IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-50477
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO HERNANDEZ-FLORES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas, El Paso
(EP-94-CR-275-1)
_________________________________________________________________
June 26, 1997
Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIUM:*
Sergio Hernandez-Flores was convicted of kidnaping a
nine-year-old girl. He was also convicted of violating the Mann
Act by taking the child from El Paso, Texas, to Mexico with the
intent to engage in criminal sexual behavior. He was sentenced to
life imprisonment for kidnaping and 99-years of imprisonment for
the Mann Act violation. Hernandez challenges both his convictions
and his sentences. He first contends that the district court
improperly denied his request for a continuance of the trial after
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
a defense witness became unavailable to testify. He also maintains
that he was denied the opportunity to cross-examine adequately a
prosecution witness who received favorable treatment from the
government, possibly in exchange for his testimony. Finally,
Hernandez challenges the sentences assessed for both convictions.
We hold that Hernandez was properly convicted of both crimes.
Although he was properly sentenced for kidnaping, his sentence
under the Mann Act exceeded the statutory limits.
I
In January 1994, Hernandez, his wife, and children moved into
a trailer in El Paso, Texas, next to the Zavala family. The
victim, Maria Zavala, became friends with the Hernandez children,
and often played in Hernandez’s trailer. On February 19, 1994,
Maria's mother allowed her to walk with the Hernandez family to a
local grocery store. Instead of going to the grocery store,
however, Sergio Hernandez took his family and Maria into Mexico.
Once in Mexico, they boarded a train bound for the country’s
interior. Hernandez lied to both Maria and his common-law wife,
telling them that they were heading back to El Paso. Maria told
Hernandez that she wanted to return home several times during this
trip.
The group remained in Mexico for over five months. During
this time, Hernandez repeatedly beat and raped Maria. He also beat
and threatened his pregnant wife. Eventually, unable to find work
in Mexico, Hernandez took his family and Maria back to the United
2
States. They were detained by immigration officials in Tucson,
Arizona. Maria told an immigration officer that she had been
kidnaped, beaten, and sexually abused.
Hernandez and his common-law wife were charged with kidnaping
and transportation of a minor in foreign commerce with the intent
that the minor engage in unlawful sexual activity in violation of
the Mann Act.
Shortly before the April 15 trial, Hernandez made a motion for
continuance, contending that one of his witnesses was unavailable
to testify. The motion for continuance was denied, and Hernandez
was tried and convicted on both counts, and sentenced to life
imprisonment on the kidnaping count, and to 99 years imprisonment
for the Mann Act offense.
II
The defendant contends that the district court improperly
restricted his cross-examination of Martin Zavala, Maria's father.
Hernandez contends that Mr. Zavala had strong motivation to testify
on behalf of the government: He had recently been charged with an
felony, for which he could have received over five years
imprisonment. Instead, it appears that the charges against him
were dropped. Moreover, one of prosecutors helped him remain in
the country legally, and helped him find a job. Although Hernandez
was allowed to cross-examine the witness about his criminal
history, and the fact that the prosecution had helped him find a
job, the district court stopped questions regarding the severity of
3
the sentence the father was facing, and whether he had entered into
a formal plea agreement.
The district court has broad discretion in restricting the
scope of cross-examination. United States v. Fortna, 796 F.2d 724,
734 (5th Cir. 1986). Nonetheless, this court has recently noted
that "[a]lthough the district court retains its broad discretion to
prevent repetitive and unduly harassing interrogation, a witness's
possible biases, prejudices, or 'motivation' are 'subject to
exploration at trial, and [are] always relevant as discrediting the
witness and affecting the weight of his testimony.'" United States
v. Alexius, 76 F.3d 642, 645 (5th Cir. 1996), quoting Davis v.
Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110 (1974).
Because he was facing criminal prosecution, Maria's father had
an incentive to provide favorable testimony on behalf of the
government. Without deciding if the district court erred by
cutting short this cross-examination, we find that any error that
may have occurred was harmless. Delaware v. Van Arsdale, 475 U.S.
673, 673-76, 106 S.Ct. 1431, 1432-33 (1986)(Sixth Amendment
violation should be reviewed under harmless error standard). An
error is harmless if it is clear beyond a reasonable doubt that it
did not contribute to the verdict obtained. Alexius, 76 F.3d at
646. There is no doubt that the testimony offered by Martin Zavala
did not affect the jury’s verdict.
First, although the defendant did not examine Zavala regarding
the existence of a plea agreement, he did introduce the fact that
4
one of the prosecutors in the case arranged for Zavala to live and
work legally in the United States. Therefore, the jury was
informed that the witness had a motive to give favorable testimony
for the government. Moreover, as the father of the victim, the
witness had the strongest incentive to help the prosecution
incarcerate the person he believed victimized his daughter. No
doubt this fact was not lost on the jury.
