United States v. Guia-Lopez

Case: 22-50234 Document: 00516858355 Page: 1 Date Filed: 08/15/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
August 15, 2023
No. 22-50234 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Lizandro Guia-Lopez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-158-1
______________________________
Before Duncan and Wilson, Circuit Judges, and Schroeder, District
Judge. *
Per Curiam: †
_____________________
*
United States District Judge for the Eastern District of Texas, sitting by
designation.
†
This opinion is not designated for publication. See 5TH CIR. R. 47.5.
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A jury convicted Lizandro Guia-Lopez of conspiracy to transport and
transportation of illegal aliens. Guia-Lopez alleges constitutional violations,
error in the jury instructions, and that the admission of certain evidence de-
prived him of due process. For the following reasons, we AFFIRM.
I. Background
A. Factual Background
Guia-Lopez was charged in a two-count superseding indictment with
(a) conspiracy to transport illegal aliens in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I) & (B)(i) and (b) transportation of illegal aliens for
financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) & (B)(i).
On February 28, 2021, Border Patrol Agent Ryland Brown pulled over
a black Chevy Equinox on suspicion of possible alien smuggling due to
indicators such as mud and handprints, a low suspension, obstructions in the
vehicle, and its “high rate of speed.” Upon stopping the vehicle he saw Guia-
Lopez as the driver, codefendant Yesenia Romero in the front passenger seat,
and six passengers in the passenger and cargo areas. Agent Brown believed
that the six individuals in the backseat and cargo area had illegally crossed the
border because they were wet, muddy, nervous, sweating, and unable to
provide documentation as to their legal status.
Homeland Security Investigations Agent Anthony Golando
interviewed Romero and Guia-Lopez after they were arrested. Romero
waived her Miranda rights and provided her account of what transpired and
Guia-Lopez’s involvement. Guia-Lopez refused to execute the waiver of
rights form and stated he did not wish to speak with Agent Golando. Shortly
thereafter, Agent Golando asked Guia-Lopez if he would consent to a search
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of his cellphone. Guia-Lopez read and signed a consent form to search his
cellphone and wrote his cellphone password at the top of the form.
B. Procedural Background
On May 26, 2021, the district court conducted a hearing on Guia-
Lopez’s motion to suppress the passcode and contents of his cellphone.
After finding Guia-Lopez’s Fifth Amendment invocation of the right to
remain silent had not been fully honored, the district court granted Guia-
Lopez’s motion in part by suppressing the passcode that Guia-Lopez had
given to Agent Golando. The district court, however, denied the portion of
Guia-Lopez’s motion requesting the suppression of Guia-Lopez’s consent
and the messages found on the cellphone.
Trial was held in November 2021. The jury found Guia-Lopez guilty
of conspiracy to transport illegal aliens and transportation of illegal aliens.
Guia-Lopez was sentenced to twenty-four months of imprisonment followed
by three years of supervised release. Guia-Lopez timely noticed and filed this
appeal.
II. Jurisdiction
We have jurisdiction because Appellant challenges a final judgment.
18 U.S.C. § 3742; 28 U.S.C. § 1291.
III. Discussion
C. A. The Jury Instructions Did Not Constructively Amend the Indict-
ment
The first dispute between the parties is whether the jury instructions
allowed Guia-Lopez to be convicted on a theory that was broader than the
one charged in the indictment. We determine there was no plain error in the
jury instructions and affirm the district court’s ruling.
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The first count of the indictment charged, in relevant part:
On or about February 28, 2021, in the Western District
of Texas, the Defendants,
LIZANDRO GUIA-LOPEZ (1)
YESENIA ROMERO (2)
did knowingly and intentionally combine, conspire,
confederate, and agree with others known and unknown to the
Grand Jury, to commit the following offense against the United
States: to transport and move within the United States, and
attempt to transport and move within the United States . . .
certain aliens who had entered and remained in the United
States in violation of law . . . .
Guia-Lopez relies on United States v. Sanders to argue that the indictment’s
use of the term “with others” required the Government to show that Guia-
Lopez and Romero did not just conspire with each other. See 966 F.3d 397(5th Cir. 2020). Guia-Lopez argues that the jury instructions constructively
amended the indictment because the jury was only required to find Guia-
Lopez and Romero conspired with each other.
The Government argues that the jury instructions did not broaden the
indictment because an “indictment count that alleges in the conjunctive a
number of means of committing a crime can support a conviction if any of the
alleged means are proved.” See United States v. Miller, 471 U.S. 130, 136
(1985). The Government argues that the indictment charges several
conjunctive acts—including a conspiracy between those “known to the
grand jury,” i.e., Guia-Lopez and Romero. The Government argues that the
language of the indictment allows the Government to prove its case in the
disjunctive by showing a conspiracy “involving Guia-Lopez and Romero or
Guia-Lopez and Cruz.” See United States v. Davis, 995 F.3d 1161, 1167 (10th
4
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Cir. 2021). The Government also argues Guia-Lopez has not shown that the
alleged error affected his substantial rights.
