United States v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 17, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-20131

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

Richard Gonzales,
Louis Gomez,
Carlos Reyna,

Defendants-Appellants.

Appeals from the United States District Court
for the Southern District of Texas

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Richard Gonzales, Louis Gomez and Carlos Reyna appeal their

convictions and sentences for deprivation of civil rights in

violation of 18 U.S.C. § 242. We affirm.

FACTS AND PROCEEDINGS BELOW

Defendants-appellants were charged in a five count

indictment with the willful deprivation, on or about March 25,

2001, of the civil rights of Serafin Carrera while in their
custody, resulting in bodily injury to him, contrary to 18 U.S.C.

§ 242. The indictment alleged that each defendant was a

Deportation officer with the Immigration and Naturalization

Service (INS) and was acting under color of law. Carlos Reyna

was charged in count one with striking and using unreasonable

force against Carrera and in count four with deliberate

indifference to his serious medical needs. Richard Gonzales was

charged in count two with use of unreasonable force against

Carrera by pepper spraying him and in count three with deliberate

indifference to his serious medical needs. Louis Gomez was

charged in count five with deliberate indifference to Carrera’s

serious medical needs. Each defendant pled not guilty. Jury

trial commenced May 12, 2003 and the jury returned its verdict

June 9, 2003, finding Reyna not guilty on count one and guilty on

count four, Gonzales guilty on counts two and three and Gomez

guilty on count five. The district court sentenced Gonzales to

concurrent terms of 78 months’ imprisonment and three years’

supervised release on each of counts two and three; Gomez was

sentenced to 41 months imprisonment and three years’ supervised

release; and, Reyna was sentenced to 33 months’ imprisonment and

three years’ supervised release. On appeal defendants assert

divers challenges to their convictions and sentences.

Viewing the evidence in the light most reasonably favorable

2
to the government, the following factual context is reflected.1

The defendants, Gonzales, Gomez, and Reyna worked as

deportation officers for the San Antonio division of the INS.

They were members of the elite San Antonio Fugitive Unit, a group

that specialized in tracking down and deporting illegal aliens

with criminal records. Early in the morning of March 25, 2001,

their unit, together with INS agents from Houston, prepared to

raid a house in Bryan, Texas. They were advised to be alert.

The night before, agents had encountered an armed 15-year old

near the house.

At 8:00 AM, the raid began. The San Antonio unit rushed in

the front door while the Houston officers maintained a perimeter

around the house. Minutes later, one of the house’s occupants,

Serafin Carrera, lay paralyzed on the kitchen floor.

The testimony is unclear about which officers took down

Carrera, though Gonzales, Gomez, and Reyna were all involved.

The prosecution did not charge the defendants with excessive

force in taking Carrera down or with causing the broken neck

which he suffered in that process. Instead, the defendants were

convicted for their behavior thereafter.2

1
None of the defendants testified before the jury.
2
At the beginning of trial, immediately prior to opening
statements by counsel, the court instructed the jury in part as
follows:

“The United States’ position in this case is that

3
 All three defendants had close contact with Carrera while he

lay handcuffed on the floor. Carrera begged for help, screaming

“they broke me . . . Tell them to kill me . . . Tell them to take

me to a hospital.” In response, Gomez taunted, “From here you’re

going to go to jail and you’re never going to get out, you son of

when the defendants encountered Searfin Carrera they
used a certain amount of force resulting in an injury
to Mr. Carrera’s neck. The United States does not
allege in the indictment that the amount of force used
in the initial encounter with Mr. Carrera in which he
was taken down to the floor was criminally excessive.
The United States alleges in Count 1 of the indictment
that after that initial encounter, defendant Carols
Reyna willfully used excessive force against Searfin
Carrera by striking him about the body causing bodily
injury.”

. . .

“I told you that the government does not allege in
the indictment that the amount of force used in the
initial encounter with Mr. Carrera, in which he was
taken down to the floor, was criminally excessive. The
indictment does not allege that the injury to Mr.
Carrera’s neck was the result of a criminal act by the
defendants.

You will hear evidence that as a result of this .
. . injury, Mr. Carrera was paralyzed. He died 11
months later. The indictment does not allege that the
defendants’ actions caused Mr. Carrera’s death. The
government does not seek to hold any of the defendants
criminally responsible for the death. You are not to
consider the fact that Mr. Carrera died months after
the incident as evidence of guilt. It must not enter
into your discussions or deliberations when they
occur.”

Similar instructions were included in the final jury charge.

4
a fucking mother.” Officer Gonzales called him “cabron”3 and

invited his fellow officers to wipe their feet on him. The three

defendants stood in the kitchen, with Carrera on the floor crying

for help, trying to figure out how to get their paralyzed

detainee into an INS van. Officer Gonzales, the San Antonio team

leader, ordered a detention officer to pull the van closer to the

house, saying “I don’t want anybody to see what’s going on.”

Next, Gonzales, Gomez, and two other officers dragged Carrera

from the house, across the backyard, and into the van. Carrera

complained of pain, asking to be shot and put out of his misery,

while Officer Gomez pulled him through the van door and onto the

front seat. Gomez struggled to position Carrera’s limp body on

the seat, finally leaving him slumped on his side and handcuffed.

As the van departed for the Brazos County Jail, Officer Reyna

asked the driver to give Carrera a screen test—an unofficial

maneuver in which the driver slams on the brake causing a

handcuffed passenger to lurch forward and hit his face against

the screen.

The nearby Brazos County Jail was not the final destination

for Carrera or any of the other detainees. The INS Officers

merely used its parking lot as a makeshift processing area for

the illegal aliens. After processing, the aliens were to be sent

3
Not unlike some English expletives, “Cabron” is amenable to
use as a term of endearment between friends. However, in this
context, it was certainly reasonably inferrable that it was
intended and understood as a serious insult.

5
by bus to New Braunfels, and then removed to Mexico.

After all the aliens were loaded into two vans, the officers

returned to their cars and followed the vans to the Brazos County

Jail for processing. At the jail, all three defendants dragged

Carrera off the van, hitting his head against the door on the way

out. They dragged him across the parking lot while taunting him

and playing with his limp body. Gonzales ordered the bus driver

to open the luggage compartment, and threatened, jokingly, to

make Carrera ride below. INS officers testified that Gonzales

said, “Let’s Mace the fucker, see if he budges.”

The three defendants dragged Carrera onto the bus. Because

the bus had tinted windows, no one outside of it saw what

happened next, but after a few minutes all three defendants ran

off the bus choking and laughing. With a smirk, Gonzales claimed

that he had an “accidental discharge” of pepper spray. A nurse

was on duty at the Brazos County Jail, and a hospital just four

miles away, but the defendants left Carrera by himself on the

floor of the bus, handcuffed, eyes swollen shut, and foaming at

the mouth. At around 11:30 AM, three hours after Carrera’s neck

was broken, the bus left for New Braunfels. Carrera rode on the

floor of the bus for three more hours until he reached the Comal

County Jail. Upon his arrival, the intake nurse refused to take

custody of Carrera without a medical evaluation. He was taken

by ambulance to a nearby hospital and then airlifted to a trauma

6
center in San Antonio. Eleven months later, Carrera died.

The next day, the cover-up began. Gonzales called everyone

into his office and assured them, “we’re going to get through

this.” When Gonzales found out that a bus driver had already

written a memo about the incident, he called the bus driver into

his office and said, “who the fuck told [you] to write a memo . .

. nobody told you to write any memos . . . I’m the one that’s

going to take care of the memos.” Gonzales demanded that the bus

driver change his account to say that Carrera had assaulted them.

The driver refused.

DISCUSSION

I. Sufficiency of Counts Three and Four of the Indictment

Gonzales contends that the district court erred in

overruling his motion to dismiss count three of the indictment,

concerning his deliberate indifference to Carrera’s serious

medical needs, for failure to state an offense. Reyna makes the

same contention respecting count four, the comparable count

naming him.

We review the sufficiency of an indictment de novo. United

States v. Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996).

Rule 7(c) provides that an indictment “must be a plain,

concise, and definite written statement of the essential facts

constituting the offense charged . . . .” Fed. R. Crim. P 7(c).

