UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20500
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOUIS VICTOR PEREZ, also known
as Louis Victor Perez Chairez,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
June 29, 2000
Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.
POLITZ, Circuit Judge:
Louis Victor Perez appeals his conviction and sentence on two counts of
aiding and abetting the harboring of an undocumented alien in violation of 8 U.S.C.
§ 1324(a) and 18 U.S.C. § 2. For the reasons assigned, we affirm.
BACKGROUND
On March 19, 1998, the Houston Police Department (HPD) received a
telephone call from Sandra Flores who reported that her daughter, Merced Caletre-
Flores, and two grandchildren were being held hostage at a house in Houston.
Caletre-Flores and her children had been smuggled into the United States, and
Flores claimed that they would not be released until the smugglers had received
payment for their services. Flores admitted that she was in the country without
authorization and provided the HPD with a telephone number of the house where
her daughter and grandchildren were being held. HPD notified the Immigration
and Naturalization Service. INS agents traced the telephone number to the
residence located at 8505 Lenore Street,1 set up a surveillance, and observed people
freely leaving and entering with grocery bags. They saw codefendant Francisco
Perez-Ordones mowing the lawn. At one point Perez came out of the house and
conversed briefly with Perez-Ordones.
At about 5:00 p.m. the INS and HPD executed a search warrant of the house
and arrested 24 undocumented aliens, 20 of whom were found inside the house. As
the officers approached the house, Perez-Ordones attempted to flee, but was
quickly detained. Many of the aliens were “very dirty” and “dressed poorly.”
Perez, the only United States citizen arrested, was found near a sleeping pallet in
the garage located off the living room of the house. As Perez was handcuffed, he
stated “I don’t let them over here.” Prior to execution of the search warrant,
codefendant Elma Glorisabel Umanzor had been observed leaving the house with
another Hispanic female. INS agents followed Umanzor to a local grocery store
where she conducted business at the moneygram counter. The agents confronted
1
The house was owned by Joel Perez and rented by the defendant. The
record contains no evidence that the two were related.
2
Umanzor as she and the other female returned to the parking lot and arrested her
after determining that she too was an undocumented alien. Umanzor possessed
some cash and Western Union receipts which were later determined to be
connected with the alien smuggling operation.
Agents concluded that the Lenore Street residence was a “drop house,” a
house holding aliens pending their full payment for smuggling services and
transportation to their final destination. Several notebooks containing the names
of aliens, the telephone numbers of their relatives who could be contacted for
money, and records of completed wire transfers were found in the house. One of
the notebooks contained writing on the inside cover addressed to “Louis.” This
notebook was found in Perez’s living quarters and contained several entries, dated
February 1998, indicative of an alien smuggling operation. One entry read, “took
new truck with Georgia, 7 people and 1 guia.”2 Another read, “2 people picked up
at Falfurrias at 9:30 p.m. on Road 425.”3 The notebook also contained a number
of similar entries.4 The next day, March 20, 1998, a criminal complaint was filed
charging Perez, Umanzor, and Perez-Ordones with aiding and abetting each other
in the harboring of “an alien” in violation of 8 U.S.C. § 1324(a)(1) and 18 U.S.C.
§ 2. The affidavit attached to the complaint reflected that 24 undocumented aliens
2
“Guia” is Spanish for “guide.” Guias typically aid aliens in getting around
the border checkpoints.
3
There is a border checkpoint at Falfurrias, Texas.
4
The government’s expert testified that the writing in the notebook matched
Perez’s handwriting.
3
had been arrested, but the complaint did not charge the defendants with harboring
a specific alien.
The INS immediately took custody of the aliens. On March 25, 1998, after
preliminary and detention hearings, the INS gave defense counsel a list of names
and locations of the detained aliens. At that time, only four had been released on
their own recognizance, including Merced Caletre-Flores and her two children.
The INS deported six of the detained aliens the next day; five more on March 31;
and another on April 1. One had been released on bond on March 31. As a result,
the defense was able to interview only five of the 24 undocumented aliens taken
from the house.