The parties agree this issue is subject to plain-error review because
there was no challenge to the jury instructions. We have the discretion to
remedy an error that “seriously affects the fairness, integrity or public
reputation of judicial proceedings” if it is shown that “(1) there is an ‘error,’
(2) that is ‘clear or obvious,’ and (3) that error ‘affected the appellant's
substantial rights.’” United States v. Green, 47 F.4th 279, 288 (5th Cir.
2022), cert. denied, 143 S. Ct. 747 (2023), and cert. denied sub nom. Selgas v.
United States, 143 S. Ct. 1058 (2023) (quoting Puckett v. United States, 556
U.S. 129, 135 (2009)). “A jury instruction must: (1) correctly state the law,
(2) clearly instruct the jurors, and (3) be factually supportable.” Id. at 294
(quoting United States v. Fairley, 880 F.3d 198, 208 (5th Cir. 2018)). “Error
in a charge is plain only when, considering the entire charge and evidence
presented against the defendant, there is a likelihood of a grave miscarriage
of justice.” Id. (citing United States v. McClatchy, 249 F.3d 348, 357 (5th Cir.
2001)). In other words, jury instructions amount to plain error when they
“could have meant the difference between acquittal and conviction.” Id. at
294 (quoting Fairley, 880 F.3d at 208).
There is no plain error here. There is no dispute that the jury
instructions correctly stated the law to the jury. Instead, Guia-Lopez argues
the indictment requires “both named defendants . . . [to] knowingly and
intentionally combine, conspire, confederate and agree with others known
and unknown to the Grand Jury,” but the jury instructions allowed the
Government to prove that Guia-Lopez and Romero conspired “with each
other.” But Appellant’s argument ignores the language and conjunctive
nature of the indictment. See Miller, 471 U.S. at 136; see also, United States v.
Hoeffner, 626 F.3d 857, 864 (5th Cir. 2010) (determining charges plead
conjunctively in the indictment could be proved in the disjunctive).
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Sanders reinforces our opinion. In Sanders, we interpreted the
indictment to require the defendant to know the victims were minors based
on the plain language of the indictment. 966 F.3d at 406–07 (considering how
an “objective reader” would understand the indictment). Here, an objective
reader would understand the indictment to include an allegation that Guia-
Lopez conspired with Romero. The plain language shows the indictment
includes conjunctive charges that would allow the government to prove its
case in the disjunctive by showing that Guia-Lopez conspired with Romero,
who was known to the grand jury, or with others unknown to the grand jury.
Although the language of the indictment and the jury instructions is not
identical here, the jury instructions did not broaden or constructively amend
the indictment.
In Sanders we also considered how indictments with similar language
had been interpreted. Id. Given the language of the indictment and the
Tenth Circuit’s interpretation of a similar indictment in Davis, Appellant’s
proposed interpretation does not reflect how an “objective reader” would
understand the charge at issue in this appeal. See Davis, 995 F.3d at 1167. In
Davis, the indictment read:
From as early as in or about June 2018 to the date of this
[i]ndictment, in the Northern District of Oklahoma and
elsewhere, the defendants, AMY LEE DAVIS, CARLOS
BANEGAS, and CINDY DAVIS, together and with others
known and unknown to the [g]rand [j]ury, did willfully,
knowingly, and intentionally combine, conspire, confederate,
and agree, each with the other, to commit offenses against the
United States as follows . . . .
Id. at 1165 (alterations in original) (emphasis added). In Davis, the defendant-
appellant argued that the jury charge broadened the indictment because the
indictment limited the scope of the alleged conspiracy by specifically naming
the codefendants. Id. at 1167. There, the Tenth Circuit determined that the
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language of the indictment charged in the conjunctive but “the government
could prove its case in the disjunctive by showing that [the defendant-
appellant] conspired with [at least one of the defendant-appellant’s
codefendants at trial] or with another individual or individuals.” Id.
(emphasis in original).
Guia-Lopez argues Davis is inapplicable here because the indictment
in Davis expressly charged that the defendants conspired “each with the
other,” whereas here the indictment does not include such language. But
this ignores the difference in the plain language of the indictment here and
the indictment in Davis. The term “each with the other” was important in
Davis because the indictment’s use of the word “together” modified the
indictment such that the codefendants were excluded from the term “others
known . . . to the [g]rand [j]ury.” See 995 F.3d at 1165. Here, the term “with
others known. . . to the Grand Jury” is less limiting than the language of Davis
because the language of the indictment does not group Guia-Lopez and
Romero “together.”
