United States v. Polanco ( 2023 )

Case: 20-20094 Document: 00516699213 Page: 1 Date Filed: 04/03/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
April 3, 2023
No. 20-20094 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Carmen Saldana Meyer,
Defendant—Appellant,
consolidated with
_____________
No. 20-20584
_____________
United States of America,
Plaintiff—Appellee,
versus
Daniel Polanco
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. 4:15-CR-544-11,
4:15-CR-544-12
______________________________
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Before Wiener, Higginson, and Wilson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
In 2019, after a nine-day jury trial, Defendant-Appellants Carmen
Saldana Meyer and Daniel Polanco were convicted on several counts related
to their involvement in a drug trafficking organization. On appeal, Meyer
challenges only her kidnapping conviction while Polanco raises several
challenges to each of his convictions. For the reasons given below, we
AFFIRM.
I. Facts and Proceedings
The case against both Carmen Saldana Meyer and Daniel Polanco
began with an investigation into a drug trafficking organization (“DTO”)
responsible for transporting narcotics, primarily cocaine but also including
methamphetamine and marijuana, from Mexico into the United States.
Through that investigation, law enforcement officers learned that members
of the DTO (the “conspirators”) were stealing shipments of drugs from the
original suppliers.
The scheme operated as follows. The conspirators would enter into a
contract to transfer drugs for a supplier. After accepting the drugs, the
conspirators would replace the real drug load with a “sham” load containing
only small or trace amounts of the drug, just enough for the sham load to pass
as real drugs on a field test. Working with corrupt law enforcement officers,
the conspirators would stage seizures of the sham bundles by law
enforcement. Later, the corrupt officers would provide the official seizure
paperwork to the conspirators to show to the suppliers as proof the drugs had
been seized. With the theft of the drugs covered up, the conspirators would
sell the stolen drugs at a profit.
This investigation eventually culminated in a Superseding Indictment
against 17 co-conspirators. Three defendants—Carmen Meyer; Daniel
Polanco, a Border Patrol agent; and Hector Beltran, a police officer with
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Texas’s Edinburg Police Department—proceeded to a joint jury trial. The
jury trial lasted nine days, during which the jury heard from thirty-six
witnesses (thirty presented by the Government, six by the three defendants).
Both Meyer and Polanco were convicted on all counts.1 Specifically,
the jury found both Meyer and Polanco guilty of conspiracy to possess with
intent to distribute cocaine in violation of 21 U.S.C. § 846, and possession
with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). In
addition, the jury found Meyer guilty of kidnapping in violation of 18 U.S.C.
§ 1201(a)(1), and Polanco guilty of giving a false statement to a government
agent in violation of 18 U.S.C. § 1001(a)(2).
Below, we briefly provide an overview of the facts underlying Meyer’s
and Polanco’s convictions as supported by the evidence and testimony
presented at trial.
A. Carmen Saldana Meyer
Meyer, a paralegal from McAllen, Texas, aided the conspiracy by
serving as a liaison between the drug suppliers and the conspirators.2
Specifically, Meyer would turn over police reports to the suppliers indicating
that their drug shipment had been seized by police. In reality, these were
staged seizures, and the real drugs were sold by the conspirators.
Meyer was recruited into the scheme by Maritssa Salinas. Salinas was
friends with Carlos Aaron Oyervides and Dimas DeLeon (the main
conspirators) and had been in a romantic relationship with Francisco
Arismendez (a drug supplier). In April 2013, Arismendez (who also went by
1
Beltran was convicted on one count of conspiracy to possess with intent to
distribute cocaine and acquitted on two counts of possession with intent to distribute a
controlled substance. Although Beltran appealed his conviction, his appeal was dismissed
for want of prosecution.
2
On appeal, Meyer does not challenge any of her convictions related to the drug
conspiracy. Instead, she challenges only her kidnapping conviction. Accordingly, we
address only the facts relevant to that conviction.
3
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“Poncho”) hired Oyervides and DeLeon to sell around 20 kilograms of
cocaine. Rather than sell the cocaine, however, Oyervides and DeLeon stole
the drugs and covered it up with a staged seizure in Houston, Texas. After
the seizure, DeLeon created fake police documents to serve as proof of
seizure. Oyervides gave these documents to Salinas, who in turn gave the
documents to Meyer to give to Arismendez and his associate, a man known
as “Alex.”
In November 2013, Oyervides traveled to Mexico to discuss a new
deal to transport drugs for Arismendez. At trial, the Government argued and
introduced evidence to support that Oyervides traveled to Mexico on
Meyer’s invitation, and that Meyer had informed Arismendez (who had
grown suspicious about the seizure in Houston) about the thefts by the time
Oyervides was asked to cross the border.3 While leaving the meeting in
Mexico, Oyervides was kidnapped at gunpoint. Oyervides, who was held
captive for four-and-a-half-months, was ultimately rescued by the Mexican
military.
B. Daniel Polanco
In 2013, Daniel Polanco was working as a Border Patrol agent. As
argued by the Government at trial, he aided the conspiracy by serving as one
of the corrupt officers who would help stage seizures of sham drugs and then
gave a false statement to federal agents to help hide his involvement in this
conspiracy.