An indictment’s sufficiency is determined by an examination of

7
its specific language, taking account of the indictment as a

whole in the context of its statutory background. United States

v. Haas, 583 F.2d 216 (5th Cir.1978), cert. denied, 440 U.S. 981,

99 S.Ct. 1788, 60 L.Ed.2d 240 (1979). The test for sufficiency

is not whether the indictment could have been better drafted, but

whether it conforms to minimal constitutional standards. Haas,

583 F.2d at 219. These minimum constitutional standards are met

where the indictment alleges “every element of the crime charged

and in such a way ‘as to enable the accused to prepare his

defense and to allow the accused to invoke the double jeopardy

clause in any subsequent proceeding.’” United States v.

Bieganowski, 313 F.3d 264, 285 (5th Cir. 2002)(quoting United

States v. Webb, 747 F.2d 278, 284 (5th Cir.1984)).

The indictment alleges that defendants were at all relevant

times INS officers and the challenged counts (counts three and

four) charge that the particular defendant:

“while acting under color of law, did act with
deliberate indifference to the serious medical needs of
Serafin Carrera by denying him medical care and
treatment, resulting in bodily injury to Serafin
Carrera, and did thereby willfully deprive Serafin
Carrera of the right secured and protected by the
Constitution and laws of the United States not to be
deprived of liberty without due process of law, which
includes the right to be free from harm while in
official custody. In violation of Title 18, United
States Code, Section 242.”

The defendants argue that the statutory element “willfully”,

8
the mental state expressly required by section 242,4 was not

properly charged in the indictment because it was confusingly

equated with “deliberate indifference”, the mental state

associated with the underlying due-process deprivation.5

The indictment, in detailing the statutory elements of the

crime charged, alleged two potentially different mental states:

“willfully” and “deliberate indifference.” Further, the

“thereby” language in the indictment can arguably be read as

wrongfully equating these two mental states. However, deliberate

indifference and willfulness are not necessarily inconsistent

with each other. And, the validity of an indictment is

4
Section 242 denounces:

“[w]hoever, under color of any law . . . willfully
subjects any person in any State . . . to the
deprivation of any rights . . . protected by the
Constitution. . .”
5
The defendant Reyna, as an initial matter, also argues that
deliberate indifference is a civil standard from section 1983
cases, and that a criminal prosecution under § 242 should require
nothing less than willfulness. This argument confuses two
separate and independent culpability standards. The willfulness
culpability standard that the prosecution must prove to support a
§ 242 conviction is independent of the “deliberate indifference”
standard that the Court requires for a violation of the due
process right to medical care while in custody. For example, the
Supreme Court has held that “section 1983, unlike its criminal
counterpart, 18 U.S.C. § 242, contains no state-of-mind
requirement independent of that necessary to state a violation of
the underlying constitutional right.” Daniels v. Williams, 106
S.Ct. 662, 664 (1986). For a § 1983 claim the plaintiff need
prove deliberate indifference, because that much is required to
prove a violation of the due process right. However, for a § 242
claim, the prosecution must also prove that the defendant acted
willfully.

9
determined by reading it as a whole and "by practical, not

technical considerations." United States v. Markham, 537 F.2d

187, 192 (5th Cir. 1976), cert. denied, 97 S.Ct. 739 (1977). This

indictment, as a whole, meets the minimum constitutional

standards set out above. It includes every statutory element of

a section 242 violation; it provides enough factual detail to

enable the accused to prepare his defense; and it is specific

enough to allow the accused to invoke double jeopardy in any

subsequent proceedings. Accordingly, we reject these challenges

to the indictment.

II. Jury Charge

Gonzales raises two objections to the jury charge. He

contends, first, that the charge improperly equates willfulness

with mere knowledge, and, second, that because the charge does

not include a “good faith” instruction requested by Gonzales, it

omits an essential element of the offense. We reject these

contentions.

Although Gonzales did object to “the entire proposed

instruction,” he made no intelligible objection to any particular

language as equating willfulness with knowledge or as allowing

conviction on nothing more than deliberate indifference.

Consequently, those complaints are reviewed for plain error only.

United States v. Daniels, 281 F.3d 168, 183-84 (5th Cir. 2002).

The district court’s instruction on willfulness is accurate.

10
Throughout the jury charge, the court explains the concept of

willfulness using language borrowed directly from the Fifth

Circuit pattern jury instructions and from prior section 242

cases. FIFTH CIRCUIT CRIMINAL JURY INSTRUCTIONS § 1.38 (2001); United

States v. Sipe, 388 F.3d 471, 479–80 n.21 (5th Cir. 2004); United

States v. Garza, 754 F.2d 1202, 1210 (5th Cir. 1985).6

6
The charge instructed the jury, among other things, that
in order to convict the jury must find

“that the defendant acted willfully, that is, that the
defendant committed such act or acts with a bad purpose
or evil motive intending to deprive Serafim Carrera of
that right”

and that

“[t]he third element which the government must prove
beyond a reasonable doubt is that the defendant acted
willfully. Willfully means that the defendant acted
voluntarily and intentionally with the intent not only
to act with a bad or evil purpose, but specifically to
act with the intent to deprive a person of a federal
right made definite by decisions or other rule of law .
. . .

To find that a defendant acted willfully, you must
find that the defendant had the specific intent to
deprive another of the federally protected rights, in
Counts 1 and 2, to be free from the use of excessive
force, and in Counts 3, 4 and 5, to receive necessary
medical care while in the custody of government
officers when those officers know of the presence of a
serious medical need.”

With respect to each of the deliberate indifference counts
(Counts three, four and five) the court also instructed “the
government must prove beyond a reasonable doubt that the
defendant knew that Serafin Carrera had a serious medical need
and willfully denied or delayed providing necessary medical care
either through an act or an omission, disregarding an excessive
risk to Mr. Carrera’s health” and that this knowledge “cannot be
established merely by demonstrating that the defendant was

11
 Furthermore, this court has already rejected the argument

that an otherwise adequate willfulness instruction is fatally

incomplete without further, affirmative instruction on good

faith. See United States v. Davis, 132 F.3d 1092, 1094 (5th Cir.

1998).

III. Sufficiency of the Evidence

A. Standard of Review

Each of the defendants challenges the sufficiency of the

evidence to support his conviction. Each made an appropriate

motion for judgment of acquittal. Accordingly, we will hold the

evidence sufficient if, but only if, “a rational trier of fact

could have found that the evidence establishes the essential

elements of the offense beyond a reasonable doubt.” United

States v. Brugman, 364 F.3d 613, 615 (5th Cir. 2004). We review

the evidence in the light most favorable to the government with

all reasonable inferences and credibility choices made in support

of the jury verdict. Id. If the evidence tends to give nearly

equal circumstantial support to either guilt or innocence then

reversal is required. United States v. Moreno, 185 F.3d 465, 471

(5th Cir. 1999).

negligent” or “that a reasonable person would have known or that
the defendant should have know.”

As to the excessive force counts (counts one and two) the
jury was also instructed that in order to convict it had to find
that the charged defendant “intentionally used force against
Serafin Carrera, knowing it to be excessive.”

12
B. Count Two, Excessive Force

Gonzales was convicted on count two of the indictment, which

charged that he:

“while acting under the color of law, did assault
Serafin Carrera by spraying him with Oleoresin Capsicum
pepper spray, resulting in bodily injury to Serafin
Carrera and did thereby willfully deprive him of the
rights . . . protected by the Constitution . . . to be
secure in his person and to be free from the use of
unreasonable force by one acting under color of law.”

Contrary to Gonzales’s contention, we hold that there is

sufficient evidence for a rational trier of fact to find, beyond

a reasonable doubt, that Gonzales willfully sprayed Carrera.

Gonzales’s theory at trial was that the pepper spray accidentally

discharged in Carrera’s face while Gonzales was carrying him onto

the bus through a narrow “safety cage” doorway.

Because the bus had tinted windows, no one outside of it

witnessed the discharge. However, Frank Gonzalez, an INS

detention officer from the San Antonio office, testified that

while Gonzales was carrying Carrera to the bus, he said “Let’s

Mace the fucker and see if he budges.” Two other San Antonio

detention officers, Gilbert Rodriguez and Rene Cruz, remembered a

similar statement. Rene Cruz testified that when Gonzalez,

Reyna, and Gomez exited the bus, Gonzales was coughing, smirking

sarcastically, and claiming that there had been an “accidental

discharge.” At the time, neither Gilbert Rodriguez nor Rene Cruz

believed him. They both suspected that the accidental-discharge

story was a cover-up.

