United States v. Foreman ( 2023 )

Case: 21-50986 Document: 00516936118 Page: 1 Date Filed: 10/18/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
October 18, 2023
No. 21-50986 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Nicole Elizabeth Foreman,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-103-2
______________________________
Before Clement, Elrod, and Willett, Circuit Judges.
Edith Brown Clement, Circuit Judge:
Nicole Foreman was convicted of transporting illegal aliens and
conspiracy to transport illegal aliens. But the government used inadmissible
evidence to prove that the person being transported was in the United States
unlawfully. Because this is an element of the substantive offense but not the
conspiracy charge, we VACATE Foreman’s conviction for transporting
illegal aliens but AFFIRM Foreman’s conviction for conspiracy to transport
illegal aliens. Therefore, we REMAND for resentencing.
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I.
On January 27, 2021, a deputy for the Culberson County Sheriff’s
Office initiated a traffic stop of a white Pontiac that appeared “to be riding
low” with one of its license plate lights out. The deputy found nine men, who
appeared to be of Latin American descent, smashed into the back of the small
SUV. A man named Ira Cannon was driving the vehicle, and a woman named
Nicole Foreman was in the passenger seat. The deputy called U.S. Border
Patrol, which took over the investigation.
Border Patrol determined that Cannon was the leader of the human-
smuggling operation, Foreman assisted him, and Foreman’s husband was the
vehicle’s registered owner. A Border Patrol agent interviewed the nine
smuggled men and determined they were all Mexican nationals. Border
Patrol then passed the case to investigators with the U.S. Department of
Homeland Security.
DHS investigators interviewed Cannon and Foreman. Foreman
cooperated, waived her Miranda rights, and allowed officers to search her
phone. During the interview, Foreman immediately admitted to having
illegal aliens in her SUV. Explaining her side of the story, Foreman, a married
woman with kids, told the agents that she agreed to help her boyfriend,
Cannon, “make a trip” in exchange for some money. But Foreman claimed
she was unsure how she would make money by “pick[ing] up some people,”
even though, as an agent explained at trial, that phrase is commonly used as
code for human smuggling. She also said that she became nervous about
getting caught once she realized that the people they would be transporting
were “freaking Mexicans.” Despite these equivocations, Foreman
ultimately admitted that her cut of the scheme was $7,000 for supplying the
vehicle and that the money would come from the smuggled aliens’ families.
Foreman’s texts to her husband also confirm she was “trying to get [them] a
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little bit of money” by helping Cannon and that once she got caught, she
realized she was “probably about to go to jail.”
Cannon’s telling was substantially similar to Foreman’s. However, he
said Foreman had requested to participate in transporting illegal aliens a
month or two before their arrests. And he testified that Foreman knew from
the beginning that going to “pick up people” meant going to “transport . . .
illegal aliens.” In short, according to Cannon, Foreman knew what she was
doing from the start—smuggling people illegally present in the United States.
Ultimately, a jury convicted Foreman of transportation of illegal aliens
for financial gain and conspiracy to transport illegal aliens, violations of 8
U.S.C. §§ 1324(a)(1)(A)(ii) and (a)(1)(A)(v)(I), respectively. The district
court sentenced Foreman to forty-six months’ imprisonment on each charge
to run concurrently.
During the trial, the government introduced a DHS Investigation
Form G-166F authored by the Border Patrol agent who conducted the initial
investigation. While the agent who authored the report did not testify, his
supervisor, Ramon Saenz, did. Saenz testified that a G-166F was a document
his agents generated in all alien-smuggling cases and that it included the
citizenship of all people involved in a case. After laying this foundation, the
government moved to have the report placed into evidence and a redacted
version published to the jury. Foreman objected vehemently at trial, arguing
the introduction of the G-166F into evidence violated the confrontation
clause of the Sixth Amendment, the hearsay prohibition of the Federal Rules
of Evidence, and the due process clause of the Fifth Amendment. 1 The court
_____________________
1
Foreman has abandoned her due process argument on appeal; therefore, it is
forfeited. Coleman v. United States, 912 F.3d 824, 829 (5th Cir. 2019) (explaining that failure
to adequately brief an issue on appeal forfeits that argument).
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admitted the G-166F into evidence over this objection, and eventually
granted Foreman a “running objection” to the government’s use of the
document.
The G-166F was one of only two pieces of evidence that sought to
prove that the men in Foreman’s vehicle were illegal aliens. The other was
Saenz’s testimony that he personally knew that the men in Foreman’s SUV
had been deported to Mexico. The aliens themselves never testified, nor did
the Border Patrol agents who interviewed them. The government did not
provide the jury any official documentation concerning the individuals’
nationalities, such as passports or deportation papers.
