United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 12, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 04-50532
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ANGEL CHAVEZ
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, Pecos
No. P-04-CR-15
_________________________________________________________________
Before KING, Chief Judge, and DAVIS, Circuit Judge, and
FITZWATER,* District Judge.
PER CURIAM:**
On March 24, 2004, a jury convicted Defendant-Appellant
Angel Chavez of drug trafficking under 21 U.S.C. §§ 841(a)(1),
952, and 960 and 18 U.S.C. § 2. He now appeals his conviction
*
District Judge of the Northern District of Texas, sitting
by designation.
**
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR. R.
47.5.4.
1
and sentence, arguing that the district court (1) erred by
admitting impermissible guilt-by-association evidence at trial,
(2) erred by failing to give a limiting instruction concerning
the guilt-by-association evidence, and (3) improperly instructed
the jury on the defense of duress. For the following reasons, we
AFFIRM the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 17, 2004, Angel Chavez drove a truck containing
marijuana from Ojinaga, Mexico into the United States. At a
border checkpoint south of Marfa, Texas, U.S. Border Patrol Agent
Richard Russell stopped Chavez and asked him about his
citizenship. Chavez replied that he was a U.S. citizen and
produced a Texas identification card and a birth certificate
showing that he was born in the United States.1 When Russell
asked Chavez where he was going, Chavez responded that he was
going to Marfa to pick up a friend, and then on to Odessa, Texas
to see a doctor. Russell, finding it odd that Chavez would be
visiting a doctor on a Saturday, continued questioning Chavez and
noticed that Chavez appeared nervous.
In addition to questioning Chavez, Russell observed paper
tags on the truck, indicating that the truck had recently been
purchased. He testified that in his experience as a border
1
Chavez did not produce a driver’s license. Russell
testified that when he questioned Chavez about not having a
driver’s license, he noticed that Chavez “started to get
nervous.” 6 R. at 55-56.
2
patrol agent, narcotics traffickers use paper tags to distance
themselves from knowledge of the contents of the vehicle.
Russell also noticed fresh scratch marks and grease around the
rim of the tire, which indicated that the tire had recently been
removed and might contain narcotics. Based on these observations
and Chavez’s suspicious answers, Russell asked Chavez if he could
search the truck. Chavez consented to the search.
Border patrol agents searched the tires and the contents of
the truck and found thirty-nine taped bundles of marijuana hidden
in the backseat of the truck. After receiving his Miranda rights
and indicating that he understood his rights and was willing to
talk, Chavez told Russell and other federal agents that he was
transporting the marijuana for Sergio Aranda, an alleged leader
of a powerful drug cartel in Ojinaga. According to Chavez, his
father owed Aranda a debt that he could not repay, and Aranda had
threatened to kill his father and other family members if he did
not deliver marijuana from Ojinaga to Odessa.
While searching the truck, federal agents found papers in
the truck with telephone numbers, some of which corresponded with
numbers found in Chavez’s wallet. One of the pieces of paper had
a telephone number that matched the number of Rosabla Carrasco,
an Odessa resident who had been arrested, but not convicted, for
drug trafficking. Agents also found a current Odessa College
student identification card picturing Chavez. The agent who
investigated the identification card discovered that it was for a
3
membership to the athletic facility at the college, which Chavez
shared with three other individuals.2
On February 5, 2004, a federal grand jury indicted Chavez
for (1) knowingly importing into the United States from Mexico
less than fifty kilograms of marijuana, and (2) knowingly
possessing with intent to distribute less than fifty kilograms of
marijuana. Chavez pleaded not guilty to both counts. Before the
trial began, the government moved to introduce evidence that (1)
Rodolfo Valdez, an Odessa resident who shared the college gym
membership with Chavez, had twice been convicted of marijuana
offenses, and (2) Carrasco, who was linked to Chavez through the
papers with her telephone number found in Chavez’s wallet and
truck, had been arrested for marijuana smuggling. The district
court denied the government’s motion, finding the evidence
irrelevant.3 On March 23, 2004, the trial began and during its
2
An Odessa College administrator testified that Chavez,
Rodolfo Valdez, Eric Gomez, and Obed Hernandez opened a corporate
athletic club membership named “Cuatro Los Chulos,” meaning a
group of cute guys. 6 R. at 175, 215. According to the
testimony of Raymond Rodriguez, a police officer assigned to the
drug enforcement administration task force, the address provided
by the corporate members on the gym application corresponded to
the private residence of Carrasco. When Rodriguez visited
Carrasco’s residence, she claimed that she did not know Chavez.