The three defendants were indicted for one count of aiding and abetting the
harboring of an undocumented alien, Merced Caletre-Flores. Shortly before trial
the government discovered that Caletre-Flores and her two children, along with her
mother Sandra Flores, had “disappeared” after being released on bond. A
superseding indictment charged Perez and the codefendants with two counts of
aiding and abetting the harboring of Jose Amado Aguilar-Jimenez and Jose
Chevez-Nolasco. Both undocumented aliens were listed in the affidavit attached
to the original complaint.
On the eve of trial Perez’s codefendants pled guilty to both counts in the
superseding indictment. The first trial resulted in a hung jury. On retrial, the jury
returned guilty verdicts on both counts. The Presentence Investigation Report
characterized Perez’s role in the offense as one of a manager/supervisor. Perez’s
objections to the information contained in the PSI were rejected and the court
4
imposed concurrent sentences of 51 months’ imprisonment and three years’
supervised release. Perez timely appealed.
Perez raises several issues on appeal. He first contends that the indictments
should have been dismissed because the swift deportation of the alien witnesses
violated his right to compulsory process under the sixth amendment and his right
to due process under the fifth amendment. Perez further contends that the
superseding indictment should have been dismissed because it was filed five
months after the filing of the complaint in violation of the Speedy Trial Act.5 Perez
also claims that the district court abused its discretion by excluding the deported
aliens’ out-of-court statements to the INS agents and by restricting defense
counsel’s cross-examination of a government witness. Perez also contends that the
trial court’s limitation on cross-examination violated the confrontation clause of the
sixth amendment. Perez’s final complaint is that the district court erroneously
imposed a two-level upward adjustment for his role as a manager/supervisor in the
offense. We address each of these issues in turn.
ANALYSIS
1. Deportation of undocumented aliens:
Perez unsuccessfully moved to dismiss both indictments, alleging that the
deportation of the alien witnesses before they could be interviewed by the defense
deprived him of his sixth amendment right to compulsory process and his fifth
amendment right to due process. The defense theory in both trials was that Perez
5
18 U.S.C. § 3161 et seq.
5
was not involved in the alien smuggling operation and did not harbor any of the
undocumented aliens but, rather, he merely resided in the garage apartment
attached to the residence where the aliens were being housed. He claimed that on
the day of his arrest he was alone in his room recovering from an illness. Perez
contends that the deported witnesses could have corroborated his claim of mere
presence. Additionally, he claims that their statements would have contradicted
directly the testimony of Jose Aguilar-Jimenez and Jose Chevez-Nolasco, both of
whom testified that Perez ordered them into the house upon their arrival and
instructed them to remain in the bedrooms hidden from view. We review the
constitutional challenge de novo.6
Because of its duty to execute the immigration policy adopted by Congress,
the government may deport undocumented alien witnesses upon a good-faith
determination that they possess no information favorable to a criminal defendant.7
To establish a compulsory process or due process violation, a criminal defendant
must make a “plausible showing that the testimony of the deported witnesses would
have been material and favorable to his defense, in ways not merely cumulative to
the testimony of available witnesses.”8 The sanction of dismissal is warranted
“only if there is a reasonable likelihood that the testimony could have affected the
6
United States v. Sierra-Hernandez, 192 F.3d 501 (5th Cir. 1999), cert.
denied, 120 S. Ct. 1213 (2000).
7
United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).
8
Id. at 873.
6
judgment of the trier of fact.”9 Our review of the record persuades that the claimed
constitutional violations did not occur herein.
Upon their arrest, the aliens were interviewed by the INS to determine
whether they had any information relevant to the criminal trial. Of the eight aliens
deported before the indictment was returned, six could not identify Perez from a
photo spread. Several stated that they did not see Perez until everyone at the house
was arrested. Additionally, two of the deported witnesses stated that no one at the
house asked them for money; one told the INS agent that no guias were at the house
at the time it was searched; and another stated that no one in the house was a
“coyote.”10 As Perez was not charged with smuggling aliens across the border or
transporting them within the United States, the statements that there were no guias
or coyotes in the house and that no one asked them for money is irrelevant to the
issue whether Perez harbored or concealed from detection Aguilar-Jimenez and
Chevez-Nolasco.11
Although the deported aliens who could not identify Perez or did not see him
until their arrest may have provided testimony favorable to his defense, we reject
9
Id. at 873-74.