For these reasons, there was no plain error because the jury
instructions were consistent with the plain language of the indictment. 1
D. B. The Denial of the Motion to Suppress the Contents of Guia-
Lopez’s Cellphone is Affirmed
A central dispute between the parties is whether the district court
erred in denying Guia-Lopez’s motion to suppress the contents of his
_____________________
1
Even if the variance between the indictment and the jury instructions had been an
error, such error would not have substantially affected Guia-Lopez’s rights because there
was no material variance between the indictment and the evidence at trial that Guia-Lopez
conspired with others known or unknown to the grand jury (e.g., “Cruz” and/or the
“guide”). See United States v. Valencia, 600 F.3d 389, 432 (5th Cir. 2010).
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cellphone. We determine the district court did not err in its factual findings
and affirm the district court’s ruling.
This Court reviews factual findings for clear error and legal
conclusions de novo when considering an appeal of the denial of a motion to
suppress. United States v. Coulter, 41 F.4th 451, 456 (5th Cir. 2022). During
such a review, we evaluate “evidence in the light most favorable to the party
that prevailed in the district court” and will “uphold the district court’s
ruling on the motion if there is any reasonable view of the evidence to support
it.” Id. (cleaned up).
Guia-Lopez’s appeal primarily argues the district court erred in
denying his motion to suppress because the “fruits of the poisonous tree”—
the text messages found on his cellphone after the Fifth Amendment
violation—do not comprise physical evidence but are instead testimonial in
nature. 2 Guia-Lopez argues that the text messages are testimonial and should
have been suppressed because they contain incriminating information, such
as evidence tending to prove Guia-Lopez owned the cellphone and authored
messages therein.
The Government does not challenge the district court’s finding that
Guia-Lopez was subject to custodial interrogation at the time he provided
consent and his passcode. The Government instead argues the evidence was
admissible as the “physical fruit” of a voluntary, uncoerced statement. The
Government argues that the text messages are admissible without violating
the Fifth Amendment because they are not coerced statements. See Fisher v.
United States, 425 U.S. 391, 409 (1976); United States v. Oloyede, 933 F.3d
_____________________2
Guia-Lopez also briefed a Fourth Amendment challenge on appeal, which we
decline to consider because he waived this argument during the motion to suppress hearing
before the district court.
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302, 308–10 (4th Cir. 2019). The Government also argues that the text
messages cannot be considered compelled testimonial evidence because the
text messages were sent, received, and recorded “prior to and independent
of Guia-Lopez’[s] interactions with Agent Golando or any enforcement
officer.” The Government additionally argues that even if Guia-Lopez’s
consent and provision of his passcode was testimonial, the “fruit of that
voluntary communication” was admissible because he voluntarily consented
to the search and voluntarily provided his passcode.
We address Guia-Lopez’s primary argument in his opening brief
first—that the text messages themselves qualify for Fifth Amendment
protection. “To qualify for the Fifth Amendment privilege against self-
incrimination, a communication must be (1) testimonial in character, (2)
incriminating, and (3) compelled.” United States v. Velasquez, 881 F.3d 314,
337 (5th Cir. 2018). A communication that is testimonial in character “must
itself, explicitly or implicitly, relate a factual assertion or disclose
information.” Id. (quoting Doe v. United States, 487 U.S. 201, 210 (1988)).
But even evidence that is testimonial in character and incriminating is not
subject to Fifth Amendment protections if it is not a product of government
compulsion. See id. For example, an individual who voluntarily decides to
tattoo incriminating gang-related symbols onto his body cannot claim Fifth
Amendment protections for those tattoos because they are not a product of
government compulsion. Id. at 338–39.
The text messages at issue are testimonial in nature and incriminating.
But the text messages were not compelled in the sense that the Government
did not compel Guia-Lopez to write, send, or record these text messages.
The Fifth Amendment is not a “general protector of privacy”—it “protects
against ‘compelled self-incrimination, not (the disclosure of) private
information.’” Fisher, 425 U.S. at 401 (quoting United States v. Nobles, 422
U.S. 225, 233 n.7 (1975)). Accordingly, Guia-Lopez’s private
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communications—the text messages—should not themselves be afforded
Fifth Amendment protection. See id.The real issues presented in this appeal—whether Guia-Lopez’s
consent to search and his passcode were obtained in violation of his Fifth
Amendment right to remain silent and whether the text messages are the
“fruits” of a constitutional violation that should be suppressed—were
addressed more fully in Guia-Lopez’s reply brief. 3 Guia-Lopez’s negative
response to Agent Golando’s invitation to talk was a sufficient invocation of
his right to remain silent. See Berghuis v. Thompkins, 560 U.S. 370, 382 (2010)
(stating that “simple, unambiguous statements” such as an individual stating
“that he did not want to talk with the police” are sufficient to invoke the
“right to cut off questioning”). Accordingly, the questioning of Guia-Lopez
should have ceased. See Miranda v. Arizona, 384 U.S. 436, 473–74 (1996). 4
Because Guia-Lopez invoked his right to remain silent, whether his
statements should be suppressed turns on whether the police “scrupulously
honored” his right to cut off questioning. Gutierrez v. Stephens, 590 F. App’x
371, 376 (5th Cir. 2014) (per curiam) (quoting Michigan v. Mosley, 423 U.S.
