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United States v. Ceballos

United States Court of Appeals, Fifth Circuit

June 16, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
SANDRA LISSETH CEBALLOS, Defendant-Appellant

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Appeal from the United States District Court for the Western District of Texas.

For United States of America, Plaintiff - Appellee: Joseph H. Gay Jr., Assistant U.S. Attorney, Ellen A. Lockwood, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX.

For Sandra Lisseth Ceballos, Defendant - Appellant: Richard Dennis Esper, Esq., El Paso, TX.

Before SMITH, PRADO, and OWEN, Circuit Judges.

OPINION

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EDWARD C. PRADO, Circuit Judge:

Defendant-Appellant Sandra Lisseth Ceballos appeals her conviction for transporting, attempting to transport, and engaging in a conspiracy to transport an alien within the United States for private financial gain. She alleges a violation of her Sixth Amendment right of confrontation, the erroneous admission of evidence necessary to prove the financial-gain element of the offenses charged, and cumulative error that deprived her of a fair trial. We affirm.

I. BACKGROUND

On December 18, 2012, Customs and Border Protection (CBP) agents in El Paso discovered Abel Viera Mendez (Viera), a Mexican national, attempting to enter the United States without authorization.[1]

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They detained Viera and, upon questioning, determined that he had entered the country by rappelling off of a bridge with the aid of a paid smuggler, " Chucky."

On learning that Viera had also arranged for transport within the United States, the agents set up a sting operation. With Viera's consent, one of the agents, Humberto Torres, posed as Viera and answered a call on Viera's cell phone from the suspected smuggler--a Spanish-speaking male--and requested a ride. Agent Torres gave the smuggler a meeting location, and the smuggler told Agent Torres that a gray, four-door Mitsubishi with tinted windows would pick him up. Once at the designated site, Agent Torres continued to pose as Viera while fellow agents Brendan McCarthy and Orlando Marrero-Rubio set up surveillance. Agent Torres also surreptitiously initiated a phone call with Agent McCarthy, enabling Agent McCarthy to hear Agent Torres's activity.[2]

Shortly after Agent Torres's conversation with the smuggler, Ceballos arrived at the location in a vehicle matching the smuggler's description. Ceballos, who was speaking on a cell phone, asked the person on the line, " What was his name?" She then asked Agent Torres whether he was " Abel." After Agent Torres replied in the affirmative and confirmed that Ceballos was aware of " Abel's" immigration status, Ceballos invited Agent Torres into the vehicle. At this time, Agent Torres dropped his cell phone, a coded signal to Agents McCarthy and Marrero-Rubio to apprehend Ceballos. The agents separately placed both Ceballos and Agent Torres, still posing as Viera, under arrest.

The agents issued Ceballos her Miranda warnings, and before invoking her right to counsel, Ceballos indicated that she had been at the location either to pick up her ex-husband José or to collect child support from him.[3] The agents then placed Ceballos in a CBP vehicle with Agent Torres, who continued to present himself as Viera. Agent Torres repeatedly asked Ceballos why she had called " the migra." Ceballos replied, " Who are you? I don't know you. Don't talk to me." Agent McCarthy testified that Agent Torres was not aware that Ceballos had been Mirandized before she joined him in the CBP vehicle, and Agent Torres confirmed that he was unable to hear Ceballos's conversation with the other agents; all agree that once Ceballos requested an attorney, no agent other than Agent Torres--still posing as Viera--questioned Ceballos.

Following Ceballos's arrest, the agents inventoried the contents of the vehicle and discovered two cell phones as well as a notebook in Ceballos's purse that contained dates, the names " Enrique" and " José ," references to " girl[s]," " guy[s]," and a " couple," dollar amounts, and notations in Spanish and English signifying " pick up," " deliver," and " food." There were no entries in the notebook dated December 18, 2012, but there was one entry dated December 16, 2012. Agent

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Felix Amaya, who assisted his colleagues in processing Ceballos's arrest and handling her possessions, photocopied the pages of the notebook on the suspicion that it served as a ledger of Ceballos's smuggling activity. Another agent, Elias Contreras, searched Ceballos's cell-phone call history and noticed several calls to contacts named " Enrique" and " José ex" around the time of Ceballos's apprehension. In addition, Agent McCarthy interviewed Viera and obtained a sworn written statement describing the events of December 18 and detailing the arrangements he had made with " Chucky."

Ceballos was indicted for (1) conspiracy to transport aliens within the United States for private financial gain and (2) transporting and attempting to transport an alien within the United States for private financial gain.[4] A jury found Ceballos guilty of both counts,[5] and Ceballos timely appealed.

II. DISCUSSION

We have jurisdiction to review the district court's final judgment of conviction under 28 U.S.C. § 1291.

Ceballos raises three challenges to the evidence presented at her trial. First, she contends that the admission of Viera's testimony--both through Viera's sworn, written statement and through the testimony of CBP agents--violated her Sixth Amendment right of confrontation. Second, she avers that the notebook in her purse, which the Government alleged was a smuggling ledger, was inadequately authenticated and constituted inadmissible evidence of prior bad acts under Federal Rule of Evidence 404(b). Third, she claims cumulative error in inappropriate Government witness testimony, alleged pro-prosecution statements by the trial judge, and improper closing argument by the Government. We discuss each asserted error in turn.

A. The Confrontation Claim

Ceballos first argues that the district court violated her Sixth Amendment rights by admitting Viera's testimony into evidence without first establishing that he was unavailable and that Ceballos had a prior adequate opportunity to cross-examine him. As Ceballos failed to object to the testimony at trial, our review would ordinarily be for plain error. United States v. Vasquez, 766 F.3d 373, 378 (5th Cir. 2014), cert. denied, 135 S.Ct. 1453, 191 L.Ed.2d 404 (2015). However, because we conclude that Ceballos waived her right of confrontation through her counsel's unchallenged stipulation to the admission of the testimony, her claim is " entirely unreviewable," United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995); see United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ( " Waiver is different from ...


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