United States v. Hernandez-Acuna ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 17, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-30555
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
OSIEL HERNANDEZ-ACUNA
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
No. 04-50092-02
Before KING, GARWOOD, and JOLLY, Circuit Judges.
PER CURIAM*:
Defendant-appellant Osiel Hernandez-Acuna was convicted of
ten counts of transporting illegal aliens under 8 U.S.C.
§ 1324(a)(1)(A)(ii) and one count of conspiracy to transport
illegal aliens for commercial and financial gain in violation of
8 U.S.C. § 1324(a)(1)(A)(v)(I). He now appeals his conviction,
arguing that the district court erred by (1) admitting the
*
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that this opinion should not be published and is not precedent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.
-1-
testimony of Agent Jon Stansel, (2) refusing to allow Professor
Robert Van Kemper to testify as an expert for the defense,
(3) denying his motion for judgment of acquittal, and (4) denying
his motion to suppress evidence. For the following reasons, we
REVERSE and REMAND.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant-appellant Osiel Hernandez-Acuna (“Hernandez”)
worked as a relief driver for Enlaces Terrestes de Star de
Dallas, a small transportation company located in the Oak Cliff
neighborhood of Dallas, Texas. On May 16, 2004, Hernandez was
the relief driver riding in the front passenger seat of a van
when Officer Earlton Parker of the Greenwood City Police
Department stopped the driver, Jose de Jesus Contreras, for
speeding.
Officer Parker contacted Immigration and Custom Enforcement
(“ICE”) officers. Agent Louis Patton of ICE responded to the
scene and interviewed the passengers. None of the passengers had
any valid U.S. identification such as a driver’s license, work
permit, visa, or similar documentation, but several had Mexican
identification. Agent Patton testified that he and the other ICE
agent determined that all of the passengers were illegally in the
United States. ICE took into custody all of the passengers,
except a juvenile and a pregnant woman. None of the passengers
had an alien registration number in the agency database.
-2-
Although the passengers were initially held as material
witnesses, they were released after the government took their
depositions.
When Hernandez was asked if he was in the United States
legally, he stated he was “in the process of becoming a
resident,” but ICE officials determined this statement to be
false. Hernandez presented a false resident-alien card to the
officers at the scene. Both Hernandez and Contreras were
arrested and charged with the transportation of illegal aliens.
Prior to the trial, the government gave notice that it
intended to use expert testimony by Agent David O’Neal regarding
transportation regulations and Agent Jon Stansel regarding the
methods of illegal alien transportation. Hernandez and Contreras
filed a motion in limine to preclude the testimony of Agent
O’Neal and Agent Stansel as expert witnesses. The district court
granted the motion in part and denied it in part. The court
permitted O’Neal and Stansel to testify as experts, but it
ordered that the experts could not give testimony that would
violate Rule 704(b).
The district court denied the motion to suppress evidence
obtained during the traffic stop. Hernandez filed a motion to
reconsider, arguing that Officer Parker observed the traffic
violation while outside his jurisdiction, and the district court
denied it as well.
When Contreras did not appear for trial, the district court
-3-
severed the case and tried Hernandez individually. Over an
objection by Hernandez, the government’s case-in-chief included
testimony by Agent Stansel regarding the methods of illegal alien
transportation. To rebut Agent Stansel’s testimony, Hernandez
offered Professor Robert Van Kemper as an expert in cultural
anthropology. Van Kemper was to testify regarding the use of
camioneta vans by Hispanics in both Mexico and the Dallas area.
The district court excluded Van Kemper’s testimony pursuant to
Rule 704(b) and for the further reason that it was not, in the
court’s view, sufficiently reliable, and Hernandez objected to
that ruling.
At the conclusion of the government’s case-in-chief,
Hernandez moved for a judgment of acquittal which was denied.
After a three day trial, a jury found Hernandez guilty of all
eleven counts. The district court sentenced Hernandez to
eighteen months imprisonment for each count, with the sentences
to be served concurrently. Hernandez timely appealed.
II. EXPERT TESTIMONY
A. Standard of Review
A district court’s decision to admit or exclude evidence is
reviewed for abuse of discretion. United States v. Gutierrez-
Farias, 294 F.3d 657, 662 (5th Cir. 2002). Any error in
admitting evidence is subject to harmless error review. United
States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992).