Id. at 150-51.
3
The judge ruled that:
[T]he government is not going to be allowed to bring [the
evidence of Valdez’s prior drug convictions and
Carrasco’s arrest for drug smuggling] up on its case in
chief. . . . If Mr. Chavez takes the stand and raises the
issue of duress, then the Government will be allowed to
introduce that evidence. . . . I don’t see anything, at
4
direct case, the government again moved to admit evidence of
Valdez’s prior convictions and Carrasco’s arrest for drug
trafficking. The court again denied the government’s motion.
At the end of the government’s case, Chavez took the stand
in his own defense. Using the alleged death threats from Aranda
as support, Chavez claimed that he acted under duress in
transporting marijuana across the U.S. border. During Chavez’s
direct testimony, his attorney laid the groundwork for the duress
defense. In an attempt to establish the second element of the
duress defense,4 Chavez and his attorney engaged in the following
colloquy:
least in what the Government has shown me so far, that
connects the Defendant with these two people in Odessa,
other than he had a phone number, and nothing that
connects him back to their prior drug dealings.
6 R. at 8-9.
4
The defense of duress requires the defendant to prove by
a preponderance of the evidence that:
1. The defendant was under an unlawful present, imminent,
and impending threat of such a nature as to induce a
well-grounded fear of death or serious bodily injury to
himself [or to a family member]; and
2. The defendant had not recklessly or negligently placed
himself in a situation in which it was probable that he
would be forced to choose the criminal conduct; and
3. The defendant had no reasonable legal alternative to
violating the law, that is, he had no reasonable
opportunity to avoid the threatened harm; and
4. A reasonable person would believe that by committing
the criminal action he would directly avoid the
threatened harm.
FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS: Criminal § 1.36 (West 2001)
(alteration in original); see also United States v. Posada-Rios,
158 F.3d 832, 873 (5th Cir. 1998) (setting forth the elements of
this defense in essentially the same terms as the Fifth Circuit
pattern jury instruction).
5
Q: Did you recklessly or negligently hang around with
the Sergio Aranda people and get yourself involved
in this when you didn’t have to?
A: Do you mean if I –- I mean, I didn’t understand your
question.
Q: Did you involve yourself, before this happened, with
drug traffickers?
A: No, ma’am.
On cross examination, the following exchange occurred between
Chavez and the prosecutor:
Q: Mr. Chavez, [defense counsel] just asked you, you do
not associate with people who are drug traffickers.
Is that your testimony?
A: Yes, sir.
The prosecutor then questioned Chavez about his relationship with
Valdez. Chavez testified that they were friends from work and
that they had joined a gym as part of a group. Later during
cross examination, the prosecutor once again asked:
Q: And, again, you’re very clear on the fact that you
do not associate with people who are involved in
drug trafficking; is that correct?
A: Yes, sir.
For the third time, over the defense attorney’s objections,
the government moved to introduce evidence of Valdez’s prior drug
convictions and Carrasco’s arrest for drug trafficking. This
time, the district court admitted evidence of Valdez’s prior
drug-trafficking convictions, finding that (1) the prosecutor
could use the evidence to rebut Chavez’s duress defense, and (2)
Chavez’s attorney opened the door to the evidence by asking
6
Chavez whether he had ever associated with drug traffickers. The
district court, however, refused to admit evidence concerning
Carrasco’s prior arrest for drug trafficking. After the district
court’s ruling, the prosecutor asked Chavez whether he was aware
that Valdez had twice been convicted for trafficking marijuana.
Chavez responded that he “did not know–-[he] knew he was in jail,
but [he] did not know why.” 6 R. at 283. After further probing
by the prosecutor about Valdez’s prior marijuana offenses, Chavez
again responded, “I know [sic] he was in jail but not that he was
in there for all these problems that you are telling me about.”