13
 Gonzales presented evidence that these testifying officers

had given inconsistent accounts of the Carrera incident. From

initial statements given to agency investigators to later

testimony before the grand jury, their stories had evolved. The

testifying officers admitted that they had lied to investigators.

They explained that they had stonewalled investigators, motivated

by fear of reprisal and a misplaced sense of honor, in order to

protect their colleagues. At trial, the officers insisted, they

were telling the truth. We do not second guess the jury’s

credibility determination here.

The only substantive countervailing evidence presented by

Gonzales was that accidental discharges had previously occurred

with some pepper spray holders and that, on the day of the

Carrera incident, Gonzales had pepper spray on his shirt. There

was no testimony that the discharge was accidental.

We conclude that a rational jury could find beyond a

reasonable doubt that the discharge was intentional.

Gonzales also asserts that the government failed to prove,

as required by the second clause of section 242, that this

deprivation of Carrera’s rights actually resulted in bodily

injury.

There are, in fact, two relevant bodily injury requirements.

First, an excessive-force claim, like the one here, requires a

showing of some bodily injury to establish a constitutional

violation. Harper v. Harris County, Texas, 21 F.3d 597, 600 (5th

14
Cir. 1994). Second, once an underlying constitutional violation

is established and the prosecution invokes the second clause of

section 242, it must prove resulting bodily injury in order to

sustain punishment of more than one year. 18 U.S.C. § 242.

Gonzales challenges only the government’s evidence with respect

to this second bodily injury requirement; however, the definition

of “bodily injury” from excessive-force cases is still relevant

here because this court has borrowed that definition for use in a

section 242 prosecution also predicated on excessive force.

Brugman, 364 F.3d at 618.

In constitutional excessive force cases we have applied a

“some injury” which is “more than ‘de minimis injury’” standard.

Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). The

injury necessary to satisfy this requirement, and thus to

establish an excessive-force claim, is related to the amount of

force that is constitutionally permissible in the context in

which the injury occurs. Ikerd v. Blair, 101 F.3d 430, 434–35.

(5th Cir. 1996). For example, in Williams v. Bramer, supra, this

court faced the question whether the injury alleged, dizziness

and shortness of breath, was sufficient to satisfy the “some

injury” requirement. We held that the injury was insufficient

for the first choking incident, which occurred during a physical

search, but was sufficient for the second choking incident, which

occurred after the victim threatened to report the officer. For

15
the second choking, dizziness and shortness of breath satisfied

the “some injury” requirement because “the officer was motivated

entirely by malice.” Williams v. Bramer, 180 F.3d at 704. In

contrast, the first incident occurred during a search, where

“physical confrontation inevitably results.” Id.

There is sufficient evidence here to support a rational jury

finding of bodily injury. Carrera’s mouth was foaming, he

complained of stinging pain, and his eyes were swollen shut for

at least three hours. The government introduced evidence that

pepper spray causes “intense pain.”7 The force that caused this

pain, the pepper spray, was applied in a context not too

different from the second choking incident in Bramer. Carrera

was no longer a threat to Gonzales. He was paralyzed,

handcuffed, and lying on the floor of the bus. Accordingly, we

hold that a rational trier of fact could have found that the

evidence establishes, beyond a reasonable doubt, Gonzales’s

excessive-force conviction. Cf. Champion v. Outlook Nashville,

Inc., 380 F.3d 893, 903 (6th Cir. 2004) (“[I]t is clearly

established that the Officers’ use of pepper spray against

Champion after he was handcuffed and hobbled was excessive.”).8

7
Gonzales advances the bizarre claim that pepper spray is a
“non painful method of force,” and, as evidence of pepper spray’s
soothing qualities, he cites capsicum’s use in arthritis
medicine. This evidence was never presented to the jury.
8
It may be that Brugman, 364 F.3d at 618, misread U.S. v.
Harris, 293 F.3d 863, 870 (5th Cir. 2003), as holding that, in a

16
 Nor do we find any merit in Gonzales’s contention, made only

in passing (and partially on evidence not introduced before the

jury but only at sentencing), that the evidence is insufficient

because, even if it shows he intentionally pepper sprayed

Carrera, it is not adequate to show that he knew the effects of

the pepper spraying would be sufficiently severe to constitute

“bodily injury.” We conclude, however, that there was sufficient

evidence from which the jury could reasonably infer any requisite

§ 242 felony prosecution involving a constitutional excessive
force violation, the § 242 “bodily injury” requirement was the
same as that for the constitutional excessive force violation.
But, in Harris we expressly disclaimed consideration of the § 242
“bodily injury” requirement (because there “use of a dangerous
weapon” made the offense a felony even if there were no bodily
injury). Harris at 870 & n.6. In any event, with respect to
count two here, which is an excessive force count, we are clearly
bound by Brugman, likewise an excessive force case.
In part IIIC below, addressing counts three, four and five
(deliberate indifference to serious medical needs), we apply to §
242 essentially the definition of “bodily injury” contained in 18
U.S.C. §§ 831(f)(5), 1365(h)(4), 1515(a)(5) and 1864(d)(2). That
is largely the same definition as given in the trial court’s
charge here (“Bodily injury includes physical pain as well as any
. . . impairment of a bodily function”), and no objection to that
definition has been raised on appeal. The evidence here likewise
suffices to establish “bodily injury” under this definition for
purposes of count two.
Gonzales’s reliance on U.S. v. Lancaster, 6 F.3d 208 (11th
Cir. 1993), is misplaced. There the court affirmed the district
court’s finding that the “maced” victim had not suffered a
“bodily injury” for purposes of U.S.S.G. § 2B3.1(b)(3), using the
U.S.S.G. § 1B1.1 note 1(b) definition thereof as “any significant
injury; e.g., an injury that is painful and obvious, or is of a
type for which medical attention ordinarily would be sought.”
Lancaster relied on the fact that “[t]he effect of the mace” on
the victim “lasted minutes, not hours” and on deference to the
trial court. Id. at 211. Here, by contrast, Carrera’s eyes were
swollen shut for at least three hours and we are asked to
reverse, not affirm, the factfinder.

17
knowledge and intent on Gonzales’s part.9

C. Counts three, four and five, deliberate indifference

Gonzales, Reyna, and Gomez each dispute the sufficiency of

the evidence to support their convictions for the willful

deprivation of Carrera’s due-process right to be free from

deliberate indifference to his serious medical needs (counts

three, four, and five).

Under the Due Process clause, pretrial detainees enjoy a

constitutional right “not to have their serious medical needs met

with deliberate indifference on the part of confining officials.”

See Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir.

2001)(defining the right under the Fourteenth Amendment’s Due

Process clause). Deliberate indifference, as defined in due

process cases, requires both that the government official have

“subjective knowledge of a substantial risk of serious harm to a

pretrial detainee” and that the government official respond with

“deliberate indifference to that risk.” Hare v. City of Corinth,

74 F.3d 633, 650 (5th Cir. 1996)(en banc). Finally, if this due

process right is willfully violated, and if bodily injury

results, then the offender is guilty of a felony under section

242.

9
Moreover, it is not clear that the section 242 “and if
bodily injury results” clause can be invoked only if the
defendant intended bodily injury. See United States v. Hayes,
589 F.2d 811, 820-21 (5th Cir. 1979).

18
 1. The officers had actual awareness. There is sufficient

evidence for a jury to have found that Officers Gonzales, Reyna,

and Gomez were actually aware that Carrera had serious medical

needs which posed a substantial risk of serious harm to him.

Under the evidence, the jury could have so concluded from the

very fact that this was so obvious. Farmer v. Brennan, 511 U.S.

825, 842-44 (1994).

All three defendants had close contact with Carrera while he

lay handcuffed on the floor after his injury. Carrera made his

injury known to the defendants, screaming “they broke me . . .

Tell them to take me to a hospital” and the like. In response

to his frequent pleas, the officers taunted him, calling him

“cabron” and inviting people to wipe their feet on him.