_____________________3
The failure to adequately brief an issue in an opening brief constitutes a waiver of
that argument. United States v. Fernandez, 48 F.4th 405, 412 (5th Cir. 2022). It is a close
call whether these issues were adequately presented in Guia-Lopez’s opening brief. We
exercise our discretion to address these issues on the merits because they were referenced
in Guia-Lopez’s opening brief and were more fully addressed in Guia-Lopez’s reply in
response to the Government’s arguments.
4
Guia-Lopez argues his response of “No” also invoked the right to counsel. But
invoking the right to remain silent is not equivalent to invoking the right to counsel. See,
e.g., Miranda, 384 U.S. at 473–74 (noting the difference between invoking the right to
remain silent and the right to counsel). Guia-Lopez’s response did not unequivocally
invoke his right to counsel. See id.; see also Berghuis, 560 U.S. at 381 (“In the context of
invoking the Miranda right to counsel . . . a suspect must do so ‘unambiguously.’”).
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96, 104 (1975)). To determine whether this right was scrupulously honored,
the Court considers the specific facts of each case, including
(1) whether the suspect was advised prior to initial
interrogation that he was under no obligation to answer
question [sic]; (2) whether the suspect was advised of his right
to remain silent prior to the reinterrogation; (3) the length of
time between the two interrogations; (4) whether the second
interrogation was restricted to a crime that had not been the
subject of earlier interrogation; and (5) whether the suspect’s
first invocation of rights was honored.
Id. (quoting United States v. Alvarado-Saldivar, 62 F.3d 697, 699 (5th Cir.
1995)). Upon review of the record, we affirm the district court’s analysis of
these factors. The district court correctly applied the law to the facts to find
that Guia-Lopez’s right to remain silent was not scrupulously honored.
An interrogation comprises “words or actions” by the police that the
“police should know are reasonably likely to elicit an incriminating response
from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Not every
communication during custody seeks incriminating responses. See id. at 300.
Here, the “responses” sought by Agent Golando during the continued
questioning were (1) Guia-Lopez’s consent to search and (2) the password.
Guia-Lopez asserts that asking for consent to search his cellphone
comprised an interrogation because Agent Golando knew there would be
incriminating information on Guia-Lopez’s cellphone. But we have
repeatedly determined asking for consent to search a mobile phone does not
seek testimonial evidence as defined by the Fifth Amendment. See, e.g.,
United States v. Venegas, 594 F. App’x 822, 826–27 (5th Cir. 2014) (finding a
“statement granting ‘consent to a search . . . is neither testimonial nor
communicative in the Fifth Amendment sense’”). Accordingly, the district
court appropriately denied Guia-Lopez’s motion to suppress Guia-Lopez’s
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consent. Using the same reasoning, the district court was correct to suppress
the passcode because asking Guia-Lopez to write down his password was a
Fifth Amendment violation because this request was likely to, and did, result
in testimonial evidence that implicitly showed Guia-Lopez’s ownership of
the phone.
Suppression of a testimonial statement obtained in violation of the
Fifth Amendment can alone be a sufficient remedy, even when that
statement leads to additional evidence. See United States v. Gonzalez-Garcia,
708 F.3d 682, 687 (5th Cir. 2013) (discussing United States v. Green, 272 F.3d
748 (5th Cir. 2001), which suppressed statements obtained in violation of the
Fifth Amendment but did not go so far as to state the “fruit” of those
statements—firearms—should be suppressed). But Guia-Lopez argues that
the constitutional violation here makes the text messages inadmissible fruits
of the poisonous tree. The Government relies on Patane to show
admissibility, arguing the Fifth Amendment’s Self-Incrimination Clause
“cannot be violated by the introduction of nontestimonial evidence obtained
as a result of voluntary statements.” United States v. Patane, 542 U.S. 630,
637 (2004) (plurality opinion) (emphasis added).
Guia-Lopez does not argue he was coerced, but the possibility of
coercion is present here because questioning continued after he invoked his
right to remain silent. “To permit the continuation of custodial interrogation
after a momentary cessation” would allow police “to undermine the will of
the person being questioned.” Mosley, 423 U.S. at 102; Michigan v. Tucker,
417 U.S. 433, 448 (1974) (“Cases which involve the Self-Incrimination
Clause must, by definition, involve an element of coercion, since the Clause
provides only that a person shall not be compelled to give evidence against
himself.”). Miranda violations are distinguishable from “actual violations of
the Due Process Clause or the Self–Incrimination Clause,” which apply the
“fruit of the poisonous tree” doctrine as a deterrence. See Patane, 542 U.S.
