United States v. Jimenez-Montoya ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    October 13, 2009
    No. 08-50775                    Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    CHRISTIAN M. JIMENEZ-MONTOYA
    Defendant-Appellant
    Appeal from the United States District Court
    for the Eastern District of Texas
    3:07-CR-2909-ALL
    Before KING, DAVIS and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    Christian Jimenez-Montoya (“Jimenez”) appeals his conviction under 
    21 U.S.C. §§ 841
    , 952, and 960 for importing marijuana and possessing with intent
    to distribute marijuana. Jimenez challenges the district court’s refusal to allow
    the defendant to call the government’s case agent as a witness and the exclusion
    of testimony by the defendant’s sister. For the following reasons, we affirm.
    *
    Pursuant to 5TH CIR . R. 47.5, the Court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    No. 08-50775
    I. FACTS
    In October 2007, Jimenez was stopped at an El Paso border checkpoint
    while driving a truck into the United States. Appearing nervous, Jimenez
    declared a six-pack of beer. He told the agent at the checkpoint that the truck
    belonged to a cousin and that he had been visiting a sick grandmother in Mexico.
    The agent noticed that the tools to lower and raise the truck’s spare tire were
    loose in the bed of the truck. Border agents searched the truck and found more
    than 50 pounds of marijuana hidden inside the spare tire.
    At trial, Jimenez testified that the truck did not belong to a cousin, but to
    Octavio Carrera, the ex-boyfriend of Jimenez’s sister and father of her children.
    Jimenez testified that Carrera asked him to drive the truck into the U.S.
    Jimenez also testified that he was unaware of the marijuana in the truck.
    The government listed as a possible witness their case agent,Special Agent
    Duane Carter, an agent of the Immigration and Customs Enforcement Agency
    (“ICE”). When the defendant sought to call Agent Carter as a possible witness
    in his case, the government objected, saying that Agent Carter was precluded
    from testifying because the defense did not comply with the Touhy regulations
    in 
    28 C.F.R. § 16.23
    (c).1 The defense argued that a subpoena was not required
    as Agent Carter had been present in court throughout the trial and was sitting
    at the government counsel table. The district court sustained the objection,
    citing United States v. Wallace, 
    32 F.3d 921
     (5th Cir. 1994), which upheld a
    1
    