Id. at 284. On rebuttal, the government presented the testimony
of Valdez’s state and federal probation officers to introduce the
indictments and formal judgments of conviction for Valdez’s drug-
trafficking offenses.
At the close of evidence, Chavez’s attorney argued that the
Fifth Circuit pattern jury instruction on duress impermissibly
shifted the burden of proof to the defendant. She submitted a
proposed jury instruction derived from the Federal Judicial
Center.5 She admitted, however, that she could point to no Fifth
5
Defense counsel proposed that the court model its
instruction on duress after Instruction 56 of the Pattern
Criminal Jury Instructions promulgated by the Federal Judicial
Center. Under this instruction,
[o]n [the issue of duress], just as on all others, the
burden is on the government to prove the defendant’s
guilt beyond a reasonable doubt. To find Angel Chavez
guilty, therefore, you must conclude beyond a reasonable
doubt that when he participated in the attempt to smuggle
the marijuana, he did not have a reasonable belief that
7
Circuit or Supreme Court case indicating that the Fifth Circuit
pattern jury charge was erroneous. She also requested a
cautionary instruction regarding evidence of Valdez’s prior
convictions. After asking defense counsel whether she had a
proposed instruction and receiving a negative reply, the court
denied defense counsel’s request. Although the district judge
did not specifically mention the evidence on Valdez, he did give
a cautionary instruction to the jury to consider only the crimes
charged to Chavez in the indictment.6
On March 24, 2004, the jury began its deliberations. After
approximately two hours of deliberations, the jury sent a note to
the court indicating that they could not reach a unanimous
verdict on the duress defense. The court overruled Chavez’s
motion for a mistrial and instructed the jury to continue
deliberating. About an hour later, the jury returned a guilty
verdict on both counts. On May 26, 2004, the district court
such participation was the only way he could save himself
from serious harm.
1 R. at 69.
6
The judge gave the following cautionary instruction to
the jury:
You are here to decide whether the Government has
proved beyond a reasonable doubt that the Defendant is
guilty of the crimes charged in the indictment. The
Defendant is not on trial for any act, conduct, or other
offense not alleged in the indictment. Nor should you be
concerned with the guilt of any other person or persons
not on trial as a Defendant in this case, except as you
are otherwise instructed.
7 R. at 339-40.
8
sentenced Chavez to thirty-three months imprisonment, three years
supervised release, and special assessments of $200.00 on both
counts. On June 1, 2004, Chavez filed this timely appeal.
II. DISCUSSION
A. Admissibility of Valdez’s Prior Drug-Trafficking Convictions
Chavez argues that the district court erred by admitting
Valdez’s prior drug convictions. First, Chavez contends that
this evidence was not relevant to any of the issues in the case
and was offered only for the improper purpose of showing that
Chavez associates with a felon. According to Chavez, this
court’s precedent prohibits such guilt-by-association evidence,
and the district court’s admittance of such evidence constitutes
reversible error. See United States v. Singleterry, 646 F.2d
1014, 1018 (5th Cir. 1981) (noting that the government may not
attempt to prove a defendant’s guilt by showing that the
defendant associates with “unsavory characters”). Second, Chavez
argues that his attorney did not open the door to Valdez’s prior
convictions because defense counsel’s second question was
directed at those drug traffickers who had threatened Chavez’s
family. Even if defense counsel opened the door, Chavez
maintains that Valdez’s prior drug convictions were irrelevant
because Chavez never accused Valdez of forcing him to transport
drugs and no evidence exists to show that Chavez knew Valdez was
a drug trafficker. Finally, Chavez contends that even if
9
Valdez’s prior drug convictions have some minor relevance to the
issues in the case, the district court should have excluded the
evidence as unduly prejudicial under FED. R. EVID. 403. See
United States v. Polasek, 162 F.3d 878, 885 n.2 (5th Cir. 1998)
(noting that even if the defendant’s associates’ convictions were
relevant for some purpose, the prejudicial effect of the evidence
substantially outweighed its probative value).