On April 20, 2013, Polanco (who was off duty) called a friend, Juan
Balderas, who was an officer with the Edinburg Police Department, to report
a suspicious vehicle parked off a highway. According to Balderas, Polanco
3
At trial, Meyer denied telling Arismendez about the thefts in advance of the
kidnapping and testified that Salinas, not her, had set up the meeting in Mexico.
4
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explained that a backpacker4 who had been apprehended by Border Patrol
earlier that week had told Polanco that a car, specifically a green, four-door
Mazda, used for drug trafficking would be stationed at the intersection of
Davis and Highway 281. Polanco noted that he happened to be driving up to
San Antonio with a woman named Monica and had just seen a car matching
the description provided by the backpacker parked at that location.
Law enforcement responded to Polanco’s call and recovered packages
of what appeared to be narcotics from inside the vehicle. The packages tested
positive on the field test for narcotics, and later testing revealed that the
packages contained trace amounts of cocaine.
Balderas testified that Polanco called that afternoon and asked if
Balderas could send over a photo of the narcotics recovered from the car.
Balderas sent over the photos.
Soon after the vehicle was seized, law enforcement began asking
follow-up questions as to the circumstances surrounding Polanco’s report.
On April 23, 2013, Balderas was asked to produce a written report about the
information he had received about the vehicle. According to Balderas, he
gave Polanco the heads-up about the report. At some point, Polanco called
Balderas and requested a copy of that report. Polanco, Balderas testified,
claimed that he needed a copy because he had also been asked to do a report
for his own supervisors.
Indeed, Polanco’s shift supervisor, Donicio Diaz, had been asked to
conduct a follow-up interview with Polanco to learn more about how Polanco
had received the information he had conveyed to other law enforcement
agencies. On April 23, 2013, Diaz conducted his first follow-up interview. In
that interview, Polanco explained that a backpacker picked up by Border
Patrol had informed him that drug traffickers were using small-sized vehicles
4
A backpacker is a mule, that is, someone carrying narcotics in a duffel bag,
backpack, or other container.
5
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staged alongside roads. Thus, when Polanco (who was driving up to see a
fight in San Antonio), saw a vehicle that he “knew” near a tractor trailer, he
called it in. The next day, on April 24, 2013, Diaz conducted a second
interview with Polanco. During the interview, Polanco could not provide any
more detail as to the tractor trailer (which he clarified was parked further
down the road) but did note that the small car was a green or aqua Nissan
with no license plates and a “jacked up” rear. Diaz, who did not interview
Polanco again, noted that Polanco did ask a few more times if there had been
any more questions or if anything had come from the investigation.
Later, in May 2013, Polanco was called in for an interview with DEA
Agent Anthony R. Santos. In that interview, Polanco denied receiving any
specific information about a car used for drug trafficking from a backpacker,
but instead had learned from the backpacker that drug traffickers had
generally been staging vehicles in abandoned locations. Polanco indicated
that he had just had a “hunch” about the vehicle, based generally on his
experience as a Border Patrol agent.
At trial, Polanco maintained that he had called in the vehicle based on
information received from the backpacker and the knowledge he had
obtained while working as a Border Patrol agent. The Government, however,
contended that Polanco had worked with DeLeon, one of the primary
conspirators, to stage this seizure. The evidence presented by each side in
support of its version of events will be discussed in greater detail below in
connection with Polanco’s challenge to the sufficiency of the evidence as to
his convictions.
II. Discussion
A. Meyer’s Issues on Appeal
On appeal, Meyer raises two issues: (1) whether the district court
improperly instructed the jury as to the kidnapping charge and (2) whether
the evidence was sufficient to support her conviction of the kidnapping
offense. We address each in turn.
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1. Jury Instruction
Meyer first argues that the district court erred in instructing the jury
on the federal kidnapping charge. Where a party did not object to the jury
instructions before the district court, we review for plain error.5 United States
v. Daniels, 252 F.3d 411, 414 (5th Cir. 2001). “A jury instruction is plain error
if (1) it was erroneous; (2) the error was plain; and (3) the plain error affected
the substantial rights of the defendant.” United States v. Percel, 553 F.3d 903,
909 (5th Cir. 2008) (internal quotation marks and citation omitted). If these
three conditions are met, we will use our discretion to correct the error if it
“seriously affect[s] the fairness, integrity[,] or public reputation of judicial
proceedings.” Daniels, 252 F.3d at 414 (quoting United States v. Olano, 507
U.S. 725, 736 (1993)).
Here, Meyer contends that the district court failed to properly
instruct the jury as to all the statutory elements required for a federal
kidnapping offense under 18 U.S.C § 1201(a)(1). The jury charge instruction
on the kidnapping count read as follows:
For you to find the defendant guilty of this crime, you must be
convinced that the government has proven each of the following
beyond a reasonable doubt:
First: That the defendant, knowingly acting contrary to law,
kidnapped, seized or inveigled Carlos Aaron Oyervides;
Second: That the defendant held Carlos Aaron Oyervides for
ransom, reward or some purpose or benefit; and
Third: That the defendant traveled in interstate or foreign
commerce, that is from Hidalgo County, Texas to the United
Mexican States.
5
Meyer concedes that she did not object to the kidnapping jury charge instruction
at trial.