-4-
B. Agent Stansel’s Testimony
Hernandez was charged with transportation of illegal aliens
in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), which prohibits
transporting illegal aliens knowing or with a reckless disregard
for their immigration status. Hernandez’s challenge to Agent
Stansel’s testimony revolves around whether Hernandez knew about
or recklessly disregarded the passengers’ illegal status. Agent
Stansel, a senior special agent with ICE, testified as an expert
for the government. Hernandez argues that the district court
erred when it admitted the testimony of Agent Stansel because
certain portions of his testimony on Hernandez’s mental state
came “unacceptably close” to illegal profiling.
The Federal Rules of Evidence set out when a district court
may permit expert testimony on a matter in dispute at trial. If
scientific, technical, or specialized knowledge will aid the
trier of fact in understanding the evidence or determining a fact
in issue, an expert may testify. FED. R. EVID. 702. The expert,
however, must be qualified by knowledge, skill, experience,
training, or education. Id. The testimony must be based “upon
sufficient facts or data . . . [and] the product of reliable
principles and methods.” Id. Critically for our purposes, an
expert in a criminal case may not offer “an opinion or inference
as to whether the defendant did or did not have the mental state
or condition constituting an element of the crime charged.” FED.
-5-
R. EVID. 704(b). The defendant’s mental state is an issue for
the trier of fact alone. Id.
The district court erred in allowing Agent Stansel to
testify to Hernandez’s mental state.1 A fine “borderline” exists
between an improper opinion regarding the defendant’s mental
state and “a mere explanation of the expert’s analysis of facts”
relating to the defendant’s mental state. See United States v.
Speer, 30 F.3d 605, 610 (5th Cir. 1994). An expert witness may
violate Rule 704(b) by either explicitly offering an opinion as
to the defendant’s state of mind or by giving the functional
equivalent of such a statement. Id.; Gutierrez-Farias, 294 F.3d
at 663.
In Gutierrez-Farias, a Drug Enforcement Agency (“DEA”) agent
testified as an expert on the business of transporting narcotics
through South Texas, and we held that admission of that expert
testimony was an abuse of discretion. See 294 F.3d at 663. The
DEA agent’s testimony suggested that, because most drivers know
1
The parties do not address the required mental state
for Hernandez’s conspiracy conviction. At the district court,
the jury instruction for the conspiracy count read: “United
States Code, Section 1324(a)(1)(A)(I) makes it a crime for anyone
to conspire with someone else to transport or attempt to
transport an illegal alien within the United States, knowing or
in reckless disregard of the fact that the illegal alien is here
illegally, and in furtherance of the illegal alien’s violation of
the law.” Neither party objected to the jury instructions.
Agent Stansel’s improperly admitted testimony also affects the
conspiracy conviction because the mental state in the jury
instruction for conspiracy is the same as the mental state for
the transportation of illegal aliens.
-6-
when they are smuggling drugs in their vehicles, Gutierrez must
have known he was smuggling drugs. Id. “Rather than assisting
the jury to understand the evidence presented on complicated fact
issues, the agent presented the jury with a generalization that
in most drug cases the person hired to transport the drugs knows
that the drugs are in the vehicle.” Id. We held that this
generalization was the functional equivalent of an agent’s direct
comment on the defendant’s mental state and thus violated Rule
704(b). Id.
In United States v. Mendoza-Medina, we held that the
admission of similar expert testimony was an abuse of discretion.
346 F.3d 121, 128 (5th Cir. 2003). In Mendoza-Medina, a DEA
agent testified about how people are recruited to transport
drugs, the correlation between the amount of drugs in a load and
the experience of the transporter, the importance of trust
between the distributor and driver, and the practice of narcotic
traffickers bringing their wives and children along with the
specific intent of masking the drug trafficking offense. 346
F.3d at 127-28. Because Mendoza-Medina had his wife and child
with him at the time of the stop, these generalized comments
about distributors having to trust their couriers and the
couriers’ practice of bring their families along were
effectively used as substantive evidence that Mendoza-Medina also
knew he carried drugs. Id. We held that use of this testimony
was a violation of Rule 704(b) and came “unacceptably close” to
-7-
illegal profiling. See id. at 125.
In this case, Agent Stansel testified that “camioneta” is a
Spanish word meaning small bus or van and that law-enforcement
officials generally refer to a camioneta operation as a van
company that does not comply with regulations and that transports
illegal aliens across the United States. He also noted that
smugglers bring illegal aliens directly to the van companies,
which then transport the aliens from larger cities, such as
Houston and Dallas, to other locations in the United States.
