United States v. Zacarias ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-50482
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUAN CARLOS ZACARIAS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(EP-99-CR-1642-H)
_________________________
June 1, 2001
Before SMITH, BENAVIDES, and DENNIS, U.S.C. § 1203. Finding no sentencing error,
Circuit Judges. and that any error in excluding evidence was
harmless, we affirm.
JERRY E. SMITH, Circuit Judge:*
I.
Juan Zacarias appeals his conviction of, and Zacarias was convicted of taking part in the
sentence for, hostage taking in violation of 18 kidnaping of Leonard Mickens. The kidnaping
occurred when Mickens drove his prospective
brother-in-law, Mario Sanchez, to a house in
*
Pursuant to 5TH CIR. R. 47.5, the court has Ciudad Juarez, Mexico. Mickens testified that
determined that this opinion should not be published shortly before midnight, Mario Sanchez asked
and is not precedent except under the limited his sister, Erica Sanchez, to drive him to
circumstances set forth in 5TH CIR. R. 47.5.4.
Juarez, but Mickens volunteered to drive, be- told Mickens that he also wanted the title to
cause he thought it was too late for Erica to Mickens’s Isuzu Rodeo.
make the trip.
Mickens testified that the next day he, Juan,
Mickens drove to a house that Sanchez di- Chuy, and two men with guns went to a
rected him to in Juarez, just across the border restaurant in Juarez, where they discussed ar-
and not far from the Zaragoza Bridge. Once rangements for getting the title and money.
there, Mickens waited in his truck while San- Mickens thought about running away at that
chez engaged in a long conversation with an point but did not, because of the presence of
unidentified man outside the house. Sanchez the two men with guns who were “body
and the man then went into the house. guarding” him.
Eventually, Mickens became impatient and
went to the house to see whether Sanchez was Instead, Mickens offered to cross the
ready to leave. border into the United States, get the money
and title, and return. Unsurprisingly, his
When he went inside the house, Mickens captors declined this offer. Instead, they let
saw seven to ten men with guns. He tried to Mickens place a telephone call from a pay
leave, but the men pushed him back into the telephone to his friend Rod Redic in El Paso.
house and restrained him with tape. Redic testified that he received a call at his
girlfriend’s house from a person wanting
Mickens learned later that the men “$5,000 and title to the truck,” but that he
kidnaped him because Sanchez was involved in could not understand exactly what this person
illegal drug-trafficking and owed the kidnapers wanted him to do. Mickens then got on the
$100,000 on a drug debt. Sanchez also was line and asked Redic to bring $5,000 and the
abducted, and, at the time of trial, his title to the Rodeo.
whereabouts were unknown.
Mickens then relayed to Redic instructions
Mickens testified that men with guns he received from Juan, telling Redic to take
grabbed him and taped his body and head so the money and title just over the Zaragoza
that he could not see. They also “pok[ed]” Bridge onto the Mexican side, where he was
him with guns while he was restrained with to meet Juan between 5:00 and 5:30 p.m.
tape. Mickens did not testify that Zacarias Mickens described Juan as a “big, heavy-set,
was present when he was taken hostage. He black guy.” Mickens then was taken back to
did testify, however, that over an hour later, the house, where he watched the Olympics on
ZacariasSSwho was referred to as “Juan” and television. During this time, Chuy departed,
“Juanito,”SSwas present in the house where leaving only Juan and the two men with guns
Mickens was being held and helped remove holding Mickens.
the tape from Mickens.
Meanwhile, Redic collected the title and
Another man referred to as “Chuy” also $4,000 from Mickens’s father, who testified
was present. Juan asked Mickens how much that he gave the money because Redic told him
money he could give them. Mickens replied that “my son was being held by someone, and
that he could give about $5,000. Juan then they demanded this money and title for his
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release.” Redic then added $1,000 of his own At trial, Mickens and Redic again identified
money and went across the Zaragoza Bridge, Zacarias, and Zacarias was convicted of hos-
as instructed. tage taking. At sentencing, and over Zacarias’
objections, the court applied a six level upward
Mickens testified that about 5:00 p.m., Juan adjustment pursuant to U.S.S.G. § 2A4.1-
and one of the men with a gun left the house, (b)(1), because a ransom demand was made,
presumably to meet Redic. Redic testified that and a two-level increase pursuant to U.S.S.G.
after he had parked on the Mexican side of the § 2A4.1(b)(3), because a dangerous weapon
bridge, a vehicle pulled up beside him; the was used.
driver motioned him to come over. Redic got
into the car in which sat only one man, whom II.
