United States v. Naranjo

Case: 21-50726 Document: 00516616352 Page: 1 Date Filed: 01/19/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 19, 2023
No. 21-50726 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Yaritza Naranjo,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-500-1
Before Richman, Chief Judge, and Dennis and Ho, Circuit Judges.
Per Curiam:*
Yaritza Naranjo appeals her jury-trial convictions for transportation
of, and conspiracy to transport, illegal aliens, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii), (v)(I). She contends, as she did at trial by motions for
judgment of acquittal, that the Government did not present sufficient
evidence to prove she (1) knew of or recklessly disregarded the aliens’ illegal
statuses or (2) agreed with another person to transport illegal aliens. She also
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.4.
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claims a video recording and transcript of her interview with law
enforcement, admitted over objection, violated her Sixth Amendment
confrontation right. Because there was sufficient evidence for the jury to find
her guilty, and because the admission of the tape and transcript, even if
erroneously admitted, was harmless, we affirm.
I
Naranjo’s sufficiency of the evidence challenge is reviewed de novo. 1
When examining the sufficiency of evidence, our court must affirm a criminal
conviction “if, after viewing 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.” 2 In
short, the question is not whether the jury’s determination was correct, but
whether it was rational. 3 “We do not delve into the evidentiary weeds: The
jury ‘retains the sole authority to weigh any conflicting evidence and to
evaluate the credibility of witnesses.’” 4
The evidence at trial established that Naranjo and her husband drove
eight hours to pick up four illegal aliens just north of the Mexican border;
before arriving, one alien texted Naranjo a photograph of the pick-up location
and a GPS pin of his location; Naranjo and her husband then drove the aliens
1
See United States v. Garcia-Gonzalez, 714 F.3d 306, 313 (5th Cir. 2013) (“Because
[defendant] moved for a judgment of acquittal at the close of the government’s case, the
panel reviews de novo the question of whether the evidence was sufficient to support his
conviction.”).
2
United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
3
See United States v. Burton, 126 F.3d 666, 677 (5th Cir. 1997).
4
United States v. Scott, 892 F.3d 791, 796-97 (5th Cir. 2018) (quoting United States
v. Grant, 683 F.3d 639, 642 (5th Cir. 2012)).
2
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further into the United States on a highway known for alien smuggling; they
dropped the aliens off ahead of a border checkpoint; and Naranjo believed
the aliens were supposed to pay a smuggler who arranged for their transport.
The aliens were later apprehended north of the checkpoint, with one in
possession of Naranjo’s cellphone. Although she stated once during
interrogations with law enforcement that her husband provided the aliens the
cellphone, Naranjo admitted numerous times during the interrogations that
she was the one who furnished it to them and that the aliens were going to
use it “for the part where they were going to run” and to contact a smuggler.
Considered in the requisite light most favorable to the Government, the
evidence was sufficient for a rational juror to conclude Naranjo knew or
recklessly disregarded that the aliens were in the United States unlawfully
and agreed with at least one other person to transport them. 5
II
Naranjo’s Confrontation Clause claim is reviewed de novo but
“subject to a harmless error analysis.” 6 “We assume without deciding that
the [transcript] violated the Confrontation Clause.” 7 “We nevertheless
affirm because we are convinced that the error was ‘harmless beyond a
reasonable doubt.’” 8 That standard requires the Government to show
5
See United States v. Jimenez-Elvirez, 862 F.3d 527, 534 (5th Cir. 2017) (“The
elements of conspiracy may be established solely by circumstantial evidence, including ‘the
presence, association, and concerted action of the defendant with others.’” (quoting
United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012))).
6
See United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004) (citing United States v.
McCormick, 54 F.3d 214, 219 (5th Cir. 1995)).
7
See United States v. Sarli, 913 F.3d 491, 496 (5th Cir. 2019).
8
Id. (quoting United States v. Jimenez, 464 F.3d 555, 562 (5th Cir. 2006)).
3
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“there was ‘no reasonable possibility that the tainted evidence might have
contributed to the jury’s verdict of guilty.’” 9
Naranjo argues that the transcript violated her confrontation right
because Agent Donaldson, in his questions to her, repeated statements that
were allegedly made by co-conspirators who were not available to testify at
trial. The statements were presented to her as the story her alleged co-
conspirators had told, and Donaldson asked Naranjo if everything was true.