At trial, the defense argued that Gonzales, Reyna, and Gomez

believed Carrera was drunk and faking injury. Witnesses

testified that it is common for detainees to feign injury in hope

of avoiding immediate deportation; that other officers at the

scene also believed Carrera was faking injury; and that it is

extremely difficult for laymen to recognized the symptoms of

quadriplegia.

But, two of the officers, Reyna and Gomez, were trained in

trauma management and taught both how to identify the symptoms of

spinal injury and how to treat those symptoms. Moreover,

although some testifying officers did concede that they thought

19
Carrera was faking injury, those officers reminded the jury that

the defendants were in close contact with Carrera and everyone

else at the scene just believed what the defendants told them

about Carrera’s condition.

After the takedown, the three defendants had extended

contact with Carrera: they dragged his limp body from the house

to the van; they dragged him off the van and onto the bus; and

they witnessed his reaction to being pepper sprayed. The jury

could have easily inferred from both this close physical contact

and Carrera’s evident distress and frequent cries for help that

the defendants knew he was seriously injured.

2. Substantial risk of serious harm. There is sufficient

evidence for the jury to have found that Carrera faced a

substantial risk of serious harm. The government need not prove

that Carrera actually suffered serious harm. It is enough, for

these purposes, that Carrera was exposed to a substantial risk of

serious harm even if that harm never materialized. See, e.g.,

Gates v. Cook, 376 F.3d 323, 341 (5th Cir. 2004) (holding that a

Eighth Amendment prisoner–civil plaintiff did not have to prove

that he was actually injured by exposure to raw sewage, only that

the exposure posed a serious health risk).

A defense witness, Dr. Hirshberg, testified that immediately

upon being take down, Carrera’s spinal facets locked and his

spine was stable. Because of this stability, he explained, there

20
was no risk associated with dragging Carrera from the kitchen, to

the van, to the bus.

The government’s expert disagreed. Dr. Gitterle testified

that Carrera might have benefited had he reached the hospital

sooner and that, by moving Carrera without stabilizing him, the

officers exposed him to a risk of harm. Furthermore, because

excruciating pain also qualifies as a serious harm, the jury

could have inferred that the defendant’s failure to seek medical

care for Carrera further exposed him to a substantial risk of

increased severe pain. See Harris v. Hegmann, 198 F.3d 153,

159–60 (5th Cir. 1999). Moreover, after being pepper sprayed,

Carrera was left alone on the bus floor, handcuffed, eyes swollen

shut and foaming at the mouth, despite INS training that, due to

the risk of potentially fatal asphyxiation, those pepper sprayed

should be continually monitored and placed upright, never in a

prone position, particularly if handcuffed.

3. The officers responded with deliberate indifference to

the risk. There is sufficient evidence to permit a finding of

deliberate indifference. Deliberate indifference is an extremely

high standard to meet. Domino v. Texas Dept. Crim. Justice, 239

F.3d 752, 755 (5th Cir. 2001). The government “must show that

the officials ‘refused to treat him, ignored his complaints,

intentionally treated him incorrectly, or engaged in any similar

conduct that would clearly evince a wanton disregard for any

21
serious medical needs.’” Id. at 756.

Only Reyna disputes the sufficiency of the evidence with

respect to deliberate indifference. We reject his contention

that under the evidence it could not be found that he had any

ability or opportunity to respond to Carrera’s serious medical

needs or to do anything looking to their alleviation.

4. Bodily injury. There is sufficient evidence to permit a

finding of bodily injury. A finding of bodily injury is not

required to establish deliberate indifference, the constitutional

violation underlying counts three, four and five. However, as

noted above, for a section 242 conviction to constitute a felony,

bodily injury must result from the underlying violation.10 With

respect to count 2, the underlying violation was employment of

excessive force and we followed Brugman and applied to section

242's “bodily injury” requirement the “some injury” test used in

the excessive force cases. As explained in Brugman, what

satisfies the “some injury” requirement varies according to the

amount of force that was constitutionally permissible under the

particular circumstances. See Brugman, 364 F.3d at 618-19. We

decline to extend Brugman’s approach to section 242 cases in

which employment of excessive force is not any part of the

underlying constitutional violation. Brugman is simply not

10
Or the violation must have involved the use (or attempted
or threatened use) of “a dangerous weapon, explosives, or fire,”
or “death results” from it, none of which is charged here.

22
meaningful in such a context. In a section 242 prosecution based

on deliberate indifference to serious medical needs, use of force

is no part of the underlying constitutional violation, and we

accordingly do not apply Brugman’s definition of “bodily injury.”

We instead follow the First and Eleventh Circuits in

applying to “bodily injury” as used in section 242 the definition

of “bodily injury” provided in four other sections of Title 18

namely, “(A) a cut, abrasion, bruise, burn, or disfigurement; (B)

physical pain; (C) illness; (D) impairment of a function of a

bodily member, organ, or mental faculty; or (E) any other injury

to the body, no matter how temporary.” 18 U.S.C. §§ 831(f)(5);

1365(h)(4); 1515(a)(5); 1864(d)(2). See United States v. Bailey,

405 F.3d 102, 111 (1st Cir. 2005); United States v. Myers, 972

F.2d 1566, 1572 (11th Cir. 1992).

Applying this statutory definition of bodily injury, we hold

that there was sufficient evidence to prove either “physical

pain” or “impairment of function.” The defendants argue that

their failure to provide medical care for Carrera did not result

in bodily injury because Carrera’s injury was painless,

instantaneous, and irreversible. The government, however,

presented contrary evidence. Several witnesses, including

several INS officers, testified that Carrera was moaning and

complaining of severe pain. And, Dr. Gitterle testified that

Carrera might have benefitted from treatment had he reached the

23
hospital sooner.

We hold that the evidence is sufficient to support all three

deliberate-indifference convictions.

IV. Confrontation Clause

Gonzales argues that the government violated his rights

under the Confrontation Clause, as recently defined in Washington

v. Crawford, 124 S.Ct. 1354 (2004), when it introduced evidence

of statements Carrera made while in INS custody.

New constitutional rules are applied retroactively to all

cases pending on direct appeal. Griffith v. Kentucky, 479 U.S.

314 (1987). However, this does not affect the long-standing rule

that, absent plain error, legal issues will not be addressed for

the first time on appeal. Johnson v. Unites States, 520 U.S. 461

(1997) (applying the plain-error standard to an issue created by

an intervening decision); United States v. Rios-Quintero, 204

F.3d 214, 215–16 (5th Cir. 2002). Gonzales made no objection at

trial to the complained of evidence, so our review is only for

plain error.11

In Crawford, the Court held that the Confrontation Clause

11
Gonzales did file a pre-trial motion in limine seeking to
exclude evidence of some statements by Carrera as hearsay, but
there is no indication that the district court ever made a
definitive ruling thereon. In order to preserve this issue for
appellate review Gonzales was hence required to object at trial
when evidence of Carrera’s statements was offered. See Fed. R.
Evid. 103(a); U.S. v. Duffaut, 314 F.3d 203, 209 (5th Cir. 2002).

24
prohibits (1) testimonial out-of-court statements; (2) made by a

person who does not appear at trial; (3) received against the

accused; (4) to establish the truth of the matter asserted; (5)

unless the declarant is unavailable and the defendant had a prior

opportunity to cross examine him. Crawford, 124 S.Ct. at

1364–66. At trial, one of Carrera’s roommates testified that

while Carrera was lying on the kitchen floor he screamed, “oh,

they broke me.” Gonzales argues that because Carrera was in

custody at the time, this statement (none other being specified

by Gonzales in this connection) is inadmissible under Crawford.

The statement was admissible to prove that the officers had

notice of Carrera’s injury. The substance of the statement, that

Carrera was broken, was never disputed. Furthermore, it is far

from clear that this statement (or others by Carrera while at the

scene) even qualifies as testimonial under Crawford. Although

the definition of a “testimonial” statement was left open by

Crawford, language in the opinion appears to suggest that a

testimonial statement is one made during a governmental

interrogation or something similar thereto, not merely screaming

out in pain to those in the vicinity. Crawford, 124 S.Ct. at

1364 (noting definition of testimony as “a solemn declaration or

affirmation made for the purpose of establishing or proving some

fact” and observing that “[a]n accuser who makes a formal

statement to government officers bears testimony”). Finding no

25
plain error, we reject Gonzales’s Confrontation Clause challenge.