We review a district court’s decision to admit evidence for
abuse of discretion. United States v. Gutierrez-Farias, 294 F.3d
657, 662 (5th Cir. 2002); see also United States v. Caldwell, 820
F.2d 1395, 1403 (5th Cir. 1987) (“[T]his court is guided by the
principle that the district court has wide discretion in
determining relevancy, and its decision will not be overturned
absent a substantial abuse of that discretion.”). For
evidentiary issues arising under FED. R. EVID. 403, the district
court has broad discretion to weigh the relevance, probative
value, and prejudice of the evidence. United States v. Wilson,
355 F.3d 358, 361 (5th Cir. 2003). Based on the district court’s
broad discretion, we will not reverse a district court’s ruling
under Rule 403 absent a clear abuse of discretion. Caldwell, 820
F.2d at 1404; see also United States v. Dula, 989 F.2d 772, 778
(5th Cir. 1993) (“The balancing of probative value against
prejudicial effect is committed to the sound discretion of the
trial judge, a decision that is final in the absence of abuse of
discretion.”).
10
We note at the outset that by categorically denying on
direct examination that he did not involve himself with drug
traffickers, Chavez effectively opened the door to the questions
that the prosecutor put to him concerning his connections with
Valdez. See Walder v. United States, 347 U.S. 62, 64-66 (1954)
(noting that where the defendant testified on direct examination
that he had never possessed any narcotics, the government was
allowed to impeach this broad assertion by introducing rebuttal
witnesses); United States v. Caron, 474 F.2d 506, 508 (5th Cir.
1973). In United States v. Caron, the defendant denied that he
was a bookmaker or engaged in bookmaking operations. Caron, 474
F.2d at 507-08. On cross-examination of the defendant, the
district court allowed the introduction of evidence showing the
defendant’s dealings with another bookmaker though it was
collateral to the issues raised by the indictment and for which
the defendant was on trial. Id. at 508. On appeal, we held that
the defendant opened the door to the prosecutor’s rebuttal
evidence by categorically denying on direct examination that he
was a bookmaker. Id.; see also United States v. Walker, 613 F.2d
1349, 1352-53 (5th Cir. 1980) (holding that because the defense
counsel had opened the door by asking a witness about her
profession as a prostitute and eliciting testimony concerning the
defendant’s connection with the witness, the government was
allowed on redirect to ask specific questions about whether the
witness was working for the defendant as a prostitute and how
11
much money the witness paid to the defendant from her work as a
prostitute, even though this testimony related to evidence of
another crime by the defendant); United States v. Delk, 586 F.2d
513, 516 (5th Cir. 1978) (“[I]f the defendant opens the door to
the line of testimony, he cannot successfully object to the
prosecution accepting the challenge and attempting to rebut the
proposition asserted . . . .”) (internal quotation marks and
citation omitted); cf. United States v. Ochoa, 609 F.2d 198, 204-
05 (5th Cir. 1980) (finding that the defendant in this case
“never testified that any of these people were good people or
placed their character in issue” and contrasting this case with
those in which “the defendant opened the door on direct and can
now be required to give full details”). Although Chavez’s
counsel strenuously contended at oral argument that Valdez’s
prior drug convictions have no logical relevance to whether
Chavez is guilty of drug trafficking, the evidence is relevant--
and admissible--to rebut Chavez’s assertion that he did not
associate with drug traffickers. See FED. R. EVID. 401 & 402
(noting in Rule 402 that all relevant evidence is admissible and
defining relevant evidence in Rule 401 as “evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence”) (emphasis added).
Chavez has also failed to show that the district court
clearly abused its discretion by admitting the evidence under
12
FED. R. EVID. 403. To exclude evidence under Rule 403, the trial
court must find that “the probative value of that evidence ‘is
substantially outweighed by the danger of unfair prejudice.’”
Caldwell, 820 F.2d at 1404 (quoting FED. R. EVID. 403) (emphasis
added). Evidence of Valdez’s prior convictions was extremely
probative to rebut Chavez’s testimony that he did not associate
with drug traffickers. While the evidence certainly carried some
risk of prejudice by linking Chavez with a drug trafficker, the
danger of unfair prejudice was reduced by the district court’s
cautionary instruction to the jury. See United States v.
Sanders, 343 F.3d 511, 518 (5th Cir. 2003) (noting that a court
minimizes the danger of undue prejudice when it provides a
cautionary instruction); United States v. Gonzalez-Lira, 936 F.2d
184, 192 (5th Cir. 1991) (determining that the trial court’s
limiting instruction to the jury reduced the risk of prejudice).