10
A “coyote” is a person in charge of smuggling aliens.
11
United States v. Romero-Cruz, 201 F.3d 374 (5th Cir.), cert. denied, 120
S. Ct. 2017 (2000) (holding that testimony of deported witnesses was not material to
defendant’s conviction where testimony would have served only to impeach second
alien’s testimony on a collateral matter); Sierra-Hernandez, 192 F.3d at 503 (alien
witnesses’ presumed testimony that defendant was not hired to take them across the
border was immaterial to whether he transported them within the United States).
7
his compulsory process and due process challenges because he has failed to show
that their testimony was not merely cumulative of the testimony of available
witnesses. Defense counsel was able to detain and depose six material witnesses,
including Aguilar-Jimenez and Chevez-Nolasco. The district court did not err in
denying these challenges by Perez.
2. Speedy Trial Act:
Perez next contends that his statutory right to a speedy trial was violated
because the superseding indictment contained charges identical to the charge in the
original complaint but different from the charge alleged in the first indictment. As
the underlying facts are undisputed, we review the district court’s interpretation of
the Speedy Trial Act de novo.12
The Speedy Trial Act provides that “[a]ny information or indictment
charging an individual with the commission of an offense shall be filed within
thirty days from the date on which such individual was arrested or served with a
summons in connection with such charges.”13 The Act further provides for
mandatory and automatic dismissal of the complaint should the government fail to
comply with the applicable time limits:
If, in the case of any individual against whom a complaint is filed
charging such individual with an offense, no indictment or information
is filed within the time limit required by section 3161(b) as extended
by 3161(h) of this chapter, such charge against that individual
12
United States v. Bailey, 111 F.3d 1229 (5th Cir. 1997).
13
18 U.S.C. § 3161(b).
8
contained in such complaint shall be dismissed or otherwise dropped.14
If dismissal is required, the district court retains the discretion to dismiss the
charges either with or without prejudice.15 The statute’s dismissal sanction is
narrowly applied.16
As the Act specifically provides, dismissal of the charges is required only if
an indictment is secured more than 30 days from the filing of a complaint and
contains identical charges. Thus, in Giwa, we held that where the original
complaint alleged credit card fraud, no violation of the Act occurred when the
defendant was subsequently indicted for mail fraud and use of a false Social
Security number, despite the fact that the offenses for which Giwa was arrested and
indicted arose from the same criminal transaction.17 Similarly, in Bailey, we held
that § 3161(b) was not violated when the complaint charged misdemeanor offenses
and a subsequent indictment, brought more than 30 days after the arrest, charged
four felony violations of the same statute.18 In the instant case there is no question
that the first indictment timely charged Perez with the same offense alleged in the
complaint.
14
18 U.S.C. § 3162(a)(1).
15
Id.
16
Bailey, 111 F.3d at 1235; United States v. Giwa, 831 F.2d 538 (5th Cir.
1987).
17
Giwa, 831 F.2d at 542-43.
18
Bailey, 111 F.3d at 1236.
9
The Act is silent, however, with respect to the situation where the
government obtains a timely indictment and thereafter secures a superseding
indictment based on the same criminal transaction more than 30 days after the
defendant’s arrest. Courts addressing this issue have held that where the
superseding indictment adds no new facts and contains charges identical to those
in the original timely indictment, the filing of the first indictment tolls the speedy
trial “clock.”19 In fact, even an indictment that is timely returned but later is found
to be legally deficient has been held to satisfy the “any information or indictment”
language of § 3161(b) if the subsequent indictment is materially identical to the
first indictment, the government does not act in bad faith, and there is no prejudice
to the defendant.20 We conclude that the filing of the first indictment charging
Perez with aiding and abetting in harboring Merced Caletre-Flores was sufficient
to toll the clock for purposes of the filing of the superseding indictment charging
19
United States v. Berry, 90 F.3d 148 (6th Cir. 1996) (30-day period tolled
where superseding indictment alleged identical charges based on same facts as
original indictment); United States v. Palomba, 31 F.3d 1456 (9th Cir. 1994)
(superseding indictment charging mail fraud dismissed because identical charges
had been alleged in complaint but not in first indictment); United States v.