Redic later identified as Zacarias. Redic was Zacarias argues error as a matter of law in
told that his friend was all right, and he then the six-level increase for the ransom demand.
handed over the money and title. He contends that an upward adjustment can be
made under § 2A4.1(b)(1) only if a ransom de-
Mickens testified that the man with the gun mand is made on the government.
who had gone with Juan returned to the house,
and that the two men took him to the bridge, We conduct a de novo review of the
where he was released. He saw Redic there application of the Sentencing Guidelines. See
and walked over and got into Redic’s car, United States v. Rocha, 916 F.2d 219, 242
whereupon they crossed the border. (5th Cir. 1990). “The Sentencing Guidelines
are subject to the rules of statutory
During the investigation of the kidnaping, construction.” Id. at 243 (citation omitted).
an informant told the FBI that Zacarias was “[T]his court follows the clear, unambiguous
involved, and provided an FBI agent with language of the Guidelines if there is no
Zacarias’s pager number. One of Mario San- discernible manifestation of contrary intent.”
chez’s sisters, who had been negotiating for Id.
his release, also provided the FBI with the
same pager number, which was given to her by Section 2A4.1(b)(1) provides that “[i]f a
the person with whom she had been ransom demand or a demand upon government
negotiating, who identified himself as “Juan.” was made, increase by 6 levels.” Zacarias
The pager number was listed in the name of argues that this means that if a ransom demand
Mario Zacarias, Juan’s brother, and the or other demand was made on the
address listed on the account was Juan’s government, an increase is applicable, but that
parents’ house. the increase in no way applies to cases in
which ransom demands are made on
After collecting this information, the FBI individuals. He arrives at this conclusion by
compiled photo arrays of five individuals with citing the “doctrine of the last antecedent” and
similar builds and facial features to Zacarias. then giving this doctrine its opposite meaning.
After being shown the photos separately,
Mickens and Redic identified Zacarias as the Zacarias quotes United States v. Campbell,
kidnaper known as “Juan.” 49 F.3d 1079, 1086 (5th Cir. 1995), which
states that “qualifying words, phrases, and
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clauses are to be applied to the words or the use of guns by others cannot be attributed
phrases immediately preceding, and are not to to him for sentencing purposes. Unfortunately
be construed as extending to . . . others more for Zacarias, this interpretation ignores the
remote.” Just so, and because of the doctrine plain language of the guidelines.
of the last antecedent, Zacarias’s interpretation
is completely wrong. Section 1B1.3(a)(1)(A) allows the court to
consider “all acts and omissions committed,
The words “upon government” qualify only aided, abetted, counseled, commanded,
“demand” but not the disjunctive “ransom de- induced, procured, or willfully caused by the
mand” that appears before the “or.” Cf. Reiter defendant” in determining relevant conduct for
v. Sonotone Corp., 442 U.S. 330, 339 (1979) sentencing guideline purposes. Further,
(stating that terms connected by the disjunctive § 1B1.3(a)(1)(B) states that “all reasonably
are to be given separate meanings). The court foreseeable acts and omissions of others in
correctly applied the six-level increase for a furtherance of the jointly undertaken criminal
ransom demand. activity” constitute relevant conduct to be con-
sidered by the court . Finally, the defendant
III. can be held accountable for the conduct of
Zacarias contends that the court erred in others whether or not the defendant is charged
making a two-level increase pursuant to with a conspiracy. See § 1B1.3(a)(1)(B),
§ 2A4.1(b)(3) for the use of a dangerous comment. (n.2).