Second, the government’s case against Hernandez was
compelling. Martin Zavala’s testimony provided the prosecution no
real assistance in proving the elements of the crimes.
The evidence that Maria was sexually molested in Mexico is
overwhelming. Dr. Azalia Martinez conducted a physical examination
of Maria after she had returned from Mexico. He testified at
length about the evidence of abuse he discovered while examining
Maria. The doctor testified that Maria showed many signs of
extreme physical and sexual abuse. Graphic photographs were
introduced into evidence, assisting the doctor's testimony, and
showing the jury the physical manifestations of the abuse. He
testified that "[i]t was obvious that this child had been abused."
The doctor dramatically concluded that having performed over 350
examinations of female children "Maria was the worst case I've seen
of child abuse." This testimony presented exceptionally strong
evidence that Maria had suffered sexual abuse.
The victim's testimony was also damning. Maria testified that
in Mexico the defendant fondled her and forced her to have
5
specifically described forms of intercourse. She also testified
that the defendant beat her with a water hose.
Maria's mother also testified. She began her testimony by
describing Maria's home life, telling the jury about Maria's
brothers, sisters and father. She testified that Maria was a smart
child and a good student. She told the jury about the day Maria
disappeared, how she began to worry when Maria did not return, and
how she searched for her child, before contacting the sheriff's
office to get help. She also testified about receiving a telephone
call from Maria, after Maria was safe in the border patrol's
custody, and how she began to cry after hearing her daughter's
voice. The jury also learned that Maria displayed inappropriate
sexual behavior after returning from Mexico, and would "show her
private parts" when "she wanted money."
These three witnesses provided the critical testimony in this
case. The doctor's testimony established beyond any doubt, that
Maria had been subjected to extreme abuse. Maria herself
identified Hernandez as her attacker. No doubt, the jury's
sympathy and empathy for the victim was enhanced by being able to
see her in the courtroom. Finally, Maria's mother provided another
glimpse into the damage done by the defendant in this case by
providing a view of a grieving parent. She also reinforced that
Maria had been abused in Mexico by telling the jury how Maria acted
inappropriately after being returned home.
6
Upon this backdrop, the testimony of Maria's father must be
examined. Martin Zavala testified that he had a very close
relationship with his daughter, despite being in prison during much
of Maria's childhood. This testimony added little to that given by
Maria's mother, at most showing that the father loved his daughter.
Zavala further testified that Maria had changed after
returning from Mexico. Initially, the father's testimony only
reinforced that given by Maria's mother:
Q: Was Maria showing unusual sexual behavior since she
came back from Mexico.
A: Yes.
Q: What was she doing?
. . .
A: I didn't see anything. It's just that her mother says
that -- what she used to do, that she would do to me.
Q: In other words, what she used to do in Mexico, she
would do to her mother; it that correct?
. . .
A: Yes.
The father also testified that the neighbors had complained
that "my little girl, Maria, and another one, they were doing --
they were doing [sexual] things with other boys that were younger."
He testified that before going to Mexico, Maria was "ignorant" of
"sexual things."
At best, the father's testimony only supported the mother's
testimony, showing that Maria had been sexually molested in Mexico.
This testimony is inconsequential compared to the doctor's
testimony, which demonstrated in the most graphic terms that Maria
7
was abused, and Maria's testimony, in which she described how
Hernandez beat and raped her.
Finally, Hernandez argues that the father was able to
"personalize" Maria for the jury. Maria’s mother also testified
about Maria's home life, giving the same type of testimony as Mr.
Zavala. Moreover, Maria testified at the trial, "personalizing"
herself; no doubt her father's testimony added little on this score
as well. Because her father’s testimony was merely cumulative, any
error in not allowing more extensive cross-examination was
harmless.
III
Hernandez next contends that the district court committed
reversible error by refusing to grant his motion for continuance.
Hernandez contends that he intended to call as a witness Jorge
Ortiz-Contreras, a store clerk and an unofficial justice of the
peace from Mexico. Ortiz was to testify that on three occasions he
had seen Maria alone, that she seemed happy, and she never asked
for help.
Five days before his trial was to begin, Hernandez learned
that Ortiz could not attend the April 15 trial. Ortiz had notified
the defense attorney that his mother had become ill and he needed
to remain in Mexico for up to thirty days to care for her, but
would be able to travel to the United States if the trial was
postponed for thirty days.
8
Before a continuance must be granted to allow a defendant to
secure a witness’s testimony, the defendant must prove that: (a)
due diligence has been exercised to obtain the witness’s
attendance; (b) the witness would tender substantial favorable
evidence; (c) the witness is available and willing to testify; and
(d) the defendant would be materially prejudiced by the denial.