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at 642; see also id. at 631 (“[T]he [Self-Incrimination] Clause contains its own
exclusionary rule that automatically protects those subjected to coercive
police interrogations from the use of their involuntary statements (or
evidence derived from their statements) in any subsequent criminal trial.”).
When a constitutional violation occurs, “[t]he exclusionary rule
reaches not only the evidence uncovered as a direct result of the violation,
but also evidence indirectly derived from it—so-called ‘fruit of the poisonous
tree.’” United States v. Mendez, 885 F.3d 899, 909 (5th Cir. 2018). But the
exclusionary rule applies only “where its deterrence benefits outweigh its
substantial social costs.” Utah v. Strieff, 579 U.S. 232, 237 (2016) (quoting
Hudson v. Michigan, 547 U.S. 586, 591 (2006)). Thus, the exclusionary rule
considers the reliability of the evidence, whether the evidence was obtained
from severe pressures, and whether suppression is an appropriate sanction.
See id.; see also Tucker, 417 U.S. at 448–49 (finding suppression inappropriate
because there was no evidence of “severe pressures,” nor was there a fact
issue as to whether the evidence itself was untrustworthy).
Here, the deterrence benefits would not outweigh the substantial
social costs of suppressing the text messages. The district court correctly
found the text messages admissible despite the Fifth Amendment violation
because Guia-Lopez provided his consent and passcode based on his free and
rational choice and not because of offensive coercive tactics. See Tucker, 417
U.S. at 448–49 (discussing offensive coercive tactics ranging from third-
degree torture, prolonged isolation and “endless” interrogations). Even
though Agent Golando violated Guia-Lopez’s Fifth Amendment right, Agent
Golando mitigated any coercion present from that violation by offering
renewed warnings about Guia-Lopez’s right to consent. As discussed, the
trustworthiness of the content of these messages is not in question because
the text messages were not the result of government coercion. Accordingly,
suppressing these text messages does not serve a valid or useful purpose. See
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id. at 446 (“[T]he law . . . cannot realistically require that policemen
investigating serious crimes make no errors whatsoever. . . . Before we
penalize police error, therefore, we must consider whether the sanction
serves a valid and useful purpose.”).
Moreover, knowledge of and access to these text messages was not an
“exploitation” of the alleged constitutional violations. Nix v. Williams, 467
U.S. 431, 442 (1984) (quoting Wong Sun v. United States, 371 U.S. 471, 488
(1963)). At the time of the alleged constitutional violations, Agent Golando
had already found Guia-Lopez’s cellphone and interviewed Romero. Guia-
Lopez admits Agent Golando “knew that there would be incriminating
information on [Guia-Lopez’s] phone before he . . . interviewed [Guia-
Lopez].” In addition, the Government proffered evidence that even if it had
not obtained the password, it would have discovered these text messages
inevitably using “GrayKey” or “Cellebrite.” 5 Accordingly, exclusion of
these text messages, which Agent Golando knew about from an independent
source and would have eventually been discovered, “would have ‘add[ed]
nothing’ to either the integrity or fairness of [Guia-Lopez’s] criminal trial.”
Nix, 467 U.S. at 446.
Accordingly, the district court did not err in admitting the contents of
the text messages.
E. C. Admission of Agent Juarez’s Opinion Testimony Was Not Im-
proper
Guia-Lopez further argues the district court abused its discretion by
allowing Agent Juarez to testify about WhatsApp exchanges that occurred
_____________________
5
Although Agent Golando admitted that using GrayKey is “not guaranteed” the
Government showed Cellebrite software was eventually able to extract the contents of
Guia-Lopez’s cellphone.
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between February 18, 2021, and February 28, 2021. Guia-Lopez first argues
Agent Juarez improperly opined on the ultimate issue and offered improper
lay opinion testimony. In addition, Guia-Lopez argues Agent Juarez’s
testimony about messages exchanged prior to the February 28, 2021, incident
prejudicially conflated the charged acts with events that occurred before that,
in violation of Federal Rule of Evidence 403. We determine there was no
abuse of discretion and affirm the district court’s ruling.
The conversations between Guia-Lopez and “Cruz” were contained
in Government’s Exhibit 20C, which was admitted without objection. Agent
Juarez read these texts into the record and was then asked for his conclusion
based on his “training and experience.” Agent Juarez testified:
I arrived at the conclusion that Cruz is the person that was
directing the smuggling attempt. And he was providing
instructions. And you can follow it for ten days from February
18th to the day he was arrested on February 28th where he’s
providing instructions, directions on where to transport, how
much to charge for each individual, when to start and when to
end as far as his movements go.