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Meyer takes issue only with the third instruction, which addresses the
statute’s jurisdictional element.
Meyer’s primary argument on appeal is that that the jurisdictional
element of the federal kidnapping statute cannot be satisfied by the
defendant’s travel in interstate or foreign commerce; rather, Meyer claims,
the government must show that the victim was transported in interstate or
foreign commerce. Yet in so arguing, Meyer ignores that, in 2006, the statute
was amended to allow the government to establish jurisdiction by the
offender’s travel. See Adam Walsh Child Protection and Safety Act of 2006,
Pub. L. No. 109-248, § 213, 120 Stat. 587, 616 (codified at 18 U.S.C. §
1201(a)(1)). Now, the federal kidnapping statute reads as follows:
Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps,
abducts, or carries away and holds for ransom or reward or otherwise
any person, except in the case of a minor by the parent thereof, when
. . . the person is willfully transported in interstate or foreign
commerce . . . or the offender travels in interstate or foreign commerce or
uses the mail or any means, facility, or instrumentality of interstate or
foreign commerce in committing or in furtherance of the commission of the
offense . . . shall be punished by imprisonment for any term of years or
for life . . . .
18 U.S.C. § 1201(a) (emphasis added). It was therefore not error for the
district court to instruct the jury that the offender’s own interstate or foreign
travel could supply the jurisdictional hook.
However, in instructing the jury, the district court did not clarify that
the offender’s travel must be “in committing or in furtherance of the
commission of the offense.” At oral argument, the Government conceded
that this failure was error. See also Fifth Circuit Pattern Jury
Instructions (Criminal) § 2.54 (2019) (stating that the jurisdictional
element can be met if “the defendant traveled in interstate or foreign
8
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commerce in committing or in furtherance of the commission of the offense”
(emphasis added)).6
Nonetheless, we find that this error does not warrant a plain error
reversal. At trial, the Government argued (and produced evidence
supporting the conclusion) that Meyer traveled to Mexico to make Oyervides
feel comfortable attending the meeting with Arismendez. And while Meyer
disputes that the jury could have found that she had the requisite intent in
traveling to Mexico, she does not contest that the Government’s theory of
the case, and its trial proof, always connected her travel to the kidnapping.
Accordingly, although we hold that the district court committed error in
instructing the jury as to the kidnapping count, such error does not rise to
plain error.
2. Sufficiency of the Evidence
Next, Meyer argues that the evidence was insufficient to support her
kidnapping conviction. We review the denial of a motion for acquittal based
on insufficient evidence de novo. United States v. Reed, 908 F.3d 102, 123 (5th
6
On our review of the record on appeal, we note that, without contemporaneous
objection or identification on appeal as an issue from the parties, the substantive offense
instructions were not orally read to the jury. Reviewing Federal Rule of Criminal Procedure
30, we see no explicit directive that jury instructions be given orally. See Fed. R. Crim.
P. 30(c) (noting that the court “may instruct the jury” either before or after arguments
without providing any definition of what it means to “instruct” a jury). Although we do
not find precedent addressing this issue from our own court, sister circuits have recognized
the necessity of providing oral instruction. See United States v. Becerra, 939 F.3d 995, 998,
1001 (9th Cir. 2019) (describing why “the historic practice of oral jury instruction remains
central to the fairness of jury trials” and noting that “[a] trial court does not satisfy its duty
to instruct jurors in a criminal case just by providing those jurors with a set of written
instructions to use during deliberations”); see also United States v. Noble, 155 F.2d 315, 318
(3d Cir. 1946) (holding that it is “essential that all instructions to the jury be given by the
trial judge orally in the presence of counsel and the defendant” and concluding that the
failure to do so is error). In light of the absence of any argument from either party in the
district court or before us on this issue, we note only that had the trial court here read the
substantive offense instructions aloud, it is likely that this error would have been caught
contemporaneously.
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Cir. 2018). In conducting this review, we do “not evaluate the weight of the
evidence or the credibility of witnesses,” United States v. Doggins, 633 F.3d
379, 383 (5th Cir. 2011), and we “will affirm if a reasonable trier of fact could
conclude from the evidence that the elements of the offense were established
beyond a reasonable doubt, viewing the evidence in the light most favorable
to the verdict and drawing all reasonable inferences from the evidence to
support the verdict.”7 Reed, 908 F.3d at 123 (internal quotation marks and
citation omitted). In other words, “[o]ur question is whether the jury’s
verdict was reasonable, not whether we believe it to be correct.” United
States v. Bolton, 908 F.3d 75, 89 (5th Cir. 2018) (internal quotation marks and
citation omitted).
Meyer contends that the evidence was not sufficient for the jury to
find that she had advance knowledge of and assisted in any way with the
kidnapping and, therefore, a reasonable jury could not have concluded that
Meyer inveigled Oyervides and traveled to Mexico in furtherance of the
crime.8
At trial, however, the Government produced evidence demonstrating
that Meyer had played an integral role in arranging this kidnapping. This
evidence primarily consisted of testimony from Oyervides and Maritssa
Salinas, both of whom were indicted co-conspirators who, at the time of trial,
had pleaded guilty, and Antonio Perez, IV, an agent with Homeland Security
7
Citing United States v. Gonzales, 436 F.3d 560 (5th Cir. 2006), Meyer advocates
for the use of the so-called equipoise rule, which states that “[i]f the evidence tends to give
nearly equal circumstantial support to either guilt or innocence then reversal is required.”