United States v. Rodriguez, 15 F.3d 408, 411 (1994); United States
v. Walker, 621 F.2d 163, 168 (5th Cir. 1980). A grant or denial of
a continuance is reviewed only for an abuse of discretion. United
States v. Alexander, 689 F.2d 808 (5th Cir. 1989). Reversal is
required only if a defendant shows that the denial of a continuance
seriously prejudiced his case. United States v. Webster, 734 F.2d
1048, 1056 (5th Cir. 1984).
Our review of the record shows that Hernandez exercised due
diligence in obtaining the witness’s attendance. Furthermore,
there is sufficient evidence from which the district court could
have concluded that the witness was willing and available to
testify. Nonetheless, Hernandez failed to show that the witness
was going to present “substantial favorable testimony,” and he was
not materially prejudiced by the denial of the continuance.
Hernandez failed to show that his witness would provide
substantial favorable evidence. The trial court was provided with
an affidavit by Roberto Villa, the investigator who had traveled to
Mexico and talked with Ortiz. Villa swore that Ortiz would testify
that on two occasions Maria came to his store alone to purchase
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food; that Maria appeared to be happy and showed no signs of
physical or emotional abuse; that he had seen Maria play with other
children in the village; that he had traveled to Hernandez’s home
and had seen Maria outside playing with the Hernandez children, and
that neither Hernandez nor his common-law wife was home at that
time; and, finally, that he would testify that he served as an
"alcalde," or unofficial justice of the peace of the community--a
position that requires him to contact law enforcement officials in
the event he observed criminal activity in the village.
The government introduced specific evidence, which was not
contradicted, that Maria did not want to leave El Paso, and that
she continually protested being taken. There was uncontradicted
evidence that Hernandez took Maria to Mexico with the intention of
sexually abusing her, and that he carried out his perverted plan.
Ortiz’s testimony could not have undermined any of this evidence
and testimony. Evidence that a young child did not escape is of
little probative quality when that child has been taken into the
interior of a foreign country, told that her parents did not love
her, and that they were not her “real” parents. Because Ortiz
could not have provided Hernandez “substantial favorable
testimony,” the district court did not abuse its discretion in
denying his continuance motion.
IV
Hernandez contends the prosecution failed to prove the conduct
charged in the Mann Act indictment. The indictment provided: "On
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or about February 18, 1994 . . . the Defendant . . . knowingly
transported [a minor child], in foreign commerce, from El Paso
County, Texas, to Mexico, with the intent that such juvenile would
engage in sexual activity that would constitute, in the State of
Texas, the criminal felony offense of Aggravated Sexual
Assault . . . ."1 Hernandez maintains that at most, the
prosecution proved that he raped the victim while in Mexico, and
therefore it was not shown that he could have been charged with
violating the Texas Aggravated Sexual Assault statute. This
contention is without merit.
1
Section 2423 of the Mann Act provides:
2423. Transportation of minors
(a) Transportation with intent to engage in criminal
sexual activity.--A person who knowingly transports any
individual under the age of 18 years in interstate or
foreign commerce, or in any Territory or Possession of
the United States, with intent that such individual
engage in prostitution, or in any sexual activity for
which any person can be charged with a criminal offense,
shall be fined under this title or imprisoned not more
than ten years, or both.
(b) Travel with intent to engage in sexual act with a
juvenile.--A person who travels in interstate commerce,
or conspires to do so, or a United States citizen or an
alien admitted for permanent residence in the United
States who travels in foreign commerce, or conspires to
do so, for the purpose of engaging in any sexual act (as
defined in section 2246) with a person under 18 years of
age that would be in violation of chapter 109A if the
sexual act occurred in the special maritime and
territorial jurisdiction of the United States shall be
fined under this title, imprisoned not more than 10
years, or both.
11
Section 1.04(a)(1) of the Texas Penal Code provides that the
Texas courts have jurisdiction over criminal conduct if an element
of the offense occurs in the State. There is no doubt that the
jury found that the intent to commit the aggravated sexual assault
was formed in Texas; both the prosecution and the defense
emphasized to the jury that they could only convict if Hernandez
formed his criminal intent in Texas.2 There was ample evidence to
support this conclusion: In Texas, Hernandez lured Maria over to
his trailer, giving her candy, and winning her trust. He also
began to fondle Maria in Texas. After executing his plan to kidnap
Maria and take her to Mexico, Hernandez raped her.
2
In his closing statement the prosecutor noted:
Remember when [Hernandez' common-law wife] was on the
witness stand and she testified [that Hernandez had told
her] "Do not butt it. I planned this. This is my plan.
I executed this. I've been manosiendo la. [handling
her] I've been fondling the child since we were in El
Paso." That's how we know what his intent was.
His intent came all the way back to February 18th and
prior to that date. The entire time he was enticing this
child . . . .