weapon. He argues that he did not possess or
use a weapon during the commission of the Use of a dangerous weapon was more than
crime and that, because he was not indicted for reasonably foreseeable to Zacarias, who, in
conspiracy, he cannot be held accountable for fact, had actual knowledge that dangerous
the conduct of the men who had guns. weapons were being used as he directed the
holding and ransoming of Mickens. Thus, at
We review de novo any legal conclusions best Zacarias “aided” and “abetted” the use of
regarding application of the guidelines. See guns in holding Mickens, and, more probably,
United States v. Gonzalez, 996 F.2d 88, 91 he “counseled, commanded” and “induced” the
(5th Cir. 1993). Section 2A4.1(b)(3) provides use of the firearms. See § 1B1.3(a)(1)(A); cf.
that “[i]f a dangerous weapon was used, United States v. Aguilera-Zapata, 901 F.2d
increase by 2 levels.” “Use” of a dangerous 1209, 1212-16 (5th Cir. 1990).
weapon includes the discharge of a firearm or
conduct that amounts to “more than IV.
brandishing, displaying, or possessing a firearm Zacarias contends that the court deprived
or other dangerous weapon.” § 2A4.1, com- him of his Sixth Amendment right to
ment. (n.2); U.S.S.G. § 1B1.1, comment. confrontation and cross-examination when it
(n.1(g)). refused to admit into evidence a tape recording
of a conversation between the victim,
The district court correctly concluded that Mickens, and Francisco Sanchez, the brother
the use of guns to hold Mickens hostage was of Mario Sanchez, the other kidnaping victim.
a “use” under the guidelines. Zacarias does Zacarias contends that the tape would have
not disagree with this conclusion but avers that shown that Francisco Sanchez threatened
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Mickens by saying that someone had to “pay of a tape recording of a telephone
for what happened to his brother,” and that the conversation between Mickens and Francisco
tape would have impeached Mickens’s Sanchez. Zacarias argued that Francisco San-
testimony by showing that fear of Francisco chez stated on the tape that he was going to
Sanchez gave Mickens a motive to testify that “get everybody” in retaliation for his brother’s
Zacarias was a kidnaper. Zacarias contends kidnaping. Zacarias argued that Francisco
that the relevant evidence on the tape would Sanchez was dangerous and terrifying, that his
have discredited the other evidence against entire family was afraid of him, and that he
him, which consisted only of “weak out of threatened Mickens. Zacarias argued that the
court identifications and questionable in court tape constituted relevant evidence of Mick-
identifications.” ens’s motive for testifying against Zacarias,
i.e., to show that “somebody needs to go
The government contends that the court down on this case.”
properly excluded the recording, because the
information on the tape was not relevant, was The court offered to admit a portion of the
hearsay, and was only a collateral matter for recording that described Zacarias, identified as
impeachment. The government contends, in Juanito on the tape, as a fat person, because at
the alternative, that even if the exclusion of the trial, Zacarias was “not so fat.” The court
evidence was error, the error was harmless, concluded that nothing else on the tape was
because the evidence that identified Zacarias admissible “for any conceivable purpose.” The
was strong and was corroborated by other court explained that evidence of Francisco
evidence. Sanchez’s making threats was not admissible
or relevant, because he was not involved in the
A witness’s possible bias, prejudice, or mo- case.
tivation for testifying is relevant evidence. See
United States v. Alexius, 76 F.3d 642, 645 Zacarias’s attorney cross-examined Mick-
(5th Cir. 1996). The exclusion of evidence rel- ens concerning his fear of Francisco Sanchez,
evant to the bias or ulterior motive of a wit- and Mickens said that he was not afraid.
ness may violate the Sixth Amendment. Unit- When he was asked whether everyone in the
ed States v. Fortna, 796 F.2d 724, 734 (5th Sanchez family was afraid of Francisco San-
Cir. 1986). Nevertheless, a court retains broad chez, Mickens testified: “I wouldn’t say ev-
discretion “in restricting the scope of cross- erybody’s afraid of him. I will say he’s crazy.
examination, including how bias may be But I wasn’t afraid of him or nothing like
proved.” Id. (citations omitted). that.” Mickens reiterated that he did not have
any reason to be afraid of Francisco Sanchez.