Accordingly, we cannot say that the district court’s weighing of
the probative value and prejudice of the evidence and decision to
admit it amounted to a clear abuse of discretion. See Gonzalez-
Lira, 936 F.2d at 192. Based on our review of the record, we
hold that the district court did not err by admitting evidence of
Valdez’s prior convictions.7
B. Limiting Instruction on Valdez’s Prior Convictions
7
Because we hold that Chavez’s attorney opened the door
during direct testimony to Valdez’s prior drug convictions, we
need not decide whether the district court abused its discretion
in admitting the evidence to rebut Chavez’s duress defense.
13
Chavez next argues that the district court erred in not
giving a limiting instruction telling the jury that Chavez’s
association with a convicted felon could not serve as proof of
his guilt without additional evidence. See United States v.
Parada-Talamantes, 32 F.3d 168, 170 (5th Cir. 1994) (finding that
the admission of highly prejudicial evidence without any curative
instruction amounts to reversible error). At oral argument, both
parties focused on whether Chavez had waived his right to receive
a limiting instruction by failing to provide the district court
with a substantially correct jury instruction. In addition to
this discussion over waiver, Chavez’s counsel contended that the
district court’s failure to give the jury a limiting instruction
added to the prejudice in this case.8
Contrary to the discussion at oral argument over waiver,
appellate counsel on both sides failed to note that the district
judge did provide a cautionary instruction to the jury to
consider only the crimes charged to Chavez.9 We have held that a
district court’s cautionary instruction mitigates potential
prejudicial effect, even where the instruction is general and
8
At oral argument, Chavez’s counsel paraphrased the trial
attorney’s request for a limiting instruction as “Your honor, can
we have an instruction something like the mere presence
instruction--you know, mere presence at a crime doesn’t mean
you’re guilty. Can we have an instruction that without more, you
can’t convict him just ‘cause he knows people who have been
convicted of drugs?” The record indicates that Chavez’s trial
counsel made almost this exact request. See 7 R. at 329.
9
See supra note 6.
14
does not specifically mention the prejudicial evidence at issue.
See United States v. Walters, 351 F.3d 159, 167 n.5 (5th Cir.
2003) (noting that “[t]he fact that the district court’s limiting
instruction did not specifically mention [the evidence at issue]
does not diminish its mitigation of prejudicial effect”); see
also Gonzalez-Lira, 936 F.2d at 192 (determining that the
limiting instruction sufficiently reduced the danger of
prejudice). Because the district court did in fact provide a
cautionary jury instruction, we find Chavez’s contention without
merit.
C. The Fifth Circuit’s Pattern Jury Instruction on Duress
Finally, Chavez argues that this circuit’s pattern
instruction on the defense of duress improperly places the burden
of proof on the defendant to prove the four elements of the
defense. According to Chavez, the instruction “saddled him with
an unfair presumption that he recklessly or negligently placed
himself in a situation that forced him to choose the criminal
conduct in which he engaged.” Appellant Br. at 15. Chavez
acknowledges that this court’s precedent forecloses this
argument. See United States v. Willis, 38 F.3d 170, 178-79 (5th
Cir. 1994). Chavez raises this argument, however, to preserve it
for possible further review by this court en banc or by the
Supreme Court.
The district court has broad discretion in formulating its
15
instructions, and we therefore review the district court’s
refusal to include the defendant’s proposed jury instruction for
abuse of discretion. United States v. Chaney, 964 F.2d 437, 444
(5th Cir. 1992). In applying this deferential standard of
review, “we read the district court’s instruction as a whole to
determine whether that instruction fairly and accurately reflects
the law and covers the issues presented in the case.” Id.
In United States v. Willis, we found that the Fifth Circuit
pattern jury instruction for duress accurately and fairly
reflects the law of duress in this circuit. With regard to the
same duress instruction now at issue, we held that “the duress
instruction given by the district court herein was drawn directly
from circuit precedent. . . . The district court was not free to
ignore precedent . . . and neither are we.” Willis, 38 F.3d at
179. Accordingly, as Chavez correctly recognizes, our precedent
forecloses his jury instruction argument.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
16