In addition, the defense attorney emphasized that to convict
the defendant, the government needed to show that criminal intent
had been formed in the Texas:
Certain mental activities had to take place in this
country before anything at all happened in Mexico, and
you will come across the words "willfully" and
"intentionally" and "purpose," you know, all these words
relate to certain mental states, intentional states that
have to take place in the United States of America.
12
The record therefore supports the jury’s conclusion that
Hernandez formed the intent to rape Maria while in Texas, and that
he could therefore have been charged with criminal sexual assault
in Texas. Thus, the prosecution proved the offense stated in the
indictment.
VI
Hernandez contends that the district court erroneously applied
multiple adjustments to his sentence for kidnaping. When reviewing
a district court's application of the United States Sentencing
Guidelines, this court will reverse factual findings only if they
are "clearly erroneous." United States v. Paulk, 917 F.2d 879 (5th
Cir. 1990). The trial court's conclusions of law are reviewed de
novo. United States v. Suarez, 911 F.2d 1016, 1018 (5th Cir.
1990).
Hernandez first contends that the upward adjustment under
section 2A3.1(b)(4)(A) was erroneous. This section provides for a
four-level adjustment if a victim "sustained permanent or life-
threatening bodily injury." The definition of "permanent or life-
threatening bodily injury" is "injury involving a substantial risk
of death; loss or substantial impairment of the function of a
bodily member, organ, or mental faculty that is likely to be
permanent; or an obvious disfigurement that is likely to be
permanent." U.S.S.G. § 1B1.1(h).
Hernandez presented no sworn testimony to rebut the
presentencing report. A PSI has the presumption of reliability.
13
United States v. Alfaro, 919 F.2d 962, 966 (5th Cir. 1990). A
defendant's unsworn objections are not evidence considered by this
court in reviewing a district court's factual findings. Id. A
therapist's letter that was attached as an addendum to the PSI
report noted that Maria had suffered "permanent psychological harm
and will need long term counseling." This conclusion is supported
by the extent of the ordeal Maria suffered. Therefore, the court
did not err in imposing a four-level adjustment.
Hernandez also contends that he should not have been subjected
to a two-level adjustment under Section 2A3.1 of the sentencing
guidelines. A two-level adjustment is appropriate "whenever the
victim is entrusted to the defendant, whether temporarily or
permanently. For example, teachers, day care providers, baby
sitters, or other temporary caretakers are among those who would be
subject to this enhancement." U.S.S.G. Application Note 3.
Hernandez maintains that Maria was not entrusted to the him:
he notes that he “never spoke to Patricia [Maria's mother], much
less asked permission or volunteered to supervise Maria." The
guidelines, however, do not require that a defendant expressly
agree to care for the victim. Instead, the facts must be examined
to determine realistically whether the defendant had been entrusted
with the care of the victim. In doing so, the evidence clearly
demonstrates that Hernandez took custody of Maria. First, Maria
testified that Hernandez wanted her to accompany him to the store.
This testimony was corroborated by Hernandez’s common-law wife.
14
Second, Maria had accompanied Hernandez to the store on several
other occasions. When a nine-year-old child travels to a store in
the company of an adult, with the permission of the child's parent,
the adult has assumed a duty of care over the child--he has been
entrusted with the child's well-being. Therefore, the district
court's conclusion that Hernandez had been entrusted with Maria's
care was not erroneous.
Hernandez finally contends that there is no evidence that he
abducted Maria against her will, and therefore, the four-level
adjustment imposed pursuant to U.S.S.G. § 2A3.1(b)(5), which
provides that an upward adjustment is appropriate if the "victim
was abducted," was not appropriate. This guideline The commentary
clarifies that "abducted" means the victim was "forced to accompany
an offender to a different location."
Hernandez contends that because Maria wanted to go to the
local store with him, he did not abduct her. The PSI relied upon
the fact that Hernandez brought Maria into Mexico without her
parents' consent, not that he merely brought her to a local store.
There is ample evidence that although Maria agreed to accompany
Hernandez to the store, she did not agree to go to Mexico. Maria
repeatedly requested to be taken home. Instead, of honoring these
requests, Hernandez lied to Maria, telling her that he was taking
her home, when in fact he was taking her into the heart of Mexico.
These factors are sufficient to allow the district court to
15
conclude that Maria had been abducted. In sum, the district court
properly sentenced Hernandez to life imprisonment for kidnaping.
VII
The government concedes that the district court erred when it
sentenced Hernandez concurrently to 99-years of imprisonment for
his violation of the Mann Act. The Mann Act carriers a statutory
maximum sentence of ten years. Hernandez’s sentence for violating
the Mann Act is therefore reduced to ten years imprisonment, to run
concurrently with his sentence of life imprisonment for kidnaping.
In all other respects the district court is
A F F I R M E D.
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