Gonzalez, 748 F.2d 74 (2d Cir. 1984) (where complaint alleged wire fraud in
connection with Banco Hispano and first indictment charged wire fraud in
connection with Banco Pinto, superseding indictment charging wire fraud in
connection with Banco Hispano violated Speedy Trial Act); United States v.
Mitchell, 723 F.2d 1040 (1st Cir. 1983) (superseding indictment did not violate 30-
day arrest-to-indictment rule because it did not alter the original charges nor affect
the Act’s 70-day indictment-to-trial requirements).
20
United States v. Perez, 845 F.2d 100 (5th Cir. 1988); United States v.
Rabb, 680 F.2d 294 (3d Cir. 1982).
10
Perez with aiding and abetting the two codefendants in harboring Aguilar-Jimenez
and Chevez-Nolasco. Perez insists that under Palomba the charges in the
superseding indictment are not identical to the charge in the first indictment, but
are identical to that contained in the original complaint. We disagree. In Palomba,
the complaint accused the defendant of making false statements to a federal
agency, mail fraud, and conspiracy, in violation of 18 U.S.C. §§ 1001, 1341, and
371. The first indictment complied with the time limitations of the Act and
charged the defendants with conspiracy and making false statements to a federal
agency.21 The superseding indictment, filed more than 30 days after the
defendant’s arrest, charged Palomba with mail fraud, wire fraud, and making false
statements to a federal agency. The court held that Palomba’s counsel was
ineffective for failing to move for dismissal of the mail fraud counts in the
superseding indictment as untimely, as they had been raised in the complaint but
omitted from the first indictment.22
By contrast, in the instant case the complaint and first indictment charged
Perez with aiding and abetting two codefendants in harboring an undocumented
alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (iii) and 18 U.S.C. § 2 on or
about March 19, 1998.23 The superseding indictment likewise charged Perez with
21
Palomba, 31 F.3d at 1459.
22
Id. at 1463.
23
Actually, the first indictment alleged a violation of 8 U.S.C. §
1324(a)(1)(C), the statutory provision for the unlawful harboring of aliens as
contained in the 1988 version of the United States Code. In 1994 the legislature
11
the same statutory violations based on the same underlying circumstances.24 Thus,
we conclude that the first indictment tolled the 30-day arrest-to-indictment clock.
That different aliens are named in the two indictments does not change our
conclusion. We have noted that the purpose of the 30-day rule is “to force the
Government to elect to proceed against the arrestee or to release him.” 25 Other
courts have observed that the rule “ensure[s] that the defendant is not held under
an arrest warrant for an excessive period without receiving formal notice of the
charge against which he must prepare to defend himself.”26 Our conclusion today
satisfies both concerns. The timely filing of the first indictment reflects the
prosecution’s decision to charge Perez in connection with the events that transpired
at the 8505 Lenore Street residence on March 19, 1998. And, as all three
renumbered § 1324 without changing the provision’s wording. Thus, §
1324(a)(1)(A)(iii) is the corresponding harboring provision. See Pub. L. 103-322, §
60024, reprinted in 1994 U.S.C.C.A.N. 1981. Such a technical error in
transcription, however, does not alter the result.
24
United States v. Castellano, 848 F.2d 63, 65 (5th Cir. 1988) (filing of
superseding indictment more than 30 days after defendant’s arrest did not violate
Speedy Trial Act because superseding indictment “was predicated on the same
fraudulent acts as the earlier indictment”); Berry, 90 F.3d at 151; United States v.
Hsin-Yung, 97 F. Supp.2d 24 (D.D.C. 2000) (dismissal of superseding indictment
not required although second indictment contained violation of same statute as
original complaint; second indictment alleged violation of different provisions of
statute, and provisions were made up of different elements, proscribed different
types of conduct and imposed different penalties).
25
Perez, 845 F.2d at 102.
26
Berry, 90 F.3d at 151.
12
accusatory instruments allege the same statutory violations, Perez was on notice of
the charges against him.
Perez was not prejudiced by the filing of the superseding indictment, despite
his complaint to the contrary. On April 6, 1998, 10 days prior to the return of the
first indictment naming Caletre-Flores as the harbored alien, Perez designated five
material witnesses for deposition, including Aguilar-Jimenez and Chevez-Nolasco.