V. Constructive Amendment of the Indictment

Gomez contends that Count Five of the indictment was

constructively amended because he was indicted only for “denying”

medical care but the jury charge and prosecution’s theory of the

case allowed conviction for “delaying or denying” medical care.

Because nothing here turns on the distinction between delay and

denial, and because the same set of facts is necessary to prove

either, we reject this contention.

Gomez failed to object on this ground below. The defense

did object to the deliberate indifference jury instruction “in

its entirety,” but such general objections are insufficient to

preserve constructive amendment error. United States v. Millet,

123 F.3d 268, 272 (5th Cir. 1997). Accordingly, we review

Gomez’s constructive amendment issue for plain error. United

States v. Daniels, 252 F.3d 411, 414 & n.8 (5th Cir. 2001).

The Fifth Amendment allows criminal prosecutions only on the

basis of an indictment and only a grand jury may amend an

indictment. Stirone v. United States, 361 U.S. 212, 215–16

(1960). An amendment can occur constructively when an action of

either the judge or prosecutor allows the jury “to convict the

defendant upon a factual basis that effectively modifies an

essential element of the offense charged.” United States v.

Holley, 23 F.3d 902, 912 (5th Cir. 1994); United States v.

26
Salinas, 654 F.2d 319, 324 (5th Cir. 1981). A jury cannot be

permitted to convict on “an alternative basis permitted by the

statute but not charged in the indictment.” Daniels, 252 F.3d at

414. But an instruction which does not broaden the possible

bases of conviction beyond what is embraced in the indictment

does not constitute a constructive amendment. United States v.

Miller, 105 S.Ct. 1811 (1985).

The “delay of medical care” and the “denial of medical care”

are not alternative bases because the same facts can be used to

convict under either. See United States v. Chambers, 408 F.3d

237, 243–44 (5th Cir. 2005). For the purposes of a deliberate-

indifference claim, a deliberate delay in providing medical care

is no different than a deliberate denial of the same care for the

same time, and, in this context, no federal court has ever

distinguished the two. An individual can fairly be said to have

been “denied” medical care for a period of several hours even

though he receives such care at the end of that period;

conversely, it can with equal propriety be said that his receipt

of the medical care was “delayed” for that period. Gomez’s

contention is essentially a verbal quibble.12

Because there was no error, much less plain error, we reject

Gomez’s contention that his indictment was constructively

12
And, to the extent “delay” and “deny” are different in
this context, the former is sufficiently embraced in the latter.

27
amended.

VI. Deportation of Witnesses

Gonzales contends the government’s deportation of witnesses,

and the government’s subsequent failure to produce these deported

witnesses, violated his rights of compulsory process.13

Because Gonzales did not raise below his compulsory process

objection to the government’s deportation of witnesses his

complaint is reviewed for plain error. United States v. Partida,

385 F.3d 546, 557 (5th Cir. 2004).

It was not plain error to try Gonzales after the government

deported two witnesses with material testimony. The Sixth

Amendment guarantees a criminal defendant compulsory process “for

obtaining Witnesses in his favor.” U.S. CONST. amend. VI. The

Supreme Court has held that when the government deports an

illegal alien, before defense counsel has an opportunity to

interview the alien, the constitutional right of compulsory

process is implicated. United States v. Valenzuela–Bernal, 102

S.Ct. 3440 (1982). The Court acknowledges, however, that there

is tension between this Sixth Amendment right and the Executive

Branch’s responsibility to faithfully execute the immigration

laws that require prompt deportation of illegal aliens. The mere

13
Gonzales also claims this violated his confrontation
rights. That claim is clearly without any merit. “Because the
government did not use [the deported witness’s] testimony at
trial, in either live or recorded form, confrontation is not at
issue here.” United States v. Colin, 928 F.2d 676, 679 (5th Cir.
1991).

28
fact that the government deports illegal alien witnesses, thereby

making them unavailable to the defense, is not sufficient,

standing alone, to show a violation of the Compulsory Process

clause. Id. at 3449. In Valenzuela–Bernal, the Court struck a

balance, holding that the Executive Branch was justified in “the

prompt deportation of illegal alien witnesses once the Executive

Branch made a good-faith determination that the witnesses

possessed no evidence favorable to the defendant in a criminal

prosecution.” Id.

This circuit has not yet fully defined the contours of a

claim under Valenzuela–Bernal. Other circuits have implemented

the Valenzuela–Bernal holding in different ways. So far, drawing

on explicit language from Valenzuela–Bernal, all of the Circuits

require at least “a plausible showing that the testimony of the

deported witness would have been material and favorable to [the]

defense, in ways not merely cumulative to the testimony of

available witnesses.” Valenzuela-Bernal, 102 S.Ct. at 3449.

This first prong is universal: the defendant must show prejudice

to his case.

The Seventh, Ninth, and Tenth Circuits recognize a second

prong: the defendant must establish that the government acted in

bad faith. United States v. Chaparro-Alcantara, 226 F.3d 616, 624

(7th Cir.2000); United States v. Pena-Gutierrez, 222 F.3d 1080,

1085 (9th Cir.2000); United States v. Iribe-Perez, 129 F.3d 1167,

29
1173 (10th Cir.1997). These circuits draw upon the following

language from Valenzuela–Bernal: “[I]mmigration policy adopted by

Congress justifies the prompt deportation of illegal-alien

witnesses upon the Executive’s good-faith determination that they

possess no evidence favorable to the defendant in a criminal

prosecution.” Valenzuela–Bernal, 102 S.Ct. at 3449 (emphasis

added). There may be some disagreement on what it takes to show

bad faith. In the Ninth Circuit, a defendant must show either

(1) that the government departed from normal deportation

procedures or (2) that it deported the witness to gain an unfair

tactical advantage. Pena-Gutierrez, 222 F.3d at 1085. In the

Seventh Circuit, a defendant must show “official animus” or a

“conscious effort to suppress exculpatory evidence.” Chaparro-

Alcantara, 226 F.3d at 624. The focus is on “the Government’s

knowledge when . . . it arranged for the departure of the

witnesses, not on any of its subsequent conduct.” Id.

This court has adopted the first prong, requiring a showing

of prejudice. United States v. Soape, 169 F.3d 257, 267–68 (5th

Cir.1999) (denial of requested subpoena did not violate

defendant’s compulsory process rights because the defendant had

not demonstrated the necessity of the witnesses testimony). In

United States v. Sierra–Hernandez, 192 F.3d 501, 503 (5th Cir.

1999), this court discussed the first prong, acknowledged the

existence of the second prong, and held there was no violation,

30
noting that neither prejudice nor lack of good faith was shown,

but not expressly stating that the failure to show lack of good

faith was of itself fatal to the claim.

Here, unlike our prior cases, the first prong is likely

satisfied. Gonzales has made a plausible showing that the

missing testimony, evaluated in the context of the entire record,

would be (1) material and favorable to the defense, and (2) not

cumulative. Sierra–Hernandez, 192 F.3d at 503. Two of the

deported witness believed Carrera was faking injury. Because

deliberate indifference requires that Gonzales know that Carrera

was actually injured, this testimony may have been both favorable

and noncumulative.

Gonzales does not, however, satisfy the second prong since

the witnesses were deported in good faith. Two facts about

Gonzales’s case distinguish it from the vast majority of those

that give rise to Valenzuela–Bernal claims. First, Gonzales’s

arrest occurred after the illegal aliens were deported. Second,

Gonzales actually participated in deporting his own witnesses.

Gonzales does not dispute that the deportations were done in good

faith. He concedes that the government only became aware of

exculpatory testimony after they deported the witnesses.

Because Gonzales cannot satisfy the second prong, he is not

entitled to relief under the plain error standard. Whether this

court ever adopts the second prong, requiring a showing of bad

31
faith by government officials, remains an open question that we

do not decide today. If there is Valenzuela–Bernal error, it is

not plain. See United States v. Olano, 113 S.Ct. 1770, 1776–77

(1993).

Gonzales also contends that the government’s failure to

produce alien witnesses violated his compulsory process rights.