II.
Foreman challenges the district court’s ruling admitting the G-166F
into evidence based on the Federal Rules of Evidence and the Sixth
Amendment. We address each argument in turn.
A.
We review the district court’s hearsay ruling for abuse of discretion.
United States v. Evans, 892 F.3d 692, 714 (5th Cir. 2018). If we find an error,
we apply a harmless error analysis. Id. In an evidentiary ruling context, we
consider whether the error “had a substantial and injurious effect or
influence in determining the jury’s verdict.” Id. (quotation marks and
citation omitted).
The Federal Rules of Evidence generally forbid the admission of
hearsay, i.e., an out-of-court statement offered to prove the truth of the
matter asserted. Fed. R. Evid. 802; Fed. R. Evid. 801(a), (c); United
States v. Demmitt, 706 F.3d 665, 671 (5th Cir. 2013). There is an exception to
the rule against hearsay for business records. Fed. R. Evid. 803(6). The
government does not seem to dispute that the biographical statements in the
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document, specifically the nationality of the people in Foreman’s SUV, are
hearsay. Instead, the government argues that Border Patrol uses the G-166F
form in its ordinary course of business and thus it falls into the business
record exception to the hearsay rule. The district court agreed with this
argument, admitting the report as a “business records affidavit of the United
States Border Patrol.”
The G-166F in question presents a double hearsay problem. See Fed.
R. Evid. 805. First, as the government acknowledges, the investigation
report is not an affidavit nor otherwise sworn to. So, the document has the
out-of-court statements of the men in Foreman’s vehicle and the G-166F’s
author, who did not testify. To get around this issue, the government argues
that, although the report is not “strictly a business record,” it is analogous to
immigration documents that this court has previously allowed as evidence.
The government relies on United States v. Noria, 945 F.3d 847 (5th
Cir. 2019). In Noria, we held that a different form, the I-213 immigration
form, could be used as evidence in a criminal proceeding because of its
ministerial nature. Id. at 860. But that holding was based on the public records
exception to the hearsay rule—a different exception from the business
records exception and one the government explicitly did not argue before the
district court. The government therefore forfeited any argument concerning
the public records exception to the hearsay rule. See Rollins v. Home Depot
USA, Inc., 8 F.4th 393, 397 (5th Cir. 2021) (“A party forfeits an argument by
failing to raise it in the first instance in the district court—thus raising it for
the first time on appeal . . . .”).
Such an argument would be of questionable validity anyway. The
advisory committee’s note to the public records exception explains that
Congress specifically “excluded from the [public records] hearsay exception
reports containing matters observed by police officers and other law
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enforcement personnel in criminal cases.” Fed. R. Evid. 803(8) advisory
committee’s note to 1974 enactment; see also id. at note to 1972 proposed
rules (“Police reports have generally been excluded [from evidence] except
to the extent to which they incorporate firsthand observations of [a testifying]
officer”).
Regarding the government’s argument that the business records
exception applies, the G-166F is precisely the sort of criminal investigation
report the Federal Rules of Evidence prohibit. The advisory committee’s
note to the business records exception says:
If . . . the supplier of the information does not act in the regular
course, an essential link is broken; the assurance of accuracy
does not extend to the information itself, and the fact that it
may be recorded with scrupulous accuracy is of no avail. An
illustration is the police report incorporating information
obtained from a bystander: the officer qualifies as acting in the
regular course but the informant does not.
Fed. R. Evid. 803(6) advisory committee’s note to 1972 proposed rule
(emphasis added).
At bottom, an alien-smuggling investigation report is not “essentially
ministerial” as this court found the I-213 to be in Noria. 945 F.3d at 860.
Instead, it is a criminal investigation report—the sort of document the
Federal Rules of Evidence, and even the Noria decision itself, explicitly note
are inadmissible hearsay. See Fed. R. Evid. 803(6) advisory committee’s
note to 1972 proposed rules; Noria, 945 F.3d at 852–53 (“[T]he Court
distinguishes between law enforcement reports prepared in a routine, non-
adversarial setting, and those resulting from the arguably more subjective
endeavor of investigating a crime and evaluating the results of that
investigation. The former are admissible, while the latter are not.” (citation
and quotation marks omitted)).
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We therefore find that the district court abused its discretion by
admitting the G-166F into evidence under the Federal Rules of Evidence.
B.