Guia-Lopez objected to this testimony on the ground that it went to
the “ultimate issue.” The district court overruled this objection because the
testimony was based on Agent Juarez’s “training and experience . . . .” Guia-
Lopez also preserved Rule 403 objections to this testimony to the extent
Agent Juarez discussed previous events. The district court overruled the
Rule 403 objection and, per Rule 404(b), provided a limiting instruction that
the jury could only consider the other acts to determine Defendant’s state of
mind, motive, intent, or knowledge.
The Government followed a similar strategy with Government’s
Exhibit 20D, which comprised a series of text exchanges between Guia-
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Lopez and other parties on February 28, 2021. After this series of text
messages was read into the record, Agent Juarez testified:
Q. Based on your training and experience and your
investigation in this case, what did you conclude that this
conversation was about?
A. This is the person in the group that might be the guide that
is coordinating with the Defendant.
Guia-Lopez alleges he did not lodge a contemporaneous objection to this
testimony because “the trial judge had already ruled that Agent Juarez could
give opinion testimony on the meaning of the text exchanges.” But this
distorts the objection made by Guia-Lopez. Although Guia-Lopez is correct
that he need not repeat his “ultimate issue” objection because it was
overruled, 6 Guia-Lopez’s previous objection was limited to the “ultimate
issue.” At trial, Guia-Lopez failed to raise the objection he now argues—that
Agent Juarez’s testimony was improper lay opinion because of his lack of
“extensive” experience in this case.
We review Guia-Lopez’s “ultimate issue” and Rule 403 arguments
for an abuse of discretion, subject to harmless error. See United States v.
Cowards, 24 F.4th 409, 411 (5th Cir. 2022) (“Properly preserved evidentiary
rulings are reviewed for an abuse of discretion.”). “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.” United States v. Jackson, 636 F.3d
687, 692 (5th Cir. 2011) (quoting United States v. Yanez Sosa, 513 F.3d 194,
_____________________
6
Renewing the “ultimate issue” objection after the trial judge had made a ruling
on a nearly identical question related to nearly identical evidence would only serve to “be
a needless provocation to the trial judge, not to mention a distracting interruption during
the trial.” United States v. Lara, 23 F.4th 459, 474 (5th Cir.), cert. denied, 142 S. Ct. 2790
(2022) (citations omitted).
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No. 22-50234
200 (5th Cir. 2008)). An evidentiary “error is harmless unless it had
substantial and injurious effect or influence in determining the jury’s
verdict.” United States v. Spivey, 506 F. App’x 332, 333 (5th Cir. 2013)
(quoting United States v. Lowery, 135 F.3d 957, 959 (5th Cir. 1998)).
To determine the admissibility of the pre–February 28, 2021,
messages under Rule 403 we apply a two-part test: (1) “the extrinsic offense
evidence is relevant to an issue other than the defendant’s character,” and
(2) “the evidence must possess probative value that is not substantially
outweighed by its undue prejudice and must meet the other requirements of
[R]ule 403.” United States v. Ortega, 478 F. App’x 871, 874–75 (5th Cir.
2012) (alteration in original) (citing United States v. Beechum, 582 F.2d 898,
911 (5th Cir.1978)).
Guia-Lopez acknowledges this evidence of his prior acts is probative
of motive and intent. Accordingly, the first part of the test is easily satisfied.
See id. at 875 (finding text messages sent after charged act were relevant
because they supported an inference of knowledge of illegal narcotics).
Guia-Lopez instead focuses on the second part of the test, arguing the
probative value of the evidence of other acts is substantially outweighed by
prejudice because Agent Juarez’s testimony made it impossible for the jurors
to separate the charged offense from previous offenses. Upon review of the
evidence and testimony in question, we disagree. Agent Juarez’s testimony
was based on dated text messages that would allow a juror to separate past
events from the charged events easily. Moreover, the district court took the
additional cautionary measure of providing the jury with a limiting
instruction that explicitly stated as follows:
You must not consider Defendant’s other acts in deciding if the
Defendant’s committed the acts charged in this indictment.
You may however consider this evidence for other limited
purposes . . . [such as] whether the Defendant had the state of
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No. 22-50234
mind, motive, intent, or knowledge necessary to commit the
crime charged in the indictment.
For these reasons, the prejudicial effect of these text messages did not
substantially outweigh their probative value and the district court did not
abuse its discretion by admitting the evidence under Rule 404(b).