At an April 1, 2003 pre-trial hearing, Gonzales complained to the

court of his difficulties locating witnesses in Mexico. The

court responded, “the first thing you’ve got to do is sit down

and make sure the government hasn’t already provided the

information . . . . If at the end of that exercise you still have

issues, you can come back . . . .”14 Gonzales never again raised

the matter with the district court. The court’s above noted

ruling at the pre-trial hearing was not sufficiently definitive

to preserve this claim, so plain error review is applicable.

Gonzales’s compulsory process rights were not plainly violated by

the government’s failure to produce deported witnesses.

Compulsory process gives criminal defendants “the right to the

government’s assistance in compelling the attendance of favorable

witnesses at trial . . . .” Pennsylvania v. Ritchie, 107 S.Ct.

989, 1000 (1987). Here, the witnesses were in Mexico, beyond the

subpoena power of the federal district court. Nevertheless, the

14
The court added, “based on what the government is telling
us, it does sound as if all reasonable efforts and even some
unreasonable ones may have already been taken.”

32
United States Attorney produced information about every witness

who was deported, located twelve of the twenty witnesses in

Mexico, arranged for them to stay in the United States

temporarily, and made them available to the defense for

interviews three months before trial. Under the circumstances,

the government made fully reasonable efforts. There is no plain

error.

VII. Brady Evidence

Gonzales contends the government withheld the following

exculpatory evidence in violation of Brady v. Maryland, 373 U.S.

83 (1963), : (1) that the pepper spray canister did not have a

safety; (2) that Gonzales’s holster did not have a trigger guard,

(3) that a government witness, Gondinez, had made a prior

inconsistent statement; and (4) that certain deported alien

witnesses had testimony favorable to Gonzales. Gonzales did not

raise any of these objections at any time below. If review is

even possible, it is for plain error. No such error is

demonstrated.

None of the exculpatory evidence cited by Gonzales was

actually withheld from him. Gonzales had first-hand knowledge of

the first two items, the safety characteristics of his pepper

spray canister and his holster. The other two items were

provided to the defense in a tape recording.

Regardless, appellate review is impossible here. Such Brady

33
challenges present fact-based judgments that cannot be adequately

first made on appellate review. That is why Brady challenges

must be brought to the district court’s attention, winnowed by

the trial judge, and made part of the record through a motion for

new trial. See United States v. Chorney, 63 F.3d 78, 80–81 (1st

Cir. 1995). See also United States v. Jones, 112 Fed. Appx. 343,

344 (5th Cir. 2004).

We decline to reverse on the basis of Gonzales’s Brady

claim.

VIII. Prosecutorial Misconduct

Gonzales contends that his due process rights were violated

by the prosecutor’s false statements made during rebuttal

closing. Gonzales objected to these statements for the first

time in his motion for new trial.

Gonzales argues two instances of prosecutorial misconduct.

First, he asserts that the prosecutor “argued that accidental

discharge [of the pepper spray] was impossible by virtue of [a]

safety,” even though the prosecutor “knew, or should have known,”

this to be false. Second, he argues that the prosecutor created

a false impression of a cover-up conspiracy.

The Due Process clause of the Fourteenth Amendment forbids

the government from knowingly using, or failing to correct, false

testimony. Giglio v. United States, 405 U.S. 150, 153 (1972).

To prove a Due Process violation, Gonzales must establish (1)

34
that there was false testimony, (2) that the government knew the

testimony was false, (3) that the testimony was material. United

States v. Mason, 293 F.3d 826, 828 (5th Cir.2002). This rule

also applies to false statements made during the prosecutors

rebuttal closing. United States v. Williams, 343 F.3d 423, 439

(5th Cir.2003).

However, the prosecutor’s rebuttal closing contained no

false statements. The prosecutor argued that “unless that

[safety] tab was previously pulled, which there’s no evidence

before you, this thing cannot accidentally discharge.” Evidence

of the existence of a safety tab was elicited at trial both

through testimony and with the introduction of INS training

materials. Post trial defendant submitted affidavits stating

that the safety tabs are on only during shipping and are removed

before the pepper spray is issued to INS officers. Nevertheless,

the prosecutor’s rebuttal statement is still true—the canister

cannot discharge unless the tab is removed.

To the extent that Gonzales’s complaint is that the

prosecutor misleadingly suggested that Gonzales’s canister had a

safety tab on it during the March 25, 2001 incident, the

complaint was not properly preserved by objection at trial and is

hence reviewed only for plain error.15 We observe that Gonzales

15
Gonzales (and his counsel) are clearly charged with
knowledge whether the canister he carried on March 25, 2001 then
had a safety tab (and whether it had a safety tab when issued to

35
does not allege that the prosecutor actually knew that the tabs

were routinely removed before the canisters were issued to

agents. Further, no witness testified at trial that the

discharge was accidental or that the witness believed it was.16

Gonzales’s fellow INS agents testified that they saw the officers

bring Carrera on the bus and that they did not see an accidental

discharge when he was carried through the safety cage, and that

they saw the officers exit the bus choking and laughing.

Gonzales also argues that the prosecutor improperly hinted

at a cover-up conspiracy. During trial, the government impeached

a defense witness with evidence that the witness, later in the

day on March 25, 2001, after he knew of the events in question,

had signed a form falsely accusing Carrera of assaulting Gonzales

earlier that day. The form, entitled “Report of Assault On

Service Employee[s],” listed “Richard Gonzales” as the “Officer

Assaulted” and “Louis R. Gomez” as a “witness” and described the

“weapon used by suspect” as “bullet key chain in hand.” Later,

in its closing argument, the government reminded jurors of this

impeachment evidence and criticized the officer’s eagerness to

him). Nor is there anything indicating that either lacked such
knowledge. Gonzales was thus required to object at trial. See
Beltran v. Cockrell, 294 F.3d 730, 736-37 (5th Cir. 2002).
16
Gonzales testified at sentencing that the discharge was
accidental. The district court enhanced his sentence for
obstruction of justice in part on the basis that such testimony
was knowingly false. Gonzales challenges the enhancement on this
appeal but on grounds unrelated to whether his sentencing
testimony could properly be found to have been knowingly false.

36
have assault charges brought against the quadriplegic victim. No

objection was made at trial.

Gonzales argues that the prosecutor knew that this INS form

was for internal INS use only and that this form isn’t ever

forwarded to the Department of Justice. The details of INS

procedure are irrelevant to the validity of the prosecutor’s

point. The witness submitted a form that INS agents use to

report an assault; eventually another form is to be used to

report the assault to the Department of Justice (and no such form

was completed). It’s not prosecutorial misconduct to argue that

steps were initiated to bring charges against Carrera.

Gonzales has demonstrated no plain error warranting reversal

in the prosecutor’s closing argument.

IX. Ineffective Assistance of Counsel

For the first time on appeal, Gonzales argues that his trial

counsel was ineffective because he failed to object when the

prosecutor claimed that the pepper spray couldn’t accidentally

discharge unless the safety tab was removed. As a general rule,

this court will not address, on direct appeal, Sixth Amendment

claims of ineffective assistance of counsel that were not

presented to the district court. United States v. Valuck, 286

F.3d 221, 229 (5th Cir.2002). There is no good reason to deviate

from that general rule here. We accordingly deny relief on this

claim, but without prejudice to such rights as Gonzales may have

in respect thereto in a proper motion under 28 U.S.C. § 2255.

37
X. The Order of Closing Arguments

Gonzales contends that the district court erred in how it

ordered closing arguments.