Foreman’s Confrontation Clause objection is reviewed “de novo,
subject to harmless error analysis.” United States v. Duron-Caldera, 737 F.3d
988, 992 (5th Cir. 2013). To that end, “the government bears the burden of
defeating a properly raised Confrontation Clause objection by establishing
that its evidence is nontestimonial.” Id. at 993 (alteration adopted) (citation
omitted). “A defendant deprived of the right to confront witnesses against
[her] is entitled to a new trial unless the government proves beyond a
reasonable doubt that the error was harmless; that is, that there was no
reasonable possibility that the evidence complained of might have
contributed to the conviction.” Id. at 996 (alteration adopted) (quotation
marks and citation omitted).
Criminal defendants have the right “to be confronted with the
witnesses against [them].” U.S. Const. amend. VI. A district court must
accordingly ensure that a defendant can challenge her accusers “in the
crucible of cross-examination.” Crawford v. Washington, 541 U.S. 36, 61
(2004). We ask three questions to determine whether an evidentiary ruling
violated the Sixth Amendment: “First, did 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) (citation omitted) (emphasis in original). Answering
“yes” to these three questions establishes a Confrontation Clause violation,
which requires the vacatur of the conviction unless the government shows
that the error was harmless. Id. As discussed above in our hearsay analysis,
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the government concedes the second and third questions. So, we address
only the parties’ dispute on whether the information in the G-166F was
testimonial.
“A statement is testimonial if its primary purpose is to establish or
prove past events potentially relevant to later criminal prosecution.” Id.(quotation marks and citation omitted). Foreman argues that the information
in the G-166F fits this description. As she points out, G-166Fs are used to
investigate “alien smuggling,” which is a crime. 8 U.S.C. § 1324(a)(1)(A)(ii).
Indeed, the G-166F identifies Foreman as an “associate” in the “alien
smuggling case.” Central to the debate between the parties—whether the
government can prove alienage with a G-166F—Foreman argues that the
biographical information in the form also fits the criteria of information
“relevant to [a] later criminal prosecution” and should be seen as testimonial
information that requires cross-examination pursuant to the Sixth
Amendment. As Foreman concludes, “[t]here is no ‘biographical
information’ exception to the Sixth Amendment right to confrontation.”
The government counters that “limited information about the aliens’
place of birth in the G-166[F] form was not testimonial” because this court
allowed such information to enter the evidentiary record through I-213 forms
in Noria. But for similar reasons to why the G-116F fails to satisfy the business
records exception, it also fails as an analogy to the I-213 evaluated in Noria.
In Noria, our court explained that the Form I-213 at issue was nontestimonial
because its “primary purpose is administrative, not investigative or
prosecutorial.” 945 F.3d at 857. Here, the Form G-166F is, by its very title,
investigative. And the Supreme Court has said that statements that
investigating officers gather during their investigation are testimonial and
require the right to confrontation. See Davis v. Washington, 547 U.S. 813,
829–31 (2006).
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All in all, it is the government’s burden to establish that using the
challenged investigative report was constitutional. See Duron-Caldera, 737
F.3d at 993. The government has not met that burden here. Therefore,
admitting the G-166F into evidence violated Foreman’s Sixth Amendment
rights. 2
C.
Because the admission of the G-166F form into evidence violated the
Federal Rules of Evidence and the Confrontation Clause, we must vacate the
conviction unless the error was harmless. Evans, 892 F.3d at 714; Duron-
Caldera, 737 F.3d at 996. To test this, we examine the error’s effects instead
of merely “ask[ing] whether the evidence remaining after [the] excision of
the tainted evidence was sufficient to convict the defendant.” Hamann, 33
F.4th at 771 (quotation marks and citation omitted). The primary
consideration is whether prosecutors emphasized the tainted evidence to the
jury and the significance of the evidence to the government’s case. See id. at
771–72. “If the government relied on the violative testimony in its closing
argument, we are more likely to conclude that the error was harmful.” Id. at
771 (citation omitted). But “[i]f the government makes only fleeting
references to the unconstitutional evidence, we are less likely to find harm.”
Id. (quotation marks and citation omitted). Finally, if the unconstitutional
evidence speaks to a contested element of the offense, we are more likely to
find that the defendant suffered harm from the error. Id. at 772.
_____________________
2
In a non-precedential opinion, a panel of this court found that the use of a G-166F
form to prove a transportation-of-illegal-aliens charge did not violate the Confrontation
Clause. United States v. Guia-Lopez, No. 22-50234, 2023 WL 5236764 (5th Cir. Aug. 15,
2023). But in Guia-Lopez, the agent who authored the report testified at trial. Id. at *11.
And the defendant had failed to challenge the admission of the document during his trial,
so it was reviewed under a clear error standard. Id. Thus, the Guia-Lopez decision does not
bear on this appeal.