We review a restriction on the scope of
cross-examination only for abuse of discretion. At that point, Zacarias’s counsel referred to
Alexius, 76 F.3d at 644. “[E]videntiary rulings the tape recording of the telephone
constitute reversible error only when they conversation between Mickens and Francisco
affect a defendant’s substantial rights.” Id. Sanchez. Mickens denied having a telephone
(citation omitted). conversation with Francisco Sanchez. Later,
during the defense’s presentation of its case,
Zacarias sought the admission into evidence Mickens testified that he did not remember
5
having the telephone conversation with Mickens’s friend, Roderick Redic, who
Francisco Sanchez. delivered the ransom and the truck title in
exchange for Mickens’s release, also identified
A portion of the tape was then played while Zacarias in a pretrial photographic line-up and
the jury was present. After hearing a portion at trial.
of the tape, Mickens identified his voice and
Francisco Sanchez’s voice, and Mickens iden- Moreover, an FBI agent testified that a
tified another person who was present during government informant had connected Zacarias
the telephone conversation that had been re- to the kidnaping and gave him a pager number
corded. that matched a pager number that the agent
had been given by another source. The pager
Zacarias’s counsel asked Mickens whether was registered to Zacarias’s parents’ house.
Francisco Sanchez had threatened him and The informant provided corroboration that Za-
“everyone else in the world” during the carias was involved in the kidnaping through
recorded conversation. Mickens denied that telephone calls made by the informant to the
Francisco Sanchez had threatened him. Za- pager number.
carias’s attorney offered the tape as
impeachment evidence. The court stated that Although Zacarias asserts that the out-of-
“it would be impeachment as to a completely court and in-court identifications were weak
collateral matter, so it’s not admissible.” The and questionable, the record does not support
court, however, allowed Zacarias to include this assertion. The eyewitnesses did not hes-
the tape as a record exhibit. On redirect, itate in their identifications of Zacarias, and
Mickens admitted that “people are afraid” of nothing in the record provides reason to
Francisco Sanchez but again denied that he question the reliability of the photo
was afraid of him. identification. Finally, Zacarias’s counsel also
took the opportunity to cross-examine Mick-
A witness’s biases and motivation for tes- ens about his fear of Francisco Sanchez.
tifying are “always relevant as discrediting the
witness and affecting the weight of his Even if Mickens’s motive for identifying
testimony.” Alexius, 76 F.3d at 645 (citation Zacarias as one of his kidnapers was fear of
and internal quotations omitted). Assuming Francisco Sanchez, the fact remains that Redic
arguendo that the district court erred by ruling separately identified Zacarias as the one to
that the alleged impeachment portion of the whom he paid the ransom. Thus, for Zacari-
tape recording was not admissible, the as’s theory of defense to be borne out, there
exclusion of the evidence was harmless, also must have been a reason for Redic not
because “it is clear beyond a reasonable doubt only to lie about Zacarias’s being the ransom-
that the error did not contribute to the er, but there must also have been a reason for
verdict.” Id. at 646 (citation omitted). Redic to pick out Zacarias’s photograph from
the photo line-up. Zacarias provided no evi-
Zacarias did not testify; his only defense dence casting doubt on Redic’s testimony, nor
was erroneous identification. In a pre-trial could he dispute the government’s
photographic line-up and at trial, Mickens corroborating evidence that a pager linked to
identified Zacarias as one of the kidnapers. Zacarias was used as part of the ransom
6
negotiations surrounding the holding of Mario
Sanchez.
There was ample evidence upon which to
convict, and, therefore, it is plain beyond a
reasonable doubt that any fear Mickens had of
Francisco Sanchez did not contribute to the
verdict. The exclusion of the alleged
impeachment evidence on the tape recording
was harmless.
V.
In his statement of the case, Zacarias makes
a passing charge that the evidence against him
was insufficient to support his conviction, but
he does not mention this challenge elsewhere
in his brief. We deem this issue waived,
because it was not adequately briefed. See,
e.g., United States v. Mullin, 178 F.3d 334,
340 n.1 (5th Cir. 1999).
AFFIRMED.
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