Id. at 571. But we expressly “abandon[ed] use of the ‘equipoise rule’” in United States v.
Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc). See also United States v. Garcia-
Martines, 624 F. App’x 874, 879 n.12 (5th Cir. 2015) (reiterating that Vargas-Ocampo
prohibits the use of the equipoise rule).
8
Meyer also argues that the evidence was not sufficient for a jury to find that
Oyervides, the victim, was unwillingly transported in interstate or foreign commerce. As
already discussed, this argument ignores that the federal kidnapping statute now includes
the defendant’s own travel as a basis for jurisdiction.
10
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Investigations (“HSI”), who interviewed Meyer in connection with the
kidnapping.
Testimony from Oyervides indicated that Meyer initiated the meeting
with Arismendez, and testimony from Salinas indicated that Meyer traveled
to Mexico to help make Oyervides feel comfortable attending the meeting—
in the past, Oyervides had experienced issues with his passport, and wanted
Meyer with him in case he encountered difficulty at the border. And,
critically, Perez testified that Meyer herself admitted that she had lured
Oyervides to Mexico with the false promise of a new drug deal on
Arismendez’s orders.
Both Oyervides and Salinas also testified to interactions after the
abduction which further suggested Meyer’s guilt. Oyervides testified that
Arismendez and Alex told him that Meyer had informed them that he had
stolen merchandise, and that “she had put [him] there.” Oyervides also
testified that he had overhead a conversation in which Meyer suggested that
Arismendez and Alex kill him. Similarly, Salinas testified that she barely
escaped abduction herself, and was only able to escape thanks to the
intervention of Arismendez, her ex-boyfriend. Yet in a conversation with
Meyer immediately following the attempted kidnapping, as Salinas
attempted to flee to safety in the United States, Meyer acted as though
nothing had happened and urged Salinas to come back to Mexico. Moreover,
Salinas testified that in a phone call between Meyer, Salinas, Arismendez,
and Alex at some point after the kidnapping, Alex threatened Salinas for
being involved with the drug thefts while thanking Meyer “for everything.”
Put simply, this evidence was sufficient for a jury to conclude that
Meyer inveigled Oyervides to travel to Mexico and that Meyer had traveled
to Mexico in furtherance of the kidnapping.
B. Polanco’s Issues on Appeal
On appeal, Polanco raises four issues: (1) whether the evidence was
sufficient to support his conviction on all three counts, (2) whether the
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district court abused its discretion in denying his motion for a new trial, (3)
whether the district abused its discretion in admitting evidence of an assault
pursuant to Federal Rule of Evidence 404(b), and (4) whether the district
court’s rulings at trial violated Polanco’s Confrontation Clause rights. We
address each in turn.
1. Sufficiency of the Evidence
Polanco raises sufficiency-of-the-evidence challenges to all three of his
counts of conviction. As already discussed, we will affirm a conviction “if,
after viewing all the evidence and all reasonable inferences in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v.
Sims, 11 F.4th 315, 321 (5th Cir. 2021) (quoting United States v. Vargas-
Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc)); see also Reed, 908 F.3d
at 123, n.82.
First, Polanco challenges his conviction for conspiracy to possess with
intent to distribute more than 5 kilograms of cocaine. To sustain this
conviction, the government was required to show “(1) the existence of an
agreement between two or more persons to violate narcotics laws, (2)
knowledge of the conspiracy and intent to join it, and (3) voluntary
participation in the conspiracy.” United States v. Peters, 283 F.3d 300, 307
(5th Cir. 2002). On appeal, Polanco primarily disputes the sufficiency of the
evidence with regards to the second element: knowledge of and intent to join
the conspiracy.
At trial, the Government argued that Polanco, a Border Patrol agent,
was one of the corrupt law enforcement officers who, working with members
of the conspiracy, would stage seizures of sham drugs to cover up the thefts
from the suppliers. Specifically, the Government alleged that on April 20,
2013, Polanco called in a seizure on a vehicle loaded with 17 kilograms of
(sham) cocaine on behalf of Dimas DeLeon, one of the main conspirators.
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To support the charge, the Government called several witnesses to
testify about their involvement with the staged seizure, the conspiracy, and
Polanco. First, Mario Alejandro Solis, a co-conspirator, testified about how
he and DeLeon prepared for the April 20, 2013, seizure. In preparation for
the seizure, DeLeon told Solis to park the car at an abandoned gas station
selected by DeLeon and his “Border Patrol friend,” who would be calling in
the seizure, to serve as the drop site. Solis testified that DeLeon explained
that the Border Patrol contact had chosen the gas station because he was
planning to drive up to San Antonio to see a fight and the gas station was on
his route.
Solis also testified that, on April 20, 2013 (the day of the planned
seizure), he did not park the car out in the front of the gas station as he had
been instructed to do. Instead, he parked off to the side, by the back.
