were not improper.
    AFFIRMED.
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