The district court, in admitting the transcript over objection, twice
issued a limiting instruction to the jury that “the statements of the agent in
the video regarding what some other person or persons told him [are] not
introduced to prove the truth of the matter asserted.” In the Confrontation
Clause context evaluating a limiting instruction, we have explained “[t]he
almost invariable assumption is that jurors follow such instructions. To
overcome this presumption, there must be an overwhelming probability that
the jury will be unable to follow the court’s instruction . . . and a strong
likelihood that the effect of the evidence would be devastating to the
defendant.” 10 No such probability has been shown here.
9
United States v. Buluc, 930 F.3d 383, 392 (5th Cir. 2019) (quoting United States v.
Jones, 930 F.3d 366, 379 (5th Cir. 2019)).
10
United States v. Moparty, 11 F.4th 280, 292 (5th Cir. 2021) (first quoting United
States v. Ramos-Cardenas, 524 F.3d 600, 611 (5th Cir. 2008); and then quoting Greer v.
Miller, 483 U.S. 756, 766 n.8 (1987)) (internal quotation marks and citations omitted); see
also United States v. Acosta, 475 F.3d 677, 683 (5th Cir. 2007) (“Juries are presumed to
follow limiting instructions. Because the statement was not admitted to establish the truth
of the matter asserted, it does not contravene Crawford.” (citing United States v.
Bieganowski, 313 F.3d 264, 288 (5th Cir. 2002)); Tennessee v. Street, 471 U.S. 409, 415 n.6
(1985)) (“The assumption that jurors are able to follow the court’s instructions fully
applies when rights guaranteed by the Confrontation Clause are at issue.” (citing Frazier v.
Cupp, 394 U.S. 731, 735 (1969))).
4
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Further, “[t]he potentially problematic sections of the [transcript]
were all proven by other testimony, and therefore there is no reasonable
probability that the jury would have reached a different conclusion had those
sections been redacted.” 11 All of the information in the agent’s questions
was admitted by Naranjo herself or substantiated by other evidence at trial.
The only part of the agent’s statement Naranjo disagreed with in the
interrogation was that “the people they picked up were gonna pay them
later . . . for the ride.” The jury, however, found for Naranjo on that point.
This indicates both that she could not have been harmed on this point and
that the jury credited Naranjo’s admissions rather than the agent’s questions.
Finally, “[t]o decide how harmful the challenged evidence was, we
consider how it was used. If the government relied on the violative testimony
in its closing argument, we are more likely to conclude that the error was
harmful. If the government makes only ‘fleeting references’ to the
unconstitutional evidence, we are less likely to find harm.” 12 Here, “[t]he
prosecution essentially pointed to [Naranjo’s] own account of what
happened and asked the jury to draw the only reasonable inference
11
See United States v. McClaren, 13 F.4th 386, 416 (5th Cir. 2021), cert. denied sub
nom. Fortia v. United States, 142 S. Ct. 1244 (2022) (“The factual basis contained
information from three people who purchased crack from Gracin and did not testify, which
was cumulative evidence of Gracin’s own involvement in the drug conspiracy, which he
admitted at trial.”); United States v. Bedoy, 827 F.3d 495, 512 (5th Cir. 2016) (“Even
assuming—without deciding—that Crawford proscribes Agent Minor’s testimony, we find
that any error in admitting the tapes was harmless beyond a reasonable doubt. The content
of the Mazzei phone calls was cumulative: there was substantial evidence that Bedoy knew
of or foresaw a federal grand jury investigation—namely, Bedoy’s and Sysy’s own
statements, which Bedoy concedes were properly admitted.”).
12
United States v. Hamann, 33 F.4th 759, 771 (5th Cir. 2022) (first citing United
States v. Alvarado-Valdez, 521 F.3d 337, 342 (5th Cir. 2008); and then citing United States
v. Sarli, 913 F.3d 491, 498 (5th Cir. 2019)).
5
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available.” 13 The prosecution did not focus on the agent’s statements in its
opening or closing; it emphasized over and over again that the jury should
focus on Naranjo’s words. “By contrast, in cases where we’ve granted relief,
the defendant’s involvement was hotly contested, and the prosecution
depended on out-of-court testimony to identify the defendant as a participant
in the crime.” 14 Accordingly, even if there was a Confrontation Clause error
in admitting the transcript and recording, it was harmless.
* * *
For the reasons stated, the judgment of the district court is
AFFIRMED.
13
Sarli, 913 F.3d at 497.
14
Id. at 496-98 (“To overturn a conviction based on mere fleeting references to
out-of-court statements would be tantamount to establishing a rule of per se harm. Our
precedents, by contrast, require not just speculation, but a ‘reasonable possibility’ that the
error contributed to the conviction. Meeting that standard requires far more than this case
involves.”).
6