    28 C.F.R. § 16.23
    (c) requires that those seeking testimony from a Department of
    Justice employee, where the United States is a party, first submit an affidavit “setting forth
    a summary of the testimony sought.” Agent Carter, however, was an employee of the
    Department of Homeland Security, which has its own set of Touhy regulations. See 
    6 C.F.R. §§ 5.41-5.49
    . (In part, providing a procedure which must be followed to subpoena DHS
    employees and prohibiting those employees from testifying without department approval).
    2
    No. 08-50775
    district court’s decision to quash a subpoena seeking testimony from federal
    agents when the defense failed to comply with Touhy regulations.
    Jimenez sought to establish with Agent Carter’s testimony that Carrera
    (the owner of the truck) was cooperating with the government, thus bolstering
    Jimenez’s defense that others set him up as an alternative ground for refusing
    to allow the agent to testify. The district court found that the agent’s testimony
    was irrelevant to Jimenez’s actual defense that he did not know the marijuana
    was in the truck.     Jimenez said he intended to ask Agent Carter about
    inconsistent statements Carrera made to law enforcement agents regarding
    Jimenez’s participation in transporting the marijuana. But because Carrera
    had not testified, the district court concluded he could not be impeached, and
    did not allow the testimony. Jimenez also asserted that he wanted to establish
    through Agent Carter’s testimony that the agent had improperly contacted
    Jimenez post-indictment, apparently for the purpose of obtaining contact
    information regarding potential witnesses, including Jimenez’s mother. The
    district court ruled that the agent’s conduct was not an issue for the jury and
    was not relevant. Jimenez also wanted to question Carter about whether any
    photographs of the six-pack of beer existed which had not been produced. The
    district court ruled that Jimenez had no good faith reason to question whether
    the government failed to turn over evidence pursuant to a discovery order.
    The district court also excluded testimony from Jimenez’s sister, Melissa
    Jimenez. The defendant wanted to elicit testimony from his sister that she
    received a threatening phone call the night of her brother’s arrest, and that
    later, Carrera’s brother apologized for the threats. The district court found the
    testimony inadmissible hearsay.
    Jimenez appeals.
    3
    No. 08-50775
    II. STANDARD OF REVIEW
    A district court’s decision to admit evidence is reviewed under an abuse of
    discretion standard. United States v. Garcia, 
    530 F.3d 348
    , 351 (5th Cir. 2008).
    A trial court abuses its discretion when its ruling is based on an erroneous view
    of the law or a clearly erroneous assessment of the evidence. 
    Id.
     (internal
    quotation marks and citation omitted).
    III. ANALYSIS
    We are presented with two issues. First, did the district court commit
    reversible error by preventing Agent Carter from testifying? Second, did the
    district court abuse its discretion in finding inadmissible the testimony of both
    Agent Carter and Melissa Jimenez.
    The district court did not commit reversible error by not allowing Agent
    Carter to testify. While the defense counsel proffered several facts it hoped to
    establish from Agent Carter’s testimony, none of the facts proffered were
    probative to Jimenez’s defense that he was unaware that the marijuana was in
    the truck.     At best, Agent Carter’s testimony might have established that
    Carrera knew of the marijuana.              Establishing Carrera’s knowledge of the
    marijuana, however, has no bearing on whether Jimenez himself was aware of
    the marijuana. Because Agent Carter’s testimony was not relevant to Jimenez’s
    defense, the district court did not abuse its discretion in finding all of Agent
    Carter’s testimony inadmissible.2
    2
    The district court also based its exclusion of Agent Carter’s testimony in part on
    Jimenez’s failure to comply with Touhy regulations. See United States ex. rel. Touhy v. Ragen,
    
    340 U.S. 462
    , 468 (1951). Because Agent Carter is an agent for ICE, an agency within the
    Department of Homeland Security, the defense was required to comply with 
    6 C.F.R. §§ 5.41
    -
    5.49. Sec. 5.45(a) requires that a party seeking the testimony of a Homeland Security
    employee about information the employee acquired as part of his or her official duties, must
    “set forth in writing, and with as much specificity as possible, the nature and relevance of the
    official information sought” to the Office of the General Counsel. It is not disputed that
    Jimenez did not set forth in writing the information he was seeking from Agent Carter. While
    this court has previously held that compliance with a Touhy regulation is “mandatory” (see
    United State v. Wallace, 
    32 F.3d 921
     (5th Cir. 1994), given that Agent Carter’s testimony was
    4
    No. 08-50775
    Jimenez also appeals the district court’s exclusion of Melissa Jimenez’s
    testimony that she received a threatening phone call after Jimenez was arrested
    and later an apology from Carrera’s brother for that phone call. Regardless of
    whether the alleged phone call was hearsay, that Melissa Jimenez received a
    threatening phone call from Carrera’s brother is irrelevant to Jimenez’s defense.
    The alleged phone call may allow an inference to be made about the state of
    mind of the threatener, but it sheds no light on Jimenez’s state of mind or
    knowledge of the presence of drugs in the vehicle at the time he drove to the
    border checkpoint. The most reasonable inference we can draw from the alleged
    threat is that the caller did not want to be implicated in the drug trafficking
    operation. Proof of the threat would not help Jimenez establish that he was “set
    up” by Carrera or others, or that he had no knowledge that the marijuana was
    in the vehicle. Because Melissa Jimenez’s testimony is not relevant to Jimenez’s
    defense, the district court did not abuse its discretion in excluding testimony
    about the phone call and apology.
    IV. CONCLUSION
    For these reasons, we AFFIRM the district court’s judgment.
    not relevant, we need not need reach the issue of whether the failure to comply with 
    6 C.F.R. § 5.45
    (a) is mandatory in this case.
    5
    

Document Info

Docket Number: 08-50775

Judges: King, Davis, Benavides

Filed Date: 10/14/2009

Precedential Status: Non-Precedential

Modified Date: 10/19/2024