On April 10, the defense designated another material witness for deposition. The
court thereafter ordered the detention of Aguilar-Jimenez and Chevez-Nolasco,
three months prior to the return of the superseding indictment. Thus, as of April
10, Perez was alerted to prepare his defense against the charge of harboring any one
of the twenty-four aliens named in the complaint, and later he was able to depose
and ensure the presence at trial of the two aliens actually named in the superseding
indictment. Further, the defense theory that Perez was an innocent bystander to the
alien smuggling operation and that he merely resided in the separate garage
apartment next to where the aliens were being housed was equally viable without
regard to the number or identity of the aliens alleged to have been harbored. Thus,
as the Speedy Trial Act was not violated and the defense suffered no prejudice, the
district court appropriately declined to dismiss the superseding indictment.
3. Admission of deported aliens’ statements to INS agents:
Perez claims that the trial court should have allowed him to introduce the
statements made by the deported witnesses to INS agents under the residual
13
exception to the hearsay rule.27 We review the admission or exclusion of evidence
for abuse of discretion.28 We will not disturb the trial court’s ruling on the
admissibility of evidence under the residual exception to the hearsay rule “absent
a definite and firm conviction that the court made a clear error of judgment in the
conclusion it reached based upon a weighing of the relevant factors.” 29
The district court excluded the deported witnesses’ statements because it
concluded that they lacked the requisite circumstantial guarantees of
trustworthiness. Perez counters that the aliens’ statements were material and bore
an indicia of reliability equivalent to declarations against interest because they were
made to the very agency that would be responsible for their deportation and
possible criminal prosecution, and because they were made at the same time as
their admissions that they had entered the United States without the requisite
27
Federal Rule of Evidence 807 provides:
A statement not specifically covered by Rule 803 or 804 but having
equivalent circumstantial guarantees of trustworthiness, is not excluded
by the hearsay rule, if the court determines that (A) the statement is
offered as evidence of a material fact; (B) the statement is more
probative on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts; and (C)
the general purposes of these rules and the interests of justice will best
be served by admission of the statement into evidence.
28
United States v. Ismoila, 100 F.3d 380 (5th Cir. 1996).
29
Page v. Barko Hydraulics, 673 F.2d 134, 140 (5th Cir. 1982); Rock v.
Huffco Gas & Oil Co., Inc., 922 F.2d 272, 281 (5th Cir. 1991) (noting “highly
deferential standard of review” in evaluating district court’s ruling on this issue).
14
authorization. Special Agent Bill Burkland of the INS, who had 12 years’
experience in the anti-smuggling unit, testified that in the initial interview
approximately ninety percent of undocumented aliens apprehended do not give a
truthful and accurate account of the events that led up to their arrest. Indeed, both
Aguilar-Jimenez and Chevez-Nolasco were designated initially as defense
witnesses, but subsequently provided testimony implicating Perez in the smuggling
operation. Further, the aliens made their statements to the agents during an
informal interview and, thus, were not subject to cross-examination. Nor were the
statements made under oath.30 We therefore find no abuse of discretion.
4. Limitation on cross-examination of Aguilar-Jimenez:
Defense counsel sought to impeach the credibility of government witness
Aguilar-Jimenez by establishing that he and Chevez-Nolasco had concocted their
stories while confined at the Liberty County Detention Center. The questions
asked by defense counsel pertained to the housing and physical conditions at
Liberty County and, specifically, whether and how often the inmates were
provided with an opportunity to talk freely with one another. Without asking
Aguilar-Jimenez whether he spoke with Chevez-Nolasco or any other arrested alien
before giving his deposition or trial testimony, however, Perez’s attorney attempted
to cross-examine him with respect to his April 22, 1998 deposition at which he
30
United States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1998) (holding that
deposition testimony of deported witnesses had circumstantial guarantees of
trustworthiness, in part, because the statements were made under oath and the aliens
were subject to the penalties of perjury, the testimony was preserved on videotape,
and the witnesses were subject to cross-examination).