According to Agent Stansel, camioneta operations are considered a
“front” for alien smuggling operations and do not put signs on
their vans to avoid detection. The camioneta passengers do not
volunteer that they are illegal aliens, and the company does not
ask questions regarding the passengers’ immigration status so
that its personnel can say they were unaware of it. Agent
Stansel testified:
Q. Now, Mr. Gilley was talking to you about,
you know, what was required as far as asking
for identification or verifying alien status.
A. That’s correct.
Q. Based on your understanding of those
requirements, can someone just simply turn a
blind eye to evidence that would indicate such
and just plead ignorance?
A. No, sir. Then they would be recklessly
disregarding the fact that those people might
be illegally in the country.
Q. And again, these are not the kind of
operations where someone’s going to ask or
-8-
someone’s going to tell, right?
A. That’s correct.
Q. And why is it that this is the practice?
A. It is so that in a situation such as we have
today, if you’re - -
Q. Well, wait. Let’s talk about your
experience.
A. Right. In my experience, if they’re
apprehended, then they can say: ‘I didn’t know,
I didn’t talk to any of the people and I didn’t
know what their immigration status was.’
In Agent Stansel’s opinion, border patrol agents watch for
camioneta vans because they are “100% illegal” and the facts of
this case were consistent with camioneta operations that he had
investigated in the past.
Agent Stansel’s generalization about the typical camioneta
operation--that when the drivers avoid asking for or receiving
information from aliens about their immigration status, they
recklessly disregard the fact that their passengers may be in the
country illegally--is problematic. His testimony is similar to
the generalizations regarding the typical drug-smuggling
operations in Mendoza-Medina and Gutierrez-Farias. Gutierrez-
Farias, 294 F.3d at 663; Mendoza-Medina, 346 F.3d at 127-28.
Although Agent Stansel did not expressly say that Hernandez knew
or recklessly disregarded his passengers’ illegal immigration
status, the clear inference was that Hernandez did so because the
facts in this case were consistent with the typical camioneta
-9-
operation where, according to Agent Stansel, immigration status
is disregarded. This is the “functional equivalent” of an
express comment on Hernandez’s mental state. See Gutierrez-
Farias, 294 F.3d at 663. The district court’s admission of this
testimony by Agent Stansel was therefore an abuse of discretion.2
We do not hold that all of Agent Stansel’s testimony was
improperly admitted; only that which amounted to a comment on
Hernandez’s mental state was improper. If expert testimony would
be helpful in assisting the trier of fact in understanding the
evidence, background testimony by an expert familiar with the
methods of transporting and smuggling illegal aliens is
permitted, so long as the testimony does not comment on the
defendant’s mental state. See United States v. Washington, 44
F.3d 1271, 1283 (5th Cir. 1995)(holding that an experienced
narcotics agent may testify about the significance of certain
conduct or methods of operation unique to the drug distribution
evidence).
We must next decide whether the error was harmless. Even
when expert testimony is erroneously admitted, reversal is not
2
The government urges us to follow two unpublished
opinions from the Ninth Circuit that permit expert testimony in
transportation-of-illegal-alien cases. See United States v.
Salazar-Munoz, 242 F.3d 385, 2000 WL 1529233 (9th Cir. 2000)
(unpublished table decision); United States v. Vaca-Hernandez,
185 F.3d 871, 1999 WL 451214 (9th Cir. 1999) (unpublished table
decision). Those cases are different from the situation in this
case because while the expert testimony was admitted, the agents’
comments did not go to the defendants’ intent, knowledge, or
mental state. See id.
-10-
required if the error is harmless. Gutierrez-Farias, 294 F.3d at
663. “[U]nless there is a reasonable possibility that the
improperly admitted evidence contributed to the conviction,
reversal is not required.” Mendoza-Medina, 346 F.3d at 127
(citing Williams, 957 F.2d at 1242).
In both Mendoza-Medina and Gutierrez-Farias, the error was
found to be harmless due to the substantial additional evidence
provided at trial. Gutierrez-Farias, 294 F.3d at 663; Mendoza-
Medina, 346 F.3d at 127-28. For example, in Mendoza-Medina the
defendant had confessed to smuggling drugs and the confession was
corroborated by other evidence. 346 F.3d at 129. In Gutierrez-
Farias, the agent’s improper testimony was only a small part of
“an otherwise strong case.” 294 F.3d at 663. Further, the
district court attempted to cure the defects in the agent’s
testimony by instructing the jury that it could not rely on the
agent’s testimony alone as proof of the defendant’s mental state.
Id.
In this case, however, the circumstantial evidence is not
nearly as strong as that in Gutierrez-Farias and Mendoza-Medina.
