United States v. Vasquez ( 2007 )


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  •                                                                            United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS 16, 2007
    July
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    No. 05-41404
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    GUADALUPE VASQUEZ; DAVID VASQUEZ, Jr.,
    also known as David Vasquez,
    Defendants-Appellants
    Appeals from the United States District Court
    for the Southern District of Texas
    (04-CR-369)
    Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.
    PER CURIAM:*
    Defendants-Appellants David Vasquez, Jr. (“David”) and Guadalupe
    Vasquez (“Guadalupe”), collectively “the Vasquez brothers” or “the defendants,”
    were convicted by a jury of (1) conspiracy to commit mail fraud and to commit
    extortion under color of official right, (2) aiding and abetting mail fraud, and (3)
    aiding and abetting extortion under color of official right. David was also
    convicted of three counts of violating the Travel Act to promote state bribery.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    No. 05-41404
    They challenge their convictions on the grounds that (1) the record on appeal is
    incomplete, and (2) the admission of the recorded conversations between an
    alleged unindicted co-conspirator and an undercover agent violated their Sixth
    Amendment confrontation rights. We affirm.
    I. Facts and Proceedings
    David was the superintendent of schools for Santa Rosa Independent
    School District (“S.R. ISD”), and Guadalupe was a member of the S.R. ISD board.
    Daniel Rodriguez worked as a frontman at Conceptual Reality, Inc., (“CRI”), an
    architectural firm, that had entered into illegal contracts with the schools.
    As part of an investigation of corruption in the awarding of municipal
    contracts in the Rio Grande Valley, Special Agent Ozvaldo Alaniz (“Agent
    Alaniz”), working undercover, became acquainted with Rodriguez. Agent Alaniz
    represented himself to be a vendor of school supplies and furniture. Rodriguez
    introduced Agent Alaniz to city, school, and other elected officials in the Rio
    Grande Valley, including the defendants. Rodriguez told Agent Alaniz that he
    had payed bribes to local officials to convince them to award contracts to CRI.
    Specifically, Rodriguez indicated that he had bribed the Vasquez brothers in the
    past, giving them cash and paying for vacations.
    Through Rodriguez, Agent Alaniz attempted to enter into a contract with
    S.R. ISD. David informed Agent Alaniz that the only supplies the schools
    needed were tires. Agent Alaniz asked if there were any personal items that
    David needed; David indicated that he needed new tires for his truck. Agent
    Alaniz delivered the tires to the school district, but David had already purchased
    his own tires. David agreed with Agent Alaniz that Guadalupe should receive
    the tires. In the end, Agent Alaniz purchased tires for Guadalupe’s daughter
    and son-in-law.
    Rodriguez purchased airline tickets to Las Vegas and paid for meals and
    a hotel room in Las Vegas for the defendants. David told federal officers that he
    2
    No. 05-41404
    believed that Rodriguez had paid for the trip to thank David for helping
    Rodriguez obtain a school contract. David further admitted asking Rodriguez
    to pay for another brother, Danny Vasquez, to fly to Washington, D.C. David
    also acknowledged that Al Cardenas, who had been pursuing a large
    construction contract with the school district, obtained a female escort service
    for David. And, the construction contract was awarded to Cardenas.
    The Vasquez brothers were convicted by a jury on the above named counts.
    David also was convicted of violating the Travel Act to promote state bribery.
    David was sentenced to a 48-month term of imprisonment to be followed by a
    three-year term of supervised release. He was ordered to pay a $75,000 fine and
    a special assessment fee. Guadalupe was sentenced to a 54-month term of
    imprisonment to be followed by a three-year term of supervised release. He was
    ordered to pay a $60,000 fine and a special assessment fee. The defendants
    timely filed a notice of appeal.
    We extended the briefing deadline at the request of the defendants’
    appellate counsel, who had not represented them at trial, based on her report
    that there were large portions of the record missing and that the transcript of
    the trial was incomplete. Missing from the record were thirty-two recordings,
    including the conversations recorded by Agent Alaniz that were admitted at
    trial, as well as government exhibits. Appellate counsel had contacted the Clerk
    of Court for the Southern District of Texas, but the clerk had neither any record
    of the exhibits introduced at trial by the government nor any transcripts of the
    tape recordings admitted at trial. In her brief, counsel asserted that the gaps in
    the record require that the defendants’ convictions be reversed and a new trial
    granted. After the defendants’ brief was filed, however, the tape recordings were
    sent to us by the district court.     In addition, the government submitted
    transcripts of excerpts of those tape recordings when it filed its brief. Thus, the
    record before us, to which counsel had access, is now complete. Although we
    3
    No. 05-41404
    allowed the defendants’ counsel time to file a supplemental brief, she has failed
    to do so.