Guia-Lopez also argues Agent Juarez offered improper opinion
testimony as to the ultimate issue of Guia-Lopez’s state of mind. The
Government responds that the first contested opinion does not go to Guia-
Lopez’s state of mind but instead explained who Cruz was and how the
Government believed Cruz was involved. The second contested opinion
likewise explained who the Government believed Guia-Lopez was
communicating with on February 28, 2021. Guia-Lopez argues that Agent
Juarez usurped the jury’s role because he proffered opinions based on text
messages that used simple, common words.
Guia-Lopez cites United States v. Hill for the proposition that the type
of opinion offered by Agent Juarez should have been admissible only to
explain the meaning of code words. See 63 F.4th 335, 356 (5th Cir. 2023).
But even Hill discusses precedent that an investigating agent may explain
“the relationships between the people the agent is investigating.” Id.(quoting United States v. Haines, 803 F.3d 713, 729 (5th Cir. 2015)). Here,
Agent Juarez’s testimony aided the jury by explaining with whom the
Government believed Guia-Lopez was communicating in these text
messages—a “guide” and “the person directing the smuggling attempt”—
not Guia-Lopez’s state of mind. While Agent Juarez arguably should have
avoided use of the word “smuggling,” there was no error here because Agent
Juarez never directly commented on Guia-Lopez’s state of mind. See United
States v. Dvorin, 817 F.3d 438, 448 (5th Cir. 2016) (finding the use of terms
like “fraud,” “fraudulent checks,” and “conspiracy” were not errors
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No. 22-50234
because the testifying agent did not comment on the defendant’s state of
mind).
Finally, Guia-Lopez also offers a new argument that Agent Juarez’s
testimony was improper lay opinion because he did not have “extensive
involvement” in investigating the alleged conspiracy. As mentioned above,
Guia-Lopez did not preserve this objection at trial.
“Objections to the admission of evidence must be of such a specific
character as to indicate distinctly the grounds upon which the party relies, so
as to give the other side full opportunity to obviate them at the time, if under
any circumstances, that can be done.” Colonial Refrigerated Transp., Inc. v.
Mitchell, 403 F.2d 541, 552 (5th Cir. 1968) (quoting Noonan v. Caledonia Gold
Mining Co., 121 U.S. 393, 400 (1887)). “It is fundamental that where an
objection is specific it is deemed to be limited to the ground or grounds
specified and it does not cover others not specified.” Id. (quoting Knight v.
Loveman, Joseph & Loeb, Inc., 217 F.2d 717, 719 (5th Cir. 1954)). Guia-
Lopez’s “ultimate issue” objection did not disclose an argument that Agent
Juarez was not qualified to offer the testimony at issue based on his lack of
involvement in the investigation. It was Guia-Lopez’s burden to preserve
this issue for review by providing the district court an opportunity to correct
or mitigate this perceived error. See United States v. Gutierrez-Ramirez, 405
F.3d 352, 355 (5th Cir. 2005).
Accordingly, we perform a plain-error review of Guia-Lopez’s
“extensive involvement” argument because Guia-Lopez failed to make this
objection at trial. Under plain-error review, the appellant must show that:
“(1) there was an error; (2) the error was clear or obvious; (3) the error
affected his or her substantial rights; and (4) the error seriously affect[ed] the
fairness, integrity, or public reputation of judicial proceedings such that we
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No. 22-50234
should exercise our discretion to reverse.” Lara, 23 F.4th at 475 (quoting
United States v. Oti, 872 F.3d 678, 690 (5th Cir. 2017)).
Guia-Lopez argues that Agent Juarez’s involvement in the
investigation was limited because he had only been the case agent for two
weeks. In fairness, two weeks is a short time. But there was no clear error
here. Agent Juarez, who has been a special agent with Homeland Security
since 2008, became the case agent sometime after Agent Golando was
transferred to another location out of state. Agent Juarez was intimately
familiar with these messages: he performed the forensic examination of Guia-
Lopez’s phone and translated the contested messages from Spanish to
English. Moreover, Agent Juarez interviewed Romero, Guia-Lopez’s
codefendant. Based on the simplicity of the evidence before him, including
Romero’s testimony, the contents of the phone and the details of Guia-
Lopez’s arrest, it is reasonable that a seasoned special agent would need no
more than a short period of time to investigate and form an opinion based on
his training and experience. Thus, there was no plain error here. 7
For these reasons, we affirm the district court’s admission of these
text messages and Agent Juarez’s testimony.
F. D. Government’s Exhibit 10 Did Not Violate the Confrontation
Clause
Guia-Lopez also argues Government’s Exhibit 10, a redacted version
of the Form G166F “Report of Investigation,” violates the Confrontation
Clause, contains hearsay, and impermissibly usurped the role of the jury by
_____________________
7
Moreover, even if Agent Juarez’s testimony had introduced some error, such an
error would be harmless because his testimony was cumulative of other testimony in the
record, such as Agent Golando’s and Romero’s testimony as well as the text messages
themselves.