15
stated that he did not talk to any other arrested alien after his arrest. The trial court
did not allow pursuit of this line of questioning, concluding that it was peripheral,
cumulative, and would tend to confuse the jury. Perez contends that the district
court abused its discretion and violated his rights under the confrontation clause of
the sixth amendment, claiming that the questions were crucial in establishing that
Aguilar-Jimenez had lied at either his deposition or at trial. We are not persuaded.
The confrontation clause of the sixth amendment guarantees the right of a
criminal defendant “to be confronted with the witnesses against him.” 31 The
Supreme Court has emphasized that “‘the main and essential purpose of
confrontation is to secure for the opponent the opportunity of cross-
examination.’”32 We previously have stated that “[t]he Confrontation Clause of the
Sixth Amendment is satisfied where defense counsel has been permitted to expose
to the jury the facts from which jurors, as the sole triers of fact and credibility,
could appropriately draw inferences relating to the reliability of the witness.” 33
Once it is determined that the sixth amendment has been satisfied, we review the
district court’s restrictions for abuse of discretion, mindful of the wide latitude
afforded to the trial judge in imposing reasonable restraints on the scope of cross-
31
U.S. CONST. amend. VI.
32
Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (quoting 5 J. Wigmore,
Evidence § 1395, p. 123 (3d ed. 1940)); Delaware v. Van Arsdall, 475 U.S. 673,
678 (1986).
33
United States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993) (internal
quotations and citations omitted).
16
examination.34 If an abuse of discretion has occurred, we review the error under the
harmless error doctrine.35
Notwithstanding the restrictions imposed on defense counsel’s cross-
examination, the record reflects that counsel was able to elicit testimony from
Aguilar-Jimenez that: (1) his trial testimony differed from his deposition testimony
in that he stated at his deposition that Perez was in charge of giving the aliens food,
whereas he testified at trial that Perez did not give them any food; and (2) he lied
to the INS agents and defense investigators when they initially interviewed him by
saying he had arrived at the Lenore Street residence on the day of his arrest when
he actually had resided at the house for three days. Defense counsel was also
permitted to cross-examine Aguilar-Jimenez about inconsistencies in the statements
he initially gave to defense investigators and his testimony at trial regarding Perez’s
involvement in the alien smuggling operation, and whether the INS had promised
to provide him with a work permit in exchange for his testimony. Defense counsel
had an ample opportunity to impeach Aguilar-Jimenez’s credibility. We must
conclude that the district court neither violated Perez’s sixth amendment right to
confrontation nor abused its discretion in imposing the challenged limits on cross-
examination.
34
Van Arsdall, 475 U.S. at 679; United States v. Freeman, 164 F.3d 243
(5th Cir.), cert. denied, 119 S. Ct. 1590 (1999).
35
United States v. Townsend, 31 F.3d 262 (5th Cir. 1994); United States v.
Moody, 903 F.2d 321 (5th Cir. 1990).
17
5. Sentence enhancement:
Perez’s final complaint is that the district court erroneously imposed a two-
level enhancement to his base offense level under U.S.S.G. § 3B1.1(c) for having
a supervisory role in the offense.36 The PSI recommended the upward adjustment
because Perez “provided the house for storing the smuggled aliens and directed the
other defendants.” We review de novo the district court’s application of the
sentencing guidelines and will uphold its findings of fact unless they are clearly
erroneous.37 A factual finding is not clearly erroneous if it is plausible in light of
the entire record.38
At the sentencing hearing, the district court adopted the recommendations in
the PSI in their entirety and, in large measure, made credibility assessments,
rejecting suggestions by Perez that his involvement was scant and limited. We
defer to the trial court’s superior position in making such credibility calls.
Accordingly, for these reasons, we AFFIRM Perez’s conviction and sentence.
36
Section 3B1.1(c) provides for two-level increase if the defendant was an
organizer, leader, manager, or supervisor in any criminal activity involving fewer
than five participants. U.S.S.G. § 3B1.1(c) (1998).
37
United States v. Giraldo, 111 F.3d 21 (5th Cir. 1997); United States v.
Patino-Cardenas, 85 F.3d 1133 (5th Cir. 1996).
38
United States v. Ronning, 47 F.3d 710 (5th Cir. 1995).
18