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As the district court informed the jury, the elements of the crime of
transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) are that:
(1) an alien was in the country illegally; (2) the defendant knew or recklessly
disregarded the fact that the alien was illegally present in the United States;
and (3) the defendant transported the alien with the intent to further the
alien’s unlawful presence. Here, Foreman challenges the government’s use
of the biographical information in the G-166F to prove the first element.
Foreman argues that the government’s use of the G-166F in its closing
argument shows reliance on this evidence, not just fleeting reference. She
says this evidence harmed her because the jury reasonably used the
citizenship information therein to conclude that the men in Foreman’s SUV
were in the United States unlawfully. So, says Foreman, the panel should
vacate her conviction on the first count of the indictment. For its part, the
government accepts that it used the investigation report as evidence of illegal
alienage but contends that it was cumulative of other evidence in the record.
The government is correct that there is plenty of evidence in the
record that Foreman believed she was transporting illegal aliens. However,
this evidence speaks to the second element of the crime—whether she knew
or recklessly disregarded the fact that the people in her vehicle were illegal
aliens. There were only two pieces of evidence that the people in Foreman’s
truck were actually illegal migrants from Mexico: the G-116F and Saenz’s
statement that he personally knew the government deported those men.
But Saenz himself did not speak personally to the individuals about
their alienage. And regardless, the question is not whether Saenz’s personal
knowledge would have been enough for a jury to conclude that the men in
Foreman’s SUV were indeed foreigners in the United States unlawfully.
Hamann, 33 F.4th at 771 (“[W]e do not ask whether the evidence remaining
after excision of the tainted evidence was sufficient to convict the
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defendant.” (quotation marks and citation omitted)). Instead, the
government must show that there was no reasonable possibility that the
information in the G-116F contributed to the jury’s verdict. See Duron-
Caldera, 737 F.3d at 996. Here, the G-116F was one of two pieces of evidence
relied on by the government to prove illegal alienage, a required element of
the crime of transporting illegal aliens. Accordingly, there is a reasonable
possibility that the jury relied on the G-116F in its decision to convict
Foreman. The district court’s decision to allow the G-166F into evidence
thus caused Foreman harm at trial. We therefore VACATE her conviction
on the first count in the indictment and REMAND for resentencing.
III.
Foreman was also convicted of conspiracy to transport illegal aliens.
To convict someone under 8 U.S.C. § 1324(a)(1)(A)(v)(I), the government
must show that: (1) two or more people directly or indirectly agreed to
transport an alien within the United States; (2) the defendant knew of the
unlawful purpose of the agreement; and (3) the defendant joined the
agreement willfully.
The government correctly points out that a conspiracy to transport
illegal aliens only requires an agreement to move migrants in the United
States illegally, not that the people so moved are actually unlawful migrants.
So, the government believes that the unconstitutional information found in
the G-166F is not relevant to the second charge. Foreman acknowledges that
alienage is not an element of conspiracy to transport illegal migrants. But she
counters in her reply brief that there is a reasonable possibility that the
information in the G-116F regarding proof of alienage influenced the jury’s
verdict when it determined that Foreman entered into “an agreement to
transport an alien within the United States.” Based on the applicable
standard of review, she concludes that this is enough to find harmful error.
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We agree with the government. Unconstitutional evidence may be
harmful in the context of a related conspiracy charge, but only where the
unconstitutional evidence speaks to a contested element of the conspiracy,
or where the conspiracy and substantive offense cannot be distinguished.
Hamann, 33 F.4th at 772–73. Here, the crimes are distinguishable. The
evidence shows that the two charges stemmed from separate events, with
Cannon and Foreman conspiring with each other to transport illegal aliens
up to two months before they attempted the crime. And the evidence of
alienage contained in the G-166F was not used to demonstrate that Foreman
and Cannon agreed to transport aliens. For that, the government relied on
Foreman’s own filmed comments admitting to her agreement, and Cannon’s
testimony to the same. 3 To sum it up, whether the men in Foreman’s car
were actually illegal aliens is not relevant to any element in the conspiracy to
transport illegal aliens charge. We AFFIRM Foreman’s conviction for
conspiracy.
_____________________
3
Although the parties do not discuss it, the G-166F presented to the jury lists
Cannon as a “PRINCIPAL” and Foreman as an “ASSOCIATE.” While it is possible that
a jury could have considered this portion of the report when it determined that Cannon and
Foreman made an agreement to transport illegal immigrants, Foreman failed to raise this
issue on appeal, forfeiting the argument. See United States v. Gonzalez, 62 F.4th 954, 960
n.5 (5th Cir. 2023) (“By failing to adequately raise those arguments on appeal, he forfeited
them.”).
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