United States v. Mosquera-Castro ( 2023 )

Case: 22-30568 Document: 00516895904 Page: 1 Date Filed: 09/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________
Fifth Circuit
FILED
September 14, 2023
No. 22-30568
Summary Calendar Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Aron Winter Mosquera-Castro,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:17-CR-13-4
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam:*
Aron Winter Mosquera-Castro was convicted by a jury of one count
of conspiracy to distribute and to possess with the intent to distribute at least
one kilogram of heroin, four counts of unlawful travel in aid of a racketeering
enterprise, and three counts of unlawful use of a communications facility. He
appeals his conviction on multiple grounds.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-30568
Mosquera-Castro maintains that the district court violated his Sixth
Amendment rights by preventing him from fully cross-examining a witness.
He alleges that he was prohibited from asking Commander William Tanner
Jenkins of the East Baton Rouge Sheriff’s Office about a letter of reprimand
that he received for purportedly making false statements during an internal
investigation. He asserts that he could not sufficiently confront Jenkins about
an issue that concerned his credibility.
Confrontation Clause issues that were properly presented at trial are
reviewed de novo, subject to review for harmless error, while Confrontation
Clause claims that were not asserted below are reviewed for plain error only.
United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007). In the absence of
a constitutional violation, we review the district court’s restrictions on cross-
examination for abuse of discretion. United States v. Jimenez, 464 F.3d 555,
558-59 (5th Cir. 2006). We need not decide whether Mosquera-Castro raised
the issue in the district court because his claim lacks merit under any standard
of review. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
Mosquera-Castro has not shown that the district court’s limitation of
cross-examination violated the Confrontation Clause or exceeded the district
court’s discretion. See United States v. Reagan, 725 F.3d 471, 491 (5th Cir.
2013); United States v. Heard, 709 F.3d 413, 433 (5th Cir. 2013). The record
reflects that there was no direct or definitive evidence that Jenkins made false
statements and indicates that the reprimand was rescinded and that no other
sanction was imposed. Thus, the evidence did not establish conclusively that
Jenkins was untruthful and, if presented without limitation, seemingly would
not have left the jury with a significantly different impression of his reliability.
See United States v. Templeton, 624 F.3d 215, 223 (5th Cir. 2010). The district
court otherwise properly excluded the evidence on the basis that the minimal
probative value of allowing cross-examination on an unrelated and temporally
remote issue with limited value as evidence of Jenkins’s trustworthiness was
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substantially outweighed by the risk of prejudice or jury confusion. See Fed.
R. Evid. 403; Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); United
States v. Dvorin, 817 F.3d 438, 449 (5th Cir. 2016). The trial court’s decision
in that regard did not violate the Confrontation Clause. See Dvorin, 817 F.3d
at 449; Reagan, 725 F.3d at 491. The limits that the district court imposed on
the questioning of Jenkins, who was subject to cross-examination in a manner
that exposed the jury to facts from which it could make inferences as to his
reliability on the minor issues to which he testified, fell within the reasonable
constraints that the district court could impose. See Van Arsdall, 475 U.S. at
679-80; Reagan, 725 F.3d at 491; Templeton, 624 F.3d at 224-25.
Mosquera-Castro argues that the district court erroneously denied his
motion to suppress wiretap evidence. He maintains that normal investigative
techniques were working when the Government applied for a wiretap order.
He thus asserts that the wiretaps were unlawful because the Government did
not satisfy the necessity requirement of 18 U.S.C. § 2518(3)(c). We review a
district court’s authorization of a wiretap for clear error, United States v.
Kelley, 140 F.3d 596, 604 (5th Cir. 1998), and consider de novo whether the
Government satisfied the necessity requirement, United States v. Smith, 273
F.3d 629, 632 (5th Cir. 2001).
Here, the affidavit filed in support of the application for authorization
for a wiretap established that wiretaps were necessary. The affidavit detailed
that the interception of communications was the only investigative technique
with a reasonable likelihood of securing evidence that would fulfill the goals
of the investigation. The affidavit detailed investigators’ use or possible use
of traditional investigative techniques, noted their practicality or adequacy,
described their limitations and risks, and stated what they accomplished or
likely would accomplish vis-à-vis the aims of the investigation. The affidavit
noted the prospective or retrospective failure of these techniques, see United
States v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978), and demonstrated that
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investigators did not resort to wiretaps where traditional techniques would
have sufficed. Regardless of whether traditional methods yielded inculpatory
evidence, the methods did not produce or seem likely to yield the information
that investigators sought or needed as to the offenses being investigated. See
United States v. Krout, 66 F.3d 1420, 1425 (5th Cir. 1995); United States v.
Webster, 734 F.2d 1048, 1054-55 (5th Cir. 1984). The Government did not
have to exhaust all conceivable options before seeking a wiretap. Kelley, 140
F.3d at 605; Krout, 66 F.3d at 1424-25, and the affidavit in this case supplied
a factual predicate adequate to support the finding that traditional techniques
failed, reasonably appeared unlikely to succeed if tried, or were too dangerous
to use. See Kelley, 140 F.3d at 605; § 2518.
Accordingly, the judgment of the district court is AFFIRMED.
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