See Gutierrez-Farias, 294 F.3d at 663; Mendoza-Medina, 346 F.3d
at 127-28. There is no direct evidence of Hernandez’s knowledge,
and apart from Agent Stansel’s testimony, the evidence of
Hernandez’s knowledge of the passengers’ immigration status is
slim. Hernandez did not confess to the crime charged, act
aggressively toward law enforcement, or appear nervous during the
-11-
stop. Agent Stansel’s testimony served as a crucial part of the
evidence presented at trial and provided the “link” that
established Enlaces’s operations as similar to the typical
illegal camioneta operation. The error in admitting Agent
Stansel’s testimony is harmful because there is more than a
“reasonable possibility that the improperly admitted evidence
contributed to the conviction.” Mendoza-Medina, 346 F.3d at 127.
C. Professor Van Kemper’s Testimony
Hernandez argues that the district court abused its
discretion in refusing to admit the testimony of his expert
witness, Robert Van Kemper, Professor of Cultural Anthropology at
Southern Methodist University.
Hernandez contends that because the evidence of Professor
Van Kemper was relevant and necessary to counter Agent Stansel’s
testimony, it should have been admitted. The district court’s
ruling was based on what the court perceived to be a problem with
the reliability of Professor Van Kemper’s testimony, as well as a
problem with Rule 704(b). The district court may exclude expert
testimony if the underlying basis for the expert’s opinion is not
sufficiently reliable. See Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 589 (1993); FED. R. EVID. 702. One of the factors
the district court is to consider when assessing whether the
methodology is scientifically valid or reliable is whether the
theory has been subject to peer review and publication. Moore v.
-12-
Ashland Chem. Inc., 151 F.3d 269, 275 (5th Cir. 1998). Professor
Van Kemper’s testimony relied largely upon one study on
camionetas done by a professor in Los Angeles, and the district
court expressed doubt as to the reliability of that study because
it was not peer reviewed. The court did not abuse its discretion
by excluding Professor Van Kemper’s testimony as not sufficiently
reliable.
With respect to Rule 704(b), the court concluded that
Professor Van Kemper was qualified as an anthropologist, but
found that Rule 704(b) prohibited his testimony and noted that
Professor Van Kemper was in no better position than a juror to
conclude whether Hernandez’s actions demonstrated knowledge or
reckless disregard of the passengers’ immigration status.
Because the purpose of Professor Van Kemper’s testimony was to
negate Agent Stansel’s testimony and to provide other evidence
concerning Hernandez’s state of mind, the testimony was
rightfully excluded under Rule 704(b). Gutierrez-Farias, 294
F.3d at 663; Mendoza-Medina, 346 F.3d at 127-28.
III. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
We review a challenge to the sufficiency of the evidence in
the light most favorable to the government. United States v.
Burton, 324 F.3d 768, 770 (5th Cir. 2003). Hernandez made a Rule
29 motion for judgment of acquittal at the close of the
-13-
government’s case-in-chief, but because he failed to renew his
motion at the close of the evidence, we review his claim to
determine “whether there was a manifest miscarriage of justice.”
Id. (quoting United States v. Galvan, 949 F.2d 777, 783 (5th Cir.
1991)). A manifest miscarriage of justice “occurs only where
‘the record is devoid of evidence pointing to guilt or contains
evidence on a key element of the offense [that is] so tenuous
that a conviction would be shocking.’” United States v. McIntosh,
280 F.3d 479, 483 (5th Cir. 2002) (quoting United States v.
Cathey, 259 F.3d 365, 368 (5th Cir. 2001) (internal citations
omitted) (alteration in original)). We review the sufficiency of
the government’s case in light of all the evidence, including the
disputed expert testimony. See e.g., United States v. Marshall,
762 F.2d 419, 423 (5th Cir. 1985) (holding defendant not entitled
to have the court of appeals disregard inadmissible evidence in
conducting sufficiency of evidence review).
B. Analysis
To convict Hernandez of transporting illegal aliens, the
jury had to find beyond a reasonable doubt that (1) an alien
entered or remained in the United States in violation of the law,
(2) Hernandez transported the alien within the United States with
intent to further the alien’s unlawful presence, and
(3) Hernandez knew or recklessly disregarded the fact that the
alien was in the country in violation of the law. 8 U.S.C.
-14-
§ 1324(a)(1)(A)(ii); United States v. Nolasco-Rosas, 286 F.3d
762, 765 (5th Cir. 2002). Because circumstantial evidence is
sufficient to establish knowledge of alien status, direct proof
of Hernandez’s state of mind is unnecessary. United States v. De
Jesus-Batres, 410 F.3d 154, 161 (5th Cir. 2006); United States v.