According to Solis, DeLeon was upset by this deviation from the plan, as it
made it difficult for his Border Patrol contact to see the car. Eventually, Solis
(who had stayed in the area) saw law enforcement nearby, presumably
responding to Polanco’s call to Balderas. Solis told the jury that he later heard
from DeLeon that the seizure had gone well and that DeLeon was going to
pay his Border Patrol friend at the fight in San Antonio.
Other evidence at trial corroborated that Polanco was DeLeon’s
Border Patrol contact. For instance, although Solis did not know the name of
the Border Patrol agent, Polanco does not dispute that he was a Border Patrol
agent with plans to travel to San Antonio to see a fight on April 20, 2013.
Phone records also showed that Polanco and DeLeon were in close
communication on April 19 and 20, 2013, with their phone numbers
exchanging three calls and thirty-four texts on the 19th and thirteen calls and
fifty-three texts on the 20th. Additionally, the Government introduced
testimony from William Shute, an expert in using cell phone records to track
locations, that cell phone location records demonstrated that Polanco
remained in the area around the gas station for over half an hour the morning
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of April 20, 2013, consistent with Solis’s testimony that the Border Patrol
agent had difficulty locating the car. And the Government introduced grand
jury testimony from Monica Garcia, Polanco’s girlfriend at the time of the
seizure, in which she stated that Polanco got the information about the
suspicious vehicle from Dimas DeLeon.9
In his testimony at trial, Polanco provided his own explanation of
these facts. He testified that he had no agreement with DeLeon to call in the
vehicle, and instead had called in the car because its back was “jacked up,”
that is, the shocks had been adjusted such that it rode higher in the back,
which was consistent with cars used to transport contraband. As for his
communications with DeLeon, Polanco stated that he had purchased his
tickets to the fight from DeLeon (who had a business as a local fight
promoter) and was having difficulty getting DeLeon to deliver them. And as
to the cell location data showing that he lingered in the area, Polanco claimed
that he and Garcia had stopped for gas and food in the area before heading
out on the highway.
On appeal, Polanco argues that even if the jury did not accept his own
testimony, because the Government’s evidence was primarily circumstantial
and its witnesses unreliable, the evidence was insufficient to support his
conviction. In other words, Polanco would have us step into the shoes of the
jury to re-evaluate the weight of the evidence and re-assess the credibility of
the witnesses. We decline to do so, and find that the evidence summarized
above was sufficient to support his conspiracy conviction.
Next, Polanco challenges his conviction for possession with intent to
distribute. To sustain this conviction, the government was required to show
9
Garcia recanted this testimony, as well as statements she had made in earlier
interviews with law enforcement, at trial. However, pursuant to Federal Rule of Evidence
801(d)(1)(A), the jury could consider her grand jury testimony as substantive evidence.
Whether the jury accepted the version of events contained in Garcia’s grand jury testimony
or her later trial testimony is a determination of credibility we do not disturb on review.
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“(1) the defendant knowingly possessed a controlled substance; (2) the
substance was in fact [the controlled substance]; and (3) the defendant
possessed the substance with the intent to distribute it.” United States v.
Vinagre-Hernadez, 925 F.3d 761, 764 (5th Cir. 2019) (citation omitted).
“Possession may be actual or constructive . . . and may be proved by direct
or circumstantial evidence.” United States v. Valdiosera-Godinez, 932 F.2d
1093, 1095 (5th Cir. 1991) (citation omitted).
On appeal, Polanco primarily argues that the Government did not
present evidence showing that he either actually or constructively possessed
cocaine. Yet the jury was instructed that they could find liability under the
theory of aiding and abetting. Pursuant to 18 U.S.C. § 2, “[w]hoever . . . aids,
abets, counsels, commands, induces or procures” the commission of an
offense “is punishable as a principal.” 18 U.S.C. § 2(a). “Aiding and abetting
is not a separate offense, but it is an alternative charge in every indictment,
whether explicit or implicit.” United States v. Neal, 951 F.2d 630, 633 (5th
Cir. 1992) (citation omitted). Because aiding and abetting is simply “another
means of convicting someone of the underlying offense,” the district court
may give the aiding and abetting instruction so long as evidence is presented
to support that theory of liability at trial. United States v. Sorrells, 145 F.3d
744, 752 (5th Cir. 1998) (citations omitted).
To find a defendant guilty of the charged offense under a theory of
aiding and abetting, the Government must show proof that “the substantive
offense occurred and that the defendant (1) associated with the criminal
venture; (2) purposefully participated in the crime; and (3) sought by his
actions for it to succeed.” United States v. Scott, 892 F.3d 791, 798 (5th Cir.
2018) (citation omitted). Although a defendant “must share in the intent to
commit the offense as well as participate in some manner to assist its
commission, . . . [t]he defendant need not, however, commit all elements of
the substantive underlying offense as long as he aided and abetted each
element.” United States v. Fischel, 686 F.2d 1082, 1087 (5th Cir. 1982)
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(citation omitted). Thus, “[t]o be guilty of aiding and abetting possession of
drugs with intent to distribute, each defendant must have aided and abetted
both the possession of the drug and the intent to distribute it.” United States
v. Williams, 985 F.2d 749, 753 (5th Cir. 1993).