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No. 22-50234
presenting prejudicial conclusory statements. We review the admission of
this form for plain error because Government’s Exhibit 10 was admitted
without objection. We determine there was no error and affirm the district
court’s ruling.
First, Guia-Lopez argues that the admission of this exhibit violated the
Confrontation Clause because the Government used the custodian of
records, Agent Lujan, to admit the exhibit rather than the drafter of the
report, Agent Brown. Guia-Lopez argues the Government “purposefully
avoided introducing Exhibit 10 through [Agent] Brown,” who had testified
earlier, to “effectively deprive[]” Guia-Lopez of an opportunity to cross-
examine Agent Brown about the report. The Government argues that Agent
Brown testified at trial and that Guia-Lopez made no effort to recall him after
the admission of Government’s Exhibit 10.
Allowing the custodian of records to sponsor this exhibit was not plain
error. Form G-166F is a public record that was not created for the purpose
of establishing or proving some fact at trial. See United States v. Noria, 945
F.3d 847, 852 (5th Cir. 2019). Agent Lujan testified that the form is kept in
the ordinary course of business, at or reasonably near the time of the event,
by an employee with actual knowledge—in this case, Agent Brown. Thus,
the unredacted portions of the G-166F form are not testimonial because they
were “created for the administration of an entity’s affairs and not for the
purpose of establishing or proving some fact at trial.” Id. (quoting Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 324 (2009)). Moreover, most of the
information contested by Guia-Lopez comprises biographical information,
such as the identities of certain individuals, their citizenship, and their
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No. 22-50234
birthplace, which further comprises non-testimonial information that does
not violate the Confrontation Clause. See id. at 850. 8
To the extent that Guia-Lopez argues Agent Brown was the
unavailable declarant, there was no violation of the Confrontation Clause.
Guia-Lopez admits “the record clearly establishes that [Agent] Ryland
Brown, the author of G166, was available to testify and did testify.” Guia-
Lopez proffers no argument showing Agent Brown was unavailable and does
not argue he could not have recalled Agent Brown after Government’s
Exhibit 10 was admitted.
Guia-Lopez also challenges the report’s identification of (i) Guia-
Lopez as a principal in a “failed 2 on 6 smuggling attempt”; (ii) the
destination of Odessa; (iii) the fact that the arrests occurred ten miles north
of Presidio, Texas; and (iv) the use of the word “SMUGGLED” with regard
to the six individuals named on pages two and three of the exhibit. Guia-
Lopez alleges each of these facts could only be ascertained through hearsay
and argues the exhibit and Agent Lujan’s repeated references to
“smuggling” were highly prejudicial. Guia-Lopez fails to persuasively argue
that the location of the arrest and the names and citizenship of the individuals
in the vehicle constitute hearsay. Evidence was presented at trial that showed
such information was ascertainable without relying on hearsay.
Guia-Lopez is correct, however, that Agent Brown’s report may
contain hearsay with respect to the fact that the crossing took place at Fort
Leaton. Although it does not appear that cumulative evidence that the
crossing took place at Fort Leaton was introduced during trial, evidence was
introduced to show an illegal crossing took place. Thus, the introduction of
_____________________
8
At trial, Guia-Lopez’s counsel admitted that the Government’s Exhibit 10 is
arguably a business form and “it would be a hard press for an objection on that.”
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No. 22-50234
the exact location of the alleged crossing was not prejudicial and did not
provide evidence that affected Guia-Lopez’s ultimate conviction. See United
States v. Perry, 35 F.4th 293, 336 (5th Cir. 2022), cert. denied, 143 S. Ct. 463
(2022), and cert. denied sub nom. Peters v. United States, 143 S. Ct. 462 (2022),
and cert. denied sub nom. Owney v. United States, 143 S. Ct. 602 (2023), and
cert. denied sub nom. Neville v. United States, 143 S. Ct. 603 (2023)(determining possible hearsay violations were harmless because even if the
alleged hearsay evidence had not been admitted the prosecution had ample
evidence of conspiracy).
For these reasons, there was no plain error in the admission of
Government’s Exhibit 10.
G. E. Guia-Lopez’s Due Process Was Not Affected by Cumulative Er-
rors
The district court did not commit reversible error in its resolution of
any of the issues presented in this case. Accordingly, “there are no errors
that we could aggregate to find cumulative error.” United States v. Herman,
997 F.3d 251, 275 (5th Cir. 2021), cert. denied, 142 S. Ct. 787 (2022) (quoting
United States v. Eghobor, 812, F.3d 352, 361 (5th Cir. 2015)).
Conclusion
For the foregoing reasons, we AFFIRM the district court’s order
denying Guia-Lopez’s motion to suppress. We further determine Guia-
Lopez is not entitled to a new trial because there was no reversible error.
23