Romero-Cruz, 201 F.3d 374, 379 (5th Cir. 2000).
Hernandez argues that the government failed to introduce
sufficient evidence to show he knew or recklessly disregarded
that the passengers were illegal aliens.3 Hernandez contends
without Agent Stansel’s testimony the jury could not find that
Hernandez recklessly disregarded that his passengers were illegal
aliens. But, Hernandez is not entitled to have Agent Stansel’s
testimony excluded from the sufficiency of the evidence review,
see Marshall, 762 F.2d at 423, and with Agent Stansel’s
testimony, the evidence is more than sufficient to sustain the
conviction.
Even if, for the sake of argument we exclude Agent Stansel’s
testimony bearing directly on Hernandez’s state of mind, the
record is not devoid of evidence pointing to Hernandez’s guilt,
nor is the evidence so tenuous that a conviction would be
3
Hernandez’s brief does not address the sufficiency of
the evidence with regard to an element of the conspiracy
conviction under 8 U.S.C. 1324(a)(1)(A)(v)(I). Therefore, we do
not discuss the sufficiency of the evidence as to the conspiracy
conviction because inadequately briefed issues are deemed
abandoned. Dardar v. LaFourche Realty Co., 985 F.2d 824, 831
(5th Cir. 1993) (citing Friou v. Phillips Petroleum Co., 948 F.2d
972, 974 (5th Cir. 1991).
-15-
shocking. The remainder of Agent Stansel’s testimony, in
addition to Officer Parker’s and Agent Patton’s testimony
describing the condition of the van’s passengers, suggests that
Hernandez may have recklessly disregarded the passengers’ illegal
status. For instance, the evidence showed: (1) that the
passengers had utilized a small transport company operated by and
for Spanish-speaking individuals; (2) that the van company
allowed payment at the destination rather than requiring payment
up front; (3) that all the passengers appeared to be Hispanic;
(4) that there was a “strong odor” indicating that some of the
passengers had not bathed recently; (5) that the van was crowded;
(6) that the passengers’ clothing was “dingy”; (7) that they had
little luggage in the van, a mere four or five backpacks among
twelve passengers each taking a long distance trip; (8) that
safety equipment was not in the van; and (9) that the exterior of
the van was unmarked.
In sum, Hernandez has not demonstrated that a manifest
miscarriage of justice has occurred or that the record is so
devoid of evidence that Hernandez recklessly disregarded the
passengers’ status as to make his conviction shocking. See
Burton, 324 F.3d at 770-71; Nolasco-Rosas, 286 F.3d at 765-66.
IV. MOTION TO SUPPRESS
A. Standard of Review
-16-
We review the district court’s factual findings on a motion
to suppress for clear error, and we review de novo its legal
findings, including its ultimate conclusion as to the
constitutionality of the law enforcement action. United States
v. Carreon-Palacio, 267 F.3d 381, 387 (5th Cir. 2001). We view
the evidence in the light most favorable to the party that
prevailed in the district court. United States v. Jordan, 232
F.3d 447, 448 (5th Cir. 2000).
B. Analysis
Hernandez argues that the district court erred in denying
his motion to suppress. He contends that Officer Parker exceeded
his jurisdiction under state law because the van was not within
Officer Parker’s jurisdiction when the van was clocked at eighty-
one miles per hour in a seventy mile-per-hour zone.
Hernandez recognizes that this issue is controlled by our
decision in United States v. Garcia, 719 F.2d 108 (5th Cir.
1983), but he asserts that Garcia was erroneously decided.
Hernandez asks the court to reassess its prior rulings in Garcia,
and United States v. Jones, 185 F.3d 459 (5th Cir. 1999). We
decline to revisit our holdings in Garcia and Jones. The
decisions of prior panels are binding on this court. United
States v. Martin, 431 F.3d 846, 853 (5th Cir. 2005).
When evidence secured by a state official is used against a
defendant accused of a federal offense, the pertinent question is
-17-
whether the state official violated the Fourth Amendment in
securing the evidence. Issues regarding local law-enforcement
jurisdiction do not govern in a federal criminal action. United
States v. Walker, 960 F.2d 409, 415 (5th Cir. 1992). The
district court, therefore, properly denied Hernandez’s motion to
suppress.
V. CONCLUSION
For the foregoing reasons, we REVERSE Hernandez’s
convictions and REMAND to the district court.
-18-