The same evidence supporting Polanco’s conspiracy conviction
supports his possession conviction on an aiding and abetting theory of
liability. From that evidence, a reasonable jury could conclude that, by calling
in the car so that the sham cocaine could be seized and the real drugs
successfully sold, Polanco associated and participated in the drug trafficking
venture in a way calculated to bring about its success.10 See United States v.
Salazar, 958 F.2d 1285, 1292 (5th Cir. 1992) (recognizing that the same
evidence used to prove a defendant’s conviction for conspiracy to possesses
cocaine will typically support an aiding and abetting conviction). For the
reasons given above, this challenge must similarly fail.
Finally, Polanco challenges his conviction for making a false statement
in violation of 18 U.S.C. § 1001(a)(2). A violation of this section “requires
the government to prove that [the defendant]: 1) knowingly and willfully; 2)
made a statement; 3) to a federal agency; 4) that was false; and 5) material.”
United States v. Taylor, 582 F.3d 558, 562 (5th Cir. 2009).
At trial, the Government argued that Polanco made a false statement
to law enforcement, specifically DEA Agent Santos, by stating that he did not
receive a tip about the suspicious vehicle when, in fact, DeLeon had given
10
Polanco does not dispute that an underlying drug offense was committed,
although he does dispute the type of narcotic involved. In his briefing, Polanco suggests
that the Government failed to prove that the underlying offense involved cocaine, rather
than methamphetamine (for which the sham bundles field-tested positive). At trial,
however, Polanco admitted via stipulation that later testing at a DEA laboratory showed
that the recovered bundles contained trace amounts of cocaine. This is sufficient to prove
this element of the underlying offense. Polanco’s remaining challenge to his possession
conviction mirrors that raised against his conspiracy conviction: namely, that the
Government failed to show that he reported the car on DeLeon’s behalf rather than of his
own accord.
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him information about the car. In challenging his conviction on this count,
Polanco raises only conclusory arguments, essentially arguing that the
evidence was not sufficient because he is not guilty of the underlying
substantive offense. Because we have found that the jury had sufficient
evidence to find that Polanco did receive information about the car from
DeLeon as part of his participation in the conspiracy, we correspondingly
find that the jury had sufficient evidence from which to find that Polanco’s
statements to DEA Agent Santos were false.
For these reasons, we find that Polanco’s sufficiency challenges as to
each of his convictions must fail.
2. Motion for a New Trial
Polanco also attacks his convictions by arguing that the district court
erred in denying his motion for a new trial. Federal Rule of Criminal
Procedure 33 permits a district court to grant a motion for a new trial “if the
interest of justice so requires.” Fed. R. Crim. P. 33(a). Ordering a new
trial is no small matter, and “[f]or a district court to disturb a jury’s verdict
and order a new trial, the evidence must preponderate heavily against the
verdict, such that it would be a miscarriage of justice to let the verdict stand.”
United States v. Reagan, 725 F.3d 471, 481 (5th Cir. 2013) (cleaned up). And
where a defendant moves for a new trial based on the weight of the evidence,
“[a]n appellate court may reverse only if it finds” the district court’s denial
of the motion to be a “clear abuse of discretion.” United States v. Robertson,
110 F.3d 1113, 1118 (5th Cir. 1997) (citation omitted).
When a district court reviews a motion for a new trial, it may consider
the credibility of the witnesses. See id. at 1117 (“The trial judge may weigh
the evidence and may assess the credibility of the witnesses during its
consideration of the motion for a new trial.”); see also United States v.
Herrera, 559 F.3d 296, 302 (5th Cir. 2009) (explaining that a district court
acts within its discretion in “cautiously reweigh[ing]” the evidence and
“[finding] it preponderated heavily against the guilty verdict”).
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On appeal, Polanco primarily argues that we should do the same and
reconsider the jury (and the district court’s) credibility determinations to
find in his favor. However, he points to no case law suggesting that we have
such authority. In fact, in United States v. Tarango, 396 F.3d 666 (5th Cir.
2005), the court stated that while the district court (taking care not to usurp
the role of the jury) may assess the credibility of witnesses in ruling on a
motion for a new trial, “[i]n our capacity as an appellate court, we must not
revisit evidence, reevaluate witness credibility, or attempt to reconcile
seemingly contradictory evidence.” Id. at 672. Instead, we ask only whether
the district court’s denial of a motion for a new trial “constituted a clear
abuse of its discretion.” Id.Here, Polanco’s arguments as to his motion for a new trial are
essentially the same as those raised in his sufficiency challenge. As discussed
above, we find the evidence sufficient to support each of his convictions. We
thus find that the district court did not abuse its discretion in denying
Polanco’s motion for a new trial.
3. Rule 404(b) Evidence
Polanco next argues that the district court erred in admitting evidence
pursuant to Rule 404(b) that implied that he had once assaulted Garcia. We
review a preserved objection to a trial court’s evidentiary ruling under an
abuse of discretion standard. United States v. Sumlin, 489 F.3d 683, 688 (5th
Cir. 2007). This standard is “heightened” when the evidence is admitted
pursuant to Rule 404(b) “because evidence in criminal trials must be strictly
relevant to the particular offense charged.” United States v. Smith, 804 F.3d
724, 735 (5th Cir. 2015) (cleaned up).