    II. Law and Analysis
    A.     Right to a Complete Record on Appeal
    “[A] criminal defendant has a right to a record on appeal which includes
    a complete transcript of the proceedings at trial.”1 Similarly, the Court Reporter
    Act requires that a court reporter “shall record[] verbatim by short hand . . . or
    any other method . . . all proceedings in criminal cases had in open court.”2
    When, as here, “a criminal defendant is represented on appeal by counsel other
    than the attorney at trial, the absence of a substantial and significant portion
    of the record, even absent any showing of specific prejudice or error, is sufficient
    to mandate reversal.”3 Ordinarily in such a case, we remand to the district court
    for a determination whether the record can be reconstructed.4 Here, however,
    remand is not necessary, as the record before us is now complete.5
    B.     Confrontation Clause
    The Vasquez brothers also contend that the admission of Rodriguez’s
    statements violated their rights under the Confrontation Clause.                         “The
    Confrontation Clause prohibits the admission of an out-of-court testimonial
    statement unless the witness is unavailable and the defendant has had a prior
    1
    United States v. Selva, 
    559 F.2d 1303
    , 1305 (5th Cir. 1977) (Selva II).
    2
    
    28 U.S.C. § 753
    (b).
    3
    Selva II, 
    559 F.2d at 1306
     (footnote omitted).
    4
    See, e.g., United States v. Taylor, 
    607 F.2d 153
    , 155 (5th Cir. 1979); United States v.
    Selva, 
    546 F.2d 1173
    , 1174-75 (5th Cir. 1977) (Selva I).
    5
    See United States v. McCusker, 
    936 F.2d 781
    , 785 and n.4 (5th Cir. 1991) (per curiam)
    (finding that none of the record was missing where tape recordings introduced and played at
    trial, but not simultaneously transcribed by the court reporter, were included in the record on
    appeal).
    4
    No. 05-41404
    opportunity to cross-examine the witness.”6 “This prohibition is ‘irrespective of
    whether the statement falls within a firmly rooted hearsay exception or bears
    particularized guarantees of trustworthiness.’”7                      “Confrontation Clause
    objections that were properly raised at trial are reviewed de novo, subject to
    harmless error analysis.”8
    Although the Vasquez brothers objected to the admission of Rodriguez’s
    statements on both hearsay (the denial of which has not been appealed) and
    Confrontation Clause grounds, the government contends that the Vasquez
    brothers have not preserved this objection on appeal, as, it asserts, they did not
    state the specific ground of objection, i.e., that Rodriguez’s statements were
    testimonial. The government therefore urges us to apply plain error review.
    This argument fails. When a criminal defendant objects on Confrontation
    Clause grounds, he is implicitly contending that the challenged statement is
    testimonial. After all, a statement that is not testimonial cannot violate the
    6
    United States v. Acosta, 
    475 F.3d 677
    , 680 (5th Cir. 2007).
    7
    United States v. Pryor, 
    483 F.3d 309
    , 312 (5th Cir. 2007) (citing Crawford v.
    Washington, 
    541 U.S. 36
    , 59 (2004) and quoting United States v. Holmes, 
    406 F.3d 337
    , 348
    (5th Cir. 2005)). To the extent the government argues that we have rejected the Vasquez
    brothers’ assertion that the fact that a statement is excluded from the hearsay definition by
    Rule 801(d)(2)(E) does not dispose of the confrontation clause issue, it is clearly incorrect.
    United States v. Delgado, 
    401 F.3d 290
    , 299 (5th Cir. 2005), cited by the government, is not
    to the contrary. In Delgado, the court noted that the statements at issue were both non-
    testimonial and admissible hearsay. The court did not hold that the statements were non-
    testimonial because they were admissible hearsay.
    The government argues at length that the statements at issue fall within Rule
    801(d)(2)(E) of the Federal Rules of Evidence. The defendants, however, have not appealed the
    denial of their hearsay objections.
    8
    Pryor, 
    483 F.3d at 312
     (quoting United States v. Jiminez, 
    464 F.3d 555
    , 558 (5th Cir.
    2006)).
    5
    No. 05-41404
    Confrontation Clause.9 Accordingly, we review the defendants’ Confrontation
    Clause challenge de novo.
    The Vasquez brothers contend that, because the “jig [was] up” for
    Rodriguez by the time the FBI started investigating the Vasquez brothers,
    Rodriguez’s statements were testimonial.                There is nothing in the record,
    however, to suggest that Rodriguez was aware that his conversations with Agent
    Alaniz were being recorded. Instead, it appears that Rodriguez made the
    statements at issue unwittingly to an undercover officer. Thus, the statements
    are not testimonial and their admission does not violate the Vasquez brothers’
    Confrontation Clause rights.10
    III. Conclusion
    Finding no error, we AFFIRM.
    9
    Crawford v. Washington, 
    541 U.S. 36
    , 59 (2004); Holmes, 
    406 F.3d at 348
     (“Because
    the categorical rule adopted in Crawford is triggered only with respect to ‘testimonial’ evidence,
    whether a challenged statement falls within the class of evidence deemed ‘testimonial’ will
    generally be outcome-determinative.”).
    10
    See Davis v. Washington, __ U.S. __, 
    126 S. Ct. 2266
    , 2275 (2006) (citing Bourjaily
    v. United States, 
    483 U.S. 171
    , 181-184 (1987) and noting that “statements made unwittingly
    to a Government informant” were “clearly nontestimonial”).
    6