Closing arguments began Thursday afternoon. There was

discussion with the court as to whether to attempt to complete

the arguments that afternoon. The preference of all concerned

seemed to be not to do so. The defense attorneys asked that

after the government’s initial closing argument each defendant’s

counsel be allowed to make a part of his closing argument that

afternoon and the balance of it Friday morning. The government

strenuously objected, insisting that at the least each

defendant’s argument should be completed before the argument of

the next defendant began. Defense counsel did not want to

proceed in that fashion, nor did the defense want to postpone any

defense arguments until Friday morning. The court eventually

acceded to the defense request; but, as compensation to the

government, allowed it a “mini rebuttal” the first thing Friday

morning, to be followed by the second segment of the argument of

counsel for each of the defendants, after all of which would come

the government’s rebuttal. Defense counsel’s objection was

overruled. The closing arguments thus proceeded as follows: on

Thursday afternoon, the government presented its opening closing

argument for some sixty-five minutes; this was followed by some

twenty-one minutes of argument by the attorney for Reyna, then by

some twenty minutes of argument by an attorney for Gomez, and

38
finally by some thirty minutes of argument by the attorney for

Gonzales. The court then, at about 5:00 p.m., recessed until

Friday. Proceedings began about 9:00 a.m. Friday morning with

approximately twenty-one minutes of “mini rebuttal” by another

government attorney, followed by some thirty-eight minutes

further argument by Reyna’s counsel, then another some forty

minutes’ argument (in consecutive twenty-eight and twelve minute

separate segments) by Gomez’s two counsel, then some thirty

minutes’ argument by Gonzales’s counsel, and finally followed by

some twenty-six minutes of rebuttal argument by a third

government attorney.17

Other than conclusorily stating that allowing the government

“to go first and last” and “also to argue in the middle of

defense counsel’s closing arguments gives it unfair advantage,”

appellants point to no particular specific unfairness or

prejudice to them in the ordering of the arguments, nor do they

cite any authority in support of their contention. Their

objection below was even more perfunctory.18 It must be recalled

that the defendants wanted to split each defendant’s argument

into two separate sections (instead of having the complete

17
In all, three government attorneys argued in three
segments for a total of some 153 minutes and four defense counsel
argued in some seven segments for a total of about 179 minutes.
18
Counsel for Gomez merely stated “we’d object for the
record” and counsel for the other two defendants merely stated,
respectively, “I join in that objection” and “I’ll join in that
as well.”

39
argument of each defendant uninterrupted by that of any other

party). Appellants make (and made below) no complaint either as

to the amount of time allowed or that the procedure, insofar as

it deviated from the normal practice by giving the government a

“mini rebuttal”, allowed the government to raise new arguments to

which the defense did not have an opportunity to reply (or that

the government’s opening was inadequate or incomplete).

As a general rule we review comparable trial management

decisions for abuse of discretion. See United States v. Leal, 30

F.3d 577, 586 (5th Cir. 1994) (time allowed for closing

arguments). However, Rule 29.1, Fed. R. Crim. P. (which

appellants do not even cite) provides:

“Closing arguments proceed in the following order:
(a) the government argues;
(b) the defense argues; and
(c) the government rebuts.”

The Advisory Committee notes reflect that the main purpose of the

rule is to ensure that “the defendant knows the arguments

actually made by the prosecution in behalf of conviction before

the defendant is faced with the decision whether to reply and

what to reply.” This core interest under Rule 29.1 was not

invaded here, and, while the simple order of Rule 29.1 should

normally be followed, we are unable to conclude that the trial

court abused its discretion in this respect or that the

appellants were prejudiced or treated unfairly by the order of

argument. See, e.g., United States v. Cardascia, 951 F.2d 474,

40
485 (2d Cir. 1991); United States v. Gleason, 616 F.2d 2, 25-26

(2d Cir. 1979).

We overrule the complaint concerning the order of closing

arguments.

XI. Co-conspirator Hearsay

Gonzales contends that the district court abused its

discretion by admitting certain out of court statements. Neither

the objectionable statements nor the speaker is identified. Such

underdeveloped arguments in the appellant’s brief are waived on

appeal. United States v. Avants, 367 F.3d 433, 442 (5th Cir.

2004).

XII. Predetermined Guilt

Gonzales contends that the district court predetermined his

guilt and made a decision regarding admissibility of evidence

accordingly. Gonzales’s argument is based entirely on one

statement by the court which Gonzales plainly misunderstands.19

19
[Defense Counsel]: Richard Gonzales came up to Frank
Gonzalez and said, “I just had an
accidental discharge . . .”

[AUSA]: Your Honor, it’s hearsay.

[Defense Counsel]: The hearsay is a state of mind of Mr.
Gonzalez.

[The Court]: How is it indicative of the state of
mind, if it is—why is it relevant if
it’s not true?

41
The court was not excluding the proffered hearsay because it

believed the statement was false; rather, the court was

asserting, correctly, that the statement was being offered for

the truth of the matter asserted.

XIII. Booker

Relying on United States v. Booker, 125 S.Ct. 738 (2005),

Gonzales and Reyna both challenge their sentence enhancements.

Gonzales also contends the district court erred by not

considering all factors listed under 18 U.S.C. § 3553(a).

Because neither defendant raised these arguments below,

review is for plain error only. United States v. Mares, 402 F.3d

511, 521 (5th Cir. 2005).

This court has held that “if the effect of the error is

uncertain so that we do not know which, if either, side it helped

the defendant loses.” Mares, 402 F.3d at 521. The record must

indicate that, had the court applied an advisory sentencing

scheme rather than a mandatory one, it would have reached a

different result more favorable to the defense. Id.

Neither Gonzales nor Reyna meets this burden. The district

court sentenced Gonzales to the maximum imprisonment allowed by

the guidelines. And, although Reyna was sentenced at the bottom

of his guideline range, this fact alone is insufficient to show

that the court, under an advisory scheme, likely would have

reached a different result (and nothing else points to that

42
conclusion). United States v. Hernandez-Gonzalez, 405 F.3d 260,

262 (5th Cir. 2005).

Booker held that the district court, treating the

guidelines as advisory, should consider the factors listed in 18

U.S.C. § 3553(a). Gonzales contends that the district court

would have granted his motion for downward departure had it

considered the factors listed in section 3553(a). We reject this

contention. The district court did invoke section 3553(a) when

it explained that “as to each of the defendants, the sentences

imposed are consistent with the guideline sentencing objectives

of punishment, incapacitation and deterrence.”

XIV. Sentencing: Two or More Participants

This court reviews the district court’s findings of fact

regarding sentencing factors for clear error. United States v.

Mergerson, 4 F.3d 337, 347 (5th Cir. 1993). A factual finding is

not clearly erroneous “as long as it is plausible in light of the

record as a whole.” United States v. Holmes, 406 F.3d 337, 363

(5th Cir. 2005). We review the district court’s interpretation

and application of the sentencing guidelines de novo. United

States v. Clayton, 172 F.3d 347, 353 (5th Cir. 1999). For

sentences imposed pre-Booker and challenged post-Booker, these

standards of review are unchanged. United States v. Villegas,

404 F.3d 355, 359 (5th Cir.2005).

The Sentencing Guidelines provide for a base-offense level

43
of twelve if the defendant’s offense involved two or more

participants. See U.S.S.G. § 2H1.1(a)(2). Finding multiple

participants, the district court correctly applied this base

offense level to each defendant. U.S.S.G. § 2H1.1(a)(2).

Gonzales and Reyna challenge this finding, arguing that (1) the

crime of willful deliberate indifference to medical needs is a

crime of omission, so it cannot involve multiple participants;

(2) the defendants were not charged with conspiracy so they must

have acted alone; and (3) each defendant was acting

independently. The first two are questions of guideline

interpretation, which we review de novo. The last is a factual

determination that we review for clear error. United States v.

Ho, 311 F.3d 589, 610 (5th Cir. 2002).

It is not determinative that the defendants were convicted

of a crime of omission. The commentary to section 2H1.1 defines

“participant”, in reference to section 3B1.1, as a person who is

criminally responsible for the commission of the offense, but

need not have been convicted. U.S.S.G. § 2H1.1 comment (n.2);

U.S.S.G. § 3B1.1 comment. (n.1). By the plain text of the

guideline, all three defendants, Gonzales, Reyna, and Gomez,

qualify as participants since they are all criminally responsible

for the same offense.

A defendant need not be charged with conspiracy to qualify

for a multiple-participant enhancement. As long as the

44
defendants participated knowingly in some part of the criminal

enterprise, they need not even be convicted of the offense.

United States v. Glinsey, 209 F.3d 386, 396 (5th Cir. 2000);

U.S.S.G. § 2H1.1, comment 2. We have upheld findings of multiple

participants without an underlying conspiracy charge. See, e.g.,

United States v. Mersservey, 317 F.3d 457, 464 (5th Cir. 2002).

Finally, the district court did not clearly err in finding

that the defendants acted together. The defendants were together

in the kitchen when Carrera was complaining of injury, together

at the Brazos County Jail when they dragged Carrera to the bus,

and together on the bus when they pepper sprayed him.