Under Federal Rule of Evidence 404(b), “[e]vidence of any other
crime, wrong, or act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with the
character,” but “may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence
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of mistake, or lack of accident.” Fed. R. Evid. 404(b). In general, Rule
404(b) “only excludes evidence of other crimes when offered to prove the
conduct of a person by resort to an inference as to his character.” United
States v. Ebron, 683 F.3d 105, 132 (5th Cir. 2012) (quoting Wright &
Graham, Federal Practice and Procedure: Evidence
§ 5248).
As a threshold matter, when the evidence sought to be introduced is
uncharged, we must first determine if the evidence is “sufficient to support
a finding that the crime or act actually occurred.” Smith, 804 F.3d at 735(citation omitted); see also Huddleston v. United States, 485 U.S. 681, 689
(1988) (“In the Rule 404(b) context, similar act evidence is relevant only if
the jury can reasonably conclude that the act occurred and that the defendant
was the actor.”)).
If this threshold requirement is satisfied, we then turn to the question
of whether the evidence is admissible under Rule 404(b). This requires a two-
prong determination that “(1) [the evidence] is relevant to an issue other than
the defendant’s character, and [that] (2) it ‘possess[es] probative value that
is not substantially outweighed by its undue prejudice’ under Federal Rule of
Evidence 403.” Smith, 804 F.3d at 735 (quoting United States v. Beechum, 582
F.2d 898, 911 (5th Cir. 1978) (en banc)). As to the first prong, the relevancy
of the evidence, we follow the inquiry established under Rule 401 of the
Federal Rules of Evidence and ask “whether the evidence has ‘any tendency
to make a fact more or less probable than it would be without the evidence’
and ‘the fact is of consequence in determining the action.’” United States v.
Kinchen, 729 F.3d 466, 472 (5th Cir. 2013) (quoting Fed. R. Evid. 401)).
As to the second prong, the prejudicial impact of the evidence under Rule
403, we consider “(1) the government’s need for the extrinsic evidence, (2)
the similarity between the extrinsic and charged offenses, (3) the amount of
time separating the two offenses, and (4) the court’s limiting instructions,”
in addition to the “overall prejudicial effect of the extrinsic evidence.”
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United States v. Juarez, 866 F.3d 622, 627 (5th Cir. 2017) (internal quotation
marks and citation omitted).
Polanco challenges the admission of evidence that Garcia, during the
time she was dating Polanco, filed a police report stating that she had been
assaulted by a boyfriend. First, he argues that the evidence was not sufficient
to show that he committed the alleged assault. As Polanco notes, the police
report introduced as evidence did not name him as the alleged assailant and
Garcia never testified that Polanco assaulted her. In fact, at trial, Garcia
indicated that she may not have been assaulted at all, but rather that she had
fallen while drunk and that some of her bruises were from sex.
Yet other evidence introduced at trial supports that Polanco assaulted
Garcia. At trial, Garcia confirmed that she had reported to Edinburg police
that she had been assaulted by a boyfriend during the time she was dating
Polanco. Garcia also confirmed that an investigator looking into the assault
assumed that Polanco was the assailant (although Garcia maintained at trial
that she had not been assaulted at all). Additionally, at trial, Garcia avoided
explicitly denying that Polanco assaulted her, even when given multiple
opportunities to do so. Rather than confirm that Polanco did not assault her,
Garcia instead emphasized that she never filed an official report naming him
as the assailant. Given this evidence, the jury could reasonably conclude that
Garcia’s later denials that an assault occurred were not credible and that
Polanco was the assailant.
We therefore turn to the first prong of the Beechum test, whether the
proffered evidence was relevant to an issue other than Polanco’s character.
While Polanco contends that evidence as to the assault was entered solely to
malign his character, the trial record shows that it was offered for the
permissible purpose of explaining why Garcia’s testimony may have changed
between the time she testified before the grand jury in 2017 (when she stated
that Polanco received information about the suspicious vehicle from
DeLeon) and the time of trial (when she claimed that she spotted the vehicle
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and urged Polanco to call it in). Specifically, evidence of the assault suggested
that Garcia may have been afraid of testifying publicly against Polanco, who
had previously been violent with her.
Turning next to the second prong of the Beechum test, we find that the
probative value of this evidence is not substantially outweighed by undue
prejudice such that it was an abuse of discretion for the district court to allow
for its admission into evidence. First, the Government demonstrated
sufficient need for the evidence: Garcia’s testimony before the grand jury
that Polanco had received the location of the vehicle from DeLeon was highly
relevant to each of the three charges against him, and the Government was
attempting to explain why her testimony may have shifted by the time of trial.
Second, there is little similarity between the charged offenses, all of which
stemmed from participation in a drug conspiracy, and domestic assault. See
Kinchen, 729 F.3d at 473 (noting that the “more closely an extrinsic offense
resembles the charged offense, the greater the prejudice to the defendant”).
As for the third factor, the time between offenses, we note that although the
alleged assault occurred within the same year as the charged offense, it also
occurred years before Garcia’s testimony before both the grand jury and at
trial. Admittedly, this temporal remoteness weakens the Government’s
argument that Garcia may have changed her testimony out of fear of publicly
testifying against Polanco. However, the existence of the fourth factor—the
district court’s limiting instruction to the jury that some evidence goes to the
truthfulness of the witness and not to the truth of the underlying
allegations—helps assuage any concern as to its admission.
“Even if all four factors weigh in the Government’s favor,” we “must
still evaluate the district court’s decision under a commonsense assessment
of all the circumstances surrounding the extrinsic offense.” United States v.
Jones, 930 F.3d 366, 374 (5th Cir. 2019) (internal quotation marks and
citation omitted). Here, although the alleged assault was likely prejudicial,
United States v. Ricard, 922 F.3d 639, 654 (5th Cir. 2019) (describing extrinsic
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evidence of “violent acts” as one of the “hallmarks of highly prejudicial
evidence”) (citation omitted), Polanco was on trial for serious drug offenses.
Under these circumstances, we see no substantial undue prejudice and do not
find an abuse of discretion.11
4. Confrontation Clause
Finally, Polanco contends that the district court’s rulings violated his
Confrontation Clause rights. Specifically, Polanco argues that because the
backpacker did not testify at trial, the Government should not have been
allowed to introduce testimony from Jose Mares, a Border Patrol agent.
Mares, who conducted the interview with the backpacker who Polanco
processed and from whom Polanco allegedly received information about the
suspicious vehicle, testified as to his own conversations with the backpacker.
A preserved Confrontation Clause objection is reviewed “de novo,
subject to harmless error analysis.” United States v. Alvarado-Valdez, 521
F.3d 337, 341 (5th Cir. 2008).
Under the Sixth Amendment’s Confrontation Clause, an “accused
shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. Amend. VI. When determining whether admitted evidence
violated the Confrontation Clause, this court asks three questions: “First, did
11
Finally, “erroneous admissions under Rule 404(b) are subject to a harmless error
inquiry.” United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008). Under this inquiry,
“[w]hen the other evidence of guilt is overwhelming, and the error would not have
substantially influenced the jury’s verdict, the error is harmless.” United States v. Flores,
640 F.3d 638, 643 (5th Cir. 2011) (citation omitted). Although the determination as to
whether to accept Garcia’s testimony before the grand jury or at trial as to why Polanco
reported the car likely impacted the jury’s credibility determinations, particularly as to
Polanco’s own testimony, it was well-established that Garcia was a reluctant witness and
that she had changed her story to protect Polanco even without the introduction of the
alleged assault. Moreover, the district court’s limiting instruction provided immediately
before the introduction of the alleged assault, also blunted the impact of any prejudice to
Polanco. Given these factors, as well as the other evidence (discussed above) supporting
Polanco’s conviction, we find that any error was harmless.
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the evidence introduce a testimonial statement by a nontestifying witness?
Second, was any such statement offered to prove the truth of the matter
asserted? Third, was the nontestifying witness available to testify, or was the
defendant deprived of an opportunity to cross-examine him?” United States
v. Hamann, 33 F.4th 759, 767 (5th Cir. 2022). If the answer to each question
is “yes,” then the Confrontation Clause was violated and we must review for
harmless error. Id.As to the first question, Polanco is unable to point to any statement by
the witness introduced through Mares’s objected-to testimony. To begin,
Mares testified about the lack of any statement from the backpacker about
cocaine or its transportation in specific types of cars or on specific highways.12
Accordingly, because Mares did not testify about any out-of-court statement,
there is no Confrontation Clause violation.
As to the second question, even if we considered the backpacker’s
(non) statements to Mares to be testimonial statements for purposes of the
Confrontation Clause, Polanco fails to show that the (non) statements by the
backpacker were offered for the truth of the matter asserted. Instead, the
significance of Mares’s testimony was whether he could confirm Polanco’s
story about where he got the information about the suspicious vehicle. It was
not offered for the truth of the matter asserted. See United States v. Cantu,
876 F.2d 1134, 1137 (5th Cir. 1989) (“If the significance of a statement lies
solely in the fact that it was made, rather than in the veracity of the out-of-
court declarant’s assertion, the statement is not hearsay because it is not
12
The Government’s definition of a “statement” is taken from the text of Federal
Rule of Evidence 801, which defines a statement in the context as “a person’s oral
assertion, written assertion, or nonverbal conduct, if the person intended it as an
assertion.” Fed. R. Evid. 801(a). Although this definition arises in the context of the
hearsay rules, we find it instructive as to our Confrontation Clause analysis. See White v.
Illinois, 502 U.S. 346, 353 (1992) (recognizing that “hearsay rules and the Confrontation
Clause are generally designed to protect similar values and stem from the same roots”)
(cleaned up).
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offered to prove the truth of the matter asserted.”) (internal quotation marks
and citation omitted). Polanco suggests that because evidence that the
backpacker did not tell Mares any details about the drug trafficking tends to
prove or disprove his own narrative of events, it is necessarily offered for the
truth of the matter asserted. In taking this position, Polanco improperly
conflates the matter asserted in the criminal trial (his guilt or lack thereof)
and the matter asserted in the statement (whether drug trafficking was
occurring, whether the drugs were cocaine or marijuana, whether the cars
used in the trafficking were big or small).
In sum, Polanco cannot show that Mares’s testimony violated his
rights under the Sixth Amendment. The district court therefore did not err
in admitting the testimony.
III.
We AFFIRM the district court.
24