We affirm the sentencing court’s finding of two or more

participants.

XV. Sentencing: Organizer, Leader, Manager, or Supervisor

A factual finding that a defendant was an organizer, leader,

manager, or supervisor under Sentencing Guideline §3B1.1(c) is

reviewed for clear error. United States v. Turner, 319 F.3d 716,

725 (5th Cir.2003).

It was not clear error for the district court to impose a

two-level sentence adjustment because Gonzales was an “organizer,

leader, manager or supervisor” of at least one of the other

participants in the criminal activity. U.S.S.G. §3B1.1(c).

Gonzales was the team leader of the San Antonio unit, and

according to everyone who testified at trial, the team leader of

45
the operation that led to Carrera’s arrest. Throughout the day,

Gonzales issued orders to both Reyna and Gomez. For example,

Gonzales rejected the driver’s suggestion that Carrera get

medical attention before being moved; he ordered Carrera moved

from the house to the van; he ordered Carrera moved from the van

to the bus; and he communicated with Grace Winfrey, his INS

supervisor in San Antonio about Carrera’s condition.

Gonzales relies on United States v. DeGovanni, 104 F.3d 43

(3d Cir. 1997), in which the Third Circuit held that a

supervising officer must participate in the criminal activity,

not merely assume a de jure role in the police hierarchy.

DeGovanni doesn’t apply here because Gonzales both led and

participated in the criminal activity. Accordingly, we affirm

the sentencing court’s finding that Gonzales was a leader.

XVI. Sentencing: Vulnerable Victim

The finding of vulnerability is a fact question that is

reviewed for clear error. United States v. Brugman, 364 F.3d

613, 621 (5th Cir.2004).

The district court’s finding that Carrera was a vulnerable

victim is plausible. The Sentencing Guidelines provide for a

two-level adjustment if the defendant should have known that the

victim was vulnerable. See U.S.S.G. § 3A1.1(b)(1). This

vulnerability must be “an ‘unusual’ vulnerability which is

present in only some victims of that type of crime.” United

46
States v. Moree, 897 F.2d 1329, 1335–36 (5th Cir. 1990). See also

United States v. Angeles-Mendoza, 407 F.3d 742, 747 n.5. (5th

Cir. 2005) (approving of the Ninth Circuit definition of

vulnerable victim as “one who is ‘less able to resist than the

typical victim of the offense’”). Gomez argues that this

adjustment is inapplicable because it is only intended to punish

targeting a vulnerable victim. He argues that Carrera was not

vulnerable to begin with; instead, he was made vulnerable by the

offense.

The guidelines were amended in 1995 to clarify that there is

no targeting requirement. United States v. Burgos, 137 F.3d 841,

843–844 (5th Cir.1998) This court has “not required a specific

‘targeting’ of a vulnerable victim beyond the requirement that

the defendant knew or should have known of the vulnerability.”

Id. Moreover, Carrera was vulnerable. He was quadriplegic, an

unusual vulnerability among section 242 victims.20 Because

20
The government, in reliance on Lambright, argues that
Carrera was vulnerable merely because he was in custody. United
States v. Lambright, 320 F.3d 517, 518 (5th Cir.2003). This
theory of vulnerability is incorrect. In Lambright, where this
court held that a prisoner who was assaulted while locked in his
cell was vulnerable, the assault itself was the underlying
constitutional violation. That violation was independent of, and
made worse by, the fact that the prisoner was in custody. But
here, the constitutional violation of deliberate indifference
depends on Carrara being in custody: without custody there is no
duty to provide medical care. Thus, the vulnerability of being
in custody is not unusual to this type of crime; it is a
prerequisite.

47
Carrera was paralyzed he was limited in the ability to seek help

from other officers and was particularly at the mercy of the

defendants. Accordingly, we affirm the sentencing court’s finding

that Carrera was a vulnerable victim.

XVII. Sentencing: Restraint of Victim

The finding of restraint is a fact question that is reviewed

for clear error. United States v. Brugman, 364 F.3d 613, 621

(5th Cir.2004). The Sentencing Guidelines provide for a two

level adjustment if the victim was physically restrained in the

course of the offense. See U.S.S.G. § 3A1.3. Gonzales contends

that the district court “double counted” by adjusting his

sentence based both upon Carrera’s restraint and his

vulnerability. That Carrara was handcuffed is irrelevant, he

argues, because Carrara couldn’t move anyway.

The district court’s finding that both restraint-of-victim

and vulnerability adjustments were applicable is plausible in

light of the record as a whole. There is evidence that Carrara,

though paralyzed from the chest down, had some capacity for

movement. It is plausible that because he was handcuffed behind

his back, even this limited range of motion was taken away so,

for example, his ability to wipe the pepper spray from his eyes

was limited even further by handcuffs. We affirm the sentencing

court’s finding that Carrara was restrained.

XVIII. Obstruction of Justice

The district court’s factual finding that Gonzales

48
obstructed justice is reviewed for clear error. United States v.

Holmes, 406 F.3d 337, 363 (5th Cir.2005). “A factual finding is

not clearly erroneous as long as it is plausible in light of the

record as a whole” and “[t]his is particularly true where a

sentencing court’s imposition of [an obstruction of justice]

enhancement is based, at least in part, upon an evaluation of a

witness’ credibility.” Id.

The district court imposed a two-level enhancement for

obstruction of justice based on Gonzales’s false testimony at the

sentencing hearing and on his false statements to investigators,

claiming accidental discharge of his pepper spray. The

guidelines permit an enhancement for obstruction of justice “if

the defendant willfully obstructed or impeded . . . the

administration of justice during the course of the investigation,

prosecution, or sentencing of the instant offense of conviction.”

U.S.S.G. § 3C1.1. Obstruction of justice includes “committing .

. . perjury” and “providing materially false information to a

judge.” Id. at n.4(b)&(f). Thus, perjury at a sentencing

hearing is a sufficient basis for an obstruction of justice

enhancement. United States v. Goldfaden, 987 F.2d 225, 227 (5th

Cir.1993). Obstruction of justice also includes giving a

“materially false statement to a law enforcement officer that

significantly obstructed . . . the official investigation.”

U.S.S.G. § 3C1.1, cmt. n.4(g).

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 Gonzales doesn’t even challenge the obstruction of justice

finding based on perjury at the sentencing hearing. This

finding, which is not clearly erroneous, alone would be

sufficient for a section 3C1.1 enhancement. We affirm the

sentencing court’s finding of obstruction.

XIX. Amendment of the PSR

Gonzales challenges the district court’s denial of his post-

trial motion to amend and clarify the judgment and presentence

report to more clearly reflect that the court did not find for

sentencing purposes that Gonzales was guilty of aggravated

assault or of use of a dangerous weapon and to require an

amendment to the PSR expressly so stating.

Gonzales, who was sentenced on February 2, 2004, filed his

notice of appeal on February 5, 2004. On February 20, 2004,

Gonzales filed his above described motion to clarify and to amend

the PSR. The district court denied the motion in a March 22,

2004 order. Gonzales’s February 5 notice of appeal obviously

mentions neither the February 20 motion nor the court’s ruling

thereon, and Gonzales has neither filed a new notice of appeal

nor amended the February 5 notice of appeal. Consequently this

matter is not properly before us. See Fed. R. App. P.

3(c)(1)(B). Contrary to Gonzales’s contention, Fed. R. App. P.

4(b)(3)(B) & (C) are inapplicable because, even when liberally

construed, Gonzales’s February 20 motion is not one of the three

50
types of motions listed in Rule 4(b)(3)(A).21

CONCLUSION

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

21
We note that in any event Gonzales’s contention is clearly
without merit. The district court’s written statement of reasons
for sentencing (furnished to the Bureau of Prisons) applied a
base offense level of 12 and specifically rejected paragraph 73
of the PSR (the focus of Gonzales’s complaint) which relied on
“aggravated assault” and use of “a dangerous weapon” to recommend
a base offense level of 21. As the district court’s March 22,
2004 order states: “[t]he record available to the Bureau of
Prisons makes clear that this court did not sentence Gonzales on
the basis of aggravated assault or dangerous weapon.” The
requirements of Rule 32(i)(3)(B) & (C) was adequately met.

51